EX-10.3 INTERCREDITOR AGREEMENT



 




Exhibit
10.3




 

 








INTERCREDITOR AGREEMENT



Dated as of July 6, 2007


by and among


NOVELIS INC.,

NOVELIS CORPORATION,

NOVELIS PAE CORPORATION,

NOVELIS FINANCES USA LLC,

NOVELIS SOUTH AMERICA HOLDINGS LLC,

ALUMINUM UPSTREAM HOLDINGS LLC,

NOVELIS UK LTD,

NOVELIS AG,

AV ALUMINUM INC., and

the Subsidiary Guarantors party hereto,

as Grantors,


ABN AMRO BANK N.V.,

as Revolving Credit Administrative Agent


ABN AMRO BANK N.A., ACTING THROUGH ITS CANADIAN BRANCH,

as Revolving Credit Canadian Administrative Agent and

as Revolving Credit Canadian Funding Agent,


LA SALLE BUSINESS CREDIT, LLC,

as Revolving Credit Collateral Agent and

as Revolving Credit Funding Agent,


and

UBS AG, STAMFORD BRANCH,

as Term Loan Administrative Agent, and

Term Loan Collateral Agent



 

 






 









 












TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	I.	 	Definitions	 	 	2	 
	 
	 	1.1	 	Defined Terms	 	 	2	 
	 
	 	1.2	 	Terms Generally	 	 	18	 
	 
	 	 	 	 	 	 	 	 
	II.	 	Lien Priorities	 	 	19	 
	 
	 	2.1	 	Relative Priorities	 	 	19	 
	 
	 	2.2	 	Prohibition on Contesting Liens	 	 	19	 
	 
	 	2.3	 	No New Liens	 	 	19	 
	 
	 	2.4	 	Similar Liens and Agreements	 	 	20	 
	 
	 	2.5	 	German Real Estate	 	 	20	 
	 
	 	 	 	 	 	 	 	 
	III.	 	Enforcement	 	 	21	 
	 
	 	3.1	 	Exercise of Remedies — Restrictions on the Term Loan Agents and the other Term Loan Claimholders
	 	 	21	 
	 
	 	3.2	 	Exercise of Remedies — Restrictions on the Revolving Credit Agents and the other Revolving Credit Claimholders	 	 	24	 
	 
	 	3.3	 	Exercise of Remedies — Collateral Access Rights
	 	 	28	 
	 
	 	3.4	 	Exercise of Remedies — Intellectual Property Rights/Access to Information/Use of Equipment	 	 	30	 
	 
	 	3.5	 	Exercise of Remedies — Set Off and Tracing of and Priorities in Proceeds	 	 	30	 
	 
	 	 	 	 	 	 	 	 
	IV.	 	Payments	 	 	31	 
	 
	 	4.1	 	Application of Proceeds	 	 	31	 
	 
	 	4.2	 	Payments Over in Violation of Agreement	 	 	32	 
	 
	 	4.3	 	Application of Payments	 	 	33	 
	 
	 	 	 	 	 	 	 	 
	V.	 	Other Agreements	 	 	33	 
	 
	 	5.1	 	Releases
	 	 	33	 
	 
	 	5.2	 	Insurance	 	 	35	 
	 
	 	5.3	 	Amendments to Revolving Credit Loan Documents and Term Loan Documents; Refinancings; Legending Provisions	 	 	36	 
	 
	 	5.4	 	Bailee or Agency for Perfection	 	 	39	 
	 
	 	5.5	 	When Discharge of Revolving Credit Obligations and Discharge of Term Loan Obligations Deemed to Not Have Occurred	 	 	42	 
	 
	 	 	 	 	 	 	 	 
	VI.	 	Insolvency or Liquidation Proceedings	 	 	42	 
	 
	 	6.1	 	Finance and Sale Issues	 	 	42	 
	 
	 	6.2	 	Relief from the Automatic Stay	 	 	44	 
	 
	 	6.3	 	Adequate Protection	 	 	44	 
	 
	 	6.4	 	Avoidance Issues	 	 	46	 
	 
	 	6.5	 	Reorganization Securities	 	 	46	 
	 
	 	6.6	 	Post-Petition Interest	 	 	46	 
	 
	 	6.7	 	Waiver — Section 1111(b)(2) Issues	 	 	46	 





 


 



(i)









 






	 	 	 	 	 	 	 	 	 
	 
	 	6.8	 	Asset Dispositions in an Insolvency or Liquidation Proceeding	 	 	47	 
	 
	 	6.9	 	Additional Section 363 and Section 364 Matters	 	 	47	 
	 
	 	6.10	 	Effectiveness in Insolvency or Liquidation Proceedings	 	 	48	 
	 
	 	6.11	 	Separate Grants of Security and Separate Classification	 	 	48	 
	 
	 	 	 	 	 	 	 	 
	VII.	 	Reliance; Waivers; Etc.	 	 	49	 
	 
	 	7.1	 	Reliance	 	 	49	 
	 
	 	7.2	 	No Warranties or Liability	 	 	49	 
	 
	 	7.3	 	No Waiver of Lien Priorities	 	 	49	 
	 
	 	7.4	 	Obligations Unconditional	 	 	51	 
	 
	 	 	 	 	 	 	 	 
	VIII.	 	Miscellaneous	 	 	51	 
	 
	 	8.1	 	Conflicts; No Additional Rights	 	 	51	 
	 
	 	8.2	 	Effectiveness; Continuing Nature of this Agreement; Severability	 	 	51	 
	 
	 	8.3	 	Amendments; Waivers	 	 	52	 
	 
	 	8.4	 	Information Concerning Financial Condition of Holdings, the Borrowers and their Respective Subsidiaries	 	 	52	 
	 
	 	8.5	 	Subrogation	 	 	53	 
	 
	 	8.6	 	SUBMISSION TO JURISDICTION; WAIVERS	 	 	54	 
	 
	 	8.7	 	Notices	 	 	55	 
	 
	 	8.8	 	Further Assurances	 	 	55	 
	 
	 	8.9	 	Governing Law	 	 	55	 
	 
	 	8.10	 	Binding Effect on Successors and Assigns and on Claimholders and Term Loan Agents	 	 	55	 
	 
	 	8.11	 	Specific Performance	 	 	56	 
	 
	 	8.12	 	Headings	 	 	56	 
	 
	 	8.13	 	Counterparts	 	 	56	 
	 
	 	8.14	 	Authorization	 	 	56	 
	 
	 	8.15	 	No Third Party Beneficiaries	 	 	56	 
	 
	 	8.16	 	Provisions Solely to Define Relative Rights	 	 	56	 
	 
	 	8.17	 	Marshalling of Assets	 	 	57	 
	 
	 	8.18	 	Joinder of Additional Grantors	 	 	57	 
	 
	 	8.19	 	Agent for Service of Process	 	 	57	 







 


 


(ii)











 





INTERCREDITOR AGREEMENT




          This INTERCREDITOR AGREEMENT, is dated as of July 6, 2007, and entered into by and among
NOVELIS INC., a corporation formed under the Canada Business Corporations Act (the “Canadian
Borrower”), NOVELIS CORPORATION, a Texas corporation (“Novelis Corporation”), NOVELIS PAE
CORPORATION, a Delaware corporation (“Novelis PAE”), NOVELIS FINANCES USA LLC, a Delaware limited
liability company (“Novelis Finances”), NOVELIS SOUTH AMERICA HOLDINGS LLC, a Delaware limited
liability company (“Novelis South”), ALUMINUM UPSTREAM HOLDINGS LLC, a Delaware limited liability
company (“Aluminum Upstream” and, together with Novelis Corporation, Novelis PAE, Novelis Finances
and Novelis South, the “U.S. Borrowers”), NOVELIS UK LTD, a limited liability company incorporated
under the laws of England and Wales with registered number 00279596 (the “U.K. Borrower”), and
NOVELIS AG, a stock corporation (AG) organized under the laws of Switzerland (the “Swiss Borrower”
and, together with the Canadian Borrower, the U.S. Borrowers, and the U.K. Borrower, the
“Borrowers” and each, a “Borrower”), AV ALUMINUM INC., a corporation formed under the Canada
Business Corporations Act (“Holdings”), the subsidiaries of Holdings from time to time party hereto
(the “Subsidiary Guarantors” and, together with Holdings, the “Guarantors” and each, a
“Guarantor”), ABN AMRO BANK N.V., as administrative agent (together with its successors in such
capacity, “Revolving Credit Administrative Agent”) for the Revolving Credit Lenders (such term and
each other capitalized term used herein having the meanings assigned to them in Section 1
below), LA SALLE BUSINESS CREDIT, LLC, as collateral agent (together with its successors in such
capacity, “Revolving Credit Collateral Agent”) for the Revolving Credit Claimholders and as funding
agent (together with its successors in such capacity, “Revolving Credit Funding Agent”), ABN AMRO
BANK N.V., ACTING THROUGH ITS CANADIAN BRANCH, as Canadian administrative agent (together with its
successors in such capacity, “Revolving Credit Canadian Administrative Agent”) for the Revolving
Credit Lenders and as Canadian funding agent (together with its successors in such capacity,
“Revolving Credit Canadian Funding Agent” and, together with the Revolving Credit Administrative
Agent, the Revolving Credit Funding Agent and the Revolving Credit Collateral Agent, the “Revolving
Credit Agents”, and UBS AG, STAMFORD BRANCH, as administrative agent (together with its successors
in such capacity, “Term Loan Administrative Agent”) for the Term Loan Lenders, and as collateral
agent (together with its successors in such capacity, “Term Loan Collateral Agent” and, together
with the Term Loan Administrative Agent, the “Term Loan Agents”) for the Term Loan Claimholders.
As described in more detail in Section 8.10 hereof, this Agreement is intended to be
binding on all Claimholders and Agents.




RECITALS




          The Borrowers, the Guarantors, the banks, financial institutions and other entities party
thereto as lenders, the Revolving Credit Agents and the other parties thereto, have entered into
that certain Credit Agreement, dated as of the date hereof, providing for certain senior secured
revolving credit facilities (as Modified or Refinanced from time to time, the “Revolving Credit
Agreement”);




          The Canadian Borrower, Novelis Corporation, the Guarantors, the banks, financial institutions
and other entities party thereto as lenders, the Term Loan Agents and the




 
 






 









 







other parties thereto,have entered into that certain Credit Agreement, dated as of the date hereof, providing for certain
senior secured term loan facilities (as Modified or Refinanced from time to time, the “Term Loan
Agreement”);




          The obligations of the Grantors to (i) the Revolving Credit Agents and the other Revolving
Credit Claimholders and (ii) the Term Loan Agents and the other Term Loan Claimholders are each
secured by Liens on certain of the assets of the Grantors; and




          As a condition to the closing of each of the Financing Transactions, (i) the Revolving Credit
Agents, on behalf of the Revolving Credit Claimholders and (ii) the Term Loan Agents, on behalf of
the Term Loan Claimholders, have agreed to the relative priority of the respective Liens of the
Revolving Credit Claimholders and the Term Loan Claimholders on the Collateral and certain other
rights, priorities and interests as set forth in this Agreement.




AGREEMENT




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




          I. DEFINITIONS.




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



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




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




          “Account Agreements” means any lockbox account agreement, pledged account agreement, blocked
account agreement, deposit account control agreement, securities account control agreement, or any
similar deposit or securities account agreements among any Revolving Credit Agents and/or any Term Loan Agents and any Borrowers and/or Guarantors and the relevant
financial institution depository or securities intermediary.




 
 





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          “Affiliate” means, with respect to a specified Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.




          “Agents” means the Revolving Credit Agents and the Term Loan Agents.




          “Agreement” means this Intercreditor Agreement, as Modified from time to time.




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




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




          “Bankruptcy Law” means the Bankruptcy Code and any similar federal, state or foreign law for
the relief of debtors or relating to insolvency, reorganization or receivership, including the
Bankruptcy and Insolvency Act (Canada) and the Companies’ Creditors Arrangement Act (Canada).




          “Board of Directors” means, with respect to any Person, (i) in the case of any corporation,
the board of directors of such Person, (ii) in the case of any limited liability company, the board
of managers of such Person, (iii) in the case of any partnership, the Board of Directors of the
general partner of such Person and (iv) in any other case, the functional equivalent of the
foregoing.




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




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




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




          “Claimholders” means the Revolving Credit Claimholders and the Term Loan Claimholders.




          “Collateral” means all of the assets and property of any Grantor, whether real, personal or
mixed, constituting Revolving Credit Priority Collateral or Term Loan Priority Collateral.




          “Closing Date” means July 6, 2007.




          “Comparable Revolving Credit Security Document” means, in relation to any Collateral subject
to any Term Loan Security Document, the Revolving Credit Security Document that creates a Lien in
the same Collateral, granted by the same Grantors, as applicable.




 
 







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          “Comparable Term Loan Security Document” means, in relation to any Collateral subject to any
Revolving Credit Security Document, the Term Loan Security Document that creates a Lien in the same
Collateral, granted by the same Grantors, as applicable.




          “Control” means the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ownership of voting
securities, by contract or otherwise, and the term “Controlled” shall have a meaning correlative
thereto.




          “Copyrights” means, collectively, all copyrights (whether statutory or common law, whether
established, registered or recorded in the United States or any other country or any political
subdivision thereof, whether registered or unregistered and whether published or unpublished) and
all mask works (as such term is defined in 17 U.S.C. Section 901, et seq.), together with any and
all (i) copyright registrations and applications, (ii) rights and privileges arising under
applicable law with respect to such copyrights, (iii) renewals and extensions thereof and
amendments thereto, (iv) income, fees, royalties, damages, claims and payments now or hereafter due
and/or payable with respect thereto, including damages and payments for past, present or future
infringements or other violations thereof, (v) rights corresponding thereto throughout the world
and (vi) rights to sue for past, present or future infringements thereof.




          “Deposit Accounts” means, collectively, (i) all “deposit accounts” (as defined in Article 9
of
the UCC) and all accounts and sub-accounts relating to any of the foregoing accounts and (ii) all
cash, funds, checks, notes and instruments from time to time held in or on deposit in any of the
accounts or sub-accounts described in clause (i) of this definition.




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




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




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




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




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




 
 






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




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




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




          (1) termination or expiration of all commitments to extend credit that would constitute Term
Loan Obligations (including any Refinancings of any thereof);




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




          (3) termination or cash collateralization (in an amount and manner reasonably satisfactory to
the Term Loan Agents, but in no event greater than 105% of the aggregate undrawn face amount) of,
or receipt by the Term Loan Agents of supporting letters of credit reasonably satisfactory to the
Term Loan Agents with respect to, all letters of credit issued or otherwise outstanding under the
Term Loan Documents and constituting Term Loan Obligations (if any); and




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




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




          “Disposition” has the meaning assigned to that term in Section 5.1(b).




 
 






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          “Enforcement” means, collectively or individually for any of the Revolving Credit Agents or
any of the Term Loan Agents when a Revolving Credit Default or a Term Loan Default, as the case may
be, has occurred and is continuing, any action taken by any such Persons to repossess, or exercise
any remedies with respect to, any material amount of Collateral or commence the judicial
enforcement of any of the rights and remedies under the Revolving Credit Loan Documents or the Term
Loan Documents or under any applicable law, but in all cases excluding (i) the demand of the
repayment of all the principal amount of any of the Obligations, (ii) the imposition of a default
rate or late fee and (iii) the collection and application of, or the delivery of any activation
notice with respect to, Accounts or other monies deposited from time to time in Deposit Accounts or
Securities Accounts (in each case, other than Net Cash Proceeds Accounts) against the Revolving
Credit Obligations pursuant to the Revolving Credit Loan Documents; provided,
however, the foregoing exclusion set forth in clause (iii) shall immediately cease to apply
upon the earlier of (x) any Revolving Credit Agent’s delivery of written notice to the Term Loan
Agents that such exclusion no longer applies, (y) the lapse of 10 consecutive Business Days after a
Revolving Credit Default in which no “Revolving Loans” are made and no “Letters of Credit” are
issued (in each case, as defined in the Revolving Credit Agreement), and (z) the termination of the
Revolving Commitments pursuant to Section 8.01 (or any other applicable provision) of the
Revolving Credit Agreement.




          “Enforcement Notice” means a written notice delivered, at a time when a Revolving Credit
Default or Term Loan Default has occurred and is continuing, by either (i) any Revolving Credit
Agent to any Term Loan Agent or (ii) any Term Loan Agent to any Revolving Credit Agent announcing
that an Enforcement Period has commenced, specifying the relevant event of default, stating the
current balance of the Revolving Credit Obligations (in the case of a notice sent by a Revolving
Credit Agent) or the current balance of the Term Loan Obligations (in the case of a notice sent by
a Term Loan Agent), as applicable, and requesting the current balance owing of the Revolving Credit
Obligations (in the case of a notice sent by a Term Loan Agent) or the Term Loan Obligations (in
the case of a notice sent by a Revolving Credit Agent), as applicable.




          “Enforcement Period” means the period of time following the receipt by either (i) any
Revolving Credit Agent of an Enforcement Notice from any Term Loan Agent or (ii) any Term Loan
Agent of an Enforcement Notice from any Revolving Credit Agent until either (a) in the case of an
Enforcement Period commenced by any Term Loan Agent, the Discharge of Term Loan Obligations, (b) in
the case of an Enforcement Period commenced by Revolving Credit Agent, the Discharge of Revolving
Credit Obligations or (c) the applicable Revolving Credit Agents and the applicable Term Loan
Agents agree in writing to terminate the Enforcement Period.




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




 
 






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          “Equity Interests” means, with respect to any Person, any and all shares, interests,
participations or other equivalents, including membership interests (however designated, whether
voting or nonvoting), of equity of such Person, including, if such Person is a partnership,
partnership interests (whether general or limited) and any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of, or distributions of
property of, such partnership, whether outstanding on the date hereof or issued thereafter, but
excluding debt securities convertible or exchangeable into such equity.




          “5-25 Limitation” means the requirement in the Term Loan Agreement that no more than 25% of
the original amount of any loan made to the Canadian Borrower under the Term Loan Agreement be
subject to scheduled amortization payments to the Term Loan Lenders or certain types of mandatory
prepayments to the Term Loan Lenders during the first five years after such loans are advanced.




          “Financing Transactions” means the execution, delivery and initial funding under the Revolving
Credit Agreement and the Term Loan Agreement.




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




          “German Assignment Agreements” means the Transfer of Title to Moveable Assets by Novelis
Deutschland Gmbh to the Term Loan Collateral Agent and the Security Transfer and Assignment
Agreement relating to Intellectual Property Rights by Novelis Deutschland Gmbh to the Term Loan
Collateral Agent.




          “German Receivables Assignments” means the Assignment of Receivables by Novelis AG to the
Revolving Credit Collateral Agent and the Global Assignment of Receivables and Insurance Claims by
Novelis Deutschland Gmbh to the Revolving Credit Collateral Agent.




          “German Guarantors” shall mean each Subsidiary of Holdings organized in Germany party to the
Revolving Credit Loan Documents and the Term Loan Documents as a Guarantor, and each other
Subsidiary of Holdings organized in Germany that is required to become a Guarantor pursuant to the
terms to the Revolving Credit Loan Documents and the Term Loan Documents.




          “Governmental Authority” means the government of the United States or any other nation, or of
any political subdivision thereof, whether state, provincial or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).




          “Grantors” means each Borrower, each Guarantor and each other Person that has or may from time
to time hereafter execute and deliver a Revolving Credit Security Document or a Term Loan Security
Document as a “Grantor” or a “Pledgor” (or the equivalent thereof).




 
 







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




          “Hedging Agreements” means any swap, cap, collar, forward purchase or similar agreements or
arrangements dealing with interest rates, currency exchange rates or commodity prices, either
generally or under specific contingencies entered into for the purposes of hedging exposure to
interest or exchange rates, loan credit exchanges, security or currency valuations or commodity
prices, in each case, not for speculative purposes.




          “Hedging Obligations” means obligations under or with respect to Hedging Agreements.




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




          “Indebtedness” means and includes all Obligations that constitute “Indebtedness” within the
meaning of the Revolving Credit Agreement or the Term Loan Agreement, as applicable.




          “Insolvency or Liquidation Proceeding” means:




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




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




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




          (4) any assignment for the benefit of creditors or any other marshalling of assets and
liabilities of any Grantor;




          (5) any analogous step or procedure under any jurisdiction.



provided that for purposes of Section 3.3 and Section 6 of this Agreement,
items described in clauses (1) through (5) above shall constitute an Insolvency or Liquidation
Proceeding only if such item constitutes (or would constitute but for the effect of any bankruptcy
or insolvency law) a Revolving Credit Default or Term Loan Default (or an event that with notice or
passage of time would constitute a Revolving Credit Default or Term Loan Default).




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




          “Intellectual Property” means, collectively, Patents, Trademarks, Copyrights, Intellectual
Property Licenses and Trade Secrets and Other Proprietary Rights.




 
 








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          “Intellectual Property Licenses” means, collectively, with respect to each Grantor, all
license agreements, distribution agreements and covenants not to sue (regardless of whether such
agreements and covenants are contained within an agreement that also covers other matters, such as
development or consulting) with respect to any Patent, Trademark, Copyright or Trade Secrets and
Other Proprietary Rights, whether such Grantor is a licensor or licensee, distributor or
distributee under any such agreement, together with any and all (i) amendments, renewals,
extensions, supplements and continuations thereof, (ii) income, fees, royalties, damages, claims
and payments now and hereafter due and/or payable thereunder and with respect thereto including
damages and payments for past, present or future infringements or violations thereof, (iii) rights
to sue for past, present and future infringements, breaches or violations thereof and (iv) other
rights to use, exploit or practice any or all Patents, Trademarks, Copyrights or Trade Secrets and
Other Proprietary Rights.




          “Intercompany Notes of Subsidiaries” means all indebtedness owing by any of the Subsidiaries
of Holdings to any Grantor, whether or not represented by a note or agreement.




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




          “Inventory” mean all present and future “inventory” (as defined in Article 9 of the UCC), and
in any event, including all goods held for sale or lease or to be furnished under contracts of
service or so leased or furnished, all raw materials, work in process, finished goods, and
materials used or consumed in the manufacture, packing, shipping, advertising, selling, leasing,
furnishing or production of such inventory or otherwise used or consumed in any Grantor’s business;
the purchaser’s interest in any goods being manufactured pursuant to any contract or other
arrangement with a supplier, all goods in transit from suppliers (whether or not evidenced by a
document of title); all goods in which any Grantor has an interest in mass or a joint or other
interest or right of any kind; and all goods which are returned to or repossessed by any Grantor,
all computer programs embedded in any goods and all accessions thereto and products thereof (in
each case, regardless of whether characterized as inventory under the UCC).




          “Italian Pledge Agreement” means that certain Pledge Agreement Over Shares to be entered into
among Novelis Europe Holdings Limited, UBS AG, Stamford Branch and the custodian party thereto
relating to the shares of Novelis Italian Spa.




          “Korea Share Pledge Agreement” means the Share Kun-Pledge Agreement, dated as of July 6, 2007,
among 4260848 Canada Inc., 4260856 Canada Inc., UBS AG, Stamford Branch and LaSalle Business
Credit, LLC.




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




          “Letter of Credit Rights” means any “letter-of-credit right” (as defined in Article 9 of the
UCC).




          “Lien” means (a) any mortgage, deed of trust, lien, pledge, encumbrance, claim, charge,
assignment, hypothecation, security interest or encumbrance of any kind or any




 
 







9









 







arrangement to provide priority or preference or any filing of any financing statement or any financing change
statement under the UCC or any other similar notice of lien under any similar notice or recording
statute of any Governmental Authority, including any easement, right-of-way or other encumbrance on
title to Real Property, in each of the foregoing cases whether voluntary or imposed by law, and any
agreement to give any of the foregoing; (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating to such property;
and (c) in the case of securities, any purchase option, call or similar right of a third party with
respect to such securities.




          “Modifications” means any amendments, restatements, amendment and restatements, supplements,
modifications, waivers, consents, renewals, replacements, consolidations, severances, substitutions
and extensions of any document or instrument from time to time. “Modify” and “Modified” shall have
meanings correlative thereto.




          “Mortgaged Premises” means any real property which shall now or hereafter be subject to a Term
Loan Mortgage.




          “Net Cash Proceeds Accounts” means any segregated Deposit Accounts or Securities Accounts
established by any Borrower or any other Grantor in accordance with the requirements of the Term
Loan Agreement and which (1) solely contain proceeds of Term Loan Priority Collateral (and any
products of such proceeds), and which have been designated in writing to the Revolving Credit
Agents as such on or prior to the time that the proceeds from any sale of Term Loan Priority
Collateral shall be deposited therein, pending final application of such proceeds (and any products
of such proceeds) or (2) contain amounts that would have been required to be applied to be to the
repayment of term loans made to the Canadian Borrower under the Term Loan Agreement but for the
5-25 Limitation, and interest thereon, in each case, in accordance with the terms of the Term Loan
Agreement.




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




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




          “New York UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as
in effect from time to time in the State of New York.




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




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




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




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




 
 







10









 








          “Obligations” means all Revolving Credit Obligations and Term Loan Obligations.




          “Patents” means, collectively, all patents, patent applications, certificates of inventions,
industrial designs and rights corresponding thereto throughout the world (whether established or
registered or recorded in the United States or any other country or any political subdivision
thereof), together with any and all (i) rights and privileges arising under applicable law with
respect to any of the foregoing, (ii) inventions and improvements described and claimed therein,
(iii) reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof
and amendments thereto, (iv) income, fees, royalties, damages, claims and payments now or hereafter
due and/or payable thereunder and with respect thereto including damages and payments for past,
present or future infringements or other violations thereof, (v) rights corresponding thereto
throughout the world and (vi) rights to sue for past, present or future infringements or other
violations thereof.




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




          “Pledged Collateral” has the meaning assigned to that term in Section 5.4(a).




          “Post-Petition Interest” means any interest or entitlement to fees or expenses or other
charges that accrues after the commencement of any Insolvency or Liquidation Proceeding (or would
accrue but for the commencement of an Insolvency or Liquidation Proceeding), whether or not allowed
or allowable in any such Insolvency or Liquidation Proceeding.




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




          “Real Property” means, collectively, all right, title and interest (including any leasehold,
mineral or other estate) in and to any and all parcels of or interests in real property owned,
leased or operated by any Person, whether by lease, license or other means, together with, in each
case, all easements, hereditaments and appurtenances relating thereto, all improvements and
appurtenant fixtures and equipment, all general intangibles and contract rights and other property
and rights incidental to the ownership, lease or operation thereof.




          “Receivables Purchase Agreement” shall mean the receivables purchase agreement and any related
servicing agreements between Novelis Deutschland GmbH, as seller and collection agent, on the one
hand, and Novelis AG, as purchaser, on the other hand, providing, inter alia, for the sale and
transfer of Accounts by Novelis Deutschland GmbH to Novelis AG.




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




          “Recovery” has the meaning assigned to that term in Section 6.4.




          “Refinance” means, in respect of any Indebtedness, to refinance, defease, repay, restructure,
refund or to issue other indebtedness, in exchange or replacement for, such




 
 






11









 







Indebtedness in whole or in part. “Refinanced” and “Refinancing” shall have meanings correlative thereto.




          “Revolving Commitments” means the “Commitments” (as such term is defined in the Revolving
Credit Agreement).




          “Revolving Credit Administrative Agent” has the meaning assigned to that term in the preamble
to this Agreement.




          “Revolving Credit Agent” has the meaning assigned to that term in the preamble to this
Agreement.




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




          “Revolving Credit Canadian Administrative Agent” has the meaning assigned to that term in the
preamble to this Agreement.




          “Revolving Credit Canadian Funding Agent” has the meaning assigned to that term in the
preamble to this Agreement.




          “Revolving Credit Claimholders” means, at any relevant time, the holders of Revolving Credit
Obligations at that time, including the Revolving Credit Lenders and the agents under the Revolving
Credit Loan Documents and Revolving Credit Qualified Counterparties and any receiver under the
Revolving Credit Loan Documents.




          “Revolving Credit Collateral Agent” has the meaning assigned to that term in the preamble to
this Agreement.




          “Revolving Credit Default” means an “Event of Default” (as defined in the Revolving Credit
Agreement).




          “Revolving Credit Funding Agent” has the meaning assigned to that term in the preamble to this
Agreement.




          “Revolving Credit General Intangibles” means all General Intangibles arising out of the other
items of property included within clauses (a), (b), (c), (e) and (f) of the definition of Revolving
Credit Priority Collateral, including all contingent rights with respect to warranties on Inventory
or Accounts which are not yet “payment intangibles” (as defined in Article 9 of the UCC).




          “Revolving Credit Lenders” means the banks, financial institutions and other entities from
time to time party to the Revolving Credit Agreement as lenders.




          “Revolving Credit Loan Documents” means the Revolving Credit Agreement, the Revolving Credit
Security Documents and the other “Loan Documents” (as defined in the Revolving Credit Agreement)
and each of the other agreements, documents and instruments providing for or evidencing any other
Revolving Credit Obligation, and any other document or




 
 






12









 







instrument executed or delivered at any time in connection with any Revolving Credit Obligations, including any intercreditor or joinder
agreement among holders of Revolving Credit Obligations, to the extent such are effective at the
relevant time, as each may be Modified or Refinanced from time to time in whole or in part (whether
with the Revolving Credit Agents and Revolving Credit Lenders or other agents and lenders or
otherwise), in each case in accordance with the provisions of this Agreement.




          “Revolving Credit Obligations” means (a) all obligations of the Borrowers and the other
Grantors from time to time arising under or in respect of the due and punctual payment of (i) the
principal of and premium, if any, and interest (including interest accruing (and interest that
would have accrued but for such proceeding) during the pendency of any Insolvency or Liquidation
Proceeding, regardless of whether allowed or allowable in such proceeding) on the loans under the
Revolving Credit Agreement, when and as due, whether at maturity, by acceleration, upon one or more
dates set for prepayment or otherwise, (ii) each payment required to be made by the Borrowers and
the other Grantors under the Revolving Credit Loan Documents in respect of any letter of credit,
when and as due, including payments in respect of reimbursement obligations with respect to
drawings under letters of credit, interest thereon and obligations to provide cash collateral with
respect to letters of credit issued under the Revolving Credit Loan Documents and (iii) all other
monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency
of any Insolvency or Liquidation Proceeding, regardless of whether allowed or allowable in such
proceeding), of the Borrowers and the other Grantors under the Revolving Credit Loan Documents, (b)
the due and punctual performance of all covenants, agreements, obligations and liabilities of the
Borrowers and the other Grantors under or pursuant to the Revolving Credit Loan Documents and (c)
the due and punctual payment and performance of all obligations of the Borrowers and the other
Grantors (including overdrafts and related liabilities) under each Treasury Services Agreement
entered into by any Grantor with any counterparty that is a Qualified Revolving Credit
Counterparty. “Revolving Credit Obligations” shall include all interest accrued or accruing (or
which would, absent commencement of an Insolvency or Liquidation Proceeding, accrue) after
commencement of an Insolvency or Liquidation Proceeding in accordance with the rate specified in
the relevant Revolving Credit Loan Document whether or not the claim for such interest is allowed
as a claim in such Insolvency or Liquidation Proceeding.




          “Revolving Credit Priority Collateral” means all now owned or hereafter acquired: (a)
Accounts, other than “payment intangibles” (as defined in Article 9 of the UCC) which constitute
identifiable proceeds of Term Loan Priority Collateral, (b) all Inventory or documents of title for
any Inventory; (c) Deposit Accounts (other than any Deposit Accounts that are Net Cash Proceeds
Accounts), Securities Accounts (other than any Securities Accounts that are Net Cash Proceeds
Accounts), Instruments (solely to the extent constituting or evidencing obligations owing on Accounts and excluding Intercompany Notes of Subsidiaries) and Chattel
Paper (solely to the extent constituting or evidencing obligations owing on Accounts);
provided, however, that to the extent Instruments or Chattel Paper that constitute
identifiable proceeds of Term Loan Priority Collateral are deposited or held in any such Bank
Accounts or Securities Accounts after an Enforcement Notice, then (as provided in Section
3.5 below) such Instruments, Chattel Paper or other identifiable proceeds shall be treated as
Term Loan Priority Collateral, as




 
 






13









 







the case may be; (d) Revolving Credit General Intangibles; (e) right, title and interest in and to the Receivables Purchase Agreement; (f) any credit insurance
policy maintained with respect to Accounts of any Loan Party; (g) Records, Letters of Credit,
Letter of Credit Rights, “supporting obligations” (as defined in Article 9 of the UCC), commercial
tort claims or other claims and causes of action, in each case, to the extent related primarily to
any of the foregoing; and (h) substitutions, replacements, accessions, products and proceeds
(including insurance proceeds, licenses, royalties, income, payments, claims, damages and proceeds
of suit) of any or all of the foregoing.




          “Revolving Credit Qualified Counterparty” means a Person that (i) is party to a Treasury
Services Agreement with a Grantor and (ii) at the time such Treasury Services Agreement was entered
into, was a lender under the Revolving Credit Agreement or a Revolving Credit Agent or an arranger
under the Revolving Credit Agreement or an Affiliate of any such lender, Revolving Credit Agent or
arranger.




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




          “Revolving Credit Standstill Period” has the meaning assigned to that term in Section
3.2(a)(1).




          “Securities Accounts” means all present and future “securities accounts” (as defined in
Article 8 of the UCC), including all cash, funds, “uncertificated securities” and “securities
entitlements” (in each case, as defined in Article 8 of the UCC) from time to time held therein or
on deposit therein.




          “Stock of Subsidiaries” means all Equity Interests in Subsidiaries of Holdings.




          “Subsidiary” means, with respect to any Person (the “parent”) at any date, (i) any Person
the
accounts of which would be consolidated with those of the parent in the parent’s consolidated
financial statements if such financial statements were prepared in accordance with GAAP as of such
date, (ii) any other corporation, limited liability company, association or other business entity
of which securities or other ownership interests representing more than 50% of the voting power of
all Equity Interests entitled (without regard to the occurrence of any contingency) to vote in the
election of the Board of Directors thereof are, as of such date, owned, controlled or held by the
parent and/or one or more subsidiaries of the parent, (iii) any partnership (a) the sole general
partner or the managing general partner of which is the parent and/or one or more subsidiaries of
the parent or (b) the only general partners of which are the parent and/or one or more subsidiaries
of the parent and (iv) any other Person that is otherwise Controlled by the parent and/or one or more subsidiaries of the parent. Unless the context
requires otherwise “Subsidiary” refers to a Subsidiary of Holdings. Notwithstanding the foregoing,
Logan Aluminum Inc. shall not be treated as a Subsidiary hereunder unless it qualifies as a
Subsidiary under clause (ii) of this definition.




 
 






14









 








          “Subsidiary Guarantors” has the meaning assigned to that term in the preamble of this
Agreement.




          “Subsidiary Stock” means all present and future equity securities of Subsidiaries of Holdings.




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




          “Swiss Security Agreement” means the Agreement between Novelis AG and the Revolving Credit
Collateral Agent relating to trade receivables, intercompany receivables and bank accounts, the
Agreement between Novelis Switzerland SA and the Revolving Credit Collateral Agent relating to
trade receivables, intercompany receivables and bank accounts and the Agreement between Novelis
Technology AG. and the Revolving Credit Collateral Agent relating to trade receivables,
intercompany receivables and bank accounts.




          “Swiss Stock and IP Security Agreement” means the Share Pledge Agreement between Novelis
Europe Holdings Limited and the Term Loan Collateral Agent relating to the shares of Novelis AG,
the Share Pledge Agreement between Novelis AG and the Term Loan Collateral Agent relating to the
shares of Novelis Switzerland SA, the Share Pledge Agreement between Novelis AG and the Term Loan
Collateral Agent relating to the shares of Novelis Technology AG and the Intellectual Property
Pledge Agreement between Novelis Switzerland SA and the Term Loan Collateral Agent.




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




          “Term Loan Agents” has the meaning assigned to that term in the preamble to this Agreement.




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




          “Term Loan Claimholder” means, at any relevant time, the holders of any Term Loan Obligations
at that time, including the Term Loan Lenders and the agents under the Term Loan Documents and any
Term Loan Qualified Counterparty and any receiver under the Term Loan Documents.




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




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




          “Term Loan Documents” means the Term Loan Agreement, the Term Loan Mortgages and the other
“Loan Documents” (as defined in the Term Loan Agreement) 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




 
 







15









 







connection with any Term Loan Obligations, including any intercreditor or joinder agreement among holders of Term Loan
Obligations to the extent such are effective at the relevant time, as each may be Modified or
Refinanced from time to time in whole or in part (whether with the Term Loan Agents and Term Loan
Lenders or other agents and lenders or otherwise), in each case in accordance with the provisions
of this Agreement.




          “Term Loan General Intangibles” means all General Intangibles which are not Revolving Credit
General Intangibles.




          “Term Loan Lenders” means the banks, financial institutions and other entities from time to
time party to the Term Loan Agreement as lenders.




          “Term Loan Lien” means a Lien granted by a security document to the Term Loan Agent, at any
time, upon any property of any Borrower, Holdings or any other Guarantor to secure Term Loan
Obligations.




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




          “Term Loan Obligations” means, (a) all obligations of the Canadian Borrower, the U.S. Borrower
and the other Grantors from time to time arising under or in respect of the due and punctual
payment of (i) the principal of and premium, if any, and interest (including interest accruing (and
interest that would have accrued but for such proceeding) during the pendency of any Insolvency or
Liquidation Proceeding, regardless of whether allowed or allowable in such proceeding) on the loans
under the Term Loan Credit Agreement, when and as due, whether at maturity, by acceleration, upon
one or more dates set for prepayment or otherwise, (ii) each payment required to be made by the
Canadian Borrower, the U.S. Borrower and the other Grantors under the Term Loan Credit Agreement in
respect of any letter of credit, when and as due, including payments in respect of reimbursement
obligations with respect to drawings under letter of credit, interest thereon and obligations to
provide cash collateral with respect to letters of credit issued under the Term Loan Documents and
(iii) all other monetary obligations, including fees, costs, expenses and indemnities, whether
primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any Insolvency or Liquidation Proceeding, regardless of whether allowed or
allowable in such proceeding), of the Canadian Borrower, the U.S. Borrower and the other Grantors
under the Term Loan Documents, (b) the due and punctual performance of all covenants, agreements,
obligations and liabilities of the Canadian Borrower, the U.S. Borrower and the other Grantors
under or pursuant to the Term Loan Documents and (c) the due and punctual payment and performance
of all obligations the Grantors under each Hedging Agreement entered into by any Grantor with any
counterparty that is a Term Loan Qualified Counterparty. “Term Loan Obligations” shall include all
interest accrued or accruing (or which would, absent commencement of an Insolvency or Liquidation Proceeding, accrue) after commencement of an Insolvency or Liquidation Proceeding in
accordance with the rate specified in the relevant Term Loan Document whether or not the claim for
such interest is allowed as a claim in such Insolvency or Liquidation Proceeding.




 
 






16









 








          “Term Loan Priority Collateral” means all now owned or hereafter acquired Collateral other
than the Revolving Credit Priority Collateral, including all: (a) Equipment; (b) Real Estate
Assets; (c) Intellectual Property; (d) Term Loan General Intangibles; (e) documents of title
related to Equipment; (f) Records, “supporting obligations” (as defined in Article 9 of the UCC),
commercial tort claims or other claims and causes of action, in each case, to the extent related
primarily to the foregoing; (g) Stock of Subsidiaries and Intercompany Notes of Subsidiaries; (h)
Net Cash Proceeds Accounts; and (i) substitutions, replacements, accessions, products and proceeds
(including insurance proceeds, licenses, royalties, income, payments, claims, damages and proceeds
of suit) of any or all of the foregoing.




          “Term Loan Qualified Counterparty” means a Person that (i) is party to a Hedging Agreement
with a Grantor and (ii) at the time such Hedging Agreement was entered into or as of the Closing
Date in the case of Hedging Agreements entered into prior to the Closing Date which remain in
effect on the Closing Date, was a lender under the Term Loan Credit Agreement or the Revolving
Credit Agreement or a Term Loan Agent or an arranger under the Term Loan Credit Agreement, or an
Affiliate of any such lender, Term Loan Agent or arranger.




          “Term Loan Security Documents” means the “Security Documents” as defined in the Term Loan
Agreement 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.




          “Term Loan Standstill Period” has the meaning assigned to that term in Section
3.1(a)(1).




          “Trademarks” means, collectively, all trademarks (including service marks and certification
marks), slogans, logos, certification marks, trade dress, internet domain names, corporate names
and trade names, whether registered or unregistered (whether statutory or common law and whether
established or registered in the United States or any other country or any political subdivision
thereof), together with any and all (i) registrations and applications for any of the foregoing,
(ii) goodwill connected with the use thereof and symbolized thereby, (iii) rights and privileges
arising under applicable law with respect to the use of any of the foregoing, (iv) reissues,
continuations, extensions and renewals thereof and amendments thereto, (v) income, fees, royalties,
damages and payments now and hereafter due and/or payable thereunder and with respect thereto,
including damages, claims and payments for past, present or future infringements, dilutions or
other violations thereof, (vi) rights corresponding thereto throughout the world and (vii) rights
to sue for past, present and future infringements, dilutions or other violations thereof.




          “Trade Secrets and Other Proprietary Rights” means, collectively, all trade secrets,
proprietary information and data and databases, know-how and processes, designs, inventions,
technology and software and any other intangible rights to the extent not covered by the definitions of Patents, Trademarks and Copyrights; whether registered or unregistered,
whether statutory or common law, and whether established or registered in the United States or any
other country or any political subdivision thereof, together with any and all (i) registrations and
applications for the foregoing, (ii) rights and privileges arising under applicable law with







 

 



17









 







respect to the use of any of the foregoing, (iii) reissues, continuations, extensions, renewals
and divisions thereof and amendments thereto, (v) income, fees, royalties, damages and payments now
and hereafter due and/or payable thereunder and with respect thereto, including damages, claims and
payments for past, present or future infringements or other violations thereof, (vi) rights
corresponding thereto throughout the world and (vii) rights to sue for past, present and future
infringements and other violations thereof.




          “Treasury Services Agreement” shall mean any agreement relating to treasury, depositary and
cash management services or automated clearinghouse transfer of funds of any Grantor.




          “UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in
effect from time to time in the State of New York or when the context implies, the Uniform
Commercial Code (or any similar or equivalent legislation) as in effect from time to time in any
other applicable jurisdiction.




          “U.K. Borrower” has the meaning assigned to that term in the preamble to this Agreement.




          “U.S. Borrowers” has the meaning assigned to that term in the preamble to this Agreement.




     1.2 Terms Generally. The definitions of terms in this Agreement shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise:



          (a) any definition of or reference to any agreement, instrument or other document herein shall
be construed as referring to such agreement, instrument or other document as Modified from time to
time;




          (b) any reference herein to any Person shall be construed to include such Person’s permitted
successors and assigns;




          (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular provision hereof;




          (d) all references herein to Sections shall be construed to refer to Sections of this
Agreement;




          (e) all references to terms defined in the New York UCC shall have the meaning ascribed to
them therein (unless otherwise specifically defined herein); and



 

 





18









 








          (f) the words “asset” and “property” shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.




          II. LIEN PRIORITIES.




     2.1 Relative Priorities. Notwithstanding the date, time, method, manner or order of
grant, attachment or perfection of any Liens securing the Term Loan Obligations granted on the
Collateral or of any Liens securing the Revolving Credit Obligations granted on the Collateral and
notwithstanding any provision of any UCC, or any other applicable law or the Revolving Credit Loan
Documents or the Term Loan Documents or any defect or deficiencies in, or failure to perfect, the
Liens securing the Revolving Credit Obligations or Term Loan Obligations or any other circumstance
whatsoever, each Revolving Credit Agent, on behalf of itself and the other Revolving Credit
Claimholders, and each Term Loan Agent, on behalf of itself and the other Term Loan Claimholders
hereby agrees that:



          (a) any Liens on the Revolving Credit Priority Collateral securing any Revolving Credit
Obligations, whether now or hereafter held by or on behalf of any Revolving Credit Agent or any
other Revolving Credit Claimholder or any agent or trustee therefor, regardless of how acquired,
whether by grant, possession, statute, operation of law, subrogation or otherwise, shall be senior
in right, priority, operation, effect and all other respects to any Liens on the Revolving Credit
Priority Collateral securing any Term Loan Obligations; and




          (b) any Liens on the Term Loan Priority Collateral securing any Term Loan Obligations, whether
now or hereafter held by or on behalf of any Term Loan Agent, any other Term Loan Claimholder or
any agent or trustee therefor regardless of how acquired, whether by grant, possession, statute,
operation of law, subrogation or otherwise, shall be senior in right, priority, operation, effect
and all other respects to any Liens on the Term Loan Priority Collateral which may secure any
Revolving Credit Obligations.




     2.2 Prohibition on Contesting Liens. Each Revolving Credit Agent, on behalf of itself and
the other Revolving Credit Claimholders, and each Term Loan Agent, on behalf of itself and the
other Term Loan Claimholders, agrees that it will 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 perfection, priority, validity or enforceability of a Lien held by or on behalf of
any of the Revolving Credit Claimholders or any of the Term Loan Claimholders in all or any part of
the Collateral, as the case may be, or the provisions of this Agreement; provided that nothing in
this Agreement shall be construed to prevent or impair the rights of any Revolving Credit Agent or
any other Revolving Credit Claimholder, or any Term Loan Agent or any other Term Loan Claimholder
to enforce this Agreement, including the provisions of this Agreement relating to the priority of
the Liens securing the Obligations as provided in Sections 2.1, 3.1 and
3.2.



     2.3 No New Liens. So long as the Discharge of Revolving Credit Obligations and the Discharge
of Term Loan Obligations have not occurred, whether or not any Insolvency or Liquidation Proceeding
has been commenced by or against any Borrower or any other Grantor, each Revolving Credit Agent, on
behalf of itself and the other Revolving Credit Claimholders,



 


 

19









 







and each Term Loan Agent, on behalf of itself and the other Term Loan Claimholders, and each Grantor, agrees that each Grantor shall
not, and shall not permit any other Grantor to:




          (a) grant or permit any additional Liens on any asset or property to secure any Term Loan
Obligation unless it has granted or concurrently grants a Lien on such asset or property to secure
the Revolving Credit Obligations; or




          (b) grant or permit any additional Liens on any asset or property to secure any Revolving
Credit Obligations unless it has granted or concurrently grants a Lien on such asset or property to
secure the Term Loan Obligations.



To the extent any additional Liens are granted on any asset or property in accordance with this
Section 2.3, the priority of such additional Liens shall be determined in accordance with
Section 2.1. In addition, to the extent that the foregoing provisions are not complied
with for any reason, without limiting any other rights and remedies available hereunder, each
Revolving Credit Agent, on behalf of itself and the other Revolving Credit Claimholders, and each
Term Loan Agent, on behalf of itself and the other Term Loan Claimholders, agrees that any amounts
received by or distributed to any of them pursuant to or as a result of Liens granted in
contravention of this Section 2.3 shall be subject to Section 4.2.




     2.4 Similar Liens and Agreements. The parties hereto agree that it is their intention that the
Collateral securing the Revolving Credit Obligations and the Term Loan Obligations be identical.
In furtherance of the foregoing and of Section 8.8, the parties hereto agree, subject to
the other provisions of this Agreement (including Section 5.3):



          (a) upon request by any Revolving Credit Agent or Term Loan 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 Collateral and the steps taken to perfect their respective Liens
thereon and the identity of the respective parties obligated under the Revolving Credit Loan
Documents and the Term Loan Documents; and




          (b) that the documents and agreements creating or evidencing the Collateral for the Revolving
Credit Obligations and the Term Loan Obligations shall (subject to any deviations therefrom as may
be agreed to by both the Revolving Credit Agents and the Term Loan Agents in their sole discretion)
be in all material respects the same forms of documents other than with respect to the nature of
the Obligations secured thereunder and, to the extent relevant, the priority of the Liens granted
thereunder.




     2.5 German Real Estate. Any amounts realized by the Term Loan Claimholders or Revolving Credit
Claimholders with respect to, or allocable to, real property interests (including fixtures and
equipment attached thereto) of any German Guarantor following an Enforcement or during an
Enforcement Period, shall, notwithstanding anything to the contrary contained herein for purposes of this Agreement, constitute Term Loan Priority Collateral, and be payable to the
Term Loan Agents on behalf of the Term Loan Claimholders.



 




 


20









 








          III. ENFORCEMENT.




     3.1 Exercise of Remedies — Restrictions on the Term Loan Agents and the other Term Loan
Claimholders.



          (a) Unless the Term Loan Agents and the Revolving Credit Agents agree in writing otherwise,
until the Discharge of Revolving Credit Obligations has occurred, whether or not any Insolvency or
Liquidation Proceeding has been commenced by or against any Borrower or any other Grantor, the Term
Loan Agents and the other Term Loan Claimholders:





               (1) will not seek to have a trustee, receiver, liquidator or similar official
appointed
for or over, attempt any action to take possession of, or otherwise exercise or seek to
exercise any rights or remedies with respect to, any Revolving Credit Priority Collateral
(including the exercise of any right of set-off or any right under any Account Agreement
(other than Account Agreements with respect to Net Cash Proceeds Accounts), landlord waiver
or bailee’s letter or similar agreement or arrangement to which any Term Loan Agent or any
other Term Loan Claimholder is a party, to the extent relating to Revolving Credit Priority
Collateral), or institute any action or proceeding with respect to such rights or remedies
(including any action of foreclosure); provided, however, that any of the
Term Loan Agents may exercise any or all such rights or remedies after the passage of a
period of at least 180 days has elapsed since the later of: (i) the date on which any Term
Loan Agent first declared the existence of a Term Loan Default and demanded the repayment of
all the principal amount of any Term Loan Obligations; and (ii) the date on which any
Revolving Credit Agent received notice from any Term Loan Agent of such declarations of a
Term Loan Default and of such demand for payment (the “Term Loan Standstill Period”);
provided, further, however, that notwithstanding anything herein to
the contrary, in no event shall any Term Loan Agent or any other Term Loan Claimholder
exercise any rights or remedies with respect to the Revolving Credit Priority Collateral if,
notwithstanding the expiration of the Term Loan Standstill Period, any of the Revolving
Credit Agents or any of the other Revolving Credit Claimholders shall have commenced and be
diligently pursuing the exercise of their rights or remedies with respect to all or any
material portion of such Revolving Credit Priority Collateral (prompt notice of such
exercise to be given to the Term Loan Agents);




               (2) will not contest, protest or object to any foreclosure proceeding or action
brought
by any Revolving Credit Agent or any other Revolving Credit Claimholder or any other
exercise by any Revolving Credit Agent or any other Revolving Credit Claimholder of any
rights and remedies relating to the Revolving Credit Priority Collateral, whether under the
Revolving Credit Loan Documents or otherwise; and




               (3) subject to their rights under clause (a)(1) above and except as may be
permitted in
Section 3.1(c), will not object to the forbearance by any of the Revolving Credit Agents or any of the other Revolving Credit Claimholders from bringing or
pursuing any Enforcement;



 





 


21









 









provided that, in the case of each of the foregoing clauses (1), (2) and (3) above,
the Liens (if any) granted to secure the Term Loan Obligations shall attach to any proceeds
resulting from actions taken by any Revolving Credit Agent or any other Revolving Credit
Claimholder in accordance with this Agreement after giving effect to any application of such
proceeds to the Revolving Credit Obligations.



          (b) Until the Discharge of Revolving Credit Obligations has occurred, whether or not any
Insolvency or Liquidation Proceeding has been commenced by or against any Borrower or any other
Grantor, the Revolving Credit Agents and the other Revolving Credit Claimholders shall have the
right to enforce rights, exercise remedies (including set-off and the right to credit bid their
debt) and, in connection therewith (including voluntary Dispositions of Revolving Credit Priority
Collateral by the respective Grantors after a Revolving Credit Default) make determinations
regarding the release, disposition, or restrictions with respect to the Revolving Credit Priority
Collateral without any consultation with or the consent of any Term Loan Agent or any other Term
Loan Claimholder; provided, however, that the Lien (if any) securing the Term Loan
Obligations shall remain on the proceeds (other than those properly applied to the Revolving Credit
Obligations) of such Collateral released or disposed of subject to the relative priorities
described in Section 2. In exercising rights and remedies with respect to the Revolving
Credit Priority Collateral, the Revolving Credit Agents and the other Revolving Credit Claimholders
may enforce the provisions of the Revolving Credit Loan Documents and exercise 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 them
to sell or otherwise dispose of the Revolving Credit 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 (or any similar or equivalent legislation of any applicable
jurisdiction outside the United States) and of a secured creditor under the Bankruptcy Laws of any
applicable jurisdiction.




          (c) Notwithstanding the foregoing, any of the Term Loan Agents and any of the other Term Loan
Claimholders may:





               (1) file a claim or statement of interest with respect to the Term Loan
Obligations;
provided that an Insolvency or Liquidation Proceeding has been commenced by or
against any Borrower or any other Grantor;




               (2) take any action (not adverse to the priority status of the Liens on the
Revolving
Credit Priority Collateral securing the Revolving Credit Obligations, or the rights of any
of the Revolving Credit Agents or any of the other Revolving Credit Claimholders to exercise
rights or remedies in respect thereof) in order to create, perfect, preserve or protect its
Lien on any of the Collateral, including exercising rights solely with respect to Term Loan
Priority Collateral pursuant to rights provided under landlord waivers or bailee’s letters
or similar agreements or arrangements;




               (3) 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



 





 


22









 









Claimholders, including any claims secured by the Revolving Credit Priority Collateral, if any, in each case in accordance with
the terms of this Agreement;




               (4) file any pleadings, objections, motions or agreements which assert rights or
interests available to unsecured creditors of the Grantors arising under either any
Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not
inconsistent with the terms of this Agreement;




               (5) vote on any plan of reorganization, file any proof of claim, make other filings
and
make any arguments and motions that are, in each case, in accordance with the terms of this
Agreement, with respect to the Term Loan Obligations and/or the Term Loan Priority
Collateral;




               (6) exercise any of its rights or remedies with respect to any of the Revolving
Credit
Priority Collateral after the termination of the Term Loan Standstill Period to the extent
permitted by Section 3.1(a)(1); and




               (7) make a cash bid on all or any portion of the Revolving Credit Priority
Collateral
in any foreclosure proceeding or action.


Each Term Loan Agent, on behalf of itself and the other Term Loan Claimholders, agrees that it will
not take or receive any Revolving Credit Priority Collateral or any proceeds of such Revolving
Credit Priority Collateral in connection with the exercise of any right or remedy (including
set-off) with respect to any such Revolving Credit Priority Collateral in its capacity as a
creditor in violation of this Agreement. Without limiting the generality of the foregoing, unless
and until the Discharge of Revolving Credit Obligations has occurred, except as expressly provided
in Sections 3.1(a), 6.3(c)(1) and this Section 3.1(c), the sole right of
the Term Loan Agents and the other Term Loan Claimholders with respect to the Revolving Credit
Priority Collateral is to hold a Lien (if any) on such Revolving Credit Priority Collateral
pursuant to the respective Term Loan 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 Revolving Credit
Obligations has occurred.




          (d) Subject to Sections 3.1(a), 3.1(c) and 6.3(c)(1):





               (1) each Term Loan Agent, on behalf of itself and the other Term Loan Claimholders,
agrees that it will not take any action that would hinder any exercise of remedies under the
Revolving Credit Loan Documents (other than with respect to Term Loan Priority Collateral)
or under the Revolving Credit Loan Documents with respect to the Revolving Credit Priority
Collateral or that is otherwise prohibited hereunder, including any sale, lease, exchange,
transfer or other disposition of the Revolving Credit Priority Collateral, whether by
foreclosure or otherwise;




               (2) each Term Loan Agent, on behalf of itself and the other Term Loan Claimholders,
hereby waives any and all rights such Term Loan Agent and the respective other Term Loan Claimholders, as applicable, may at any time have as a
junior lien creditor or otherwise to object to the manner in which any Revolving Credit
Agent or



 






 

23









 









any other Revolving Credit Claimholders seek to enforce or collect the Revolving Credit Obligations or the Liens securing the Revolving Credit Priority Collateral if such
enforcement or collection is undertaken in accordance with this Agreement, regardless of
whether any action or failure to act by or on behalf of any Revolving Credit Agent or any
other Revolving Credit Claimholders is adverse to the interest of the Term Loan
Claimholders; and




               (3) each Term Loan Agent hereby acknowledges and agrees that no covenant, agreement
or
restriction contained in any Term Loan Document shall be deemed to restrict in any way the
rights and remedies of any Revolving Credit Agent or any other Revolving Credit Claimholder
with respect to the enforcement of the Liens on the Revolving Credit Priority Collateral as
set forth in this Agreement and the Revolving Credit Loan Documents.



          (e) Except as otherwise specifically set forth in Sections 3.1(a), 3.1(d) and
3.5, the Term Loan Agents and the other Term Loan Claimholders may exercise rights and
remedies as unsecured creditors against any Borrower or any other Grantor that has guaranteed or
granted Liens to secure the Term Loan Obligations, and the Term Loan Agents and the other Term Loan
Claimholders may exercise rights and remedies with respect to the Collateral, in each case, in
accordance with the terms of this Agreement, the Term Loan Documents and applicable law;
provided, however, that in the event that any Term Loan Agent or any other Term
Loan Claimholder becomes a judgment Lien creditor in respect of Revolving Credit Priority
Collateral as a result of its enforcement of its rights as an unsecured creditor with respect to
the Term Loan Obligations, such judgment Lien shall be subject to the terms of this Agreement for
all purposes (including in relation to the Revolving Credit Priority Collateral) as the other Liens
securing the Term Loan Obligations are subject to this Agreement.




          (f) Nothing in this Agreement shall prohibit the receipt by any Term Loan Agent or any other
Term Loan Claimholder of the required payments of interest, principal and other amounts owed in
respect of its Term Loan Obligations, so long as such receipt is not the direct or indirect result
of the exercise by any Term Loan Agent or any other Term Loan Claimholder of rights or remedies as
a secured creditor in respect of the Revolving Credit Priority Collateral (including set-off) or
enforcement in contravention of this Agreement of any Lien held by any of them. Nothing in this
Agreement impairs or otherwise adversely affects, as between the Grantors and the Revolving Credit
Claimholders, any rights or remedies the Revolving Credit Agents or the other Revolving Credit
Claimholders may have against the Grantors under the Revolving Credit Loan Documents.




     3.2 Exercise of Remedies — Restrictions on the Revolving Credit Agents and the other
Revolving Credit Claimholders.



          (a) Unless the Term Loan Agents and the Revolving Credit Agents agree in writing otherwise,
until the Discharge of Term Loan Obligations has occurred, whether or not any Insolvency or
Liquidation Proceeding has been commenced by or against any Borrower or any other Grantor, the
Revolving Credit Agents and the other Revolving Credit Claimholders:




 




 

24









 








          (1) will not seek to have a trustee, receiver, liquidator or similar official appointed
for or over, attempt any action to take possession of, or otherwise exercise or seek to
exercise any rights or remedies with respect to, any Term Loan Priority Collateral
(including the exercise of any right of set-off or any right under any Account Agreement
with respect to Net Cash Proceeds Accounts, landlord waiver or bailee’s letter or similar
agreement or arrangement to which any Revolving Credit Agent or any other Revolving Credit
Claimholder is a party, to the extent relating to Term Loan Priority Collateral), or
institute any action or proceeding with respect to such rights or remedies (including any
action of foreclosure); provided, however, that any of the Revolving Credit
Agents may exercise the rights provided for in Section 3.3 (with respect to any
Access Period) and Section 3.4 and may exercise any or all such rights or remedies
after the passage of a period of at least 180 days has elapsed since the later of: (i) the
date on which any Revolving Credit Agent first declared the existence of any Revolving
Credit Default and demanded the repayment of all the principal amount of any Revolving
Credit Obligations; and (ii) the date on which any Term Loan Agent received notice from any
Revolving Credit Agent of such declarations of a Revolving Credit Default and of such demand
for payment (the “Revolving Credit Standstill Period”); provided, further,
however, that notwithstanding anything herein to the contrary, in no event shall any
Revolving Credit Agent or any other Revolving Credit Claimholder exercise any rights or
remedies (other than those under Section 3.3) with respect to the Term Loan Priority
Collateral if, notwithstanding the expiration of the Revolving Credit Standstill Period, any
of the Term Loan Agents or any of the other Term Loan Claimholders shall have commenced and
be diligently pursuing the exercise of their rights or remedies with respect to all or any
material portion of such Term Loan Priority Collateral (prompt notice of such exercise to be
given to the Revolving Credit Agents);




          (2) will not contest, protest or object to any foreclosure proceeding or action brought
by any Term Loan Agent or any other Term Loan Claimholder or any other exercise by any Term
Loan Agent or any other Term Loan Claimholder of any rights and remedies relating to the
Term Loan Priority Collateral, whether under the Term Loan Documents or otherwise; and




          (3) subject to their rights under clause (a)(1) above and except as may be permitted in
Section 3.2(c), will not object to the forbearance by any of the Term Loan Agents or
any of the other Term Loan Claimholders from bringing or pursuing any Enforcement;



provided that in the case of each of the foregoing clauses (1), (2) and (3) above,
the Liens (if any) granted to secure the Revolving Credit Obligations shall attach to any
proceeds resulting from actions taken by any Term Loan Agent or any other Term Loan
Claimholder in accordance with this Agreement after giving effect to any application of such
proceeds to the Term Loan Obligations.




          (b) Until the Discharge of Term Loan Obligations has occurred, whether or not any Insolvency
or Liquidation Proceeding has been commenced by or against any Borrower or any other Grantor, the
Term Loan Agents and the other Term Loan Claimholders shall have the right to enforce rights,
exercise remedies (including set-off and the right to credit bid their




 






 

25









 







debt) and make, in connection therewith (including voluntary Dispositions of Term Loan
Priority Collateral by the respective Grantors after a Term Loan Default) determinations regarding
the release, disposition, or restrictions with respect to the Term Loan Priority Collateral without
any consultation with or the consent of any Revolving Credit Agent or any other Revolving Credit
Claimholder; provided, however, that the Lien (if any) securing the Revolving
Credit Obligations shall remain on the proceeds (other than those properly applied to the Term Loan
Obligations) of such Collateral released or disposed of subject to the relative priorities
described in Section 2. In exercising rights and remedies with respect to the Term Loan
Priority Collateral, the Term Loan Agents and the other Term Loan Claimholders may enforce the
provisions of the Term Loan Documents and exercise 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 them to sell or otherwise dispose of
the Term Loan 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 (or
any similar or equivalent legislation of any applicable jurisdiction outside the United States) and
of a secured creditor under the Bankruptcy Laws of any applicable jurisdiction.




          (c) Notwithstanding the foregoing, any of the Revolving Credit Agents and any of the other
Revolving Credit Claimholders may:





               (1) file a claim or statement of interest with respect to the Revolving Credit
Obligations; provided that an Insolvency or Liquidation Proceeding has been
commenced by or against any Borrower or any other Grantor;




               (2) take any action (not adverse to the priority status of the Liens on the Term
Loan
Priority Collateral securing the Term Loan Obligations, or the rights of any of the Term
Loan Agents or any of the other Term Loan Claimholders to exercise rights or remedies in
respect thereof) in order to create, perfect, preserve or protect its Lien on any of the
Collateral, including exercising rights solely with respect to Revolving Credit Priority
Collateral pursuant to rights provided under landlord waivers or bailee’s letters or similar
agreements or arrangements;




               (3) 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 Revolving Credit Claimholders, including any
claims secured by the Term Loan Priority Collateral, if any, in each case in accordance with
the terms of this Agreement;




               (4) file any pleadings, objections, motions or agreements which assert rights or
interests available to unsecured creditors of the Grantors arising under either any
Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not
inconsistent with the terms of this Agreement;




               (5) vote on any plan of reorganization, file any proof of claim, make other filings
and
make any arguments and motions that are, in each case, in accordance with the terms of this
Agreement, with respect to the Revolving Credit Obligations and/or the Revolving Credit
Priority Collateral;



 





 

26









 









               (6) exercise any of its rights or remedies with respect to any of the Collateral
after
the termination of the Revolving Credit Standstill Period, to the extent permitted by
Section 3.2(a)(1); and




               (7) make a cash bid on all or any portion of the Term Loan Priority Collateral in
any
foreclosure proceeding or action.


Each Revolving Credit Agent, on behalf of itself and the other Revolving Credit Claimholders,
agrees that it will not take or receive any Term Loan Priority Collateral or any proceeds of such
Term Loan Priority Collateral in connection with the exercise of any right or remedy (including
set-off) with respect to any such Term Loan Priority Collateral in its capacity as a creditor in
violation of this Agreement. Without limiting the generality of the foregoing, unless and until
the Discharge of Term Loan Obligations has occurred, except as expressly provided in Sections
3.2(a), 3.3, 6.3(c)(2) and this Section 3.2(c), the sole right of the
Revolving Credit Agents and the other Revolving Credit Claimholders with respect to the Term Loan
Priority Collateral is to hold a Lien (if any) on such Term Loan Priority Collateral pursuant to
the respective Revolving Credit Loan 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 Term Loan Obligations
has occurred.




          (d) Subject to Sections 3.2(a), 3.2(c), 3.3 and 6.3(c)(2):





               (1) each Revolving Credit Agent, on behalf of itself and the other Revolving Credit
Claimholders, agrees that it will not take any action that would hinder any exercise of
remedies under the Term Loan Documents (other than with respect to Revolving Credit Priority
Collateral) or under the Term Loan Documents with respect to the Term Loan Priority
Collateral or that is otherwise prohibited hereunder, including any sale, lease, exchange,
transfer or other disposition of the Term Loan Priority Collateral, whether by foreclosure
or otherwise;




               (2) each Revolving Credit Agent, on behalf of itself and the other Revolving Credit
Claimholders, hereby waives any and all rights such Revolving Credit Agent and the
respective other Revolving Credit Claimholders, as applicable, may at any time have as a
junior lien creditor or otherwise to object to the manner in which any Term Loan Agent or
any other Term Loan Claimholder seeks to enforce or collect the Term Loan Obligations or the
Liens securing the Term Loan Priority Collateral if such enforcement or collection is
undertaken in accordance with this Agreement, regardless of whether any action or failure to
act by or on behalf of any Term Loan Agent or any other Term Loan Claimholders is adverse to
the interest of the Revolving Credit Claimholders; and




               (3) each Revolving Credit Agent hereby acknowledges and agrees that no covenant,
agreement or restriction contained in any Revolving Credit Loan Document, shall be deemed to
restrict in any way the rights and remedies of any Term Loan Agent or any other Term Loan
Claimholder with respect to the enforcement of its Liens on the Term Loan Priority
Collateral as set forth in this Agreement and the Term Loan Documents.



 





 

27









 





          (e) Except as otherwise specifically set forth in Sections 3.2(a), 3.2(d) and
3.5, the Revolving Credit Agents and the other Revolving Credit Claimholders may exercise
rights and remedies as unsecured creditors against any Borrower or any other Grantor that has
guaranteed or granted Liens to secure the Revolving Credit Obligations and the Revolving Credit
Agents and the other Revolving Credit Claimholders may exercise rights and remedies with respect to
the Collateral, in each case, in accordance with the terms of this Agreement, the Revolving Credit
Loan Documents and applicable law; provided, however, that in the event that any
Revolving Credit Agent or any other Revolving Credit Claimholder becomes a judgment Lien creditor
in respect of Term Loan Priority Collateral as a result of its enforcement of its rights as an
unsecured creditor with respect to the Revolving Credit Obligations, such judgment Lien shall be
subject to the terms of this Agreement for all purposes (including in relation to the Term Loan
Priority Collateral) as the other Liens securing the Revolving Credit Obligations are subject to
this Agreement.




          (f) Nothing in this Agreement shall prohibit the receipt by any Revolving Credit Agent or any
other Revolving Credit Claimholder of the required payments of interest, principal and other
amounts owed in respect of the Revolving Credit Obligations, so long as such receipt is not the
direct or indirect result of the exercise by any Revolving Credit Agent or any other Revolving
Credit Claimholder of rights or remedies as a secured creditor in respect of the Term Loan Priority
Collateral (including set-off) or enforcement in contravention of this Agreement of any Lien held
by any of them. Nothing in this Agreement impairs or otherwise adversely affects, as between the
Grantors and the Term Loan Claimholders, any rights or remedies the Term Loan Agents or the other
Term Loan Claimholders may have against the Grantors under the Term Loan Documents.




     3.3 Exercise of Remedies — Collateral Access Rights.



          (a) The Revolving Credit Agents and the Term Loan Agents agree not to commence Enforcement
until the earlier of (i) the date on which an Enforcement Notice has been given to any Term Loan
Agent by any Revolving Credit Agent or any Revolving Credit Agent by any Term Loan Agent, as the
case may be, and (ii) the date on which any Insolvency or Liquidation Proceeding is commenced by or
against any Grantor. Subject to the provisions of Sections 3.1 and 3.2 above, any
of the Revolving Credit Agents and any of the Term Loan Agents may, to the extent permitted by
applicable law, join in any judicial proceedings commenced by the other Person to enforce Liens on
the Collateral, provided that no such Revolving Credit Agents or Term Loan Agents, nor any other
Revolving Credit Claimholders or Term Loan Claimholders, as the case may be, shall interfere with
the Enforcement actions of the other with respect to Collateral in which such party or its
Revolving Credit Agent or Term Loan Agent, as the case may be, has the benefit of the priority Lien
in accordance herewith.




          (b) If any of the Term Loan Agents or any of the other Term Loan Claimholders or any of their
respective agents or representatives, or any third party pursuant to any Enforcement undertaken by
any of the Term Loan Agents or any of the other Term Loan Claimholders, as applicable, or any
receiver, shall obtain possession or physical control of any of the Mortgaged Premises, the Term
Loan Agents shall promptly notify the Revolving Credit Agents of that fact and the Revolving Credit
Agents shall, within 10 Business Days thereafter, notify the Term Loan Agents and, if applicable,
any such third party (at such address to be




 





 

28









 







provided by the Term Loan Agents, as applicable, in connection with the applicable
Enforcement), as to whether the Revolving Credit Agents desire to exercise access rights under this
Agreement, at which time the parties shall confer in good faith to coordinate with respect to the
Revolving Credit Agents’ exercise of such access rights. Access rights may apply to differing
parcels of Mortgaged Premises at differing times (i.e. the Revolving Credit Agents may obtain
possession of one plant at a different time than it obtains possession of other properties), in
which case, a differing Access Period may apply to each such property.




          (c) Upon delivery of notice to the Term Loan Agents as provided in Section 3.3(b), the
Access Period shall commence for the subject parcel of Mortgaged Premises. During the Access
Period, the Revolving Credit Agents and their respective agents, representatives and designees
shall have a non-exclusive right to have access to, and a rent free right to use, the Term Loan
Priority Collateral for the purpose of arranging for and effecting the sale or disposition of
Revolving Credit Priority Collateral, including the production, completion, packaging and other
preparation of such Revolving Credit Priority Collateral for sale or disposition. During any such
Access Period, the Revolving Credit Agents and their respective agents, representatives and
designees, may continue to operate, service, maintain, process and sell the Revolving Credit
Priority Collateral, as well as to engage in bulk sales of Revolving Credit Priority Collateral.
Each Revolving Credit Agent shall take proper care of any Term Loan Priority Collateral that is
used by it during the Access Period and repair and replace any damage (ordinary wear-and-tear
excepted) caused by it or its agents, representatives or designees and comply with all applicable
laws in connection with its use or occupancy of the Term Loan Priority Collateral. The Revolving
Credit Agents and the other Revolving Credit Claimholders shall indemnify and hold harmless the
Term Loan Agents and the other Term Loan Claimholders for any injury or damage to Persons or
property caused by the acts or omissions of Persons under the control of any of the Revolving
Credit Agents or any other Revolving Credit Claimholders. The Revolving Credit Agents and the Term
Loan Agents shall cooperate and use reasonable efforts to ensure that their activities during the
Access Period as described above do not interfere materially with the activities of the other as
described above, including the right of the Term Loan Agents to commence foreclosure of the Term
Loan Mortgages or to show the Term Loan Priority Collateral to prospective purchasers and to ready
the Term Loan Priority Collateral for sale.




          (d) If any order or injunction is issued or stay is granted or otherwise comes into force
which prohibits the Revolving Credit Agents from exercising any of their rights hereunder, then at
the Revolving Credit Agents’ option, the Access Period granted under this Section 3.3 shall
be stayed during the period of such prohibition and shall continue thereafter for the number of
days remaining as required under this Section 3.3. If any Term Loan Agent shall foreclose
or otherwise sell any of the Term Loan Priority Collateral, such Person will notify the buyer
thereof of the existence of this Agreement and that the buyer is acquiring such Term Loan Priority
Collateral subject to the terms of this Agreement.




          (e) The Grantors hereby agree with the Term Loan Agents that the Revolving Credit Agents shall
have access, during the Access Period, as described herein and each such Grantor that owns any of
the Mortgaged Premises grants a non-exclusive easement in gross over its property to permit the
uses by Revolving Credit Agents, contemplated by this Section 3.3. Each Term Loan Agent
consents to such easement.




 




 

29









 





     3.4 Exercise of Remedies — Intellectual Property Rights/Access to Information/Use of
Equipment.



          (a) Each Term Loan Agent hereby grants (to the full extent of its rights and interests) to
each Revolving Credit Agent and its agents, representatives and designees a royalty free, rent free
license and lease to use all of the Term Loan Priority Collateral (exclusive of Intellectual
Property but including any computer or other data processing Equipment), to collect all Accounts or
amounts owing under Instruments or Chattel Paper, to copy, use or preserve any and all information
relating to any of the Collateral, and to complete the manufacture, packaging and sale of
Inventory; provided, however, that the royalty free, rent free license and lease granted in clause
(a) with respect to Equipment shall immediately expire upon the sale, lease, transfer or other
disposition of such Equipment; provided, further, that the Term Loan Agents shall
provide the Revolving Credit Agent with at least ten (10) days’ notice prior to such sale, lease,
transfer or disposition.




          (b) Each Term Loan Agent hereby grants (to the full extent of its rights and interests) each
Revolving Credit Agent and its agents, representatives and designees, solely during the Enforcement
Period, (i) a nonexclusive, royalty free, worldwide license or sublicense (subject to the terms of
the underlying license) (which will be binding on any successor or assignee of the Intellectual
Property) to use all of the Term Loan Priority Collateral constituting Intellectual Property solely
to the extent necessary to collect all Accounts or amounts owing under Instruments or Chattel Paper
and to complete the manufacture, packaging and sale of Inventory and (ii) a nonexclusive, royalty
free, worldwide license or sublicense (subject to the terms of the underlying license) (which will
be binding on any successor or assignee of the Intellectual Property) to use any and all Term Loan
Priority Collateral constituting Intellectual Property in connection with its Enforcement;
provided, however, that each Revolving Credit Agent, during the term of the above licenses, shall
use any Trademarks of such licensed Intellectual Property solely in connection with (x) goods or
services which the Revolving Credit Agents in good faith reasonably believe to be in all material
respects of at least the same level of quality offered by, and in a manner in which the Revolving
Credit Agents in good faith reasonably believe to be in all material respects consistent with the
practices of, the relevant Grantors as of the date of the Enforcement Notice or (y) the disposition
of damaged, obsolete or second-quality goods which dispositions the Revolving Credit Agents in good
faith reasonably believe will not materially diminish the distinctiveness and quality
characteristics associated with such Intellectual Property or the validity thereof (it being
understood and agreed that each Revolving Credit Agent and its agents, representatives and
designees shall comply in all material respects with all laws pertaining to its use of Intellectual
Property described hereunder, including notice requirements).




     3.4 Exercise of Remedies — Set Off and Tracing of and Priorities in Proceeds. Each Term Loan Agent, for itself and on behalf of the other Term Loan
Claimholders, acknowledges and agrees that,
to the extent any such Person exercises its rights of set-off against any Grantors’ Deposit
Accounts, Securities Accounts or other assets, the amount of such set-off shall be deemed to be the
Revolving Credit Priority Collateral to be held and distributed pursuant to Section 4.3;
provided that the foregoing shall not apply to any set-off by any such Person against any
Term Loan Priority Collateral (including proceeds thereof and amounts in any Net Cash Proceeds
Accounts) to the extent applied to payment of Term Loan Obligations. Each Term



 
 





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Loan Agent, for itself and on behalf of the other Term Loan Claimholders agrees that prior to an
issuance of an Enforcement Notice all funds deposited under Account Agreements (excluding funds in
Net Cash Proceeds Accounts) and then applied to the Revolving Credit Obligations shall be treated
as Revolving Credit Priority Collateral and, unless any Revolving Credit Agent has actual knowledge
to the contrary, any claim that payments made to any Revolving Credit Agent through the bank
accounts that are subject to Account Agreements (other than Account Agreements with respect to Net
Cash Proceeds Accounts) are proceeds of or otherwise constitute Term Loan Priority Collateral, are
waived. Prior to an issuance of an Enforcement Notice, any proceeds of Collateral, whether or not
deposited under Account Agreements, which are used by any Grantor to acquire other property
(excluding property held pursuant to an Account Agreement) that is Collateral shall not (as among
the Revolving Credit Agents, the Term Loan Agents and the various other Claimholders) be treated as
proceeds of Collateral for purposes of determining the relative priorities in the Collateral which
was so acquired. After an issuance of an Enforcement Notice, the Revolving Credit Agents, the Term
Loan Agents and the other Claimholders shall cooperate in good faith to identify the proceeds of
the Revolving Credit Priority Collateral and the Term Loan Priority Collateral, as the case may be
(it being agreed that after an issuance of an Enforcement Notice, unless any Revolving Credit Agent
has actual knowledge to the contrary, all funds deposited under Account Agreements (other than
funds deposited in Net Cash Proceeds Accounts) and then applied to the Revolving Credit Obligations
shall be presumed to be Revolving Credit Priority Collateral (a presumption that can be rebutted by
the Term Loan Agents); provided, however, that no Revolving Credit Agent, Term Loan
Agent or other Claimholder shall be liable or in any way responsible for any claims or damages from
conversion of the Revolving Credit Priority Collateral or Term Loan Priority Collateral, as the
case may be (it being understood and agreed that (i) the only obligation of any Revolving Credit
Agent or other Revolving Credit Claimholder is to pay over to the Term Loan Agents, in the same
form as received, with any necessary endorsements, all proceeds that such Revolving Credit Agent or
other Revolving Credit Claimholder received that have been identified as proceeds of the Term Loan
Priority Collateral and, until such time, such proceeds will be held in trust for the Term Loan
Agents and (ii) the only obligation of any Term Loan Agent or other Term Loan Claimholder is to pay
over to the Revolving Credit Agents, in the same form as received, with any necessary endorsements,
all proceeds that such Term Loan Agent or other Term Loan Claimholder received that have been
identified as proceeds of the Revolving Credit Priority Collateral. Any of the Revolving Credit
Agents and any of the Term Loan Agents may request from the other an accounting of the
identification of the proceeds of Collateral (and the Revolving Credit Agents and the Term Loan
Agents, as the case may be, upon which such request is made shall deliver such accounting
reasonably promptly after such request is made) and, until such time, such proceeds will be held in
trust for the Revolving Credit Agents.




          IV. PAYMENTS.




     4.1 Application of Proceeds.  



          (a) So long as the Discharge of Revolving Credit Obligations has not occurred, whether or not
any Insolvency or Liquidation Proceeding has been commenced by or against any Borrower or any other
Grantor, all Revolving Credit Priority Collateral or proceeds thereof received in connection with
the sale or other disposition of, or collection on, such Revolving Credit Priority Collateral upon
the exercise of remedies by (x) any of the Revolving




 
 





31









 







Credit Agents or any other Revolving Credit Claimholders, shall be applied by the Revolving
Credit Agents to the Revolving Credit Obligations in such order as specified in the relevant
Revolving Credit Loan Documents or (y) any of the Term Loan Agents or any other Term Loan
Claimholders in accordance with this Agreement shall be segregated and held in trust for and on
behalf of and forthwith paid over to the Revolving Credit Agents for the benefit of the Revolving
Credit Claimholders in the same form as received, with any necessary endorsements. Upon the
Discharge of Revolving Credit Obligations, the Revolving Credit Agents shall deliver to the Term
Loan Agents any Collateral and proceeds of Collateral held by any Revolving Credit Agents in the
same form as received, with any necessary endorsements or as a court of competent jurisdiction may
otherwise direct, to be applied by the Term Loan Agents in such order as specified in the relevant
Term Loan Documents.




          (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 any Borrower or any other
Grantor, all Term Loan Priority Collateral or proceeds thereof received in connection with the sale
or other disposition of, or collection on, such Term Loan Priority Collateral upon the exercise of
remedies by (x) any of the Term Loan Agents or any other Term Loan Claimholders, shall be applied
by the Term Loan Agents to the Term Loan Obligations in such order as specified in the other
relevant Term Loan Documents or (y) any of the Revolving Credit Agents or any other Revolving
Credit Claimholders in accordance with this Agreement shall be segregated and held in trust for and
on behalf of and forthwith paid over to the Term Loan Agents for the benefit of the Term Loan
Claimholders in the same form as received, with any necessary endorsements. Upon the Discharge of
Term Loan Obligations, the Term Loan Agents shall deliver to the Revolving Credit Agents any
Collateral and proceeds of Collateral held by any Term Loan Agents in the same form as received,
with any necessary endorsements or as a court of competent jurisdiction may otherwise direct, to be
applied by the Revolving Credit Agents in such order as specified in the relevant Revolving Credit
Loan Documents.




          (c) Any amounts realized by the Revolving Credit Claimholders from real property interests of
German Subsidiaries as provided in Section 2.5 shall be held in trust for and on behalf of
and forthwith paid over to the Term Loan Agents in the same form as received, with any necessary
endorsements.




     4.2 Payments Over in Violation of Agreement. Unless and until both the Discharge of Revolving
Credit Obligations and the Discharge of Term Loan Obligations have occurred, whether or not any
Insolvency or Liquidation Proceeding has been commenced by or against any Borrower or any other
Grantor, any Collateral or proceeds thereof (including assets or proceeds subject to Liens referred
to in the final sentence of Section 2.3) received by any Revolving Credit Agent, any Term
Loan Agent or any other Claimholder in connection with the exercise of any right or remedy
(including set-off) relating to the Collateral in contravention of this Agreement shall be
segregated and held in trust for and on behalf of and forthwith paid over to the Revolving Credit
Agents or the Term Loan Agents, as appropriate, in the same form as received, with any necessary
endorsements or as a court of competent jurisdiction may otherwise direct. Each of the Revolving
Credit Agents is hereby authorized to make any such endorsements as agent for the Term Loan Agents
and each of the Term Loan Agents is hereby authorized to make any such endorsements as agent for
the Revolving Credit Agents. Each of the foregoing



 
 






32









 







authorizations is coupled with an interest and is irrevocable until both the Discharge of Revolving
Credit Obligations and Discharge of Term Loan Obligations have occurred.




     4.3
Application of Payments. Subject to the other terms of this Agreement (a) all payments
received by any Revolving Credit Agent or any other Revolving Credit Claimholder may be applied,
reversed and reapplied, in whole or in part, to the Revolving Credit Obligations to the extent
provided for in the Revolving Credit Loan Documents; and (b) all payments received by any Term Loan
Agent or any other Term Loan Claimholder may be applied, reversed and reapplied, in whole or in
part, to the Term Loan Obligations to the extent provided for in the Term Loan Documents.



          V. OTHER AGREEMENTS.




     5.1 Releases.



          (a) (i) If in connection with the exercise of by any Revolving Credit Agent of remedies in
respect of any Collateral as provided for in Section 3.1, any Revolving Credit Agent, for
itself and/or on behalf of any of the other Revolving Credit Claimholders, releases its Liens on
any part of the Revolving Credit Priority Collateral, then the Liens, if any, of the Term Loan
Agents and the other Term Loan Claimholders on the Collateral sold or disposed of in connection
with such exercise, shall be automatically, unconditionally and simultaneously released. Each Term
Loan Agent, for itself and on behalf of the other Term Loan Claimholders, shall promptly execute
and deliver to the Revolving Credit Agents such termination statements, releases and other
documents as the Revolving Credit Agents may request to effectively confirm such release.




          (ii) If in connection with the exercise by any Term Loan Agent of remedies in respect of any
Collateral as provided for in Section 3.2, any Term Loan Agent, for itself and/or on
behalf of any of the other Term Loan Claimholders, releases all of its Liens on any part of the
Term Loan Priority Collateral, then the Liens, if any, of the Revolving Credit Agents and the
other Revolving Credit Claimholders on the Priority Collateral sold or disposed of in connection
with such exercise, shall be automatically, unconditionally and simultaneously released. Each
Revolving Credit Agent, for itself and on behalf of the other Revolving Credit Claimholders shall
promptly execute and deliver to the Term Loan Agents such termination statements, releases and
other documents as the Term Loan Agents may request to effectively confirm such release.




          (b) If in connection with any sale, lease, exchange, transfer or other disposition of any
Collateral or all of the Equity Interests of any Grantor (collectively, a “Disposition”) permitted
under the terms of both the Revolving Credit Loan Documents and the Term Loan Documents (including
voluntary Dispositions of Revolving Credit Priority Collateral by the respective Grantors after a
Revolving Credit Default and voluntary Dispositions of Term Loan Priority Collateral by the
respective Grantors after a Term Loan Default), (i) any Revolving Credit Agent, for itself and/or
on behalf of any of the other Revolving Credit Claimholders, releases its Liens on any part of the
Revolving Credit Priority Collateral subject to such Disposition or releases such Grantor whose
Equity Interests have been so disposed of from its obligations under the Revolving Credit Loan
Documents, in each case other than (A) in




 
 





33









 







connection with the Discharge of Revolving Credit Obligations or (B) after the occurrence and
during the continuance of a Term Loan Default, then the Liens, if any, of the Term Loan Agents and
the other Term Loan Claimholders on such Collateral subject to Disposition shall be automatically,
unconditionally and simultaneously released (and in the case of a release of a Grantor from its
obligations under the Revolving Credit Loan Documents as aforesaid, such Grantor shall be
automatically, unconditionally and simultaneously released from its obligations under the Term Loan
Documents), and (ii) any Term Loan Agent, for itself and/or on behalf of any of the other Term Loan
Claimholders, releases its Liens on any part of the Term Loan Priority Collateral or releases such
Grantor from its obligations under the Term Loan Documents, in each case other than (A) in
connection with the Discharge of Term Loan Obligations or (B) after the occurrence and during the
continuance of a Revolving Credit Default, then the Liens, if any, of the Revolving Credit Agents
and the other Revolving Credit Claimholders on such Collateral shall be automatically,
unconditionally and simultaneously released (and, in the case of a release of a Grantor from its
obligations under the Term Loan Documents as aforesaid, such Grantor shall be automatically,
unconditionally and simultaneously released from its obligations under the Revolving Credit Loan
Documents). Each of the Revolving Credit Agents, for itself and/or on behalf of the other
Revolving Credit Claimholders, and each of the Term Loan Agents, for itself and/or on behalf of the
other Term Loan Claimholders, as the case may be, shall promptly execute and deliver to the Term
Loan Agents or the Revolving Credit Agents, as the case may be, such termination statements,
releases and other documents as the Term Loan Agents or the Revolving Credit Agents may request to
effectively confirm such release.




          (c) Until the Discharge of Revolving Credit Obligations shall occur, each Term Loan Agent, for
itself and on behalf of the other Term Loan Claimholders, hereby irrevocably constitutes and
appoints each Revolving Credit Agent and any of its officers or agents, 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 Term Loan Agent or each such other Term Loan Claimholder, whether in
such Revolving Credit Agent’s name or, at the option of such Revolving Credit Agent, in any Term
Loan Agent’s or any other Term Loan Claimholder’s own name, from time to time in such Revolving
Credit Agent’s discretion, for the purpose of carrying out the terms of this Section 5.1,
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 this Section 5.1, including any endorsements
or other instruments of transfer or release.




          (d) Until the Discharge of Term Loan Obligations shall occur, each Revolving Credit Agent, for
itself and on behalf of the other Revolving Credit Claimholders hereby irrevocably constitutes and
appoints each Term Loan Agent and any of its officers or agents, 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 Revolving Credit Agent or each such other Revolving Credit Claimholder, whether in
such Term Loan Agent’s name or, at the option of such Term Loan Agent, in any Revolving Credit
Agent’s name or any other Revolving Credit Claimholder’s own name, from time to time in such Term
Loan Agent’s discretion, for the purpose of carrying out the terms of this Section 5.1, to
take any and all appropriate action and to execute any and all documents and instruments which may
be necessary to accomplish the




 
 





34









 







purposes of this Section 5.1, including any endorsements or other instruments of transfer or release.




     5.2 Insurance. 


          (a) Unless and until the Discharge of Revolving Credit Obligations has occurred, subject to
the terms of, and the rights of the Grantors under, the Revolving Credit Loan Documents, (i) the
Revolving Credit Agents and the other Revolving Credit Claimholders shall have the sole and
exclusive right to adjust settlement for any insurance policy covering the Revolving Credit
Priority Collateral or the Liens with respect thereto in the event of any loss thereunder or with
respect thereto and to approve any award granted in any condemnation or similar proceeding (or any
deed in lieu of condemnation) affecting such Revolving Credit Priority Collateral, (ii) all
proceeds of any such policy and any such award (or any payments with respect to a deed in lieu of
condemnation) if in respect of the Revolving Credit Priority Collateral and to the extent required
by the Revolving Credit Loan Documents shall be paid to the Revolving Credit Agents for the benefit
of the Revolving Credit Claimholders pursuant to the terms of the Revolving Credit Loan Documents
(including for purposes of cash collateralization of letters of credit) and thereafter, to the
extent no Revolving Credit Obligations are outstanding, and subject to the terms of, and the rights
of the Grantors under, the Term Loan Documents, to the Term Loan Agents for the benefit of the Term
Loan Claimholders to the extent required under the Term Loan Documents and then, to the extent no
Term Loan Obligations which were secured by such Collateral are outstanding, to the owner of the
subject property, such other Person as may be entitled thereto or as a court of competent
jurisdiction may otherwise direct and (iii) if any Term Loan Agent or any other Term Loan
Claimholder shall, at any time, receive any proceeds of any such insurance policy or any such award
or payment in contravention of this Agreement, it shall segregate and hold in trust and forthwith
pay such proceeds over to the Revolving Credit Agents in accordance with the terms of Section
4.2.



          (b) Unless and until the Discharge of Term Loan Obligations has occurred, subject to the terms
of, and the rights of the Grantors under, the Term Loan Documents, (i) the Term Loan Agents and the
other Term Loan Claimholders shall have the sole and exclusive right to adjust settlement for any
insurance policy covering the Term Loan Priority Collateral or the Liens with respect thereto in
the event of any loss thereunder or with respect thereto and to approve any award granted in any
condemnation or similar proceeding (or any deed in lieu of condemnation) affecting such Term Loan
Priority Collateral, (ii) all proceeds of any such policy and any such award (or any payments with
respect to a deed in lieu of condemnation) if in respect of the Term Loan Priority Collateral and
to the extent required by the Term Loan Documents shall be paid to the Term Loan Agents for the
benefit of the Term Loan Claimholders pursuant to the terms of the Term Loan Documents and
thereafter, to the extent no Term Loan Obligations are outstanding, and subject to the terms of,
and the rights of the Grantors under, the Revolving Credit Loan Documents, to the Revolving Credit
Agents for the benefit of the Revolving Credit Claimholders to the extent required under the
Revolving Credit Loan Documents and then, to the extent no Revolving Credit Obligations which were
secured by such Collateral are outstanding, to the owner of the subject property, such other Person
as may be entitled thereto or as a court of competent jurisdiction may otherwise direct and (iii)
if any Revolving Credit Agent or any other Revolving Credit Claimholder shall, at any time, receive
any proceeds of any such insurance policy or any such award or payment in contravention of this




 
 





35









 







Agreement, it shall segregate and hold in trust and forthwith pay such proceeds over to the Term
Loan Agents in accordance with the terms of Section 4.2.




          (c) To effectuate the foregoing, the applicable Revolving Credit Agents and the applicable
Term Loan Agents shall each receive separate lender’s loss payable endorsements naming themselves
as loss payee and additional insured, as their interests may appear, with respect to policies which
insure Collateral hereunder. To the extent any proceeds are received for business interruption and
those proceeds are not compensation for a casualty loss with respect to the Term Loan Priority
Collateral, such proceeds shall first be applied to the payment of the Revolving Credit Obligations
and then be applied, to the extent required by the Term Loan Documents, to the payment of the Term
Loan Obligations. To the extent any proceeds are received for liability or indemnification and
those proceeds are not compensation for a casualty loss with respect to the Term Loan Priority
Collateral, such proceeds shall be applied to compensate or reimburse the Term Loan Claimholders
and Revolving Credit Claimholders in accordance with such liability or indemnification claims.




     5.3 Amendments to Revolving Credit Loan Documents and Term Loan Documents; Refinancings;
Legending Provisions. 



          (a) The Revolving Credit Loan Documents and the Term Loan Documents may be Modified in
accordance with the terms of both the Revolving Credit Loan Documents and the Term Loan Documents
in each case, without notice to, or the consent (except to the extent a consent is required to
permit such Modification under any Revolving Credit Loan Document or any Term Loan Document) of any
Revolving Credit Agent or any other Revolving Credit Claimholder or any Term Loan Agent or any
other Term Loan Claimholder, as the case may be, all without affecting the lien priorities provided
for herein or the other provisions of this Agreement.




          (b) (i) In the event any Revolving Credit Agent enters into (or otherwise agrees or consents
to) any Modification in respect of any of the Revolving Credit Security Documents for the purpose
of adding to, or deleting from, or waiving or consenting to any departures from any provisions of,
any Revolving Credit Security Document or changing in any manner the rights of any parties
thereunder, in each case solely with respect to any Revolving Credit Priority Collateral, then such
Modification shall apply automatically to any comparable provision of the Comparable Term Loan
Security Document without the consent of or action by any Term Loan Agent or any other Term Loan
Claimholder (with all such Modifications subject to the terms hereof); provided that, (A)
no such Modification shall have the effect of removing assets subject to the Lien of any Term Loan
Security Document, except to the extent that a release of such Lien is permitted by Section
5.1, (B) any such Modification that materially and adversely affects the rights of any of the
Term Loan Claimholders and does not affect the Revolving Credit Claimholders in a like or similar
manner shall not apply to the Term Loan Security Documents without the consent of the Term Loan
Agents, (C) no such Modification with respect to any provision applicable to any Term Loan Agent
under any Term Loan Documents shall be made without the prior written consent of such Term Loan
Agent and (D) notice of such Modification shall be given to the Term Loan Agents no later than 30
days after its effectiveness (provided that the failure to give such notice shall not affect the
effectiveness and validity thereof) (other than, in the case of clauses (B) and (D), with respect
to Modifications




 
 






36









 







that secure additional extensions of credit or add additional secured creditors
and do not violate the express provisions of the Term Loan Documents).




          (ii) In the event any Term Loan Agent enters into (or otherwise agrees or consents to) any
Modification in respect of any of the Term Loan Security Documents for the purpose of adding to,
or deleting from, or waiving or consenting to any departures from any provisions of, any Term Loan
Security Document or changing in any manner the rights of any parties thereunder, in each case
solely with respect to any Term Loan Priority Collateral, then such Modification shall apply
automatically to any comparable provision of the Comparable Revolving Credit Security Document
without the consent of or action by any Revolving Credit Agent or any other Revolving Credit
Claimholder (with all such Modifications subject to the terms hereof); provided that, (A)
no such a Modification shall have the effect of removing assets subject to the Lien of any
Revolving Credit Security Document, except to the extent that a release of such Lien is permitted
by Section 5.1, (B) any such Modification that materially and adversely affects the rights
of any of the Revolving Credit Claimholders and does not affect the Term Loan Claimholders in a
like or similar manner shall not apply to the Revolving Credit Security Documents without the
consent of the Revolving Credit Agents, (C) no such Modification with respect to any provision
applicable to any Revolving Credit Agent under any Revolving Credit Documents shall be made
without the prior written consent of such Revolving Credit Agent and (D) notice of such
Modification shall be given to the Revolving Credit Agents no later than 30 days after its
effectiveness (provided that the failure to give such notice shall not affect the effectiveness
and validity thereof) (other than, in the case of clauses (B) and (D), with respect to
Modifications that secure additional extensions of credit or add additional secured creditors and
do not violate the express provisions of the Revolving Credit Loan Documents).




          (c) The Revolving Credit Obligations and the Term Loan Obligations may be Refinanced, in whole
or in part, in each case, without notice to, or the consent (except to the extent a consent is
required to permit such Refinancing transaction under any Revolving Credit Loan Document or any
Term Loan Document) of any Revolving Credit Agent or any other Revolving Credit Claimholder or any
Term Loan Agent or any other Term Loan Claimholder, as the case may be, all without affecting the
lien priorities provided for herein or the other provisions of this Agreement; provided,
however, that the holders of such Refinancing indebtedness (or an authorized agent or
trustee on their behalf) and each relevant Grantor bind themselves to the terms of this Agreement
in such documents or agreements (including amendments or supplements to this Agreement) as the
Revolving Credit Agents or the Term Loan Agents, as the case may be, shall reasonably request and
in form and substance reasonably acceptable to the Revolving Credit Agents or the Term Loan Agents,
as the case may be, and any such Refinancing transaction shall be in accordance with the provisions
of both the Revolving Credit Loan Documents and the Term Loan Documents.




          (d) Each Revolving Credit Security Document and Term Loan Security Document shall include the
following language (or language to similar effect approved by each of the Revolving Credit Agents
and the Term Loan Agents):





“NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIEN AND SECURITY
INTEREST GRANTED



 
 




37









 






TO THE [COLLATERAL AGENT, COLLATERAL TRUSTEE OR OTHER
PERSON, AS APPLICABLE], FOR THE BENEFIT OF THE SECURED PARTIES, PURSUANT
TO THIS AGREEMENT AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE [COLLATERAL AGENT, COLLATERAL
TRUSTEE OR OTHER PERSON, AS APPLICABLE] [AND THE OTHER SECURED PARTIES]
HEREUNDER ARE SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT,
DATED AS OF JULY 6, 2007 (AS AMENDED, RESTATED, AMENDED AND RESTATED,
SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE “INTERCREDITOR
AGREEMENT”, AMONG NOVELIS INC., A CORPORATION FORMED UNDER THE CANADA
BUSINESS CORPORATIONS ACT, NOVELIS CORPORATION, A TEXAS CORPORATION,
NOVELIS PAE CORPORATION, A DELAWARE CORPORATION, NOVELIS FINANCES USA LLC,
A DELAWARE LIMITED LIABILITY COMPANY, NOVELIS SOUTH AMERICA HOLDINGS LLC,
A DELAWARE LIMITED LIABILITY COMPANY, ALUMINUM UPSTREAM HOLDINGS LLC, A
DELAWARE LIMITED LIABILITY COMPANY, NOVELIS UK LIMITED, A LIMITED
LIABILITY COMPANY INCORPORATED UNDER THE LAWS OF ENGLAND AND WALES WITH
REGISTERED NUMBER 00279596, AND NOVELIS AG, A STOCK CORPORATION (AG)
ORGANIZED UNDER THE LAWS OF SWITZERLAND, AV ALUMINUM INC., A CORPORATION
FORMED UNDER THE CANADA BUSINESS CORPORATIONS ACT (“HOLDINGS”), THE
SUBSIDIARIES OF HOLDINGS FROM TIME TO TIME PARTY THERETO, ABN AMRO BANK
N.V., AS ADMINISTRATIVE AGENT FOR THE REVOLVING CREDIT LENDERS (AS DEFINED
IN THE INTERCREDITOR AGREEMENT), LASALLE BUSINESS CREDIT, LLC, AS
COLLATERAL AGENT FOR THE REVOLVING CREDIT CLAIMHOLDERS (AS DEFINED IN THE
INTERCREDITOR AGREEMENT) AND AS FUNDING AGENT, ABN AMRO BANK N.V., ACTING
THROUGH ITS CANADIAN BRANCH, AS CANADIAN ADMINISTRATIVE AGENT FOR THE
REVOLVING CREDIT LENDERS AND AS CANADIAN FUNDING AGENT, UBS AG, STAMFORD
BRANCH, AS ADMINISTRATIVE AGENT FOR THE TERM LOAN LENDERS (AS DEFINED IN
THE INTERCREDITOR AGREEMENT), AND AS COLLATERAL AGENT FOR THE TERM LOAN
CLAIMHOLDERS (AS DEFINED IN THE INTERCREDITOR AGREEMENT) AND CERTAIN OTHER
PERSONS WHICH MAY BE OR BECOME PARTIES THERETO OR BECOME BOUND THERETO
FROM TIME TO TIME. IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN
THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND



 
 




38









 






THIS AGREEMENT, THE PROVISIONS OF THE INTERCREDITOR AGREEMENT SHALL GOVERN AND CONTROL.”



          In addition, each of the Revolving Credit Agents and the Term Loan Agents agree that the
foregoing language shall be modified as necessary or advisable or reasonably requested by either the Revolving Credit Agents (subject to the consent of the Term Loan Agents not to
be unreasonably withheld) or the Term Loan Agents (subject to the consent of the Revolving Credit
agents not to be unreasonably withheld) to conform to the requirements of any applicable
jurisdiction.




          (e) Each of the Revolving Credit Agents and the Term Loan Agents shall each use its best
efforts to notify the Term Loan Agents or the Revolving Credit Agents, as applicable, of any
Modification in respect of any Revolving Credit Loan Document or any Term Loan Document, as
applicable, but the failure to do so shall not create a cause of action against the party failing
to give such notice or create any claim or right on behalf of any third party. In connection with
each Modification permitted by Section 5.3, each of the Revolving Credit Agents and the
Term Loan Agents shall, upon request of the Term Loan Agents or the Revolving Credit Agents, as
applicable, provide copies of all relevant documentation related to such Modification to the Term
Loan Agents or the Revolving Credit Agents, as applicable.




     5.4 Bailee or Agency for Perfection. 



          (a) Each Revolving Credit Agent and each Term Loan Agent, respectively, agrees to hold that
part of the Collateral that is in its possession or control (or in the possession or control of its
agents or bailees), to the extent that possession or control thereof is taken to perfect a Lien
thereon under the UCC or under the law of any applicable jurisdiction outside of the United States
(such Collateral being the “Pledged Collateral”), as sub-agent and as bailee for the Term Loan
Agents (for the benefit of the Term Loan Claimholders) and the Revolving Credit Agents (for the
benefit of the Revolving Credit Claimholders), respectively, (such bailment being intended, among
other things, to satisfy the requirements of Sections 8-301(a)(2) and 9-313(c) of the UCC) and any
of their respective assignees, solely for the purpose of perfecting the security interest granted
under the Term Loan Documents and the Revolving Credit Loan Documents, respectively, subject to the
terms and conditions of this Section 5.4. To the extent a junior pledge of or junior lien
on any Term Loan Priority Collateral is prohibited or unenforceable under the law of any applicable
jurisdiction outside of the United States, any applicable Term Loan Agent may, in its sole
discretion, elect to hold any such Term Loan Priority Collateral, as sub-agent for the Revolving
Credit Agents, for the benefit of the Revolving Lien Claimholders, solely for the purpose of the
creation and/or perfection of Liens in such Term Loan Priority Collateral to secure the Revolving
Credit Obligations, and subject to the terms and conditions of this Section 5.4, it being
expressly understood and agreed that the claims of the Revolving Credit Claimholders in respect of
such Term Loan Priority Collateral shall be subordinated to the claims of the Term Loan
Claimholders in respect of such Term Loan Priority Collateral on the same basis as the Liens on the
other Term Loan Priority Collateral securing any Revolving Credit Obligations are subordinated to
the Liens on such other Term Loan Priority Collateral securing any Term Loan Obligations, and
nothing in this Section 5.4 shall affect the status of such Collateral as Term Lien
Priority Collateral.




 
 





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          In addition, the Term Loan Collateral Agent is hereby appointed by the Revolving Credit Agent
as agent for the benefit of the Revolving Credit Claimholders for the purpose of holding the
Collateral subject to the Italian Pledge Agreement, the Korea Share Pledge Agreement, Swiss Stock
and IP Agreements and the German Assignment Agreements on behalf of both the Term Loan Claimholders
and the Revolving Credit Claimholders, it being understood that the Collateral subject to the Italian Pledge Agreement, the Korea Share Pledge Agreement,
the Swiss Stock and IP Agreements and the German Assignment Agreements constitutes Term Loan
Priority Collateral.




          In the event any Term Loan Agent becomes subject to liability, or suffers any costs, damages
or expenses as a result of acting in any such capacity for the Revolving Credit Agents or Revolving
Credit Claimholders, (i) the Grantors shall pay, reimburse, indemnify and hold harmless the Term
Loan Agents for any such liabilities, costs, damages or expenses subject to the limitation set
forth in Article VII of the Term Loan Agreement to the extent applicable and (ii) in the event the
Grantors fail to so pay, reimburse, indemnify and hold harmless the Term Loan Agents, the Revolving
Credit Claimholders shall pay, reimburse, indemnify and hold harmless the Term Loan Agents for any
such liabilities, costs, damages or expenses.




          To the extent a junior pledge of or junior lien on any Revolving Credit Priority Collateral is
prohibited or unenforceable under the law of any applicable jurisdiction outside of the United
States, any applicable Revolving Credit Agent may, in its sole discretion, hold any such Revolving
Credit Priority Collateral, as sub-agent for the Term Loan Agents (for the benefit of the Term Lien
Claimholders) solely for the purpose of the creation and/or perfection of Liens in such Revolving
Credit Priority Collateral to secure the Term Loan Obligations, and subject to the terms and
conditions of this Section 5.4, it being expressly understood and agreed that the claims of
the Term Loan Claimholders in respect of such Pledged Collateral shall be subordinated to the
claims of the Revolving Credit Claimholders in respect of such Revolving Credit Priority Collateral
on the same basis as the Liens on the other Revolving Credit Priority Collateral securing any Term
Loan Obligations are subordinated to the Liens on such other Revolving Credit Priority Collateral
securing any Revolving Obligations, and nothing in this Section 5.4 shall affect the status
of such Collateral as Revolving Credit Priority Collateral.




          In addition, the Revolving Credit Collateral Agent is hereby appointed by the Term Loan Agents
as agent for the benefit of the Term Loan Claimholders for the purpose of holding the Collateral
subject to the Swiss Security Agreement and the German Receivables Assignments on behalf of both
the Revolving Credit Claimholders and the Term Loan Claimholders.




          In the event any Revolving Credit Agent becomes subject to liability, or suffers any costs,
damages or expenses as a result of acting in any such capacity for the Term Loan Agents or Term
Loan Claimholders, (i) the Grantors shall pay, reimburse, indemnify and hold harmless the
Revolving Credit Agents for any such liabilities, costs, damages or expenses subject to the
limitation set forth in Article VII of the Revolving Credit Agreement to the extent applicable and
(ii) in the event the Grantors fail to so pay, reimburse, indemnify and hold harmless the Revolving
Credit Agents, the Term Loan Claimholders shall pay, reimburse, indemnify and hold harmless the
Revolving Credit Agents for any such liabilities, costs, damages or expenses.




 
 







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          (b) No Person shall have any obligation whatsoever to any other Person to ensure that the
Pledged Collateral (or any other Collateral held by the Term Loan Agents for the Revolving Credit
Agents or by the Revolving Credit Agents for the Term Loan Agents) is genuine or owned by any of
the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities under this
Section 5.4 shall be limited solely to holding the Pledged Collateral (or such other
Collateral held as provided in clause (a) above) as sub-agent and/or bailee, as applicable, in
accordance with this Section 5.4 and delivering the Pledged Collateral upon a Discharge of
Revolving Credit Obligations or Discharge of Term Loan Obligations, as the case may be, as provided
in paragraph (d) below.




          (c) No Person acting pursuant to this Section 5.4 shall have by reason of the
Revolving Credit Loan Documents, the Term Loan Documents, this Agreement or any other document, a
fiduciary relationship with any other Person with respect to such acts.




          (d) Upon the Discharge of Revolving Credit Obligations the Revolving Credit Agents shall
deliver the remaining Pledged Collateral (if any) in their possession or control (or in the
possession or control of their agents), together with any necessary endorsements, first, to
the Term Loan Agents to the extent the Term Loan Obligations which are secured by such Pledged
Collateral remain outstanding, and second, to the applicable Grantor (in each case, so as
to allow such Person to obtain possession or control of such Pledged Collateral). Each Revolving
Credit Agent further agrees to take all other action reasonably requested by any Term Loan Agent in
connection with such Term Loan Agent obtaining a first-priority interest in the Collateral or as a
court of competent jurisdiction may otherwise direct.




          (e) Upon the Discharge of the Term Loan Obligations, the Term Loan Agents shall deliver the
remaining Pledged Collateral (if any) in their possession or control (or in the possession or
control of their agents), together with any necessary endorsements, first, to the Revolving
Credit Agents to the extent any Revolving Credit Obligations which are secured by such Pledged
Collateral remain outstanding, and second, to the applicable Grantor (in each case, so as
to allow such Person to obtain possession or control of such Pledged Collateral). Each Term Loan
Agent further agrees to take all other action reasonably requested by any Revolving Credit Agent in
connection with such Revolving Credit Agent obtaining a first-priority interest in the Collateral
or as a court of competent jurisdiction may otherwise direct.




          (f) Subject to the terms of this Agreement, (i) so long as the Discharge of Revolving Credit
Obligations has not occurred, each Revolving Credit Agent shall be entitled to deal with any
Pledged Collateral and any other Collateral within its “control” (within the meaning of the UCC) in
accordance with the terms of this Agreement and the Revolving Credit Loan Documents, but only to
the extent that such Collateral constitutes Revolving Credit Priority Collateral, as if the Liens
(if any) of the Term Loan Agents did not exist and (ii) so long as the Discharge of Term Loan
Obligations has not occurred, each Term Loan Agent shall be entitled to deal with any Pledged
Collateral and any other Collateral within its “control” (within the meaning of the UCC) in
accordance with the terms of this Agreement and the Term Loan Documents, but only to the extent
that such Collateral constitutes Term Loan Priority Collateral, as if the Liens of the Revolving
Credit Agents did not exist.




 
 






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     5.5 When Discharge of Revolving Credit Obligations and Discharge of Term Loan Obligations Deemed to
Not Have Occurred. If concurrently with the Discharge of Revolving Credit Obligations or the
Discharge of Term Loan Obligations, any of the Grantors thereafter enters into any Refinancing of
any Revolving Credit Obligations or any Term Loan Obligations, as the case may be, which
Refinancing is permitted by the Term Loan Documents and the Revolving Credit Loan Documents, then such Discharge of Revolving Credit Obligations or Discharge
of Term Loan Obligations, as the case may be, shall automatically be deemed not to have occurred
for all purposes of this Agreement (other than with respect to any actions taken as a result of the
occurrence of such first Discharge of Revolving Credit Obligations or Discharge of Term Loan
Obligations) and, from and after the date on which the New Debt Notice is delivered to the
Revolving Credit Agents or the Term Loan Agents, as applicable, in accordance with the next
sentence, the obligations under such Refinancing shall automatically be treated as Revolving Credit
Obligations or Term Loan Obligations, as applicable, for all purposes of this Agreement, including
for purposes of the Lien priorities and rights in respect of Collateral set forth herein, and the
Revolving Credit Agents or the Term Loan Agents, as the case may be, under such new Revolving
Credit Loan Documents or Term Loan Documents shall be the Revolving Credit Agents or the Term Loan
Agents, as applicable, for all purposes of this Agreement. Upon receipt of a notice (the “New Debt
Notice”) stating that the applicable Grantors have entered into new Revolving Credit Loan Documents
or Term Loan Documents (which notice shall include a complete copy of the relevant new documents
and provide the identity of the new agent(s) for such facility, such agent(s), the “New Agent”),
the Revolving Credit Agents and the Term Loan Agents shall promptly (a) enter into such documents
and agreements (including amendments or supplements to this Agreement) as such Grantors or such New
Agent shall reasonably request in order to provide to the New Agent the rights contemplated hereby,
in each case consistent in all material respects with the terms of this Agreement and (b) deliver,
to the extent contemplated by this Agreement, to such New Agent any Pledged Collateral in its
possession or control, together with any necessary endorsements (or otherwise allow such New Agent
to obtain possession or control of such Pledged Collateral) (for the avoidance of doubt, it being
expressly understood and agreed that nothing in this clause (b) shall require (x) any Revolving
Credit Agent to deliver or otherwise allow any New Agent to obtain possession or control of Pledged
Collateral constituting Revolving Credit Priority Collateral or (y) any Term Loan Agent to deliver
or otherwise allow any New Agent to obtain possession or control of Pledged Collateral constituting
Term Loan Priority Collateral). The New Agent shall agree in a writing addressed to the Revolving
Credit Agents and the other Revolving Credit Claimholders, or the Term Loan Agents and the other
Term Loan Claimholders, as applicable, and in form and substance reasonably acceptable to the
Revolving Credit Agents or the Term Loan Agents, as applicable, to be bound by the terms of this
Agreement.



          VI. INSOLVENCY OR LIQUIDATION PROCEEDINGS.




     6.1 Finance and Sale Issues.



          (a) Until the Discharge of Revolving Credit Obligations has occurred, if any Borrower or any
other Grantor shall be subject to any Insolvency or Liquidation Proceeding in the United States or
in Canada and the Revolving Credit Agents shall desire to permit the use of “Cash Collateral” (as
such term is defined in Section 363(a) of the Bankruptcy Code),




 
 






42









 







constituting Revolving Credit Priority Collateral or to permit any Borrower or any other Grantor to obtain financing, whether
from the Revolving Credit Claimholders or any other Person under Section 364 of the Bankruptcy
Code, under any similar Bankruptcy Law or pursuant to the order of a court (“DIP Financing”), then
each Term Loan Agent on behalf of itself and the other Term Loan Claimholders agrees that it will
raise no objection to such Cash Collateral use or DIP Financing so long as such Cash Collateral use or DIP Financing meets the following
requirements: (i) it is on commercially reasonable terms, (ii) the Term Loan Agents and the other
Term Loan Claimholders retain the right to object to any ancillary agreements or arrangements
regarding the Cash Collateral use or the DIP Financing that are materially prejudicial to their
interests in the Term Loan Priority Collateral, and (iii) the terms of the DIP Financing (A) do not
compel any Borrower or other Grantor to seek confirmation of a specific plan of reorganization for
which all or substantially all of the material terms are set forth in the DIP Financing
documentation or a related document and (B) do not expressly require the liquidation of the
Collateral prior to a default under the DIP Financing documentation or Cash Collateral order. To
the extent the Liens securing the Revolving Credit Obligations are subordinated to or pari passu
with such DIP Financing which meets the requirements of clauses (i) through (iii) above, each Term
Loan Agent will subordinate any Liens in the Revolving Credit Priority Collateral securing the Term
Loan Obligations to the Liens securing such DIP Financing (and all Obligations relating thereto) on
the same terms as the Liens securing the Revolving Credit Obligations are subordinated thereto (and
such subordination will not alter in any manner the terms of this Agreement), and will not request
adequate protection or any other relief in connection therewith (except, as expressly agreed by the
Revolving Credit Agents or to the extent permitted by Section 6.3).




          (b) Until the Discharge of Term Loan Obligations has occurred, if any Borrower or any other
Grantor shall be subject to any Insolvency or Liquidation Proceeding in the United States or Canada
and the Term Loan Agents shall desire to permit the use of “Cash Collateral” (as such term is
defined in Section 363(a) of the Bankruptcy Code) constituting Term Loan Priority Collateral or to
permit any Borrower or any other Grantor to obtain DIP Financing, whether from the Revolving Credit
Claimholders or any other Person, then each Revolving Credit Agent on behalf of itself and the
other Revolving Credit Claimholders agrees that it will raise no objection to such Cash Collateral
use or DIP Financing so long as such Cash Collateral use or DIP Financing meets the following
requirements: (i) it is on commercially reasonable terms, (ii) the Revolving Credit Agents and the
other Revolving Credit Claimholders retain the right to object to any ancillary agreements or
arrangements regarding the Cash Collateral use or the DIP Financing that are materially prejudicial
to their interests in the Revolving Credit Priority Collateral, and (iii) the terms of the DIP
Financing (A) do not compel any Borrower or other Grantor to seek confirmation of a specific plan
of reorganization for which all or substantially all of the material terms are set forth in the DIP
Financing documentation or a related document and (B) do not expressly require the liquidation of
the Collateral prior to a default under the DIP Financing documentation or Cash Collateral order.
To the extent the Liens securing the Term Loan Obligations are subordinated to or pari passu with
such DIP Financing which meets the requirements of clauses (i) through (iii) above, each Revolving
Credit Agent will subordinate any Liens in the Term Loan Priority Collateral securing the Revolving
Credit Obligations to the Liens securing such DIP Financing (and all Obligations relating thereto)
on the same terms as the Liens securing the Term Loan Obligations are subordinated thereto (and




 
 







43









 







such subordination will not alter in any manner the terms of this Agreement), and will not request
adequate protection or any other relief in connection therewith (except, as expressly agreed by the
Term Loan Agents or to the extent permitted by Section 6.3).




     6.2 Relief from the Automatic Stay.



          (a) Until the Discharge of Revolving Credit Obligations has occurred, each Term Loan Agent, on
behalf of itself and each other Term Loan Claimholder, agrees that none of them shall seek (or
support any other Person seeking) relief from the automatic stay or any other stay in any
Insolvency or Liquidation Proceeding in respect of any Revolving Credit Priority Collateral (other
than to the extent such relief is required to exercise its rights under Section 3.3),
without the prior written consent of the Revolving Credit Agents.




          (b) Until the Discharge of Term Loan Obligations has occurred, each Revolving Credit Agent, on
behalf of itself and the each other Revolving Credit Claimholder agrees that none of them shall
seek (or support any other Person seeking) relief from the automatic stay or any other stay in any
Insolvency or Liquidation Proceeding in respect of any Term Loan Priority Collateral (other than to
the extent such relief is required to exercise its rights under Section 3.3), without the
prior written consent of the Term Loan Agents.




     6.3 Adequate Protection. 



          (a) Each Term Loan Agent, on behalf of itself and each of the other Term Loan Claimholders,
agrees that none of them shall contest (or support any other Person contesting):





               (1) any request by any Revolving Credit Agent for adequate protection with respect
to
any Revolving Credit Priority Collateral; or




               (2) any objection by any Revolving Credit Agent to any motion, relief, action or
proceeding based on the Revolving Credit Agents or the other Revolving Credit Claimholders
claiming a lack of adequate protection with respect to the Revolving Credit Priority
Collateral.



          (b) Each Revolving Credit Agent, on behalf of itself and each of the other Revolving Credit
Claimholders, agrees that none of them shall contest (or support any other Person contesting):





               (1) any request by any Term Loan Agent for adequate protection with respect to any
Term
Loan Priority Collateral; or




               (2) any objection by any Term Loan Agent to any motion, relief, action or
proceeding
based on the Term Loan Agents or any other Term Loan Claimholders claiming a lack of
adequate protection with respect to the Term Loan Priority Collateral.



          (c) Notwithstanding the foregoing provisions in this Section 6.3, in any Insolvency or
Liquidation Proceeding:




 
 







44









 









               (1) in the event any of the Revolving Credit Agents or any of the other Revolving
Credit Claimholders is granted adequate protection in respect of Revolving Credit Priority
Collateral in the form of additional collateral (even if such collateral is not of a type
which would otherwise have constituted Revolving Credit Priority Collateral), then each
Revolving Credit Agent, on behalf of itself and the other Revolving Credit Claimholders, agrees that the Term Loan Agents and the other Term Loan Claimholders may
also be granted a Lien on the same additional collateral as security for the Term Loan
Obligations and for any Cash Collateral use or DIP Financing provided by any Term Loan
Claimholders, and each Term Loan Agent, on behalf of itself and each other Term Loan
Claimholder, agrees that any Lien on such additional collateral securing the Term Loan
Obligations, shall be subordinated (except to the extent that the Term Loan Agents or any
other Term Loan Claimholders already had a Lien on such Collateral (in which case the
priorities established by Section 2.1 shall apply)) to the Liens on such collateral
securing the Revolving Credit Obligations and any Cash Collateral use or DIP Financing
provided by any Revolving Credit Claimholders (and all Obligations relating thereto), all on
the same basis as the other Liens of the Term Loan Agents and the other Term Loan
Claimholders on the Revolving Credit Priority Collateral; and




               (2) in the event any of the Term Loan Agents or any of the other Term Loan
Claimholders
is granted adequate protection in respect of Term Loan Priority Collateral in the form of
additional collateral (even if such collateral is not of a type which would otherwise have
constituted Term Loan Priority Collateral), then each Term Loan Agent, on behalf of itself
and the other Term Loan Claimholders, agrees that the Revolving Credit Agents and the other
Revolving Credit Claimholders may also be granted a Lien on the same additional collateral
as security for the Revolving Credit Obligations and for any Cash Collateral use or DIP
Financing provided by any Revolving Credit Claimholders, and each Revolving Credit Agent, on
behalf of itself and each other Revolving Credit Claimholder, agrees that any Lien on such
additional collateral securing the Revolving Credit Obligations, shall be subordinated
(except to the extent that the Revolving Credit Agents or any other Revolving Credit
Claimholders already had a Lien on such Collateral (in which case the priorities established
by Section 2.1 shall apply)) to the Liens on such collateral securing the Term Loan
Obligations and any Cash Collateral use or DIP Financing provided by any Term Loan
Claimholders (and all Obligations relating thereto), all on the same basis as the other
Liens of the Revolving Credit Agents and the other Revolving Credit Claimholders on the Term
Loan Priority Collateral.



          (d) Except as otherwise expressly set forth in Section 6.1 or in connection with the
exercise of remedies with respect to (i) the Revolving Credit Priority Collateral, nothing herein
shall limit the right of the Term Loan Agents and the other Term Loan Claimholders to seek adequate
protection with respect to their rights in the Term Loan Priority Collateral in any Insolvency or
Liquidation Proceeding (including adequate protection in the form of a cash payment, periodic cash
payments or otherwise) or (ii) the Term Loan Priority Collateral, nothing herein shall limit the
right of the Revolving Credit Agents and the other Revolving Credit Claimholders to seek adequate
protection with respect to their rights in the Revolving Credit Priority Collateral in any
Insolvency or Liquidation Proceeding (including adequate protection in the form of a cash payment,
periodic cash payments or otherwise).



 
 





45











 





     6.4 Avoidance Issues. If any Revolving Credit Claimholders or Term Loan Claimholders are
required in any Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay to
the estate of any Borrower or any other Grantor any amount paid in respect of Revolving Credit
Obligations or the Term Loan Obligations, as the case may be, (a “Recovery”), then such Revolving
Credit Claimholders or Term Loan Claimholders, as the case may be, shall be entitled to a
reinstatement of Revolving Credit Obligations or the Term Loan Obligations, as the case may be,
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.



     6.5 Reorganization Securities. If, in any Insolvency or Liquidation Proceeding, debt
obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor
are distributed pursuant to a plan of reorganization or similar dispositive restructuring plan,
both on account of Revolving Credit Obligations and on account of Term Loan Obligations, then, to
the extent the debt obligations distributed on account of the Revolving Credit Obligations and on
account of the Term Loan Obligations are secured by Liens upon the same property, the provisions of
this Agreement will survive the distribution of such debt obligations pursuant to such plan and
will apply with like effect to the debt obligations so distributed, to the Liens securing such debt
obligations and the distribution of proceeds thereof.



     6.6 Post-Petition Interest. 



          (a) Each of the Term Loan Agents, on behalf of itself and the other Term Loan Claimholders,
agrees that none of them shall oppose or seek to challenge any claim by any Revolving Credit Agent
or any other Revolving Credit Claimholder for allowance in any Insolvency or Liquidation Proceeding
of Revolving Credit Obligations consisting of Post-Petition Interest, fees or expenses to the
extent of (x) the value of the Lien on Revolving Credit Priority Collateral securing any Revolving
Credit Obligations, without regard to the existence of any Lien of any Term Loan Agent on behalf of
the Term Loan Claimholders on the Revolving Credit Priority Collateral and (y) the value of the
Lien on Term Loan Priority Collateral securing any Revolving Credit Obligations, taking into
account the existence of any Lien of any Term Loan Agent on behalf of the Term Loan Claimholders on
any Term Loan Priority Collateral.




          (b) Each of the Revolving Credit Agents, on behalf of itself and the other Revolving Credit
Claimholders, agrees that none of them shall oppose or seek to challenge any claim by any Term Loan
Agent or any other Term Loan Claimholder for allowance in any Insolvency or Liquidation Proceeding
of Term Loan Obligations consisting of Post-Petition Interest, fees or expenses to the extent of
(x) the value of the Lien on Term Loan Priority Collateral securing any Term Loan Obligations,
without regard to the existence of any Lien of any Revolving Credit Agent on behalf of the
Revolving Credit Claimholders on any Term Loan Priority Collateral and (y) the value of the Lien on
any Revolving Credit Priority Collateral securing any Term Loan Obligations, taking into account
the existence of any Lien of any Revolving Credit Agent on behalf of the Revolving Credit
Claimholders on any Revolving Credit Priority Collateral.




     6.7 Waiver — Section 1111(b)(2) Issues. 



  




46









 





          (a) Each Term Loan Agent, on behalf of itself and the other Term Loan Claimholders, waives any
objection or claim any Term Loan Claimholder may hereafter have against any Revolving Credit
Claimholder arising out of the election of any Revolving Credit Claimholder of the application of
Section 1111(b)(2) of the Bankruptcy Code to any claims of such Revolving Credit Claimholder and
agrees that in the case of any such election it shall have no claim or right to payment with
respect to the Revolving Credit Priority Collateral in or from such Insolvency or Liquidation
Proceeding.




          (b) Each Revolving Credit Agent, on behalf of itself and the other Revolving Credit
Claimholders, waives any objection or claim any Revolving Credit Claimholder may hereafter have
against any Term Loan Claimholder arising out of the election of any Term Loan Claimholder of the
application of Section 1111(b)(2) of the Bankruptcy Code to any claims of such Term Loan
Claimholder and agrees that in the case of any such election it shall have no claim or right to
payment with respect to the Term Loan Priority Collateral in or from such Insolvency or Liquidation
Proceeding.




     6.8 Asset Dispositions in an Insolvency or Liquidation Proceeding. 



          (a) No Term Loan Agent nor any other Term Loan Claimholder shall, in an Insolvency or
Liquidation Proceeding or otherwise, oppose any sale or disposition of any Revolving Credit
Priority Collateral that is supported by the Revolving Credit Claimholders, and the Term Loan
Agents and the other Term Loan Claimholders will be deemed to have consented under Section 363 of
the Bankruptcy Code (and otherwise) to any sale of any Revolving Credit Priority Collateral
supported by the Revolving Credit Claimholders and to have released their Liens on such assets.




          (b) No Revolving Credit Agent nor any other Revolving Credit Claimholder shall, in an
Insolvency or Liquidation Proceeding or otherwise, oppose any sale or disposition of any Term Loan
Priority Collateral that is supported by the Term Loan Claimholders, and the Revolving Credit
Agents and the other Revolving Credit Claimholders will be deemed to have consented under Section
363 of the Bankruptcy Code (and otherwise) to any sale of any Term Loan Priority Collateral
supported by the Term Claimholders and to have released their Liens on such assets;
provided that this Section 6.8(b) shall not apply to any sale or disposition of
Real Property unless the Revolving Credit Agents have received at least 90 days prior notice of the
consummation of any such sale.




     6.9 Additional Section 363 and Section 364 Matters. 



          (a) To the extent that any Revolving Credit Agent or any other Revolving Credit Claimholder
has or acquires rights under Section 363 or Section 364 of the Bankruptcy Code or otherwise with
respect to any of the Term Loan Priority Collateral, each Revolving Credit Agent, on behalf of
itself and the other Revolving Credit Claimholders, agrees not to assert any of such rights without
the prior written consent of the Term Loan Agents; provided that if requested by the Term
Loan Agents, the Revolving Credit Agents shall timely exercise such rights in the manner requested
by the Term Loan Agents, including any rights to payments in respect of such rights.



  




47









 








          (b) To the extent that any Term Loan Agent or any other Term Loan Claimholder has or acquires
rights under Section 363 or Section 364 of the Bankruptcy Code or otherwise with respect to any of
the Revolving Credit Priority Collateral, each Term Loan Agent, on behalf of itself and the other
Term Loan Claimholders, agrees not to assert any of such rights without the prior written consent
of the Revolving Credit Agents; provided that if requested by the Revolving Credit Agents,
the Term Loan Agents shall timely exercise such rights in the manner requested by the Revolving
Credit Agents, including any rights to payments in respect of such rights.




     6.10 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.



     6.11 Separate Grants of Security and Separate Classification. Each Revolving Credit Agent, on
behalf of itself and the other Revolving Credit Claimholders, and each Term Loan Agent, on behalf
of itself and the other Term Loan Claimholders, hereby acknowledges and agrees that (a) the grants
of Liens pursuant to the Revolving Credit Security Documents and the Term Loan Security Documents
constitute two separate and distinct grants of Liens and (b) because of, among other things, their
differing rights in the Collateral, the Term Loan Obligations are fundamentally different from the
Revolving Credit Obligations and should be separately classified in any plan of reorganization
proposed or adopted in an Insolvency or Liquidation Proceeding. To further effectuate the intent
of the parties as provided in the immediately preceding sentence, if it is held that the claims of
the Revolving Credit Claimholders and the Term Loan Claimholders in respect of the Collateral
constitute claims in the same class (rather than separate classes of senior and junior secured
claims), then each Revolving Credit Agent, on behalf of itself and the other Revolving Credit
Claimholders, and each Term Loan Agent, on behalf of itself and the other Term Loan Claimholders,
hereby acknowledges and agrees that all distributions shall be made as if there were separate
classes of Revolving Credit Obligation claims and Term Loan Obligation claims against the Grantors
(with the effect being that, (i) to the extent that the aggregate value of the Revolving Credit
Priority Collateral is sufficient (for this purpose ignoring all claims held by the Term Loan
Claimholders), the Revolving Credit Claimholders shall be entitled to receive, in addition to
amounts distributed to them in respect of principal, pre-petition interest and other claims, all
amounts owing in respect of Post-Petition Interest that is available from the Revolving Credit
Priority Collateral, before any distribution is made in respect of the claims held by the Term Loan
Claimholders, and (ii) to the extent that the aggregate value of the Term Loan Priority Collateral
is sufficient (for this purpose ignoring all claims held by the Revolving Credit Claimholders), the
Term Loan Claimholders shall be entitled to receive, in addition to amounts distributed to them in
respect of principal, pre-petition interest and other claims, all amounts owing in respect of
Post-Petition Interest that is available from the Term Loan Priority Collateral, before any
distribution is made in respect of the claims held by the Revolving Credit Claimholders, in each
case, with the other Claimholders hereby acknowledging and agreeing to turn over to the respective
other 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
aggregate recoveries.



  




48









 





          VII. RELIANCE; WAIVERS; ETC.




     7.1 Reliance. Other than any reliance on the terms of this Agreement, each Revolving Credit
Agent, on behalf of itself and the other Revolving Credit Claimholders, acknowledges that it and
such other Revolving Credit Claimholders have, independently and without reliance on any Term Loan
Agent or any other Term Loan Claimholder, and based on documents and information deemed by them
appropriate, made their own credit analysis and decision to enter into the Revolving Credit Loan
Documents and be bound by the terms of this Agreement and they will continue to make their own
credit decision in taking or not taking any action under the Revolving Credit Loan Documents or
this Agreement. Other than any reliance on the terms of this Agreement, each Term Loan Agent, on
behalf of itself and the other Term Loan Claimholders, acknowledges that it and such other Term
Loan Claimholders have, independently and without reliance on any Revolving Credit Agent or any
other Revolving Credit Claimholder, and based on documents and information deemed by them
appropriate, made their own credit analysis and decision to enter into the Term Loan Documents and
be bound by the terms of this Agreement and they will continue to make their own credit decision in
taking or not taking any action under the Term Loan Documents or this Agreement.



     7.2 No Warranties or Liability. Each Revolving Credit Agent, on behalf of itself and the other
Revolving Credit Claimholders, acknowledges and agrees that each of the Term Loan Agents and the
other Term Loan Claimholders has 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 Documents, the ownership of any Collateral or the perfection or priority of
any Liens thereon. Except as otherwise provided in this Agreement, the Term Loan Agents and the
other Term Loan Claimholders will be entitled to manage and supervise their respective loans and
extensions of credit under the Term Loan Documents in accordance with law and as they may
otherwise, in their sole discretion, deem appropriate. Each Term Loan Agent, on behalf of itself
and the other Term Loan Claimholders, acknowledges and agrees that each of the Revolving Credit
Agents and the other Revolving Credit Claimholders has made no express or implied representation or
warranty, including with respect to the execution, validity, legality, completeness, collectibility
or enforceability of any of the Revolving Credit Loan Documents, the ownership of any Collateral or
the perfection or priority of any Liens thereon. Except as otherwise provided in this Agreement,
the Revolving Credit Agents and the other Revolving Credit Claimholders will be entitled to manage
and supervise their respective loans and extensions of credit under the Revolving Credit Loan
Documents in accordance with law and as they may otherwise, in their sole discretion, deem
appropriate. The Term Loan Agents and the other Term Loan Claimholders shall have no duty to the
Revolving Credit Agents or any of the other Revolving Credit Claimholders, and the Revolving Credit
Agents and the other Revolving Credit Claimholders shall have no duty to the Term Loan Agents or
any of the other Term Loan Claimholders, 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 any Borrower or any other Grantor (including the Revolving Credit Loan Documents and the Term
Loan Documents), regardless of any knowledge thereof which they may have or be charged with.



     7.3 No Waiver of Lien Priorities. 



  




49









 





          (a) No right of any Revolving Credit Agent or any other Revolving Credit Claimholder, or any
Term Loan Agent or any other Term Loan Claimholder to enforce any provision of this Agreement, any
Revolving Credit Loan Document or any other Term Loan Document shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of any Borrower or any other
Grantor or by any act or failure to act by such Persons or by any noncompliance by any such Persons
with the terms, provisions and covenants of this Agreement, any of the Revolving Credit Loan
Documents or any of the Term Loan Documents, regardless of any knowledge thereof which such
Persons, or any of them, 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 Borrowers and the other Grantors under the Revolving Credit Loan Documents and Term
Loan Documents and subject to the provisions of Section 5.3), the Revolving Credit Agents
and the other Revolving Credit Claimholders and the Term Loan Agents and the other Term Loan
Claimholders may, at any time and from time to time in accordance with the Revolving Credit Loan
Documents and the Term Loan Documents and/or applicable law, without the consent of, or notice to,
the other Persons (as the case may be), without incurring any liabilities to such Persons 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 is affected, impaired or extinguished
thereby) do any one or more of the following:





               (1) 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 the
Obligations or any Lien or guaranty thereof or any liability of any Borrower or any other
Grantor, or any liability incurred directly or indirectly in respect thereof (including any
increase in or extension of the Obligations, without any restriction as to the tenor or
terms of any such increase or extension) or otherwise Modify in any manner any Liens held by
any Revolving Credit Agent or any Term Loan Agent or any rights or remedies under any of the
Revolving Credit Loan Documents or the Term Loan Documents;




               (2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal
with in
any manner and in any order any part of the Collateral (except to the extent provided in
this Agreement) or any liability of any Borrower or any other Grantor or any liability
incurred directly or indirectly in respect thereof;




               (3) settle or compromise any Obligation or any other liability of any Borrower 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
in any manner or order that is not inconsistent with the terms of this Agreement; and




               (4) except to the extent provided in this Agreement, exercise or delay in or
refrain
from exercising any right or remedy against any security or any Borrower or any other
Grantor or any other Person, elect any remedy and otherwise deal freely with any Borrower or
any other Grantor.



  




50









 





     7.4 Obligations Unconditional. All rights, interests, agreements and obligations of the
Revolving Credit Agents and the other Revolving Credit Claimholders and the Term Loan Agents and
the other Term Loan Claimholders, respectively, hereunder shall remain in full force and effect
irrespective of:



          (a) any lack of validity or enforceability of any Revolving Credit Loan Document or any Term
Loan Document;




          (b) except as otherwise expressly 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 Revolving Credit Obligations or
Term Loan Obligations, or any Modification, including any increase in the amount thereof, whether
by course of conduct or otherwise, of the terms of any Revolving Credit Loan Document or any Term
Loan Document;




          (c) except as otherwise expressly set forth in this Agreement, any exchange of any security
interest in any Collateral or any other collateral, or any Modification, whether in writing or by
course of conduct or otherwise, of all or any of the Revolving Credit Obligations or the Term Loan
Obligations or any guaranty thereof;




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




          (e) any other circumstances which otherwise might constitute a defense available to, or a
discharge of, any Borrower or any other Grantor in respect of any Revolving Credit Agent or any
other Revolving Credit Claimholder, any Revolving Credit Obligations, any Term Loan Agent or any
other Term Loan Claimholder or any Term Loan Obligations, in respect of this Agreement.




          VIII. MISCELLANEOUS.




     8.1 Conflicts; No Additional Rights. In the event of any conflict between the provisions of
this Agreement and the provisions of any Revolving Credit Loan Document or any Term Loan Document,
the provisions of this Agreement shall govern and control; provided that (i) to the extent
the provisions of any applicable Revolving Credit Loan Documents reserve in favor of any particular
Revolving Credit Agents or other Revolving Credit Claimholders (or any subset thereof) any rights
to direct rights and remedies with respect to any of the Collateral, such rights shall not be
deemed to have been granted to any other Revolving Credit Claimholders solely as a result of the
provisions of this Agreement and (ii) to the extent the provisions of any applicable Term Loan
Documents reserve in favor of any particular Term Loan Agents or other Term Loan Claimholders (or
any subset thereof) any rights to direct rights and remedies with respect to any of the Collateral,
such rights shall not be deemed to have been granted to any other Term Loan Claimholders solely as
a result of the provisions of this Agreement.



     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 Revolving Credit Agents and the other Revolving Credit Claimholders
and the Term Loan Agents and the other Term Loan



  




51









 




Claimholders may continue, at any time and without notice to any of the others, to extend credit
and other financial accommodations and lend monies to or for the benefit of any Borrower or any
other Grantor in reliance hereon. Each such Person hereby waives any right it may have under
applicable law to revoke this Agreement or any of the provisions of this Agreement. 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 that 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 any Borrower or any other Grantor shall include such
Borrower or such other Grantor as debtor and debtor-in-possession and any receiver or trustee for
any Borrower 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:




          (a) with respect to the Revolving Credit Agents and the other Revolving Credit Claimholders
and the Revolving Credit Obligations, on the date of the Discharge of Revolving Credit Obligations,
subject to the provisions of Section 5.5 and the rights of the Revolving Credit Agents and
the other Revolving Credit Claimholders under Section 6.4; and




          (b) with respect to the Term Loan Agents and the other Term Loan Claimholders and the Term
Loan Obligations, on the date of the Discharge of Term Loan Obligations, subject to the provisions
of Section 5.5 and the rights of the Term Loan Agents and the other Term Loan Claimholders
under Section 6.4.




     8.3 Amendments; Waivers. No amendment, modification or waiver of any of the provisions of this
Agreement shall be deemed to be made unless the same shall be in writing signed on behalf of
Revolving Credit Agents and the Term Loan Agents or their respective authorized agents 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, no
Borrower 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 are
directly and adversely affected in any material respect (which includes, but is not limited to any
amendment to any Grantor’s ability to cause additional obligations to constitute Revolving Credit
Obligations or Term Loan Obligations as such Grantor may designate).



     8.4 Information Concerning Financial Condition of Holdings, the Borrowers and their Respective
Subsidiaries. The Revolving Credit Agents and the other Revolving Credit Claimholders, on the
one hand, and the Term Loan Agents and the other Term Loan Claimholders, on the other hand, shall
each be responsible for keeping themselves informed of (a) the financial condition of Holdings, the
Borrowers and their respective Subsidiaries and all endorsers and/or guarantors of the Revolving
Credit Obligations or the Term Loan Obligations and (b) all other circumstances bearing upon the
risk of nonpayment of any of the Revolving Credit Obligations or the Term Loan Obligations.
Neither the Revolving Credit Agent and the other Revolving Credit Claimholders, on the one hand,
nor the Term Loan Agents and the other Term Loan Claimholders, on the other hand, shall have any
duty to advise the other of information known to it or them regarding any such condition or any
such circumstances or



  




52









 




otherwise. In the event that either any of the Revolving Credit Agents or any of the other
Revolving Credit Claimholders, on the one hand, or any of the Term Loan Agents or any of the other
Term Loan Claimholders, on the other hand, undertake at any time or from time to time to provide
any such information to any of the others, it or they shall be under no obligation:




          (a) to make, and 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;




          (b) to provide any additional information or to provide any such information on any subsequent
occasion;




          (c) to undertake any investigation; or




          (d) 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.




     8.5 Subrogation. 



          (a) With respect to the value of any payments or distributions in cash, property or other
assets that any Term Loan Agent or any other Term Loan Claimholder pays over to any Revolving
Credit Agent or any other Revolving Credit Claimholder under the terms of this Agreement, the Term
Loan Agents and the other Term Loan Claimholders shall be subrogated to the rights of the Revolving
Credit Agents and the other Revolving Credit Claimholders; provided, however, that
each Term Loan Agent, on behalf of itself and the other Term Loan Claimholders, hereby agrees not
to assert or enforce any such rights of subrogation it may acquire as a result of any payment
hereunder until the Discharge of Revolving Credit Obligations has occurred. Each Grantor
acknowledges and agrees that, to the extent permitted by applicable law, the value of any payments
or distributions in cash, property or other assets received by any Term Loan Agent or any other
Term Loan Claimholder that are paid over to any Revolving Credit Agent or any other Revolving
Credit Claimholder pursuant to this Agreement shall not reduce any of the Term Loan Obligations.




          (b) With respect to the value of any payments or distributions in cash, property or other
assets that any Revolving Credit Agent or any other Revolving Credit Claimholder pays over to any
Term Loan Agent or any other Term Loan Claimholder under the terms of this Agreement, the Revolving
Credit Agents and the other Revolving Credit Claimholders shall be subrogated to the rights of the
Term Loan Agents and the other Term Loan Claimholders; provided, however, that each
Revolving Credit Agent, on behalf of itself and the other Revolving Credit Claimholders, hereby
agrees not to assert or enforce any such rights of subrogation it may acquire as a result of any
payment hereunder until the Discharge of Term Loan Obligations has occurred. Each Grantor
acknowledges and agrees that, to the extent permitted by applicable law, the value of any payments
or distributions in cash, property or other assets received by any Revolving Credit Agent or any
other Revolving Credit Claimholder that are paid over to any Term Loan Agent or any other Term Loan
Claimholder pursuant to this Agreement shall not reduce any of the Revolving Credit Obligations.



  





53









 








     8.6 SUBMISSION TO JURISDICTION; WAIVERS. 



          (a) ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO MAY
BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF
NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH PARTY, FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES, IRREVOCABLY:





               (1) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND
VENUE OF
SUCH COURTS;




               (2) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;




               (3) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH
COURT MAY BE
MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE PARTY AT
ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 8.7 (OR IN THE CASE OF ANY GRANTOR,
TO ITS AGENT SPECIFIED IN SECTION 8.19); AND




               (4) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (3) ABOVE IS SUFFICIENT
TO CONFER
PERSONAL JURISDICTION OVER THE APPLICABLE PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT,
AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT.



          (b) EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER. THE SCOPE OF THIS WAIVER IS INTENDED
TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO
THE SUBJECT MATTER HEREOF, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL
OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A
MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP THAT EACH HAS ALREADY RELIED ON THIS
WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS
RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED
THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL
RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE; MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY
REFERRING TO THIS SECTION 8.6(b) AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR



  




54









 






MODIFICATIONS HERETO. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.




          (c) EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
REVOLVING CREDIT LOAN DOCUMENT, TERM LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
VERBAL OR WRITTEN STATEMENT OR ACTION OF ANY PARTY HERETO.




     8.7 Notices. All notices to the Revolving Credit Claimholders permitted or required under this
Agreement shall be sent to the Revolving Credit Agents, on behalf of the Revolving Credit
Claimholders (and the Revolving Credit Agents shall distribute such notices to the other Revolving
Credit Claimholders). All notices to the Term Loan Claimholders permitted or required under this
Agreement shall be sent to the Term Loan Agents, on behalf of the Term Loan Claimholders (and the
Term Loan Agents shall distribute such notices to the other Term Loan Claimholders), respectively.
Unless otherwise specifically provided herein, any notice hereunder shall be in writing and may be
personally served, or sent by telefacsimile or United States mail or courier service and shall be
deemed to have been given when delivered in person or by courier service and signed for against
receipt thereof, upon receipt of telefacsimile, or three Business Days after depositing it in the
United States mail 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.



     8.8 Further Assurances. Each Revolving Credit Agent, on behalf of itself and the other
Revolving Credit Claimholders and each Term Loan Agent, on behalf of itself and the other Term Loan
Claimholders, agrees 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 any Revolving
Credit Agent or any Term Loan Agent may reasonably request to effectuate the terms of, and the Lien
priorities contemplated by, this Agreement.



     8.9 Governing Law. This Agreement shall be construed in accordance with and governed by the
law of the State of New York, without regard to conflicts of law principles that would require the
application of the laws of another jurisdiction.



     8.10 Binding Effect on Successors and Assigns and on Claimholders and Term Loan Agents. This
Agreement shall be binding upon the Revolving Credit Agents and the other Revolving Credit
Claimholders, the Term Loan Agents and the other Term Loan Claimholders and their respective
successors and assigns. Each Revolving Credit Agent represents that it has not agreed to any
modification of the provisions in the Revolving Credit Loan Documents authorizing it to execute
this Agreement and bind the other Revolving Credit Claimholders and each Term Loan Agent represents
that it has not agreed to any modification of the provisions in the Term Loan Documents authorizing
it to execute this Agreement and bind the other Term Loan Claimholders. Notwithstanding any
implication to the contrary in any provision in any other section of the Agreement, neither any
Revolving Credit Agent nor any Term Loan Agent makes any representation regarding the validity or
binding effect of any of the Revolving Credit



  




55









 




Loan Documents or any of the Term Loan Documents, respectively, or their authority to bind any of
the Claimholders through their execution of this Agreement.




     8.11 Specific Performance. Each of the Revolving Credit Agents and each of the Term Loan Agents
may demand specific performance of this Agreement. Each Revolving Credit Agent, on behalf of
itself and the other Revolving Credit Claimholders, and each Term Loan Agent, on behalf of itself
and the other Term Loan Claimholders, 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 Revolving Credit Agent or any other Revolving
Credit Claimholder or by any Term Loan Agent or any other Term Loan Claimholder, as the case may
be.



     8.12 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.



     8.13 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 or electronic image scan transmission (e.g., PDF) shall be effective as delivery of a
manually executed counterpart of this Agreement or such other document or instrument, as
applicable.



     8.14 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.



     8.15 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 Revolving Credit Agents and the other Revolving Credit
Claimholders and each of the Term Loan Agents and the other Term Loan Claimholders. Nothing in
this Agreement shall impair, as between any of the Borrowers and any of the other Grantors and any
of the Revolving Credit Agents and any of the other Revolving Credit Claimholders, or as between
any of the Borrower and any of the other Grantors and any of the Term Loan Agents and any of the
other Term Loan Claimholders, the obligations of the Borrowers and the other Grantors to pay
principal, interest, fees and other amounts as provided in the Revolving Credit Loan Documents and
the Term Loan Documents, respectively.



     8.16 Provisions Solely to Define Relative Rights. Except with respect to the bailee and agency
provisions of Section 5.4, the provisions of this Agreement are and are intended solely for
the purpose of defining the relative rights of the Revolving Credit Agents and the other Revolving
Credit Claimholders on the one hand and the Term Loan Agents and the other Term Loan Claimholders
on the other hand. None of the Borrowers, any other Grantor or any other creditor thereof shall
have any rights hereunder and neither any Borrower nor any other Grantor may rely on the terms
hereof. Nothing in this Agreement is intended to or shall impair the obligations of any Borrower
or any other Grantor, which are absolute and unconditional, to pay



  




56









 




or perform the Revolving Credit Obligations and the Term Loan Obligations as and when the same
shall become due and payable in accordance with their terms.




     8.17 Marshalling of Assets. Each Term Loan Agent, on behalf of itself and the other Term Loan
Claimholders, hereby waives any and all rights to have the Revolving Credit Priority Collateral, or
any part thereof, marshaled upon any foreclosure or other enforcement of any Revolving Credit
Agent’s Liens on the Revolving Credit Priority Collateral. Each Revolving Credit Agent, on behalf
of itself and the other Revolving Credit Claimholders, hereby waives any and all rights to have the
Term Loan Priority Collateral, or any part thereof, marshaled upon any foreclosure or other
enforcement of any Term Loan Agent’s Liens on the Term Loan Priority Collateral.



     8.18 Joinder of Additional Grantors. The Grantors party hereto shall cause each Person which,
from time to time, after the date hereof, becomes party to any Revolving Credit Security Document
or Term Loan Security Document as a “Grantor” or a “Pledgor” (or the equivalent thereof), to
execute and deliver to the Agents an Intercreditor Agreement Joinder within five days (or such
longer period as may be determined by the Agents in their sole discretion) of the date on which
such Person became a party to such Revolving Credit Security Document or Term Loan Security
Document and, upon execution and delivery of such Intercreditor Joinder Agreement, such Person
shall constitute a “Grantor” for all purposes hereunder with the same force and effect as if
originally named as a Grantor herein. The execution and delivery of such Intercreditor Agreement
Joinder shall not require the consent of any other Grantor or Agent hereunder. The obligations of
each Grantor hereunder shall remain in full force and effect notwithstanding the addition of any
new Grantor as a party to this Agreement.



     8.19 Agent for Service of Process. Each Grantor hereby irrevocably designates, appoints and
empowers CSC Corporation, 1133 Ave of the Americas, Suite 3100, New York, New York, 10036
(telephone no: 212-299-5600) (telecopy no: 212-299-5656) (electronic mail address:
agrigora@cscinfo.com and/or jpelleti@cscinfo.com), in the case of any suit, action or proceeding
brought in the United States as its designee, appointee and agent to receive, accept and
acknowledge for and on its behalf, and in respect of its property, service of any and all legal
process, summons, notices and documents that may be served in any action or proceeding arising out
of or in connection with this Agreement.



[Remainder
of  page intentionally left blank]



 

 


57









 








          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective officers or representatives as of the date first written above.






	 	 	 	 	 
	 	REVOLVING CREDIT AGENTS





ABN AMRO BANK N.V., as Revolving Credit

Administrative Agent, and in such capacity, as

authorized representative of the Revolving Credit

Claimholders

 	 
	 	By:  	/s/
James Moyes	 
	 	 	Name:  	James
L. Moyes	 
	 	 	Title:  	Managing
Director	 
	 
	 	By:  	/s/
Jeroen Westrik	 
	 	 	Name:  	Jeroen
B. Westrik	 
	 	 	Title:  	Vice
President	 
	 
	 	ABN AMRO BANK N.V., ACTING THROUGH ITS CANADIAN BRANCH, as Revolving Credit Canadian Funding Agent
and as Revolving Credit Canadian Administrative
Agent, and in such capacity, as authorized

representative of the Revolving Credit Claimholders

 	 
	 	By:  	/s/
Lawrence Maloney	 
	 	 	Name:  	Lawrence J. Maloney	 
	 	 	Title:  	Country
Executive — Canada	 
	 
	 	By:  	/s/
Michael Quinn	 
	 	 	Name:  	Michael
D. Quinn	 
	 	 	Title:  	Vice
President	 
	 
	 	LASALLE BUSINESS CREDIT, LLC, as Revolving Credit Funding Agent and as Revolving Credit Collateral
Agent and in such capacity as authorized
representative of the Revolving Credit Claimholders

 	 
	 	By:  	/s/ Steve Friedlander	 
	 	 	Name:  	Steve Friedlander	 
	 	 	Title:  	S.V.P.	 
	 
	 	[NOTICE ADDRESS]




LaSalle Business Credit, LLC

135 South LaSalle Street, Suite 425

Chicago, IL 60603

Attention: Account Officer

Telecopier No. : (312) 904-6450

 	 
	 	 	 
	 	 	 



[Signature Page to Intercreditor Agreement]


 

 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	TERM LOAN AGENTS




UBS AG, STAMFORD BRANCH, as Term Loan Administrative Agent and Term Loan Collateral Agent, and in such
capacities, as authorized representative of the Term
Loan Claimholders

 	 
	 	By:  	/s/
Mary E. Evans	 
	 	 	Name:  	Mary E. Evans	 
	 	 	Title:  	Associate
Director	 
	 
	 	 	 
	 	By:  	/s/
David Julie	 
	 	 	Name:  	David
B. Julie	 
	 	 	Title:  	Associate
Director	 
	 
	 	[NOTICE ADDRESS]




UBS AG, Stamford Branch

677 Washington Boulevard

Stamford, Connecticut 06901

Attention: Christopher Gomes

Telecopier No.: (203) 719-3180

Email: Christopher.Gomes@UBS.com

 	 
	 	 	 
	 	 	 


 [Signature Page to Intercreditor Agreement]


 

 

 









 






	 	 	 	 	 



	 	 	 	 	 
	 	ACKNOWLEDGED AND AGREED TO AS OF THE DATE FIRST WRITTEN ABOVE:




NOVELIS INC., as a Grantor

 	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville
G. Lunking	 
	 	 	Title:  	Vice
President and Treasurer	 
	 
	 	NOVELIS CORPORATION, as a Grantor

 	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville
G. Lunking	 
	 	 	Title:  	Authorized
Signatory	 
	 
	 	NOVELIS PAE CORPORATION, as a Grantor

 	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville
G. Lunking	 
	 	 	Title:  	Authorized
Signatory	 
	 
	 	NOVELIS FINANCES USA LLC, as a Grantor

 	 
	 	By:  	/s/
Orville
Lunking	 
	 	 	Name:  	Orville
G. Lunking	 
	 	 	Title:  	Authorized
Signatory	 
	 
	 	NOVELIS SOUTH AMERICA HOLDINGS LLC, as a Grantor

 	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville
G. Lunking	 
	 	 	Title:  	Vice
President and Treasurer	 


 [Signature Page to Intercreditor Agreement]


 

 


 









 






	 	 	 	 	 



	 	 	 	 	 
	 	ALUMINUM UPSTREAM HOLDINGS LLC, as a Grantor

 	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville
G. Lunking	 
	 	 	Title:  	Vice
President and Treasurer	 
	 
	 	NOVELIS UK LIMITED, as a Grantor

 	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville
G. Lunking	 
	 	 	Title:  	Authorized
Signatory	 
	 
	 	NOVELIS AG, as a Grantor

 	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville
G. Lunking	 
	 	 	Title:  	Authorized
Signatory	 
	 
	 	NOVELIS CAST HOUSE TECHNOLOGY LTD.,
 as a Grantor

 	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville
G. Lunking	 
	 	 	Title:  	Authorized
Signatory	 
	 
	 	4260848 CANADA INC., as a Grantor

 	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville
G. Lunking	 
	 	 	Title:  	Authorized
Signatory	 
	 
	 	4260856 CANADA INC., as a Grantor

 	 
	 	 	 


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	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville Lunking	 
	 	 	Title:  	Authorized
Signatory	 
	 
	 	NOVELIS NO. 1

LIMITED PARTNERSHIP, as a Grantor

by its general partner,

4260848 Canada Inc.

 	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville Lunking	 
	 	 	Title:  	Authorized
Signatory	 
	 
	 	NOVELIS EUROPE HOLDINGS LTD., as a Grantor

 	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville Lunking	 
	 	 	Title:  	Authorized
Signatory	 
	 
	 	NOVELIS SWITZERLAND SA, as a Grantor

 	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville Lunking	 
	 	 	Title:  	Authorized
Signatory	 
	 
	 	NOVELIS TECHNOLOGY AG, as a Grantor

 	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville Lunking	 
	 	 	Title:  	Authorized
Signatory	 


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	 	AV ALUMINUM INC., as a Grantor

 	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville
G. Lunking	 
	 	 	Title:  	Authorized
Signatory	 


 [Signature Page to Intercreditor Agreement]

 

 


 









 






	 	 	 	 	 



	 	 	 	 	 
	 	NOVELIS DEUTSCHLAND GMBH, as a Grantor

 	 
	 	By:  	/s/
Gottfried Weindl	 
	 	 	Name:  	Gottfried Weindl	 
	 	 	Title:  	Managing
Director	 


 [Signature Page to Intercreditor Agreement]

 

 


 









 






	 	 	 	 	 



	 	 	 	 	 
	 	NOVELIS DO BRASIL LTDA., as a Grantor

 	 
	 	By:  	/s/
Tadeu Nardocci	 
	 	 	Name:  	Antonio
Tadeu Coelho Nardocci	 
	 	 	Title:  	Presidente	 
	 
	 	By:  	/s/
Alexandre Almeida	 
	 	 	Name:  	Alexandre
M. Almeida	 
	 	 	Title:  	Director
Financeiro	 


 [Signature Page to Intercreditor Agreement]

 

 


 









 






	 	 	 	 	 



	 	 	 	 	 
	 	Present when the Common Seal of

NOVELIS ALUMINIUM HOLDING COMPANY,

as a Grantor,

was hereunto affixed in the presence of:

 	 
	 	Name:  	/s/
Andreas Thiele	 
	 	Title:  	Duly
Appointed Attorney	 
	 	 	 	 



	 	 	 	 	 
	 	 	 
	 	Name:  	/s/
Eva Paus-Werdermann	 
	 	Title:  	Assistant
to Legal Counsel	 
	 	 	 	 


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EXHIBIT A




FORM OF INTERCREDITOR AGREEMENT JOINDER




          The undersigned, __________________, a
__________________, hereby agrees to become party as a
Grantor under the Intercreditor Agreement, dated as of July 6, 2007 (as Modified from time to time,
the “Intercreditor Agreement”; capitalized terms used but not otherwise defined herein having the
meanings assigned to them in Section 1 of the Intercreditor Agreement), by and among
NOVELIS INC., a corporation formed under the Canada Business Corporations Act, NOVELIS CORPORATION,
a Texas corporation, NOVELIS PAE CORPORATION, a Delaware corporation, NOVELIS FINANCES USA LLC, a
Delaware limited liability company, NOVELIS SOUTH AMERICA HOLDINGS LLC, a Delaware limited
liability company, ALUMINUM UPSTREAM HOLDINGS LLC, a Delaware limited liability company, NOVELIS UK
LIMITED, a limited liability company incorporated under the laws of England and Wales with
registered number 00279596, NOVELIS AG, a stock corporation (AG) organized under the laws of
Switzerland, AV ALUMINUM INC., a corporation formed under the Canada Business Corporations Act
(“Holdings”), the other subsidiaries of Holdings from time to time party hereto as Grantors, ABN
AMRO BANK N.V., as administrative agent for the Revolving Credit Lenders, LASALLE BUSINESS CREDIT,
LLC, as collateral agent for the Revolving Credit Claimholders and as funding agent, ABN AMRO BANK
N.V., CANADA BRANCH, as Canadian administrative agent for the Revolving Credit Claimholders and as
Canadian funding agent, UBS AG, STAMFORD BRANCH, as administrative agent for the Term Loan Lenders
and as collateral agent for the Term Loan Claimholders, for all purposes thereof on the terms set
forth therein, and to be bound by the terms of the Intercreditor Agreement as fully as if the
undersigned had executed and delivered the Intercreditor Agreement as of the date thereof.




          The provisions of Section 8 of the Intercreditor Agreement will apply with like effect
to this Intercreditor Agreement Joinder.




          IN WITNESS WHEREOF, the undersigned has caused this Intercreditor Joinder Agreement to be duly
executed by its authorized officers or representatives as of the date first written above.




	 	 	 	 	 
	 	[_______________________________________]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



 

 


A-1