exv10w3






Exhibit 10.3




EXECUTION VERSION 




 





INTERCREDITOR AGREEMENT




Dated as of December 17, 2010




by and among




NOVELIS INC.,

NOVELIS CORPORATION,

NOVELIS PAE CORPORATION,

NOVELIS BRAND LLC,

NOVELIS SOUTH AMERICA HOLDINGS LLC,

ALUMINUM UPSTREAM HOLDINGS LLC,

NOVELIS ACQUISITIONS LLC ,

NOVELIS NORTH AMERICA HOLDINGS INC.,

NOVELIS UK LTD,

NOVELIS AG,

AV METALS INC., and

the Subsidiary Guarantors party hereto,

as Grantors,




BANK OF AMERICA, N.A.,

as Revolving Credit Administrative Agent and Revolving Credit Collateral Agent,




and




BANK OF AMERICA, N.A.,

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
	 	 	31	 
	1.3 Impairment
	 	 	32	 
	 
	 	 	 	 
	II. LIEN PRIORITIES BETWEEN REVOLVING CREDIT SECURED
OBLIGATIONS, PARI PASSU SECURED OBLIGATIONS AND
SUBORDINATED LIEN SECURED OBLIGATIONS
	 	 	33	 
	2.1 Relative Priorities
	 	 	33	 
	2.2 Prohibition on Contesting Liens
	 	 	34	 
	2.3 No New Liens
	 	 	34	 
	2.4 Similar Liens and Agreements
	 	 	35	 
	2.5 German Real Estate
	 	 	36	 
	 
	 	 	 	 
	III. PRIORITIES AND AGREEMENTS OF PARI PASSU SECURED PARTIES WITH RESPECT TO COMMON Pari PASSU COLLATERAL
	 	 	36	 
	3.1 Priority of Claims
	 	 	36	 
	3.2 Actions with Respect to Common Pari Passu Collateral
	 	 	36	 
	3.3 No Interference; Payment Over
	 	 	37	 
	3.4 Automatic Release of Liens; Amendments to Pari Passu Security Documents
	 	 	38	 
	3.5 Insurance
	 	 	38	 
	3.6 Benefit of the Article
	 	 	39	 
	 
	 	 	 	 
	IV. PRIORITIES AND AGREEMENTS WITH RESPECT TO COMMON SUBORDINATED LIEN COLLATERAL
	 	 	39	 
	4.1 Priority of Claims
	 	 	39	 
	4.2 Actions with Respect to Common Subordinated Lien Collateral
	 	 	39	 
	4.3 No Interference; Payment Over
	 	 	40	 
	4.4 Automatic Release of Liens; Amendments to Subordinated Lien
Security Documents
	 	 	41	 
	4.5 Insurance
	 	 	42	 
	4.6 Benefit of the Article
	 	 	42	 
	 
	 	 	 	 
	V. ENFORCEMENT
	 	 	42	 
	5.1 Exercise of Remedies —  Restrictions on Pari Passu Secured
Parties and Subordinated Lien Secured Parties
	 	 	42	 
	5.2 Exercise of Remedies —  Restrictions on Revolving Credit
Claimholders and Subordinated Lien Secured Parties
	 	 	47	 
	5.3 Exercise of Remedies —  Collateral Access Rights
	 	 	52	 
	5.4 Exercise of Remedies —  Intellectual Property Rights/Access
to Information/Use of Equipment
	 	 	54	 
	5.5 Exercise of Remedies —  Set Off and Tracing of and Priorities in Proceeds
	 	 	55	 






(i)









 





	 	 	 	 	 

	VI. PAYMENTS
	 	 	56	 
	6.1 Application of Proceeds
	 	 	56	 
	6.2 Payments Over in Violation of Agreement
	 	 	57	 
	6.3 Application of Pari Passu Payments Among Pari Passu Secured
Parties; Application of Subordinated Lien Payments Among Subordinated
Lien Secured Parties
	 	 	58	 
	 
	 	 	 	 
	VII. OTHER AGREEMENTS
	 	 	61	 
	7.1 Releases
	 	 	61	 
	7.2 Insurance
	 	 	64	 
	7.3 Amendments to Revolving Credit Loan Documents and Pari Passu
Loan Documents; Refinancings; Legending Provisions
	 	 	65	 
	7.4 Bailee or Agency for Perfection
	 	 	68	 
	7.5 Additional Secured Debt
	 	 	72	 
	7.6 When Discharge of Revolving Credit Secured Obligations or
Pari Passu Secured Obligations Deemed to Not Have Occurred
	 	 	74	 
	 
	 	 	 	 
	VIII. INSOLVENCY OR LIQUIDATION PROCEEDINGS
	 	 	75	 
	8.1 Finance and Sale Issues
	 	 	75	 
	8.2 Relief from the Automatic Stay
	 	 	79	 
	8.3 Adequate Protection
	 	 	79	 
	8.4 Avoidance Issues
	 	 	82	 
	8.5 Reorganization Securities
	 	 	82	 
	8.6 Post-Petition Interest
	 	 	82	 
	8.7 Waiver —  Section 1111(b)(2) Issues
	 	 	83	 
	8.8 Asset Dispositions in an Insolvency or Liquidation Proceeding
	 	 	83	 
	8.9 Additional Section 363 and Section 364 Matters
	 	 	84	 
	8.10 Effectiveness in Insolvency or Liquidation Proceedings
	 	 	84	 
	8.11 Separate Grants of Security and Separate Classification
	 	 	84	 
	 
	 	 	 	 
	IX. RELIANCE; WAIVERS; ETC
	 	 	85	 
	9.1 Reliance
	 	 	85	 
	9.2 No Warranties or Liability
	 	 	86	 
	9.3 No Waiver of Lien Priorities
	 	 	87	 
	9.4 Obligations Unconditional
	 	 	88	 
	 
	 	 	 	 
	X. THE AUTHORIZED COLLATERAL AGENT
	 	 	89	 
	10.1 Authority
	 	 	89	 
	10.2 Rights as a Secured Party
	 	 	90	 
	10.3 Exculpatory Provisions
	 	 	90	 
	10.4 Reliance by Authorized Collateral Agents
	 	 	92	 
	10.5 Delegation of Duties
	 	 	92	 
	10.6 Existence and Amounts of Liens and Obligations
	 	 	92	 
	 
	 	 	 	 
	XI. MISCELLANEOUS
	 	 	93	 
	11.1 Conflicts; No Additional Rights
	 	 	93	 
	11.2 Effectiveness; Continuing Nature of this Agreement; Severability
	 	 	93	 






(ii)









 





	 	 	 	 	 

	11.3 Amendments; Waivers
	 	 	94	 
	11.4 Information Concerning Financial Condition of Holdings, the
Borrowers and their Respective Subsidiaries
	 	 	94	 
	11.5 Subrogation
	 	 	95	 
	11.6 GOVERNING LAW
	 	 	96	 
	11.7 CONSENT TO JURISDICTION; WAIVER OF VENUE; SERVICE OF
PROCESS
	 	 	96	 
	11.8 WAIVER OF JURY TRIAL
	 	 	97	 
	11.9 Notices
	 	 	97	 
	11.10 Further Assurances
	 	 	97	 
	11.11 Binding Effect on Successors and Assigns and on Claimholders and Agents
	 	 	98	 
	11.12 Specific Performance
	 	 	98	 
	11.13 Headings
	 	 	98	 
	11.14 Counterparts
	 	 	98	 
	11.15 Authorization
	 	 	98	 
	11.16 No Third Party Beneficiaries
	 	 	98	 
	11.17 Provisions Solely to Define Relative Rights
	 	 	99	 
	11.18 Marshalling of Assets
	 	 	99	 
	11.19 Joinder of Additional Grantors
	 	 	99	 
	11.20 Agent for Service of Process
	 	 	100	 







(iii)











 





INTERCREDITOR AGREEMENT




               This INTERCREDITOR AGREEMENT, is dated as of December 17, 2010, and entered into by and among
NOVELIS INC., a corporation amalgamated under the Canada Business Corporations Act (the “Parent
Borrower”), NOVELIS CORPORATION, a Texas corporation (“Novelis Corporation”), NOVELIS PAE
CORPORATION, a Delaware corporation (“Novelis PAE”), NOVELIS BRAND LLC, a Delaware limited
liability company (“Novelis Brand”), NOVELIS SOUTH AMERICA HOLDINGS LLC, a Delaware limited
liability company (“Novelis South”), ALUMINUM UPSTREAM HOLDINGS LLC, a Delaware limited liability
company (“Aluminum Upstream”), NOVELIS ACQUISITIONS LLC, a Delaware limited liability company
(“Novelis Acquisitions”), and NOVELIS NORTH AMERICA HOLDINGS INC., a Delaware corporation,
(“Novelis Holdings” and, together with Novelis Corporation, Novelis PAE, Novelis Brand, Novelis
South, Aluminum Upstream and Novelis Acquisitions, 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 Parent Borrower, the U.S. Borrowers, and
the U.K. Borrower, the “Borrowers” and each, a “Borrower”), AV METALS INC., a corporation formed
under the Canada Business Corporations Act (“Holdings”), the subsidiaries of Holdings and the
subsidiaries of Parent Borrower from time to time party hereto (the “Subsidiary Guarantors” and,
together with Holdings, the “Guarantors” and each, a “Guarantor”), BANK OF AMERICA, N.A., as
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) and as collateral
agent for the Revolving Credit Claimholders, and BANK OF AMERICA, N.A., as administrative agent for
the Term Loan Lenders (together with its successors in such capacity, the “Term Loan Administrative
Agent”), and BANK OF AMERICA, N.A., as collateral agent for the current and future Term Loan
Secured Parties (together with its successors in such capacity, “Term Loan Collateral Agent”). As
described in more detail in Section 11.11 hereof, this Agreement is intended to be binding
on all Claimholders and each Agent.



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 from time to time, the “Original Revolving Credit
Agreement”);



               The Parent 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 Grantors have secured (i) the Revolving Credit Secured Obligations under the Revolving
Credit Security Documents and (ii) the Term Loan Secured Obligations under the Pari



 









 




Passu Security Documents, and the Grantors may, in certain circumstances, secure obligations
under any future Pari Passu Debt and Subordinated Lien Debt with Liens on current and future
Collateral; and




               As a condition to the closing of each of the Original Revolving Credit Agreement and Term Loan
Agreement, (i) the Revolving Credit Agents, on behalf of the Revolving Credit Claimholders, and
(ii) the Term Loan Agents, on behalf of the Term Loan Secured Parties, have agreed to the relative
priority of the respective Liens securing the obligations of the Grantors to the Revolving Credit
Claimholders, the Pari Passu Secured Parties and the Subordinated Lien Secured Parties 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
Authorized Pari Passu Collateral Agent with the notice of its election to request access pursuant
to Section 5.3(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 (but in any event for a period of not less than 90
days following the expiration of such stay or prohibition) 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 Secured
Obligations has occurred.



               “Accounts” means all 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, any Pari Passu
Collateral Agent and/or any Subordinated Lien Collateral Agent and any Borrowers and/or Guarantors
and the relevant financial institution depository or securities intermediary.



2









 





               “Additional Pari Passu Collateral Agent” means the collateral agent, collateral trustee,
indenture trustee or a similar representative for the holders of any Series of Pari Passu Debt
incurred or issued after the date hereof.



               “Additional Pari Passu Secured Obligations” means all Obligations of the Grantors under
Additional Secured Debt that has been designated as Pari Passu Secured Obligations pursuant to
Section 7.5.



               “Additional Pari Passu Secured Party” means the holders of any Additional Pari Passu Secured
Obligations and the corresponding Pari Passu Representatives with respect thereto.



               “Additional Secured Debt” has the meaning assigned to such term in Section 7.5(a)(i)
of this Agreement.



               “Additional Secured Debt Designation” means a notice in substantially the form of Annex
I.



               “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, the Pari Passu Representatives and the
Subordinated Lien Representatives.



               “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.



               “Authorized Collateral Agent” means, as the context requires, the Authorized Pari Passu
Collateral Agent or the Authorized Subordinated Collateral Agent.



               “Authorized Pari Passu Collateral Agent” means, with respect to any Common Pari Passu
Collateral securing any of the Pari Passu Secured Obligations, the Authorized Representative of the
Series of Pari Passu Secured Obligations that constitutes the largest outstanding principal amount
(which shall include, for the purpose of this determination, all undrawn committed amounts under
any revolving or delayed draw credit facilities) of any then outstanding Series of Pari Passu
Secured Obligations with respect to such Common Pari Passu Collateral.



               “Authorized Representative” means (i) in the case of any Term Loan Secured Obligations or the
Term Loan Secured Parties, the Term Loan Collateral Agent, (ii) in the case of any Series of
Additional Pari Passu Secured Obligations or Additional Pari Passu Secured Parties that become
subject to this Agreement after the date hereof, the Additional Pari Passu Collateral Agent named
for such Series in the applicable Intercreditor Joinder Agreement and (iii) in the case of any
Series of Subordinated Lien Debt that becomes subject to this Agreement after the



3









 




date hereof, the Subordinated Lien Collateral Agent named for such Series in the applicable
Intercreditor Joinder Agreement.




               “Authorized Subordinated Lien Collateral Agent” means, with respect to any Common Subordinated
Lien Collateral securing any of the Subordinated Lien Secured Obligations, the Authorized
Representative of the Series of Subordinated Lien Secured Obligations that constitutes the largest
outstanding principal amount (which shall include, for the purpose of this determination, all
undrawn committed amounts under any revolving or delayed draw credit facilities) of any then
outstanding Series of Subordinated Lien Secured Obligations with respect to such Common
Subordinated Lien Collateral.



               “Bank Product” means any of the following products, services or facilities extended to
Holdings, the Parent Borrower or any Restricted Subsidiary (as defined in the Revolving Credit
Agreement) by a lender under the Revolving Credit Agreement or any of its Affiliates: (a) Cash
Management Services; (b) commercial credit card and merchant card services; and (c) other banking
products or services as may be requested by Holdings, the Parent Borrower or any Restricted
Subsidiary, other than Letters of Credit and Hedging Agreements.



               “Bank Product Debt” means Indebtedness and other obligations of a Grantor relating to Bank
Products.



               “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, liquidation, conservatorship, bankruptcy,
assignment for the benefit of creditors, moratorium, rearrangement, 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 (or the functional equivalent) of such Person, (iii) in the case of any limited
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 any day other than a Saturday, Sunday or other day on which commercial
banks are authorized to close under the laws of, or are in fact closed in, New York or Chicago.



               “Cash Management Services” means any services provided from time to time by any lender under
the Revolving Credit Agreement or any of its Affiliates (or any Person that was a lender or an
Affiliate of a lender under the Revolving Credit Agreement at the time agreements with respect to
such services are entered into) to Holdings or any Restricted Subsidiary in connection with
operating, collections, payroll, trust, or other depository or disbursement accounts, including
automated clearinghouse, e-payable, electronic funds transfer,



4









 




wire transfer, controlled disbursement, overdraft, depository, information reporting, lockbox
and stop payment services.




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



               “Claimholders” means the Revolving Credit Claimholders, the Pari Passu Secured Parties and the
Subordinated Lien Secured Parties, as the context may require.



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



               “Closing Date” means December 17, 2010.



               “Collateral” means all of the “Collateral”, “Pledged Collateral” and “Mortgaged Property”
referred to in the Security Documents and all of the other property that is or is intended under
the terms of the Security Documents to be subject to Liens in favor of a Revolving Credit Agent for
the benefit of the Revolving Credit Claimholders, a Pari Passu Collateral Agent for the benefit of
the Pari Passu Secured Parties of any Series or a Subordinated Lien Collateral Agent for the
benefit of the Subordinated Lien Secured Parties of any Series, as the case may be.



               “Common Collateral” means, as the context requires, the Common Pari Passu Collateral or the
Common Subordinated Lien Collateral.



               “Common Pari Passu Collateral” means, at any time, Collateral in which the holders of two or
more Series of Pari Passu Secured Obligations (or their respective Authorized Representatives) hold
a valid and perfected security interest at such time. If more than one Series of Pari Passu Secured
Obligations are outstanding at any time and the holders of less than all Series of Pari Passu
Secured Obligations hold a valid and perfected security interest in any Collateral at such time,
then such Collateral shall constitute Common Pari Passu Collateral for those Series of Pari Passu
Secured Obligations that hold a valid security interest in such Collateral at such time and shall
not constitute Common Pari Passu Collateral for any Series which does not have a valid and
perfected security interest in such Collateral at such time.



               “Common Subordinated Lien Collateral” means, at any time, Collateral in which the holders of
two or more Series of Subordinated Lien Secured Obligations (or their respective Authorized
Representatives) hold a valid and perfected security interest at such time. If more than one Series
of Subordinated Lien Secured Obligations are outstanding at any time and the holders of less than
all Series of Subordinated Lien Secured Obligations hold a valid and perfected security interest in
any Collateral at such time, then such Collateral shall constitute Common Subordinated Lien
Collateral for those Series of Subordinated Lien Secured Obligations that hold a valid security
interest in such Collateral at such time and shall not constitute Common Subordinated Lien
Collateral for any Series which does not have a valid and perfected security interest in such
Collateral at such time.



5









 





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



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



               “Comparable Subordinated Lien Security Document” means, in relation to any Collateral subject
to any Revolving Credit Security Document or Pari Passu Security Document, the Subordinated Lien
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.



               “Controlling Secured Parties” means (i) with respect to any Common Pari Passu Collateral, the
Pari Passu Secured Parties under the Series of Pari Passu Debt whose Pari Passu Representative is
the Authorized Pari Passu Collateral Agent for such Common Pari Passu Collateral and (ii) with
respect to any Common Subordinated Lien Collateral, the Subordinated Lien Secured Parties under the
Series of Subordinated Lien Debt whose Subordinated Lien Representative is the Authorized
Subordinated Lien Collateral Agent for such Common Subordinated Lien Collateral.



               “Copyrights” means, collectively, all copyrights (whether statutory or common law, whether
established, registered or recorded in Canada, 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, credited to or on deposit in
any of the accounts or sub-accounts described in clause (i) of this definition.



6









 





               “Discharge of Pari Passu Secured Obligations” means, except to the extent otherwise expressly
provided in Section 7.6 hereof, the occurrence of:



               (1) termination or expiration of all commitments, if any, to extend credit that would
constitute Pari Passu Secured Obligations (including any Refinancings of any thereof to the extent
such Refinancings thereof constitute Pari Passu Secured Obligations, as evidenced by the
Intercreditor Joinder Agreement delivered by the related Authorized Representative in connection
with such Refinancing);



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



               (3) termination or cash collateralization (in an amount and manner reasonably satisfactory to
the relevant Pari Passu Representatives that have letters of credit outstanding thereunder, but in
no event greater than 105% of the aggregate undrawn face amount) of, or receipt by such Pari Passu
Representatives of supporting letters of credit reasonably satisfactory to such the Pari Passu
Representatives with respect to, all letters of credit issued or otherwise outstanding (including
any indemnity, guarantee, exposure transmittal memorandum or similar form of credit support), or
amounts owing by the Grantors for any drawings thereunder and all fees and other amounts owing with
respect thereto, under the Pari Passu Loan Documents and constituting Pari Passu Secured
Obligations (if any);



               (4) payment in full in cash of all other Pari Passu Secured Obligations that are outstanding
and unpaid at the time the Indebtedness constituting such Pari Passu Secured 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); and



               (5) the satisfaction of all other conditions to the release or discharge of the Liens securing
the Pari Passu Secured Obligations as provided in the related Pari Passu Loan Documents.



               If a Discharge of Pari Passu Secured Obligations occurs prior to the termination of this
Agreement, to the extent that Additional Pari Passu Secured Obligations are incurred in accordance
with Section 7.5 or 7.6, or Pari Passu Secured Obligations are reinstated in
accordance with Section 8.4, the Discharge of Pari Passu Secured Obligations shall
(effective upon the incurrence of such additional Pari Passu Secured Obligations) be deemed to no
longer be effective.



               “Discharge of Revolving Credit Secured Obligations” means, except to the extent otherwise
expressly provided in Section 7.6 hereof, the occurrence of:



7









 





               (1) termination or expiration of all commitments, if any, to extend credit that would
constitute Revolving Credit Secured Obligations (including any Refinancings of any thereof to the
extent such Refinancings thereof constitute Revolving Credit Secured Obligations, as evidenced by
the Intercreditor Joinder Agreement delivered by the related Revolving Credit Agent in connection
with such Refinancing);



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



               (3) termination or cash collateralization (in an amount and manner satisfactory to the
Revolving Credit Agents, but in no event greater than 105%) of the aggregate undrawn face amount,
or with respect to inchoate or contingent obligations, in an amount equal to the Revolving Credit
Agents’ good faith estimate of the amount due or to become due, including all fees and other
amounts relating thereto) of, or receipt by the Revolving Credit Agents of supporting letters of
credit reasonably satisfactory to the Revolving Credit Agents with respect to, (i) all letters of
credit issued or otherwise outstanding (including any indemnity, guarantee, exposure transmittal
mechanism or similar form of credit support), or amounts owing by the Grantors for any drawings
thereunder and all fees and other amounts owing with respect thereto, under the Revolving Credit
Loan Documents and constituting Revolving Credit Secured Obligations and (ii) all Revolving Credit
Secured Obligations which are inchoate or contingent in nature; and



               (4) the satisfaction of all other conditions to the release or discharge of the Liens securing
Revolving Credit Secured Obligations as provided in the related Revolving Credit Loan Documents.



               If a Discharge of Revolving Credit Secured Obligations occurs prior to the termination of this
Agreement, to the extent that additional Revolving Credit Secured Obligations are incurred in
accordance with Section 7.5 or 7.6, or Revolving Credit Secured Obligations are
reinstated in accordance with Section 8.4 the Discharge of Revolving Credit Secured
Obligations shall (effective upon the incurrence of such additional Revolving Credit Secured
Obligations or reinstatement of such Revolving Credit Secured Obligations, as applicable) be deemed
to no longer be effective.



               “Discharge of Senior Lien Secured Obligations” means the later of the occurrence of a
Discharge of Term Loan Secured Obligations and the occurrence of a Discharge of Revolving Credit
Secured Obligations with respect to the Original Revolving Credit Agreement.



               “Discharge of Subordinated Lien Secured Obligations” means the occurrence of:



8









 





               (1) termination or expiration of all commitments, if any, to extend credit that would
constitute Subordinated Lien Secured Obligations (including any Refinancings of any thereof to the
extent such Refinancings thereof constitute Subordinated Lien Secured Obligations, as evidenced by
the Intercreditor Joinder Agreement delivered by the related Subordinated Lien Representative in
connection with such Refinancing);



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



               (3) payment in full in cash of all other Subordinated Lien Secured Obligations that are
outstanding and unpaid at the time the Indebtedness constituting such Subordinated Lien Secured
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); and



               (4) the satisfaction of all other conditions to the release or discharge of the Liens securing
the Subordinated Lien Secured Obligations set forth in the related Subordinated Lien Loan
Documents.



               If a Discharge of Subordinated Lien Secured Obligations occurs prior to the termination of
this Agreement, to the extent that additional Subordinated Lien Secured Obligations are incurred in
accordance with Section 7.5 or Subordinated Lien Secured Obligations are reinstated in
accordance with Section 8.4, the Discharge of Subordinated Lien Secured Obligations shall
(effective upon the incurrence of such additional Subordinated Lien Secured Obligations or
reinstatement of such Subordinated Lien Secured Obligations, as applicable) be deemed to no longer
be effective.



               “Discharge of Term Loan Secured Obligations” means the occurrence of:



               (1) full payment in cash of the principal of and interest (including interest accruing on or
after the commencement of any Insolvency or Liquidation Proceeding (or which would accrue but for
the commencement of such proceeding), whether or not such interest would be allowed in such
Insolvency or Liquidation Proceeding), on all Indebtedness outstanding under the Term Loan
Agreement;



               (2) payment in full in cash of all other Obligations (as defined in the Term Loan Agreement)
that are outstanding and unpaid at the time 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); and



9









 





               (3) the satisfaction of all other conditions to the release or discharge of the Liens securing
the Obligations (as defined in the Term Loan Agreement) as provided in the Term Loan Agreement and
the other Loan Documents (as defined therein).



               For the purposes of this definition, “Term Loan Agreement” shall not include any agreement,
document or instrument executed or delivered in connection with any Refinancing of the Term Loan
Agreement existing on the date hereof).



               “Disposition” has the meaning assigned to that term in Section 7.1(b).



               “Enforcement” means, collectively or individually for any of the Revolving Credit Agents or
for any Pari Passu Representatives when a Revolving Credit Default or a Pari Passu 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 Pari
Passu 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 Secured Obligations pursuant to the Revolving Credit Loan Documents.



               “Enforcement Notice” means a written notice delivered, at a time when a Revolving Credit
Default or Pari Passu Default has occurred and is continuing, by either (i) any Revolving Credit
Agent to each Pari Passu Representative or (ii) the Authorized Pari Passu Collateral Agent to any
Revolving Credit Agent and each Pari Passu Representative announcing that an Enforcement Period has
commenced, specifying the relevant event of default, stating the current balance of the Revolving
Credit Secured Obligations (in the case of a notice sent by a Revolving Credit Agent) or (in the
case of a notice sent by the Authorized Pari Passu Collateral Agent) the current balance of the
Pari Passu Secured Obligations of the Series of Pari Passu Debt for which it is the Pari Passu
Collateral Agent, as applicable, and requesting the current balance owing of the Revolving Credit
Secured Obligations and the other Series of Pari Passu Debt (in the case of a notice sent by the
Authorized Pari Passu Collateral Agent) or the Pari Passu Secured 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 the Authorized Pari Passu Collateral Agent or
(ii) each Pari Passu Representative of an Enforcement Notice from any Revolving Credit Agent until:
(a) in the case of an Enforcement Period commenced by the Authorized Pari Passu Collateral Agent,
the Discharge of Pari Passu Secured Obligations, (b) in the case of an Enforcement Period commenced
by Revolving Credit Agent, the Discharge of Revolving Credit Secured Obligations or (c) the
applicable Revolving Credit Agents and each Pari Passu Representative agrees in writing to
terminate the Enforcement Period.



               “Equally and Ratably” means, in reference to sharing of Liens or proceeds thereof as between
and among holders of Pari Passu Secured Obligations within the same Class



10









 




and among holders of Subordinated Lien Secured Obligations within the same Class, that,
subject to Sections 1.3(a) and (b), as applicable, such Liens or proceeds:





     (1) will be allocated and distributed first to the Authorized Representative for each
outstanding Series of Pari Passu Debt or Series of Subordinated Lien Debt within that Class,
for the account of the holders of such Series of Pari Passu Debt or Series of Subordinated
Lien Debt, as applicable, ratably in proportion to the principal of, and interest and
premium (if any) and reimbursement obligations (contingent or otherwise) with respect to
letters of credit (including any indemnity, guarantee, exposure transmittal memorandum or
similar form of credit support), if any, outstanding (whether or not drawings have been made
on such letters of credit) on, each outstanding Series of Pari Passu Debt or Series of
Subordinated Lien Debt, as applicable, within that Class when the allocation or distribution
is made; and




     (2) thereafter, will be allocated and distributed (if any remain after payment in full
of all of the principal of, and interest and premium (if any) and reimbursement obligations
(contingent or otherwise) with respect to letters of credit (including any indemnity,
guarantee, exposure transmittal memorandum or similar form of credit support), if any,
outstanding (whether or not drawings have been made on such letters of credit) on all
outstanding Secured Obligations within that Class) to the Authorized Representative for each
outstanding Series of Pari Passu Debt or Series of Subordinated Lien Debt within that Class,
for the account of the holders of any remaining Secured Obligations within that Class,
ratably in proportion to the aggregate unpaid amount of such remaining Secured Obligations
within that Class due and demanded (with written notice to the applicable Authorized
Representative) prior to the date such distribution is made.



               “Equipment” means “equipment”, as such term is defined in the UCC, in which such Person now or
hereafter has rights.



               “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.



               “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 Pari Passu Non-Accessory Security Documents” means each Security Document governed by
German law pursuant to which any Grantor grants any German law non-accessory Lien
(nichtakzessorische Sicherheit) to the Term Loan Collateral Agent.



11









 





               “German Revolving Credit Non-Accessory Security Documents” means each Security Document
governed by German law pursuant to which any Grantor grants any German law non-accessory Lien
(nichtakzessorische Sicherheit) to the Revolving Credit Collateral Agent.



               “German Guarantors” means each Subsidiary of Holdings organized in Germany party to the
Revolving Credit Loan Documents and the Pari Passu 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 Pari Passu Loan Documents.



               “Governmental Authority” means the government of Canada, 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, a Pari Passu Security
Document or a Subordinated Lien Security Document as a “Grantor” or a “Pledgor” (or the equivalent
thereof).



               “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 entered into for speculative purposes.



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



               “Holdings” means (i) prior to the consummation of the Permitted Holdings Amalgamation (as
defined in each of the Revolving Credit Agreement and the Term Loan Agreement), AV Metals Inc., a
corporation formed under the Canada Business Corporations Act, and (ii) upon and after the
consummation of the Permitted Holdings Amalgamation, Successor Holdings (as defined in the Term
Loan Agreement).



               “Impairment” means:



               (a) (i) with respect to any Series of Pari Passu Debt, any determination by a court of
competent jurisdiction that (x) any of the Pari Passu Secured Obligations of such Series are
unenforceable under applicable law or are subordinated in right of payment or lien priority (other
than as expressly provided for in this Agreement) to any other obligations, (y) any of the Pari



12









 




Passu Secured Obligations of such Series do not have an enforceable security interest in any
of the Collateral securing any other Pari Passu Debt and/or (z) any intervening security interest
exists securing any other obligations (other than another Series of Pari Passu Debt) on a basis
ranking prior to the security interest of such Series of Pari Passu Debt but junior to the security
interest of any other Series of Pari Passu Debt or (ii) the existence of any Collateral for any
other Series of Pari Passu Debt that is not Common Pari Passu Collateral; and




               (b) (i) with respect to any Series of Subordinated Lien Debt, any determination by a court of
competent jurisdiction that (x) any of the Subordinated Lien Secured Obligations of such Series are
unenforceable under applicable law or are subordinated in right of payment or lien priority (other
than as expressly provided for in this Agreement) to any other obligations, (y) any of the
Subordinated Lien Secured Obligations of such Series do not have an enforceable security interest
in any of the Collateral securing any other Subordinated Lien Debt and/or (z) any intervening
security interest exists securing any other obligations (other than another Series of Subordinated
Lien Debt) on a basis ranking prior to the security interest of such Series of Subordinated Lien
Debt but junior to the security interest of any other Series of Subordinated Lien Debt or (ii) the
existence of any Collateral for any other Series of Subordinated Lien Debt that is not Common
Subordinated Lien Collateral.



               “Indebtedness” means and includes all Obligations that constitute “Indebtedness” within the
meaning of the Revolving Credit Agreement or any Pari Passu Loan Document, 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, marshalling of assets or liabilities or
winding up of any Grantor whether voluntary or involuntary and whether or not involving insolvency
or bankruptcy;



               (4) the appointment of a receiver, trustee, liquidator, administrator, examiner, conservator
or other custodian for any Grantor or any part of its property;



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



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



provided that for purposes of Section 5.3 and Article VIII of this
Agreement, items described in clauses (1) through (6) above shall constitute an Insolvency or
Liquidation Proceeding only if such item constitutes (or would constitute but for the effect of any
Bankruptcy Law) a Revolving



13









 




Credit Default, a Pari Passu Default or a Subordinated Lien Default (or an event that with notice
or passage of time would constitute a Revolving Credit Default, a Pari Passu Default or a
Subordinated Lien 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.



               “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 Joinder Agreement” means (a) with respect to the provisions of this Agreement
relating to the addition of additional Grantors, an agreement substantially in the form of
Exhibit A or such other form as is acceptable to each of the other parties thereto, and (b)
with respect to the provisions of this Agreement relating to any Additional Secured Debt, an
agreement substantially in the form of Exhibit B or such other form as is acceptable to
each of the other parties.



               “Inventory” means 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 that are otherwise “inventory” (as defined in this definition) in
which any Grantor has an interest in mass or a joint or other interest or right of any kind; and
all goods that are otherwise “inventory” (as defined in this definition) which are returned to or
repossessed by any Grantor, all computer programs embedded in any such goods and all accessions
thereto and products thereof (in each case, regardless of whether characterized as inventory under
the UCC).



14









 





               “Italian Pledge Agreements” means (i) that certain Pledge Agreement Over Shares to be entered
into among Novelis Europe Holdings Limited, Novelis Deutschland GmbH, Bank of America, N.A., as
collateral agent, and the custodian party thereto relating to the shares of Novelis Italian S.p.A
and (ii) that certain pledge agreement over Novelis Italia S.p.A bank account to be entered into
among Novelis Italia S.p.A, Bank of America N.A., as collateral agent, and the relevant depository
bank.



               “Korea Share Pledge Agreements” means the collective reference to (i) the Share Kun-Pledge
Agreement, dated as of December 17, 2010, among 4260848 Canada Inc., 4260856 Canada Inc., the Term
Loan Collateral Agent and the Revolving Credit Collateral Agent and (ii) the Share Kun-Pledge
Agreement, dated as of December 17, 2010, among Parent Borrower, the Term Loan Collateral Agent and
the Revolving Credit Collateral Agent.



               “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, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
encumbrance, claim, charge, assignment, hypothecation, security interest or encumbrance of any kind
or any arrangement to provide priority or preference in respect of such property, 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.



               “Lien Sharing and Priority Confirmation” means:



               (1) as to any Series of Pari Passu Debt, the written agreement of the holders of such Series
of Pari Passu Debt, as set forth in the indenture, credit agreement, note purchase agreement or
other agreement governing such Series of Pari Passu Debt, for the benefit of all holders of the
Obligations from time to time (including each Agent):




               (a) that all Pari Passu Secured Obligations will be and are secured Equally and Ratably
by all Pari Passu Liens at any time granted by any Grantor to secure any Obligations in
respect of such Pari Passu Debt, and that all such Pari Passu Liens will be enforceable by
the Authorized Pari Passu Collateral Agent for the benefit of all holders of Pari Passu
Secured Obligations Equally and Ratably to the extent and subject to the limitations
provided for herein;




               (b) that the holders of such Series of Pari Passu Debt are bound by the provisions of
this Agreement, including the provisions relating to the ranking of Pari



15









 






Passu Liens and the order of application of proceeds from enforcement of Pari Passu
Liens; and




               (c) consenting to the terms of this Agreement and the Authorized Pari Passu Collateral
Agent’s performance of, and directing the Authorized Pari Passu Collateral Agent to perform,
its obligations under this Agreement and the other Pari Passu Security Documents;



               (2) as to any Revolving Credit Secured Obligations, the written agreement of the holders of
Revolving Credit Secured Obligations, as set forth in the credit agreement, indenture, note
purchase agreement or other agreement governing such Revolving Credit Secured Obligations, for the
benefit of all holders of the Obligations from time to time (including each Agent), (a) that the
holders of such Revolving Credit Secured Obligations are bound by the provisions of this Agreement,
including the provisions relating to the ranking of the Liens securing the Revolving Credit Secured
Obligations and the order of application of proceeds from enforcement of Liens securing the
Revolving Credit Secured Obligations; and (b) consenting to the terms of this Agreement and the
Revolving Credit Collateral Agent’s performance of, and directing such Revolving Credit Collateral
Agent to perform, its obligations under this Agreement and the other Revolving Credit Security
Documents; and



               (3) as to any Series of Subordinated Lien Debt, the written agreement of the holders of such
Series of Subordinated Lien Debt, as set forth in the indenture, credit agreement, note purchase
agreement or other agreement governing such Series of Subordinated Lien Debt, for the benefit of
all holders of the Obligations from time to time (including each Agent):




               (a) that all Subordinated Lien Secured Obligations will be and are secured Equally and
Ratably by all Subordinated Liens at any time granted by any Grantor to secure any
Obligations in respect of such Series of Subordinated Lien Debt, and that all such
Subordinated Liens will be enforceable by the Authorized Subordinated Lien Collateral Agent
for the benefit of all holders of Subordinated Lien Secured Obligations Equally and Ratably
to the extent and subject to the limitations provided for herein;




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




               (c) consenting to the terms of this Agreement and the Authorized Subordinated Lien
Collateral Agent’s performance of, and directing the Authorized Subordinated Lien Collateral
Agent to perform, its obligations under this Agreement and the other Subordinated Lien
Security Documents;


It being understood that no Lien Sharing and Priority Confirmation shall be required for the credit
facility governed by the Term Loan Agreement to constitute Pari Passu Debt or for the credit
facility governed by the Original Revolving Credit Agreement to constitute Revolving Credit Secured
Obligations.







16









 








               “Madeira Assignment of Credits” means the Assignment of Credits Agreement dated December 17,
2010 among Novelis Madeira, Unipessoal, Lda., the Revolving Credit Collateral Agent and the other
parties thereto,



               “Modifications” means any amendments, restatements, amendment and restatements, supplements,
modifications, waivers, consents, renewals, replacements, increases, decreases, consolidations,
severances, substitutions and extensions of any agreement, document or instrument from time to
time, whether in whole or in part and pursuant to one or more agreements, documents, instruments or
facilities, with the same or different parties, a shorter or longer maturity or in a smaller or
greater amount of (or commitments for) Indebtedness. “Modify” and “Modified” shall have meanings
correlative thereto.



               “Mortgaged Premises” means any real property which shall now or hereafter be subject to a Pari
Passu 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 any other Pari Passu Loan Document and which solely contain proceeds of Pari
Passu Priority Collateral (and any products of such proceeds), and which have been designated in
writing to the Revolving Credit Agents as such within 45 days of the time that the proceeds from
any sale of Pari Passu Priority Collateral shall be deposited therein, pending final application of
such proceeds (and any products of such proceeds, and interest thereon, in each case, in accordance
with the terms of the Term Loan Agreement and any other Pari Passu Loan Document.



               “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.



               “Non-Controlling Secured Parties” means, (i) with respect to any Common Pari Passu Collateral,
the Pari Passu Secured Parties which are not Controlling Secured Parties with respect to such
Common Pari Passu Collateral and (ii) with respect to any Common Subordinated Lien Collateral, the
Subordinated Lien Secured Parties which are not Controlling Secured Parties with respect to such
Common Subordinated Lien Collateral.



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



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



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



               “Novelis Holdings” 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.



17









 





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



               “Obligations” means all Revolving Credit Secured Obligations, all Pari Passu Secured
Obligations and, if the context requires, all Subordinated Lien Secured Obligations.



               “Original Revolving Credit Agreement” has the meaning assigned to such term in the Recitals to
this Agreement.



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



               “Pari Passu Collateral Agents” means the Term Loan Collateral Agent and any Additional Pari
Passu Collateral Agent.



               “Pari Passu Debt” means:



               (1) the term loans and other Pari Passu Secured Obligations incurred under the Term Loan
Agreement (including all Term Loans, Incremental Term Loans and Other Term Loans under, and as
defined, therein);



               (2) Hedging Obligations owed to any Secured Hedge Provider which are permitted to be included
as Pari Passu Secured Obligations under each Pari Passu Loan Document; and



               (3) additional Indebtedness (including letters of credit and reimbursement obligations with
respect thereto) of any Grantor that is secured Equally and Ratably with the Pari Passu Secured
Obligations by a Pari Passu Lien that was permitted to be incurred and so secured under the
existing Pari Passu Loan Documents, Revolving Credit Loan Documents and Subordinated Lien
Documents; provided that, in the case of any additional Indebtedness referred to in this
clause (3), that:




               (a) on or before the date on which such additional Indebtedness is incurred by such
Grantor, such additional Indebtedness is designated by the Borrower, in an Additional
Secured Debt Designation as “Pari Passu Debt” for the purposes of this Agreement, and the
other Pari Passu Loan Documents; provided that no Series of Secured Debt may be designated
as both Subordinated Lien Debt and Pari Passu Debt and no Series of Secured Debt may be
designated as or constitute both Revolving Credit Secured Obligations and Pari Passu Debt;




               (b) the Pari Passu Representative(s) for such Indebtedness execute and deliver an
Intercreditor Joinder Agreement in accordance with Section 7.5 hereof;




               (c) such additional Indebtedness is governed by an indenture, a credit agreement, note
purchase agreement, collateral trust agreement or other agreement that includes a Lien
Sharing and Priority Confirmation; and



18









 






               (d) all other requirements set forth in Section 7.5 of this Agreement have been
satisfied.



               “Pari Passu Default” means an “Event of Default” (as defined in any Pari Passu Loan Document),
which is no longer subject to any applicable cure or notice period and is continuing.



               “Pari Passu DIP Financing” has the meaning assigned to that term in Section 8.1(b).



               “Pari Passu General Intangibles” means all General Intangibles which are not Revolving Credit
General Intangibles.



               “Pari Passu Intervening Creditor” has the meaning provided in Section 6.3(a) hereof.



               “Pari Passu Lien” means a Lien granted under a Pari Passu Security Document to a Pari Passu
Collateral Agent, at any time, upon any property of any Grantor to secure any Pari Passu Secured
Obligations.



               “Pari Passu Loan Documents” means, the Term Loan Agreement, the Pari Passu Mortgages and the
other “Loan Documents” (as defined in the Term Loan Agreement) and any additional indenture, credit
agreement, note purchase agreement or other agreement pursuant to which any Pari Passu Debt is
incurred or issued (other than Hedging Agreements and documents relating thereto and not to any
other Pari Passu Debt), the Pari Passu Security Documents and (other than excluded above) each of
the other agreements, documents and instruments providing for or evidencing any other Pari Passu
Debt, and (other than excluded above) any other document or instrument executed or delivered at any
time in connection with any Pari Passu Debt, including any intercreditor agreement, collateral
trust agreement or joinder agreement among Pari Passu Secured Parties 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 any Pari Passu Representatives or other agents and lenders or otherwise), in
each case in accordance with the provisions of this Agreement.



               “Pari Passu 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 Pari Passu Secured Obligations.



               “Pari Passu Post-Petition Assets” has the meaning assigned to that term in Section
8.1(a).



               “Pari Passu 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) Pari Passu 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



19









 




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.




               “Pari Passu Representative” means:



               (a) the Term Loan Agents, in the case of the term loans and other Pari Passu Secured
Obligations incurred under the Term Loan Agreement and (for so long as the Term Loan Agreement is
in effect) all Hedging Obligations owed to a Secured Hedge Provider; or



               (b) in the case of any other Series of Pari Passu Debt, the trustee, agent or representative
of the holders of such Series of Pari Passu Debt appointed as a representative of such Series of
Pari Passu Debt pursuant to the indenture, credit agreement, note purchase agreement, collateral
trust agreement or other agreement governing or relating to such Series of Pari Passu Debt, and who
has executed an Intercreditor Joinder Agreement.



               “Pari Passu Secured Obligations” means (a) all obligations of the 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 and other Indebtedness under the Term Loan
Credit Agreement and the other Pari Passu Loan Documents, 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 Grantors under the Term Loan Credit Agreement or any other Pari Passu Loan Document
in respect of any letter of credit (including any indemnity, guarantee, exposure transmittal
memorandum or similar form of credit support), 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 Pari
Passu 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 Grantors under the Term Loan Agreement or
any other Pari Passu Loan Document, (b) the due and punctual performance of all covenants,
agreements, obligations and liabilities of the Grantors under or pursuant to the Term Loan
Agreement and the other Pari Passu Loan Document 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 Secured Hedge Provider. “Pari Passu Secured 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 Pari Passu Loan Document whether or not the claim for such
interest is allowed as a claim in such Insolvency or Liquidation Proceeding.



               “Pari Passu Secured Parties” means the holders of Pari Passu Secured Obligations including, in
any event, the Pari Passu Representatives.



20









 





               “Pari Passu Security Documents” means the “Security Documents” as defined in the Term Loan
Agreement and Modifications thereof and, with respect to any Additional Secured Debt constituting
Pari Passu Debt, any security agreement, mortgage, any security trust deed, and each other security
document, deed of trust, charge or pledge agreement delivered in accordance with applicable local
or foreign law to grant a valid, perfected security interest in any property as Collateral for the
applicable Series of Pari Passu Debt, and all UCC, PPSA or other financing statements or financing
change statements, control agreements, bailee notification letters, or instruments of perfection
required by the applicable Pari Passu Documents or any other such security document, charge or
pledge agreement to be filed with respect to the security interests in property and fixtures
created pursuant to any security agreement or any mortgage and any other document or instrument
utilized to pledge or grant or purport to pledge or grant a security interest or lien on any
property as Collateral for the applicable series of Pari Passu Debt; provided “Pari Passu
Security Documents” shall not include the Term Loan Agreement or any indenture, credit agreement,
note purchase agreement or other agreement governing any Series of Pari Passu Debt.



               “Pari Passu Standstill Period” has the meaning assigned to that term in Section
5.1(a)(1).



               “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 Canada, 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 7.4(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.



               “Principal Jurisdiction” means (i) the United States, Canada, the United Kingdom, Switzerland
and Germany, (ii) each other country in which a Restricted Subsidiary is organized in respect of
which receivables are included in the borrowing base for purposes of the Revolving Credit Agreement
and (iii) any state, province or other political subdivision of the foregoing.



21









 





               “Real Estate Assets” 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 freehold,
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, all general intangibles and contract rights and other property and rights
incidental to the ownership, lease or operation thereof.



               “Receivables Purchase Agreement” means each of (a) 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, as each such agreement may be
Modified, from time to time in accordance with the terms thereof and (b) any other receivables
purchase agreement and related servicing agreements pursuant to which Accounts are sold by a
Restricted Subsidiary to a Grantor.



               “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 8.4.



               “Refinance” means, in respect of any Indebtedness, to refinance, defease, repay, replace,
restructure, refund or to issue other Indebtedness, in exchange or replacement for, such
Indebtedness in whole or in part, whether pursuant to one or more agreements, documents,
instruments or facilities, with the same or different parties, a shorter or longer maturity or in a
smaller or greater amount of (or commitments for) Indebtedness. “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” means Bank of America, N.A., as administrative agent
under the Revolving Credit Agreement (and together with its successors in such capacity), together
with any other agent, collateral agent or other representative of lenders or holders of Revolving
Credit Secured Obligations that becomes party to this Agreement through the execution and delivery
of an Intercreditor Joinder Agreement and complies with the other applicable conditions contained
in Section 7.5 and 7.6 of this Agreement upon any Modification or Refinancing of
the Revolving Credit Agreement, and any successor representative acting in such capacity.



               “Revolving Credit Agents” means the Revolving Credit Administrative Agent and the Revolving
Credit Collateral Agent.



               “Revolving Credit Agreement” means that certain Credit Agreement, dated as of December 17,
2010, by and among the Borrower, as Canadian borrower, Guarantors party



22









 




thereto from time to time as borrowers or guarantors, the financial institutions party thereto
from time to time as lenders, Bank of America, N.A., as administrative agent, collateral agent,
U.S. swingline lender, European swingline lender and U.S./European issuing bank, and the other
agents and arrangers named therein, as Modified or Refinanced from time to time as permitted under
the Secured Debt Loan Documents (provided that each successor or replacement Revolving Credit Agent
has executed and delivered an Intercreditor Joinder Agreement and has complied with the other
applicable conditions contained in Section 7.5 and 7.6 of this Agreement).




               “Revolving Credit Claimholders” means, at any relevant time, the holders of Revolving Credit
Secured Obligations at that time, including, in any event, the Revolving Credit Agents, the lenders
under any Revolving Credit Agreement, the agents under the Revolving Credit Loan Documents and
Secured Bank Product Providers and any receiver under the Revolving Credit Loan Documents.



               “Revolving Credit Collateral Agent” means Bank of America, N.A., as collateral agent under the
Revolving Credit Agreement (and together with its successors in such capacity), together with any
other agent, collateral agent, collateral trustee or other representative of lenders or holders of
Revolving Credit Secured Obligations that becomes party to this Agreement through the execution and
delivery of an Intercreditor Joinder Agreement and complies with the other applicable conditions
contained in Section 7.5 and 7.6 of this Agreement upon any Modification or
Refinancing of the Revolving Credit Agreement, and any successor representative acting in such
capacity.



               “Revolving Credit Default” means an “Event of Default” (as defined in the Revolving Credit
Agreement), which is no longer subject to any applicable cure or notice period and is continuing.



               “Revolving Credit DIP Financing” has the meaning assigned to that term in Section
8.1(a).



               “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 Lien Post-Petition Assets” has the meaning assigned to that term in
Section 8.1(b).



               “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 Secured Obligation, and any other



23









 




document or instrument executed or delivered at any time in connection with any Revolving
Credit Secured Obligations, including any intercreditor or joinder agreement among holders of
Revolving Credit Secured 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 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 Pari Passu 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 (i) for
property that has been sold, leased, licensed, assigned or otherwise disposed of or (ii) for
services rendered or to be rendered, and excluding Intercompany Notes of Subsidiaries) and Chattel
Paper (solely to the extent constituting or evidencing obligations owing (i) for property that has
been sold, leased, licensed, assigned or otherwise disposed of or (ii) for services rendered or to
be rendered); provided, however, that to the extent Instruments or Chattel Paper
that constitute identifiable proceeds of Pari Passu Priority Collateral are deposited or held in
any such Bank Accounts or Securities Accounts after an Enforcement Notice, then (as provided in
Section 5.5) such Instruments, Chattel Paper or other identifiable proceeds shall be
treated as Pari Passu Priority Collateral, as the case may be; (d) Revolving Credit General
Intangibles; (e) right, title and interest in and to any 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 Secured 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
(including any indemnity, guarantee, exposure transmittal memorandum or similar form of credit
support), 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



24









 




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 Secured Bank Product
obligations owing to any Secured Bank Product Provider. “Revolving Credit Secured 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 Security Documents” means the “Security Documents” (as defined in the
Revolving Credit Agreement) and any other agreement, document or instrument (other than the
Revolving Credit Loan Agreement) pursuant to which a Lien is granted securing any Revolving Credit
Secured Obligations or under which rights or remedies with respect to such Liens are governed,
provided that “Revolving Credit Security Documents” shall not include the Revolving Credit
Agreement.



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



               “Secured Bank Product Provider” means (a) any Revolving Credit Agent or any of its Affiliates
and (b) any lender under the Revolving Credit Agreement or Affiliate of a lender under the
Revolving Credit Agreement that is providing a Bank Product (or that was a Revolving Credit Agent,
a lender under the Revolving Credit Agreement or an Affiliate thereof, at the time an agreement to
provide Bank Products by such Person was entered into), provided the provider complies with
the requirements of the Revolving Credit Agreement to become a Secured Bank Product Provider.



               “Secured Bank Product Obligations” means Bank Product Debt owing to a Secured Bank Product
Provider, up to the maximum amount (in the case of any Secured Bank Product Provider other than any
Revolving Credit Agent and its Affiliates) specified by such provider in writing to the Revolving
Credit Administrative Agent in accordance with the terms of the Revolving Credit Agreement.



               “Secured Debt Loan Documents” has the meaning assigned to that term in Section 7.5(a).



               “Secured Debt Representative” means each Pari Passu Representative and each Subordinated Lien
Representative.



               “Secured Hedge Provider” means, with respect to any Hedging Agreement, a Person that (i) is
party to such Hedging Agreement with a Grantor, (ii) either (A) at the time such Hedging Agreement
was entered into or as of the date hereof in the case of Hedging Agreements entered into prior to
the date hereof which remain in effect on the date hereof, was a lender under the Term Loan
Agreement or other applicable Pari Passu Loan Document, a Pari Passu Representative or an arranger,
syndication agent, documentation agent or bookrunner under the



25









 




Term Loan Agreement or other Pari Passu Document, or an Affiliate of any such lender, a Revolving
Credit Agent, Pari Passu Representative, arranger, syndication agent, documentation agent or
bookrunner, (B) is a counterparty to a Hedging Agreement with any Grantor entered into after the
date hereof if, at or prior to the time such Hedging Agreement is entered into, the Borrower shall
designate such person as a “Secured Hedge Provider” in a notice to the Term Loan Agents (or if the
Discharge of Term Loan Secured Obligations has occurred, to any other Pari Passu Representative),
or (C) is a counterparty to a Hedge Agreement with any Grantor existing on the Closing Date if (1)
such Person is listed as a “Secured Hedge Provider” on Schedule 1.01(d) to the Term Loan Agreement,
which Person shall become a Secured Hedge Provider on the day following the Closing Date but shall
cease to be a Secured Hedge Provider if such Person fails to execute a Secured Hedge Provider
Joinder under the Term Loan Agreement on or prior to the ninetieth (90th) day after the
Closing Date and (2) such Secured Hedge Provider shared in the collateral granted in connection
with the existing term loan facility of the Parent Borrower and Novelis Corporation (and which is
further identified on a Schedule to the Term Loan Agreement).




               “Secured Obligations” means the Revolving Credit Secured Obligations, the Pari Passu Secured
Obligations and the Subordinated Lien Secured Obligations.



               “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.



               “Security Documents” means the collective reference to the Revolving Credit Security
Documents, the Pari Passu Security Documents and the Subordinated Lien Security Documents.



               “Security Transfer Agreement” means the Security Transfer Agreement between Novelis
Switzerland SA and the Term Loan Collateral Agent relating to the transfer for security purposes of
six mortgage notes,



               “Senior Secured Obligations” has the meaning assigned to such term in Section 2.1(c).



               “Series” means a Series of Pari Passu Debt or a Series of Subordinated Lien Debt, as the
context requires.



               “Series of Pari Passu Debt” means, severally, (i) the term loans and other Pari Passu Secured
Obligations incurred under the Term Loan Agreement (including all Term Loans, Incremental Term
Loans and Other Term Loans under, and as defined, therein), and (ii) any other Indebtedness that
constitutes Pari Passu Debt for which a single collateral trustee (or equivalent), whether under a
collateral trust agreement or otherwise, acts, or for which an administrative agent, collateral
agent, indenture trustee, collateral trustee, registrar or other Person acting in a similar
capacity maintains a single list of holders of such Indebtedness.



26









 





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



               “Series of Subordinated Lien Debt” means, severally, each issue or series of Subordinated Lien
Debt for which a single collateral trustee (or equivalent), whether under a collateral trust
agreement or otherwise, acts, or for which a collateral trustee (or equivalent), whether under a
collateral trust agreement or otherwise, acts, or for which an administrative agent, collateral
agent, indenture trustee, collateral trustee, registrar or other Person acting in a similar
capacity maintains a single list of holders of such Indebtedness.



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



               “Subordinated Lien” means a Lien granted under a Subordinated Lien Security Document to a
Subordinated Lien Collateral Agent, at any time, upon any Collateral of any Grantor to secure any
Subordinated Lien Secured Obligations.



               “Subordinated Lien Collateral Agent” means the collateral agent, collateral trustee or a
similar representative for the holders of any Series of Subordinated Lien Debt incurred or issued
after the date hereof.



               “Subordinated Lien Debt” means any Indebtedness of any Grantor that is secured on a
subordinated basis to the Pari Passu Debt and the Revolving Credit Secured Obligations by a
Subordinated Lien that was permitted to be incurred and so secured under the Pari Passu Loan
Documents and the Revolving Credit Loan Documents; provided that:



               (1) on or before the date on which such Indebtedness is incurred by such Grantor, such
Indebtedness is designated by the Borrower in an Additional Secured Debt Designation as
“Subordinated Lien Debt” for the purposes of this Agreement and the other Subordinated Lien Loan
Documents; provided that no Series of Secured Debt may be designated as both Subordinated
Lien Debt and Pari Passu Debt;



               (2) the Subordinated Lien Representative(s) for such Indebtedness execute and deliver an
Intercreditor Joinder in accordance with Section 7.5 hereof;



               (3) such Indebtedness is governed by an indenture, credit agreement, note purchase agreement,
collateral trust agreement or other agreement that includes a Lien Sharing and Priority
Confirmation; and



               (4) all other requirements set forth in Section 7.5 of this Agreement have been
complied with.



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



               “Subordinated Lien Intervening Creditor” has the meaning provided in Section 6.3(b)
hereof.



27









 





               “Subordinated Lien Loan Documents” means, collectively, any indenture, credit agreement, note
purchase agreement or other agreement governing any Series of Subordinated Lien Debt and the
Security Documents related thereto (other than any Security Documents that do not secure
Subordinated Lien Secured Obligations), and each of the other agreements, documents or instruments
providing for or evidencing any other Subordinated Lien Debt, and any other document or instrument
executed or delivered at any time in connection with Subordinated Lien Debt, including any
intercreditor agreement, collateral trust agreement or joinder agreement among Subordinated Lien
Secured Parties 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 any Subordinated Lien Representative
or other agents and lenders or otherwise) in each case in accordance with the provisions of this
Agreement.



               “Subordinated Lien Representative” means, in the case of any other Series of Subordinated Lien
Debt, the trustee, agent or representative of the holders of such Series of Subordinated Lien Debt
which is appointed as a representative of such Series of Series of Subordinated Lien Debt pursuant
to the indenture, credit agreement, note purchase agreement, collateral trust agreement or other
agreement governing or relating to such Series of Series of Subordinated Lien Debt, and who has
executed an Intercreditor Joinder Agreement.



               “Subordinated Lien Secured Obligations” means (a) all obligations of the 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 Subordinated Lien Debt, when and
as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or
otherwise and (ii) 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 Grantors under any Subordinated Lien Loan
Document, and (b) the due and punctual performance of all covenants, agreements, obligations and
liabilities of the Grantors under or pursuant to the Subordinated Lien Loan Documents.
“Subordinated Lien Secured 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
Subordinated Lien Loan Document whether or not the claim for such interest is allowed as a claim in
such Insolvency or Liquidation Proceeding.



               “Subordinated Lien Secured Parties” means the holders of Subordinated Lien Secured Obligations
and including, in any event, the Subordinated Lien Representatives.



               “Subordinated Lien Security Documents” means the “Security Documents” as defined in any other
agreement, document or instrument pursuant to which a Lien is granted securing any Subordinated
Lien Debt Obligations or under which rights or remedies with respect to such Liens are governed,
provided that “Subordinated Lien Security Documents” shall not include any indenture,
credit agreement, note purchase agreement or similar agreement



28









 




governing any Series of Subordinated Lien Debt unless one of the primary purposes thereof is
to provide for the granting of Liens in the Collateral.




               “Subsidiary” means, with respect to any Person (the “parent”) at any date, (i) any
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, (ii) 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
(iii) 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 (i) of this definition.



               “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
or, after a Qualified Parent IPO (as defined in the Term Loan Agreement), the Parent Borrower.



               “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 set forth in the preamble.



               “Term Loan Agents” means the Term Loan Administrative Agent and the Term Loan Collateral
Agent.



29









 





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



               “Term Loan Collateral Agent” has the meaning set forth in the preamble.



               “Term Loan Secured Obligations” means the “Secured Obligations” as defined in the Term Loan
Agreement.



               “Term Loan Secured Parties” means the holders of any Pari Passu Secured Obligations under the
Term Loan Agreement and the other “Loan Documents” (as defined therein), the Term Loan Agents and,
until a Discharge of Term Loan Secured Obligations has occurred, each Secured Hedge Provider.



               “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 Canada, 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 Canada, 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
respect to the use of any of the foregoing, (iii) reissues, continuations, extensions, renewals and
divisions thereof and amendments thereto, (iv) 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, (v) rights
corresponding thereto throughout the world and (vi) rights to sue for past, present and future
infringements and other violations thereof.



               “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; provided that if perfection or the
effect of perfection or non-perfection or the priority of any security interest in any Collateral
is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of
New York, “UCC” shall mean the Uniform Commercial Code (or any similar or equivalent



30









 




legislation) as in effect from time to time in such other jurisdiction for purposes of the
provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.




               “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 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) any reference to a Subsidiary of a Person shall mean any direct or indirect Subsidiary of
such Person;



               (d) 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;



               (e) all references herein to “Sections,” “clauses,” “recitals” and the “preamble” will be to
Sections, clauses, recitals and the preamble, respectively, of this Agreement unless otherwise
specifically provided and all references to “Exhibits” will be to Exhibits to this Agreement unless
otherwise specifically provided;



               (f) any reference to any law or regulation shall refer to such law or regulation as amended,
modified or supplemented from time to time;



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



               (h) the use in this Agreement of the word “include” or “including,” when following any general
statement, term or matter, will not be construed to limit such statement, term or matter to the
specific items or matters set forth immediately following such word or to similar items or matters,
whether or not nonlimiting language (such as “without limitation” or “but not limited to” or words
of similar import) is used with reference thereto, but will be deemed to refer to all other items
or matters that fall within the broadest possible scope of such general statement, term or matter;



31









 





               (i) all references to (i) any Pari Passu Collateral Agent or Pari Passu Representative acting
on behalf of any other Pari Passu Secured Party shall be limited to such Person acting on behalf of
the Pari Passu Secured Parties under the Series of Pari Passu Debt for which such Person serves as
an agent, trustee or in a similar capacity and (ii) any Subordinated Lien Collateral Agent or
Subordinated Lien Representative acting on behalf of any other Subordinated Lien Secured Party
shall be limited to such Person acting on behalf of the Subordinated Secured Parties under the
Series of Subordinated Lien Debt for which such Person serves as an agent, trustee or in a similar
capacity; and



               (j) 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.



          This Agreement will be construed without regard to the identity of the party who drafted it
and as though the parties participated equally in drafting it. Consequently, each of the parties
acknowledges and agrees that any rule of construction that a document is to be construed against
the drafting party will not be applicable to this Agreement.





     1.3 Impairment.



               (a) It is the intention of the Pari Passu Secured Parties of each Series of Pari Passu Debt
that, solely as between such Series of Pari Passu Debt and any other Series of Pari Passu Debt, the
holders of Pari Passu Secured Obligations of such Series (and not the Pari Passu Secured Parties of
any other Series) bear the risk of Impairment with respect to any Series of Pari Passu Debt. In
the event of any Impairment with respect to any Series of Pari Passu Debt, the results of such
Impairment shall be borne solely by the holders of such Series of Pari Passu Debt, and the rights
of the holders of such Series of Pari Passu Debt (including, without limitation, the right to
receive distributions in respect of such Pari Passu Debt pursuant to Section 6.3(a)) set
forth herein shall be modified to the extent necessary so that the effects of such Impairment are
borne solely by the holders of the Series of such Pari Passu Debt subject to such Impairment.
Additionally, in the event the Pari Passu Secured Obligations of any Series are modified pursuant
to applicable law (including, without limitation, pursuant to Section 1129 of the Bankruptcy Code),
any reference to such Pari Passu Secured Obligations or the Pari Passu Documents governing such
Pari Passu Secured Obligations shall refer to such obligations or such documents as so modified.



               (b) It is the intention of the Subordinated Lien Secured Parties of each Series of
Subordinated Lien Debt that, solely as between such Series of Subordinated Lien Debt and any other
Series of Subordinated Lien Debt, the holder of Subordinated Lien Secured Obligations of such
Series (and not the Subordinated Lien Secured Parties of any other Series) bear the risk of
Impairment with respect to any Series of Subordinated Lien Debt. In the event of any Impairment
with respect to any Series Subordinated Lien Debt, the results of such Impairment shall be borne
solely by the holders of such Series of Subordinated Lien Debt, and the rights of the holders of
such Series of Subordinated Lien Debt (including, without limitation, the right to receive
distributions in respect of such Subordinated Lien Debt pursuant to Section 6.3(b)) set
forth herein shall be modified to the extent necessary so that the effects of such Impairment are
borne solely by the



32









 




holders of the Series of such Subordinated Lien Debt subject to such Impairment. Additionally,
in the event the Subordinated Lien Secured Obligations of any Series are modified pursuant to
applicable law (including, without limitation, pursuant to Section 1129 of the Bankruptcy Code),
any reference to such Subordinated Lien Secured Obligations or the Subordinated Lien Documents
governing such Subordinated Lien Secured Obligations shall refer to such obligations or such
documents as so modified.




          This Agreement will be construed without regard to the identity of the party who drafted it
and as though the parties participated equally in drafting it. Consequently, each of the parties
acknowledges and agrees that any rule of construction that a document is to be construed against
the drafting party will not be applicable to this Agreement.





	II.	 	LIEN PRIORITIES BETWEEN REVOLVING CREDIT SECURED OBLIGATIONS, PARI PASSU SECURED OBLIGATIONS
AND SUBORDINATED LIEN SECURED OBLIGATIONS.






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



               (a) any Liens on the Revolving Credit Priority Collateral securing any Revolving Credit
Secured 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 Pari Passu Secured Obligations or any
Subordinated Lien Secured Obligations;



               (b) any Liens on the Pari Passu Priority Collateral securing any Pari Passu Secured
Obligations, whether now or hereafter held by or on behalf of any Pari Passu Collateral Agent, any
Pari Passu Secured Party 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 Pari Passu Priority
Collateral which may secure any Revolving Credit Secured Obligations or any Subordinated Lien
Secured Obligations;



33









 





               (c) any Liens on the Collateral securing any Revolving Credit Secured Obligations and the
Liens on the Collateral securing any Pari Passu Secured Obligations (together with the Revolving
Credit Secured Obligations, collectively, the “Senior Secured Obligations"), whether now or
hereafter held by or on behalf of any Revolving Credit Agent or any other Revolving Credit
Claimholder, or any Pari Passu Collateral Agent or any other Pari Passu Secured Party 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 Collateral securing any Subordinated Loan Secured Obligations;
and



               (d) the priority of the Liens among each Series of Pari Passu Secured Obligations and each
Series of the Subordinated Lien Secured Obligations are set forth in Article III and
Article IV hereof, respectively.




     2.2 Prohibition on Contesting Liens. Each Revolving Credit Agent, on behalf of itself and
the other Revolving Credit Claimholders, each Pari Passu Representative, on behalf of itself and
the other Pari Passu Secured Parties, and each Subordinated Lien Representative, on behalf of
itself and the other Subordinated Lien Secured Parties, 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 Revolving Credit Claimholder, Pari Passu Secured Party or any
Subordinated Lien Secured Party 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, any Pari Passu Secured Party or any Subordinated Lien Secured Party 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 4.1.




     2.3 No New Liens. So long as the Discharge of Revolving Credit Secured Obligations and the
Discharge of Pari Passu Secured 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, each Pari
Passu Representative, on behalf of itself and the other Pari Passu Secured Parties, and each
Subordinated Lien Representative, on behalf of itself and the other Subordinated Lien Secured
Parties, 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 Pari Passu
Secured Obligation unless it has granted or concurrently grants a Lien on such asset or property to
secure the Revolving Credit Secured Obligations and each other Series of Pari Passu Secured
Obligations (subject to any agreement to the contrary permitted under Section 2.4(b));



               (b) grant or permit any additional Liens on any asset or property to secure any Revolving
Credit Secured Obligations unless it has granted or concurrently grants a Lien on such asset or
property to secure the Pari Passu Secured Obligations (subject to any agreement to the contrary
permitted under Section 2.4(b)), or



34









 





               (c) grant or permit any additional Liens on any asset or property to secure any Subordinated
Lien Secured Obligations unless it has granted or concurrently grants a Lien on such asset or
property to secure the Revolving Credit Secured Obligations and the Pari Passu Secured Obligations
and each other Series of Subordinated Lien Secured 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 as between the Revolving Credit Secured
Obligations, the Pari Passu Secured Obligations and the Subordinated Lien Secured Obligations 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, each Pari Passu Representative, on behalf of itself and the other
Pari Passu Secured Parties, and each Subordinated Lien Representative, on behalf of itself and the
other Subordinated Lien Secured Parties, 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 6.2.




     2.4 Similar Liens and Agreements. The parties hereto agree that, except as set forth in
Section 2.4(b), it is their intention that the Collateral securing the Revolving Credit
Secured Obligations and the Collateral securing the Pari Passu Secured Obligations be identical.
In furtherance of the foregoing, the parties hereto agree, subject to the other provisions of this
Agreement:



               (a) upon request by any Revolving Credit Agent or any Pari Passu Representative, 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 Pari Passu Loan Documents; and



               (b) that the documents and agreements creating or evidencing the Collateral for the Revolving
Credit Secured Obligations and the Pari Passu Secured Obligations shall (subject to any deviations
therefrom as may be approved by both the Revolving Credit Agents and the Pari Passu Representatives
such approval not to be unreasonably withheld or delayed) be in all material respects substantially
the same forms of documents and agreements other than with respect to the nature of the Obligations
secured thereunder and, to the extent relevant, the priority of the Liens granted thereunder except
(i) to the extent that the creditors who have the direct benefit of such agreements or documents
agree that such documents and agreements may grant Liens in less than all the Collateral and/or are
less restrictive on the Grantors (or provide fewer rights or remedies to the secured party) than
the forms of documents and agreements on the date hereof (and the satisfaction of such requirement
will be conclusively established if the Borrower delivers to the Pari Passu Representatives and the
Revolving Credit Agents an officers’ certificate certifying that the Borrower has determined in
good faith that such Pari Passu Security Documents satisfy the foregoing requirements unless any
Pari Passu Representative or any Revolving Credit Agent notifies the Borrower within five Business
Days that it disagrees with such determination (including a reasonable description of the basis
upon which it disagrees)), (ii) the representations and covenants relating to Revolving Credit
Priority Collateral contained in the Revolving Credit Loan Documents may be more restrictive that
those contained in the Pari Passu Loan Documents and (iii)



35









 




the representations and covenants relating to Pari Passu Secured Obligations contained in the
Pari Passu Loan Documents may be more restrictive that those contained in the Revolving Credit Loan
Documents.





     2.5 German Real Estate. Any amounts realized by any Pari Passu Collateral Agent, any Pari
Passu Secured Parties 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 Pari Passu Priority
Collateral, and be payable to the Authorized Pari Passu Collateral Agent on behalf of the Pari
Passu Secured Parties.




	 	III.	 	PRIORITIES AND AGREEMENTS OF PARI PASSU SECURED PARTIES WITH RESPECT TO COMMON PARI PASSU COLLATERAL






     3.1 Priority of Claims.



               (a) The Authorized Pari Passu Collateral Agent will distribute proceeds of Collateral received
by it among the Pari Passu Secured Parties as provided in Sections 6.1 and 6.3.



               (b) The Pari Passu Secured Parties hereby acknowledge that the Pari Passu Secured Obligations
of any Series may, subject to the limitations set forth in the then extant Pari Passu Loan
Documents, be Modified or Refinanced from time to time, all without affecting the priorities set
forth in Section 6.3(a) or the provisions of this Agreement defining the relative rights of
the Pari Passu Secured Parties of any Series.



               (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection
of any Liens securing any Series of Pari Passu Secured Obligations granted on the Common Pari Passu
Collateral, regardless of how acquired, whether by grant, possession, statute, operation of law,
subrogation or otherwise, and notwithstanding any provision of the Uniform Commercial Code of any
jurisdiction, the PPSA or any other applicable law or the Pari Passu Security Documents, but
subject to any defect or deficiencies in, or failure to perfect, the Liens securing the Pari Passu
Secured Obligations of any Series or other Impairment (and in each case, subject to Section
1.3(a)), each Pari Passu Secured Party hereby agrees that the Liens securing each Series of
Pari Passu Secured Obligations on any Common Pari Passu Secured Collateral shall be of equal
priority.




     3.2 Actions with Respect to Common Pari Passu Collateral.




               With respect to any Common Pari Passu Collateral, (i) notwithstanding any other provision
hereof or of any other Pari Passu Loan Document, only the Authorized Pari Passu Collateral Agent
shall act or refrain from acting with respect to the Common Pari Passu Collateral (except that the
Authorized Pari Passu Collateral Agent may permit other Pari Passu Representatives to act with
respect to the Pari Passu Collateral) and (ii) no other Pari Passu Collateral Agent with respect
to Pari Passu Secured Obligations or any other Pari Passu Representative or other Pari Passu
Secured Party (other than the Authorized Pari Passu Collateral Agent) shall or shall instruct the
Authorized Pari Passu Collateral Agent to



36









 






commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a
trustee, receiver, liquidator or similar official appointed for or over, attempt any action to
take possession of, exercise any right, remedy or power with respect to, or otherwise take any
action to enforce its security interest in or realize upon, or take any other action available to
it in respect of, any Common Pari Passu Collateral, whether under any Pari Passu Security
Document, applicable law or otherwise (unless the Authorized Pari Passu Collateral Agent otherwise
consents to such action), it being agreed that only the Authorized Pari Passu Collateral Agent
shall be entitled to take any such actions or exercise any such remedies with respect to Common
Pari Passu Collateral (subject to the right of any such Pari Passu Collateral Agent with respect
to Pari Passu Secured Obligations, any other Pari Passu Representative or other Pari Passu Secured
Party to take limited protective measures with respect to the Liens securing Pari Passu Secured
Obligations and to take certain actions that would be permitted to be taken by unsecured
creditors). Notwithstanding the equal priority of the Liens securing each Series of Pari Passu
Secured Obligations, the Authorized Pari Passu Collateral Agent may deal with the Common Pari
Passu Collateral as if such Authorized Pari Passu Collateral Agent had a senior Lien on such
Common Pari Passu Collateral. No Pari Passu Authorized Representative or Pari Passu Secured Party
will contest, protest or object to any foreclosure proceeding or action brought by the Authorized
Pari Passu Collateral Agent or the Controlling Secured Parties or any other exercise by the
Authorized Pari Passu Collateral Agent or the Controlling Pari Passu Secured Parties of any rights
and remedies relating to the Common Pari Passu Collateral, or to cause any other Pari Passu
Collateral Agent to do so. The foregoing shall not be construed to limit the rights and
priorities of any Pari Passu Secured Party or any Pari Passu Representative with respect to any
Collateral not constituting Common Collateral.




     3.3 No Interference; Payment Over.



               (a) Each of the Pari Passu Secured Parties and each of the Pari Passu Collateral Agents agrees
that (i) 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 validity or
enforceability of any Pari Passu Secured Obligations of any Series or any Pari Passu Security
Document or the validity or enforceability of the priorities, rights or duties established by or
other provisions of this Agreement; provided that nothing in this Agreement shall be
construed to prevent or impair (x) the rights of any of the Pari Passu Collateral Agents or any
Pari Passu Representative to enforce this Agreement or (y) the rights of any of the Pari Passu
Collateral Agents or any Pari Passu Secured Party to contest, or support any other Person in
contesting, the enforceability of any Pari Passu Secured Obligations constituting unmatured
interest or the validity of any Lien relating thereto pursuant to Section 502(b)(2) of the
Bankruptcy Code, (ii) it will not take or cause to be taken any action the purpose or intent of
which is, or could be, to interfere, hinder or delay, in any manner, whether by judicial
proceedings or otherwise, any sale, transfer or other disposition of the Common Pari Passu
Collateral by the Authorized Pari Passu Collateral Agent, (iii) except as provided in Section
3.2, it shall have no right to (A) direct the Authorized Pari Passu Collateral Agent or any
other Pari Passu Secured Party to exercise any right, remedy or power with respect to any Common
Pari Passu Collateral or (B) consent to the exercise by the Authorized Pari Passu Collateral Agent
or any other Pari Passu Secured Party of any right, remedy or power with respect to any Common Pari
Passu Collateral, (iv) it will not institute any suit or assert in any suit, bankruptcy, insolvency
or other proceeding any claim against the Authorized Pari



37









 




Passu Collateral Agent or any other Pari Passu Secured Party seeking damages from or other
relief by way of specific performance, instructions or otherwise with respect to any Common Pari
Passu Collateral, and none of the Pari Passu Collateral Agents, any Authorized Pari Passu
Collateral Agent or any other Pari Passu Secured Party shall be liable for any action taken or
omitted to be taken by the Authorized Pari Passu Collateral Agent or other Pari Passu Secured Party
with respect to any Common Pari Passu Collateral in accordance with the provisions of this
Agreement, (v) it will not seek, and hereby waives any right, to have any Common Pari Passu
Collateral or any part thereof marshaled upon any foreclosure or other disposition of such
Collateral and (vi) it will not attempt, directly or indirectly, whether by judicial proceedings or
otherwise, to challenge the enforceability of any provision of this Agreement; provided
that nothing in this Agreement shall be construed to prevent or impair the rights of any of the
Pari Passu Collateral Agents or any other Pari Passu Secured Party to enforce this Agreement.




               (b) Each Pari Passu Secured Party hereby agrees that if it shall obtain possession of any
Common Pari Passu Collateral or shall realize any proceeds or payment in respect of any such Common
Pari Passu Collateral, pursuant to any Pari Passu Security Document or by the exercise of any
rights available to it under applicable law or in any Insolvency or Liquidation Proceeding or
through any other exercise of remedies, at any time prior to the Discharge of Pari Passu Secured
Obligations, then it shall hold such Common Pari Passu Collateral, proceeds or payment in trust for
the other Pari Passu Secured Parties and promptly transfer such Common Pari Passu Collateral,
proceeds or payment, as the case may be, to the Authorized Pari Passu Collateral Agent (unless it
shall have an obligation, to the extent such Common Pari Passu Collateral constitutes Revolving
Loan Priority Collateral, to transfer such Common Pari Passu Collateral to the Revolving Credit
Agents under this Agreement, in which case it will hold such proceeds in trust for the Revolving
Credit Collateral Agent and transfer such proceeds to the Revolving Credit Collateral Agent as
required under Article VI) to be distributed by the Authorized Pari Passu Collateral Agent
in accordance with the provisions of Section 6.3(a).




     3.4 Automatic Release of Liens; Amendments to Pari Passu Security Documents.



               (a) If, at any time the Authorized Pari Passu Collateral Agent forecloses upon or otherwise
exercises remedies against any Common Pari Passu Collateral, then (whether or not any Insolvency or
Liquidation Proceeding is pending at the time) the Liens in favor of the Pari Passu Collateral
Agents for the benefit of each Series of Pari Passu Secured Debt upon such Common Pari Passu
Collateral will automatically be released and discharged; provided that any proceeds of any
Common Pari Passu Collateral realized therefrom shall be applied pursuant to Article VI.



               (b) Each Pari Passu Representative agrees to execute and deliver (at the sole cost and expense
of the Grantors) all such authorizations and other instruments as shall reasonably be requested by
the Authorized Pari Passu Collateral Agent to evidence and confirm any release of Common Pari Passu
Collateral or amendment to any Pari Passu Security Documents provided for in this Section.




     3.5 Insurance. As between the Pari Passu Secured Parties, the Authorized Pari Passu
Collateral Agent shall have the right to adjust or settle any insurance policy or claim covering or
constituting Common Pari Passu Collateral in the event of any loss thereunder and to approve



38









 






any award granted in any condemnation or similar proceeding affecting the Common Pari Passu
Collateral.




     3.6 Benefit of the Article. Except as expressly provided in this Article III, the
provisions of this Article III are solely for the benefit of the Authorized Pari Passu
Collateral Agent, the other Pari Passu Representatives and the other Pari Passu Secured Parties,
and nothing contained in this Article III shall confer any benefits on any other Person or
are to affect the construction of, or be taken into consideration in interpreting, the other
provision of this Agreement except that the provisions of Sections 3.3 and 3.4
shall be for the benefit of, and enforceable by, the Revolving Credit Agents to the extent such
Sections allocate proceeds of Common Pari Passu Collateral to the Revolving Credit Agents.




	 	IV.	 	PRIORITIES AND AGREEMENTS WITH RESPECT TO COMMON SUBORDINATED LIEN COLLATERAL






     4.1 Priority of Claims.



               (a) The Authorized Subordinated Lien Collateral Agent will distribute proceeds of Collateral
received by it among the Subordinated Lien Secured Parties as provided in Sections 6.1 and
6.3.



               (b) The Subordinated Lien Secured Parties hereby acknowledge that the Subordinated Lien
Secured Obligations of any Series may, subject to the limitations set forth in the then extant
Subordinated Lien Documents, be Modified or Refinanced from time to time, all without affecting the
priorities set forth in Section 6.3(b) or the provisions of this Agreement defining the
relative rights of the Subordinated Lien Secured Parties of any Series.



               (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection
of any Liens securing any Series of Subordinated Lien Secured Obligations granted on the Common
Subordinated Lien Collateral, regardless of how acquired, whether by grant, possession, statute,
operation of law, subrogation or otherwise, and notwithstanding any provision of the Uniform
Commercial Code of any jurisdiction, the PPSA or any other applicable law or the Subordinated Lien
Security Documents, but subject to any defect or deficiencies in, or failure to perfect, the Liens
securing the Subordinated Lien Secured Obligations of any Series or other Impairment (and in each
case, subject to Section 1.3(b)), each Subordinated Lien Secured Party hereby agrees that the Liens
securing each Series of Subordinated Lien Secured Obligations on any Common Subordinated Lien
Secured Collateral shall be of equal priority.




     4.2 Actions with Respect to Common Subordinated Lien Collateral.



               (a) With respect to any Common Subordinated Lien Collateral, (i) notwithstanding any other
provision of this Agreement or of any other Subordinated Lien Loan Document, only the Authorized
Subordinated Lien Collateral Agent shall act or refrain from acting with respect to the Common
Subordinated Lien Collateral (except that the Authorized Subordinated Lien Collateral Agent may
permit other Subordinated Lien Representatives to act with respect to the Pari Passu Collateral)
and (ii) no other Subordinated Lien Collateral Agent with respect to Subordinated Lien Secured
Obligations or any other Subordinated Lien Representative or other



39









 




Subordinated Lien Secured Party (other than the Authorized Subordinated Lien Collateral Agent)
shall or shall instruct the Authorized Subordinated Lien Collateral Agent to, commence any judicial
or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver,
liquidator or similar official appointed for or over, attempt any action to take possession of,
exercise any right, remedy or power with respect to, or otherwise take any action to enforce its
security interest in or realize upon, or take any other action available to it in respect of, any
Common Subordinated Lien Collateral, whether under any Subordinated Lien Security Document,
applicable law or otherwise (unless the Authorized Subordinated Lien Collateral Agent otherwise
consents to such action), it being agreed that only the Authorized Subordinated Lien Collateral
Agent shall be entitled to take any such actions or exercise any such remedies with respect to
Common Subordinated Lien Collateral (subject to the right of any such Subordinated Lien Collateral
Agent with respect to Subordinated Lien Secured Obligations, any other Subordinated Lien
Representative or other Subordinated Lien Secured Party to take limited protective measures with
respect to the Liens securing Subordinated Lien Secured Obligations and to take certain actions
that would be permitted to be taken by unsecured creditors). Notwithstanding the equal priority of
the Liens securing each Series of Subordinated Lien Secured Obligations, the Authorized
Subordinated Lien Collateral Agent may deal with the Common Subordinated Lien Collateral as if such
Authorized Subordinated Lien Collateral Agent had a senior Lien on such Common Subordinated Lien
Collateral. No Subordinated Lien Authorized Representative or Subordinated Lien Secured Party will
contest, protest or object to any foreclosure proceeding or action brought by the Authorized
Subordinated Lien Collateral Agent or the Controlling Secured Parties or any other exercise by the
Authorized Subordinated Lien Collateral Agent or the Controlling Subordinated Lien Secured Parties
of any rights and remedies relating to the Common Subordinated Lien Collateral, or to cause any
other Subordinated Lien Collateral Agent to do so. The foregoing shall not be construed to limit
the rights and priorities of any Subordinated Lien Secured Party or any Subordinated Lien
Representative with respect to any Collateral not constituting Common Collateral.





     4.3 No Interference; Payment Over.



               (a) Each of the Subordinated Lien Secured Parties and each of the Subordinated Lien Collateral
Agents agrees that (i) 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
validity or enforceability of any Subordinated Lien Secured Obligations of any Series or any
Subordinated Lien Security Document or the validity or enforceability of the priorities, rights or
duties established by or other provisions of this Agreement; provided that nothing in this
Agreement shall be construed to prevent or impair (x) the rights of any of the Subordinated Lien
Collateral Agents or any Subordinated Lien Representative to enforce this Agreement or (y) the
rights of any of the Subordinated Lien Collateral Agents or any Subordinated Lien Secured Party to
contest, or support any other Person in contesting, any Subordinated Lien Secured Obligations
constituting unmatured interest or the validity of any Lien relating thereto pursuant to Section
502(b)(2) of the Bankruptcy Code, (ii) it will not take or cause to be taken any action the purpose
or intent of which is, or could be, to interfere, hinder or delay, in any manner, whether by
judicial proceedings or otherwise, any sale, transfer or other disposition of the Common
Subordinated Lien Collateral by the Authorized Subordinated Lien Collateral Agent, (iii) except as
provided in Section 4.2, it shall have no right to (A) direct the Authorized Subordinated
Lien Collateral Agent or any other Subordinated Lien Secured Party to exercise any right, remedy or



40









 




power with respect to any Common Subordinated Lien Collateral or (B) consent to the exercise
by the Authorized Subordinated Lien Collateral Agent or any other Subordinated Lien Secured Party
of any right, remedy or power with respect to any Common Subordinated Lien Collateral, (iv) it will
not institute any suit or assert in any suit, bankruptcy, insolvency or other proceeding any claim
against the Authorized Subordinated Lien Collateral Agent or any other Subordinated Lien Secured
Party seeking damages from or other relief by way of specific performance, instructions or
otherwise with respect to any Common Subordinated Lien Collateral, and none of the Subordinated
Lien Collateral Agents, any Authorized Subordinated Lien Collateral Agent or any other Subordinated
Lien Secured Party shall be liable for any action taken or omitted to be taken by the Authorized
Subordinated Lien Collateral Agent or other Subordinated Lien Secured Party with respect to any
Common Subordinated Lien Collateral in accordance with the provisions of this Agreement, (v) it
will not seek, and hereby waives any right, to have any Common Subordinated Lien Collateral or any
part thereof marshaled upon any foreclosure or other disposition of such Collateral and (vi) it
will not attempt, directly or indirectly, whether by judicial proceedings or otherwise, to
challenge the enforceability of any provision of this Agreement; provided that nothing in
this Agreement shall be construed to prevent or impair the rights of any of the Subordinated Lien
Collateral Agents or any other Subordinated Lien Secured Party to enforce this Agreement.




               (b) Each Subordinated Lien Secured Party hereby agrees that if it shall obtain possession of
any Common Subordinated Lien Collateral or shall realize any proceeds or payment in respect of any
such Common Subordinated Lien Collateral, pursuant to any Subordinated Lien Security Document or by
the exercise of any rights available to it under applicable law or in any Insolvency or Liquidation
Proceeding or through any other exercise of remedies, at any time prior to the Discharge of
Subordinated Lien Secured Obligations, then it shall hold such Common Subordinated Lien Collateral,
proceeds or payment in trust for the other Subordinated Lien Secured Parties and promptly transfer
such Common Subordinated Lien Collateral, proceeds or payment, as the case may be, to the
Authorized Subordinated Lien Collateral Agent (unless it shall have an obligation, (i) to the
extent such Common Subordinated Lien Collateral constitutes Revolving Loan Priority Collateral, to
transfer such Common Subordinated Lien Collateral to the Revolving Credit Agents under this
Agreement , in which case it will hold such proceeds in trust for the Revolving Credit Collateral
Agent and transfer such proceeds to the Revolving Credit Collateral Agent as required under
Article VI or (ii) to the extent such Common Subordinated Lien Collateral constitutes Pari
Passu Priority Collateral, to transfer such Common Pari Passu Collateral to the Authorized Pari
Passu Collateral Agent under this Agreement, in which case it will hold such proceeds in trust for
the Authorized Pari Passu Collateral Agent and transfer such proceeds to the Authorized Pari Passu
Collateral Agent as required under Article VI) to be distributed by the Authorized
Subordinated Lien Collateral Agent in accordance with the provisions of Section 6.3(b).




     4.4 Automatic Release of Liens; Amendments to Subordinated Lien Security Documents.



               (a) If, at any time the Authorized Subordinated Lien Collateral Agent forecloses upon or
otherwise exercises remedies against any Common Subordinated Lien Collateral in compliance with the
terms of this Agreement, then (whether or not any Insolvency or Liquidation Proceeding is pending
at the time) the Liens in favor of the Subordinated Lien Collateral Agents for the benefit of each
Series of Subordinated Lien Secured Debt upon such Common Subordinated



41









 




Lien Collateral will automatically be released and discharged; provided that any
proceeds of any Common Subordinated Lien Collateral realized therefrom shall be applied pursuant to
Article VI.




               (b) Each Subordinated Lien Representative agrees to execute and deliver (at the sole cost and
expense of the Grantors) all such authorizations and other instruments as shall reasonably be
requested by the Authorized Subordinated Lien Collateral Agent to evidence and confirm any release
of Common Subordinated Lien Collateral or amendment to any Subordinated Lien Security Documents
provided for in this Section.




     4.5 Insurance. As between the Subordinated Lien Secured Parties, the Authorized
Subordinated Lien Collateral Agent shall have the right to adjust or settle any insurance policy or
claim covering or constituting Common Subordinated Lien Collateral in the event of any loss
thereunder and to approve any award granted in any condemnation or similar proceeding affecting the
Common Subordinated Lien Collateral.




     4.6 Benefit of the Article. Except as expressly provided in this Article IV, the
provision of the Article IV are solely for the benefit of the Authorized Subordinated Lien
Collateral Agent, the other Subordinated Lien Representatives and the other Subordinated Lien
Secured Parties, and nothing contained in this Article IV shall confer any benefits on any
other Person or are to affect the construction of, or be taken into consideration in interpreting,
the other provision of this Agreement except that the provisions of Sections 4.3 and
4.4 shall be for the benefit of, and enforceable by, the Revolving Credit Agents and the
Pari Passu Representatives to the extent such Sections allocate proceeds of Common Subordinated
Lien Collateral to the Revolving Credit Agents.




	 	V.	 	ENFORCEMENT






     5.1 Exercise of Remedies — Restrictions on Pari Passu Secured Parties and Subordinated
Lien Secured Parties.



               (a) Unless the Pari Passu Representatives, the Subordinated Lien Representatives and the
Revolving Credit Agents agree in writing otherwise, until the Discharge of Revolving Credit Secured
Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been
commenced by or against any Borrower or any other Grantor, each Pari Passu Representative, each
Subordinated Lien Representative and the other Pari Passu Secured Parties and Subordinated Lien
Secured Parties:




               (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 Pari Passu Collateral
Agent or Subordinated Lien Collateral Agent 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:



42









 






               (x) the Authorized Pari Passu Collateral Agent 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 Pari Passu Representative first
declared the existence of a Pari Passu Default and demanded the repayment of all the
principal amount of any Pari Passu Secured Obligations; and (ii) the date on which
any Revolving Credit Agent received notice from any Pari Passu Representative of
such declarations of a Pari Passu Default and of such demand for payment (the “Pari
Passu Standstill Period”); provided, further, however, that
notwithstanding anything herein to the contrary, in no event shall any Authorized
Pari Passu Collateral Agent or any other Pari Passu Secured Party exercise any
rights or remedies with respect to the Revolving Credit Priority Collateral if,
notwithstanding the expiration of the Pari Passu 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 Authorized Pari Passu Collateral
Agent and each Pari Passu Representative); and




               (y) the Authorized Subordinated Lien Collateral Agent may exercise any or all
of such rights or remedies against the Collateral after the passage of a period of
at least 360 days has elapsed since the later of: (i) the date on which any
Subordinated Lien Representative first declared the existence of a Subordinated Lien
Default, and demanded the repayment of all the principal amount of the related
Subordinated Lien Secured Obligations; and (ii) the date on which each Pari Passu
Representative and each Revolving Credit Agent received notice from any Subordinated
Lien Representative of such declarations of a Subordinated Lien Default and of such
demand for payment (the “Subordinated Lien Standstill Period”); provided,
further, however, that notwithstanding anything herein to the
contrary, in no event shall the Authorized Subordinated Lien Collateral Agent or any
other Subordinated Lien Secured Party exercise any rights or remedies with respect
to any of the Collateral if, notwithstanding the expiration of the Subordinated Lien
Standstill Period, either (A) any of the Revolving Credit Agents or any of the other
Revolving Credit Claimholders or (B) the Authorized Pari Passu Collateral Agent or
any other Pari Passu Secured Party shall have commenced and be diligently pursuing
the exercise of their rights or remedies with respect to all or any material portion
of the Collateral (prompt notice of such exercise to be given to the Subordinated
Lien Representatives);




               (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 5.1(c), will not object to the forbearance by any of the Revolving



43









 






Credit Agents or any of the other Revolving Credit 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 Pari Passu Secured Obligations and the Subordinated
Lien Secured 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
Secured Obligations.



               (b) Until the Discharge of Revolving Credit Secured 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 of the Revolving Credit
Agents to credit bid the debt under the Revolving Credit Loan Documents) and, in connection
therewith, 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 Pari
Passu Collateral Agent or any Subordinated Lien Collateral Agent or any Pari Passu Secured Party or
any Subordinated Lien Secured Party; provided, however, that the Lien (if any)
securing the Pari Passu Secured Obligations and the Subordinated Lien Secured Obligations shall
remain on the proceeds (other than those properly applied to the Revolving Credit Secured
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 the PPSA (or any similar or equivalent legislation of any
other applicable jurisdiction outside the United States) and of a secured creditor under the
Bankruptcy Laws of any applicable jurisdiction.



               (c) Notwithstanding the foregoing, any Pari Passu Secured Party or any Subordinated Lien
Secured Party may:




               (1) file a claim or statement of interest with respect to the Pari Passu Secured
Obligations or the Subordinated Lien Secured Obligations, as the case may be;
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 Secured Obligations (giving effect
to this Agreement), 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, it being
understood that any objection to a sale of Revolving Credit Priority Collateral by any
Grantor that is not objected to by any Revolving Credit Agent,



44









 






or any objection to any related sale process (including any sale or bidding procedures
motion), shall be deemed to be adverse to the priority status of the Liens on the Revolving
Credit Priority Collateral) in order to create, perfect, preserve or protect its Lien on any
of the Collateral, including, in the case of the Pari Passu Secured Parties, exercising
rights solely with respect to Pari Passu 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 Pari Passu Secured Parties or the Subordinated
Lien Secured Parties, as the case may be, 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 any Pari Passu Loan
Document or Subordinated Lien Loan Document, 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 Pari Passu Secured Obligations, the Subordinated Lien Secured
Obligations and/or, in the case of the Pari Passu Secured Parties, the Pari Passu 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 Pari Passu Standstill Period or the
Subordinated Lien Standstill Period, as applicable, to the extent permitted by Section
5.1(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 Pari Passu Representative and each Subordinated Lien Representative, on behalf of itself and
the other Pari Passu Secured Parties and Subordinated Lien Secured Parties, respectively agrees
that it will not (i) 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 or (ii) in or in connection with any Insolvency or
Liquidation Proceeding, take any action with respect to the Revolving Credit Priority Collateral or
the validity or enforceability of any of the Revolving Credit Loan Documents or any of the
Revolving Credit Secured Obligations thereunder, including by filing any pleadings or motions or
taking any position at any hearing or proceeding of any nature, that in each case (x) violates, or
is prohibited by, Article VIII (or, in the absence of an Insolvency or Liquidations
Proceeding, otherwise would violate or be prohibited by this Agreement), (y)






45









 







asserts any right, benefit or privilege that arises in favor of any Pari Passu Collateral Agent or
Subordinated Lien Collateral Agent or any Pari Passu Secured Party or Subordinated Lien Secured
Party, in whole or in part, as a result of their interest in the Revolving Credit Priority
Collateral or in their respective Liens on the Revolving Credit Priority Collateral (unless the
assertion of such right is expressly permitted by this Agreement, it being understood that this
clause (y) shall not restrict the right of any Pari Passu Secured Party or Subordinated Lien
Secured Party to seek the payment of post-petition interest in any Insolvency or Liquidation
Proceeding) or (z) relates in any way to the determination of any Liens or claims held by any
Revolving Credit Agent (including the validity and enforceability thereof) or any other Revolving
Credit Claimholder or the value of any claims of such parties under Section 506(a) of the
Bankruptcy Code or otherwise. Without limiting the generality of the foregoing, unless and until
the Discharge of Revolving Credit Secured Obligations has occurred, except as expressly provided in
Sections 5.1(a), 8.3(c)(1) and this Section 5.1(c), the sole right of the
Pari Passu Secured Parties and the Subordinated Lien Secured Parties 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 Pari Passu Loan Documents and Subordinated Lien 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 Secured Obligations has occurred.




               (d) Subject to Sections 5.1(a), 5.1(c) and 8.3(c)(1):




               (1) each Pari Passu Representative, on behalf of itself and the other Pari Passu
Secured Parties, and each Subordinated Lien Representative, on behalf of itself and the
other Subordinated Lien Secured Parties, 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 Pari Passu 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 Pari Passu Representative, on behalf of itself and the other Secured Parties,
and each Subordinated Lien Representative, on behalf of itself and the other Subordinated
Lien Secured Parties, hereby waives any and all rights the Pari Passu Secured Parties and
Subordinated Lien Secured Parties, 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 any
other Revolving Credit Claimholders seek to enforce or collect the Revolving Credit Secured
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 Pari Passu Secured
Parties on the Subordinated Lien Secured Parties; and




               (3) each Pari Passu Representative and each Subordinated Lien Representative hereby
acknowledges and agrees that no covenant, agreement or restriction contained in any Pari
Passu Loan Document or Subordinated Loan Document relating to its Series shall be deemed to
restrict in any way the rights and remedies of any



46









 






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 5.1(a), 5.1(d),
5.5 and Article VIII, the Pari Passu Secured Parties and the Subordinated Lien Secured
Parties may exercise rights and remedies as unsecured creditors against any Borrower or any other
Grantor that has guaranteed or granted Liens to secure the Pari Passu Secured Obligations and the
Subordinated Lien Secured Obligations, and the Pari Passu Secured Parties and the Subordinated Lien
Secured Parties may exercise rights and remedies with respect to the Collateral, in each case, in
accordance with the terms of this Agreement, the Pari Passu Loan Documents or Subordinated Loan
Documents, as the case may be, and applicable law; provided, however, that in the
event that any Pari Passu Secured Party or any Subordinated Lien Secured Party 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 Pari Passu Secured Obligations or the
Subordinated Lien Secured 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 Pari Passu Secured Obligations or the Subordinated Lien Secured
Obligations are subject to this Agreement.



               (f) Nothing in this Agreement shall prohibit the receipt by any Pari Passu Secured Party or
any Subordinated Lien Secured Party of the required payments of interest, principal and other
amounts owed in respect of its Pari Passu Secured Obligations or Subordinated Lien Secured
Obligations, as the case may be, so long as such receipt is not the direct or indirect result of
the exercise or enforcement by any Pari Passu Secured Party or any Subordinated Lien Secured Party,
as the case may be, 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 on the one hand, and the Pari Passu Secured Parties or Subordinated Lien
Secured Parties, on the other hand, any rights or remedies the Pari Passu Secured Parties or
Subordinated Lien Secured Parties may have against the Grantors under the Pari Passu Loan Documents
or the Subordinated Loan Documents, as the case may be.




     5.2 Exercise of Remedies — Restrictions on Revolving Credit Claimholders and Subordinated
Lien Secured Parties.



               (a) Unless the Pari Passu Representatives, the Subordinated Lien Representatives and the
Revolving Credit Agents agree in writing otherwise, until the Discharge of Pari Passu Secured
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, the
Revolving Credit Claimholders, the Subordinated Lien Representatives and the Subordinated Lien
Secured Parties:




               (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 Pari Passu Priority Collateral
(including the exercise of any right of set-off or any right under any Account



47









 






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 Pari Passu Priority
Collateral), or institute any action or proceeding with respect to such rights or remedies
(including any action of foreclosure); provided, however, that




                    (x) any of the Revolving Credit Agents may exercise the rights provided for in
Section 5.3 (with respect to any Access Period) and Section 5.4 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 Secured
Obligations; and (ii) the date on which each Pari Passu Representative 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 5.3) with respect to the Pari Passu Priority Collateral if,
notwithstanding the expiration of the Revolving Credit Standstill Period, any Pari
Passu Secured Party shall have commenced and be diligently pursuing the exercise of
their rights or remedies with respect to all or any material portion of such Pari
Passu Priority Collateral (prompt notice of such exercise to be given to the
Revolving Credit Agents); and




                    (y) the Authorized Subordinated Lien Collateral Agent may exercise any or all
of such rights or remedies against the Collateral after the passage of a period of
at least 360 days has elapsed since the later of: (i) the date on which any
Subordinated Lien Representative first declared the existence of a Subordinated Lien
Default, and demanded the repayment of all the principal amount of the related
Subordinated Lien Secured Obligations; and (ii) the date on which each Pari Passu
Representative and each Revolving Credit Agent received notice from any Subordinated
Lien Representative of such declaration of a Subordinated Lien Default and of such
demand for payment (the “Subordinated Lien Standstill Period”); provided,
further, however, that notwithstanding anything herein to the
contrary, in no event shall the Authorized Subordinated Lien Collateral Agent or any
other Subordinated Lien Secured Party exercise any rights or remedies with respect
to any of the Collateral if, notwithstanding the expiration of the Subordinated Lien
Standstill Period, either (A) the Authorized Pari Passu Collateral Agent or any
other Pari Passu Secured Party or (B) the Revolving Credit Collateral Agent or any
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 the Collateral (prompt notice of such exercise to be given to the Subordinated
Lien Representatives);




                    (2) will not contest, protest or object to any foreclosure proceeding or action brought
by any Pari Passu Secured Party or any other exercise by any Pari Passu



48









 






Secured Party of any rights and remedies relating to the Pari Passu Priority
Collateral, whether under the Pari Passu Loan Documents or otherwise; and




               (3) subject to their rights under clause (a)(1) above and except as may be permitted in
Section 5.2(c), will not object to the forbearance by the Pari Passu Secured Parties
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 Secured Obligations and the
Subordinated Lien Secured Obligations shall attach to any proceeds resulting from actions
taken by any Pari Passu Secured Party in accordance with this Agreement after giving effect
to any application of such proceeds to the Pari Passu Secured Obligations.



               (b) Until the Discharge of Pari Passu Secured Obligations has occurred, whether or not any
Insolvency or Liquidation Proceeding has been commenced by or against any Borrower or any other
Grantor, the Pari Passu Secured Parties shall have the right to enforce rights, exercise remedies
(including set-off and the right of the Pari Passu Representatives to credit bid the debt under the
related Series of Pari Passu Debt) and make determinations regarding the release, disposition, or
restrictions with respect to the Pari Passu Priority Collateral without any consultation with or
the consent of any Revolving Credit Agent or any other Revolving Credit Claimholder or any
Subordinated Lien Representative or any other Subordinated Lien Secured Party; provided,
however, that the Lien (if any) securing the Revolving Credit Secured Obligations and the
Subordinated Lien Secured Obligations shall remain on the proceeds (other than those properly
applied to the Pari Passu Secured 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 Pari Passu Priority Collateral, the Authorized Pari Passu Collateral Agent and the
other Pari Passu Secured Parties may enforce the provisions of the Pari Passu 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 Pari Passu 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 the PPSA (or any similar or equivalent
legislation of any other 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 Secured Parties and the other
Subordinated Lien Secured Parties may:




          (1) file a claim or statement of interest with respect to the Revolving Credit Secured
Obligations or the Subordinated Lien Secured Obligations, as the case may be,
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 Pari Passu
Priority Collateral securing the Pari Passu Secured Obligations (giving effect to this
Agreement), or the rights of any of the Pari Passu Secured Parties to exercise rights or
remedies in respect thereof (it being understood that any objection to a



49









 






sale of Pari Passu Priority Collateral by any Grantor that is not objected to by any
Pari Passu Representative, or any objection to any related sale process (including any sale
or bidding procedures motion), shall be deemed to be adverse to the priority status of the
Liens on Pari Passu Priority Collateral) in order to create, perfect, preserve or protect
its Lien on any of the Collateral, including, in the case of the Revolving Credit
Claimholders, 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 or the
Subordinated Lien Secured Parties, as the case may be, including any claims secured by the
Pari Passu 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 any Revolving
Credit Loan Document, any Subordinated Lien Loan Document, 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 Secured Obligations, the Subordinated Lien
Secured Obligations and/or in the case of the Revolving Credit Secured Parties, the
Revolving Credit Priority Collateral;




          (6) exercise any of its rights or remedies with respect to any of the Collateral after
the termination of the Revolving Credit Standstill Period or the Subordinated Lien
Standstill Period, as applicable, to the extent permitted by Section 5.2(a)(1); and




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


Each Revolving Credit Agent, on behalf of itself and the other Revolving Credit Claimholders, and
each Subordinated Lien Representative, on behalf of itself and the other Subordinated Lien Secured
Parties, agrees that it will not (i) take or receive any Pari Passu Priority Collateral or any
proceeds of such Pari Passu Priority Collateral in connection with the exercise of any right or
remedy (including set-off) with respect to any such Pari Passu Priority Collateral in its capacity
as a creditor in violation of this Agreement or (ii) in or in connection with any Insolvency or
Liquidation Proceeding, take any action with respect to the Pari Passu Priority Collateral or the
validity or enforceability of any of the Pari Passu Loan Documents or any of the Pari Passu Secured
Obligations thereunder, including by filing any pleadings or motions or taking any position at any
hearing or proceeding of any nature, that in each case (x) violates, or is prohibited by,
Article VIII (or, in the absence of an Insolvency or Liquidations Proceeding, otherwise






50









 







would violate or be prohibited by this Agreement), (y) asserts any right, benefit or privilege that
arises in favor of the Revolving Credit Agents, any Revolving Credit Claimholder, any Subordinated
Lien Representative or any Subordinated Lien Secured Party, in whole or in part, as a result of
their interest in the Pari Passu Priority Collateral or in their respective Liens on the Pari Passu
Priority Collateral (unless the assertion of such right is expressly permitted by this Agreement,
it being understood that this clause (y) shall not restrict the right of any Pari Passu Secured
Party or Subordinated Lien Secured Party to seek the payment of post-petition interest in any
Insolvency or Liquidation Proceeding) or (z) relates in any way to the determination of any Liens
or claims held by the Pari Passu Representative or any other Pari Passu Secured Party (including
the validity and enforceability thereof) or the value of any claims of such parties under Section
506(a) of the Bankruptcy Code or otherwise. Without limiting the generality of the foregoing,
unless and until the Discharge of Pari Passu Secured Obligations has occurred, except as expressly
provided in Sections 5.2(a), 5.3, 8.3(c)(2) and this Section
5.2(c), the sole right of the Revolving Credit Agents, the other Revolving Credit Claimholders,
the Subordinated Lien Representatives and the other Subordinated Lien Secured Parties with respect
to the Pari Passu Priority Collateral is to hold a Lien (if any) on such Pari Passu Priority
Collateral pursuant to the respective Revolving Credit Loan Documents and Subordinated Lien 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 Pari Passu Secured Obligations has occurred.




               (d) Subject to Sections 5.2(a), 5.2(c), 5.3 and 8.3(c)(2):




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




          (2) each Revolving Credit Agent, on behalf of itself and the other Revolving Credit
Claimholders, and each Subordinated Lien Representative, on behalf of itself and the other
Subordinated Lien Secured Parties, hereby waives any and all rights such Revolving Credit
Agent, the respective other Revolving Credit Claimholders, the Subordinated Lien
Representatives, and the respective Subordinated Lien Secured Parties, as applicable, may at
any time have as a junior lien creditor or otherwise to object to the manner in which any
Pari Passu Secured Party seeks to enforce or collect the Pari Passu Secured Obligations or
the Liens securing the Pari Passu 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 Pari Passu Secured Party is adverse to the interest of the
Revolving Credit Claimholders or the Subordinated Lien Secured Parties; and




          (3) each Revolving Credit Agent and Subordinated Lien Representative hereby
acknowledges and agrees that no covenant, agreement or




51













 






restriction contained in any Revolving Credit Loan Document or Subordinated Lien Loan
Document relating to its Series shall be deemed to restrict in any way the rights and
remedies of any Pari Passu Secured Party with respect to the enforcement of its Liens on the
Pari Passu Priority Collateral as set forth in this Agreement and the Pari Passu Loan
Documents.



               (e) Except as otherwise specifically set forth in Sections 5.2(a), 5.2(d) and
5.5 and Article VIII, the Revolving Credit Agents, the other Revolving Credit
Claimholders, the Subordinated Lien Representatives, and the other Subordinated Lien Secured
Parties, 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 Secured Obligations and
the Subordinated Lien Secured Obligations, respectively and the Revolving Credit Agents, the other
Revolving Credit Claimholders, the Subordinated Lien Representatives, and the other Subordinated
Lien Secured Parties, 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 or the
Subordinated Loan Documents (as the case may be) and applicable law; provided,
however, that in the event that any Revolving Credit Agent, any other Revolving Credit
Claimholder, any Subordinated Lien Representative or any other Subordinated Lien Secured Party,
becomes a judgment Lien creditor in respect of Pari Passu Priority Collateral as a result of its
enforcement of its rights as an unsecured creditor with respect to the Revolving Credit Secured
Obligations or the Subordinated Lien Secured Obligations, as the case may be, such judgment Lien
shall be subject to the terms of this Agreement for all purposes (including in relation to the Pari
Passu Priority Collateral) as the other Liens securing the Revolving Credit Secured Obligations or
the Subordinated Lien Secured Obligations, as the case may be, are subject to this Agreement.



          (f) Nothing in this Agreement shall prohibit the receipt by any Revolving Credit Agent, any
other Revolving Credit Claimholder, any Subordinated Lien Representative or any other Subordinated
Lien Secured Party, of the required payments of interest, principal and other amounts owed in
respect of the Revolving Credit Secured Obligations or the Subordinated Lien Secured Obligations,
as the case may be, so long as such receipt is not the direct or indirect result of the exercise by
any Revolving Credit Agent, any other Revolving Credit Claimholder, any Subordinated Lien
Representative, or any other Subordinated Lien Secured Party of rights or remedies as a secured
creditor in respect of the Pari Passu 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, on the one hand, and the Revolving Credit
Claimholders and Subordinated Lien Secured Parties, on the other hand, any rights or remedies the
Revolving Credit Claimholders and Subordinated Lien Secured Parties may have against the Grantors
under the Revolving Credit Loan Documents and the Subordinated Lien Loan Documents, as the case may
be.



          5.3 Exercise of Remedies — Collateral Access Rights.




               (a) The Revolving Credit Agents and Pari Passu Representatives agree not to commence
Enforcement until the earlier of (i) the date on which an Enforcement Notice has been given to each
Pari Passu Representative by any Revolving Credit Agent or to any Revolving Credit Agent by the
Authorized Pari Passu Collateral 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



52









 




provisions of Sections 5.1 and 5.2 above, any of the Revolving Credit Agents,
any of the Pari Passu Secured Parties and any of the Subordinated Lien Secured Parties 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 Claimholder, Pari Passu
Secured Party or Subordinated Lien Secured Party shall interfere with the Enforcement actions of
the other with respect to Collateral in which such party or its agent or representative has the
benefit of the priority Lien in accordance herewith.




               (b) If any of the Pari Passu Secured Parties or Subordinated Lien Secured Parties or any of
their respective agents or representatives, or any third party pursuant to any Enforcement
undertaken by any Pari Passu Secured Parties or Subordinated Lien Secured Parties, as applicable,
or any receiver, shall obtain possession or physical control of any of the Mortgaged Premises, the
Authorized Pari Passu Collateral Agent or Authorized Subordinated Lien Collateral Agent shall
promptly notify the Revolving Credit Agents of that fact and the Revolving Credit Agents shall,
within 10 Business Days thereafter, notify the Authorized Pari Passu Collateral Agent or the
Authorized Subordinated Lien Collateral Agent, as the case may be, and, if applicable, any such
third party (at such address to be provided by the Authorized Pari Passu Collateral Agent or
Authorized Subordinated Lien Collateral Agent, 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 Authorized Pari Passu Collateral Agent and Authorized
Subordinated Lien Collateral Agent, as the case may be, as provided in Section 5.3(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, Pari Passu
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 Pari Passu 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 Pari Passu Priority Collateral. The Revolving
Credit Agents and the other Revolving Credit Claimholders shall indemnify and hold harmless the
Pari Passu Secured Parties and the Subordinated Lien Secured Parties for any injury or damage to
Persons or property caused by the acts or omissions of Persons under the control of, or retained
by, any of the Revolving Credit Agents or any other Revolving Credit Claimholders. The Revolving
Credit Agents, the Pari Passu Representatives and the Subordinated Lien Representatives shall
cooperate and use reasonable efforts to ensure that their activities during the Access Period as



53









 




described above do not interfere materially with the activities of the other as described above,
including the right of the Authorized Pari Passu Collateral Agent to commence foreclosure of
the Pari Passu Mortgages or to show the Pari Passu Priority Collateral to prospective purchasers
and to ready the Pari Passu 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 5.3 shall
be stayed during the period of such prohibition and shall continue thereafter for the number of
days remaining as required under this Section 5.3. If the Authorized Pari Passu Collateral
Agent shall foreclose or otherwise sell any of the Pari Passu Priority Collateral, such Person will
notify the buyer thereof of the existence of this Agreement and that the buyer is acquiring such
Pari Passu Priority Collateral subject to the terms of this Agreement.



               (e) The Grantors hereby agree with the Authorized Pari Passu Collateral Agent and any
Authorized Subordinated Lien Collateral Agent 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 5.3. Each Pari Passu Representative consents
to such easement.




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



               (a) Each Pari Passu Representative and each Subordinated Lien Representative 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 Pari
Passu 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 Authorized Pari Passu Collateral Agent shall provide
the Revolving Credit Agent with at least ten (10) days’ notice prior to such sale, lease, transfer
or disposition.



               (b) Each Pari Passu Representative and each Subordinated Lien Representative 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 Pari Passu
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 Pari Passu Priority Collateral
constituting Intellectual Property in connection with its Enforcement; provided,
however, that each Revolving



54









 




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).





     5.5 Exercise of Remedies — Set Off and Tracing of and Priorities in Proceeds. Each Pari Passu
Representative, for itself and on behalf of the other Pari Passu Secured Parties, and each
Subordinated Lien Representative, on behalf of itself and the other Subordinated Lien Secured
Parties, 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 6.1; provided that the foregoing shall not apply to
any set-off by any such Person against any Pari Passu Priority Collateral (including proceeds
thereof and amounts in any Net Cash Proceeds Accounts) to the extent applied to payment of the Pari
Passu Secured Obligations. Each Pari Passu Representative, for itself and on behalf of the other
Pari Passu Secured Parties and each Subordinated Lien Representative, on behalf of itself and the
other Subordinated Lien Secured Parties, 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 Secured 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 Pari Passu 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 Pari
Passu Secured Parties and the Revolving Credit 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 Pari Passu Secured Parties and the Revolving Credit
Claimholders shall cooperate in good faith to identify the proceeds of the Revolving Credit
Priority Collateral and the Pari Passu 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 Secured Obligations shall
be presumed to be Revolving Credit Priority Collateral (a presumption that can be rebutted by the
Pari Passu Secured Parties); provided, however, that no Pari Passu Secured Party,
Revolving Credit Claimholder or Subordinated Lien Secured Party shall be liable or in any way
responsible for any claims or damages from conversion of the Revolving Credit Priority Collateral
or Pari Passu



55









 






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 Authorized Pari Passu Collateral Agent or the Authorized Subordinated Lien Collateral Agent, as the
case may be, 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 Pari Passu Priority Collateral and, until such time, such proceeds will be held in
trust for the Pari Passu Secured Parties or the Subordinated Lien Secured parties, as the case may
be, (ii) the only obligation of any Pari Passu Secured Party is to pay over to the Revolving Credit
Agents or the Authorized Subordinated Lien Collateral Agent, as the case may be, in the same form
as received, with any necessary endorsements, all proceeds that such Pari Passu Secured Party
received that have been identified as proceeds of the Revolving Credit Priority Collateral and
(iii) the only obligation of any Subordinated Lien Secured Party is to pay over to the Revolving
Credit Agents or the Authorized Pari Passu Collateral Agent, as the case may be, in the same form
as received, with any necessary endorsements, all proceeds that such Subordinated Lien Secured
Party received that have been identified as proceeds of the Revolving Credit Priority Collateral or
the Pari Passu Priority Collateral, as the case may be, and, in each case in (i), (ii) and (iii),
after both the Discharge of the Revolving Credit Secured Obligations has occurred and the Discharge
of Pari Passu Secured Obligations has occurred, then as provided in Section 6.1(d)). Any
Revolving Credit Agent, the Authorized Pari Passu Collateral Agent or the Subordinated Lien
Collateral Agent, as the case may be, may request from the other an accounting of the
identification of the proceeds of Collateral (and the Revolving Credit Agents, the Authorized Pari
Passu Collateral Agent or the Subordinated Lien Collateral Agent, 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, the
Authorized Pari Passu Collateral Agent or the Subordinated Lien Collateral Agent, as applicable.



     VI. PAYMENTS.



          6.1 Application of Proceeds.





          (a) So long as the Discharge of Revolving Credit Secured 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 Credit Agents or any other
Revolving Credit Claimholders, shall be applied by the Revolving Credit Agents to the Revolving
Credit Secured Obligations in such order as specified in the relevant Revolving Credit Loan
Documents or (y) any of the Pari Passu Representatives, the other Pari Passu Secured Parties, the
Subordinated Lien Representatives or the other Subordinated Lien Secured Parties 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 Secured Obligations, the Revolving
Credit Agents shall deliver to the Authorized Pari Passu Collateral Agent any Collateral and
proceeds of Collateral held by any Revolving Credit Agents in the same form as received, with any
necessary endorsements, to be applied by the Authorized Pari Passu Collateral Agent in such order
as specified in Section 6.3(a)



56









 






(subject to the terms of any Pari Passu Loan Documents which
may provide for other allocations,
with respect to the proportionate share of Collateral applicable to such Series), then
pursuant to Section 6.1(d) or as a court of competent jurisdiction may otherwise direct.




          (b) So long as the Discharge of Pari Passu Secured 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 Pari Passu Priority Collateral or proceeds thereof received in connection with
the sale or other disposition of, or collection on, such Pari Passu Priority Collateral upon the
exercise of remedies by (x) the Authorized Pari Passu Collateral Agent or any of the Pari Passu
Secured Parties, shall be applied by the Authorized Pari Passu Collateral Agent to the Pari Passu
Secured Obligations in such order as specified in Section 6.3(a) (subject to the terms of
any Pari Passu Loan Documents which may provide for other allocations, with respect to the
proportionate share of Collateral applicable to such Series), or (y) any of the Revolving Credit
Agents, the other Revolving Credit Claimholders, the Subordinated Lien Representatives or the other
Subordinated Lien Secured Parties in accordance with this Agreement shall be segregated and held in
trust for and on behalf of and forthwith paid over to the Authorized Pari Passu Collateral Agent
for the benefit of the Pari Passu Secured Parties in the same form as received, with any necessary
endorsements. Upon the Discharge of Pari Passu Secured Obligations, the Authorized Pari Passu
Collateral Agent shall deliver to the Revolving Credit Agents any Collateral and proceeds of
Collateral held by the Authorized Pari Passu Collateral Agent in the same form as received, with
any necessary endorsements to be applied by the Revolving Credit Agents in such order as specified
in the relevant Revolving Credit Loan Documents, then pursuant to Section 6.1(d) or as a
court of competent jurisdiction may otherwise direct.




          (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 Authorized Pari Passu Collateral Agent in the same form as received,
with any necessary endorsements.




          (d) Upon the Discharge of Pari Passu Secured Obligations and the Discharge of Revolving Credit
Secured Obligations, proceeds of Collateral held by the Authorized Pari Passu Collateral Agent or
the Revolving Credit Agents shall be (i) delivered to the Authorized Subordinated Lien Collateral
Agent to the extent that the Authorized Subordinated Lien Collateral Agent has notified such Person
in writing that (x) Subordinated Lien Secured Obligations are then due and payable or (y) the
Subordinated Lien Loan Documents require that such proceeds be delivered to the Authorized
Subordinated Lien Collateral Agent. If the Authorized Pari Passu Collateral Agent or the Revolving
Credit Agents, as the case may be, have not received such notice from the Authorized Subordinated
Lien Collateral Agent, such proceeds shall be turned over to the relevant Grantor or as a court of
competent jurisdiction may otherwise direct.




     6.2 Payments Over in Violation of Agreement. Unless and until both the Discharge of Revolving
Credit Secured Obligations and the Discharge of Pari Passu Secured 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



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any
Revolving Credit Agent, the Authorized Pari Passu Collateral Agent,
the Authorized Subordinated Lien Collateral 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 Authorized Pari Passu Collateral Agent, 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 Authorized Pari Passu Collateral Agent and the Authorized Subordinated Lien
Collateral Agent, and the Authorized Pari Passu Collateral Agent is hereby authorized to make any
such endorsements as agent for the Revolving Credit Agents and the Authorized Subordinated Lien
Collateral Agent. Each of the foregoing authorizations is coupled with an interest and is
irrevocable until both the Discharge of Revolving Credit Secured Obligations and Discharge of Pari
Passu Secured Obligations have occurred.





     6.3 Application of Pari Passu Payments Among Pari Passu Secured Parties; Application of
Subordinated Lien Payments Among Subordinated Lien Secured Parties.



               (a) Anything contained herein or in any of the Pari Passu Loan Documents to the contrary
notwithstanding (but subject to Section 1.3(a) of this Agreement), if a Pari Passu Event of
Default has occurred and is continuing, and the Authorized Pari Passu Collateral Agent is taking
action to enforce rights in respect of any Common Pari Passu Collateral, or the Authorized Pari
Passu Collateral Agent receives any proceeds of any Common Pari Passu Collateral from any Revolving
Credit Claimholder or any Subordinated Lien Secured Party, or any distribution is made in respect
of any Common Pari Passu Collateral in any Insolvency or Liquidation Proceeding of any Grantor, or
any Pari Passu Secured Party receives any payment with respect to any Common Pari Passu Collateral,
in each case to the extent the Pari Passu Secured Parties are entitled to retain such proceeds,
distribution or payment under the terms of this Agreement, then the proceeds of any sale,
collection or other liquidation of any such Collateral by any Pari Passu Secured Party or received
by any Pari Passu Secured Party with respect to such Common Pari Passu Collateral and proceeds of
any such distribution (subject, in the case of any such distribution, to the sentence immediately
following) to which the Pari Passu Secured Obligations are entitled under any agreement (other than
this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and
all proceeds of any such distribution being collectively referred to as “Pari Passu Collateral
Proceeds”), shall be applied as follows:




          FIRST, to the payment of all reasonable costs and expenses incurred by the Pari
Passu Collateral Agents or any other Pari Passu Representative in connection with such
collection or sale or otherwise in connection with this Agreement, or any other Pari Passu
Security Document or any of the Pari Passu Secured Obligations, including all court costs
and the reasonable fees and expenses of their agents and legal counsel, the repayment of all
advances made by the Pari Passu Collateral Agents or any other Pari Passu Representative, as
applicable, hereunder or under any other Pari Passu Security Document on behalf of Grantors
and any other reasonable costs or expenses incurred in connection with the exercise of any
right or remedy hereunder or under any other Pari Passu Security Document;



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          SECOND, subject to Section 1.3(a), to the payment of all other Pari
Passu Secured Obligations (the amounts so applied to be distributed pro rata among the Pari
Passu Secured Parties in accordance with the amounts of the Pari Passu Secured Obligations
owed to them on the date of any such distribution); and




          THIRD, after payment in full of all Pari Passu Secured Obligations, (i) if the
Discharge of Revolving Credit Secured Obligations has not then occurred, to the Revolving
Credit Collateral Agent, (ii) if the Discharge of Revolving Credit Secured Obligations has
then occurred but the Discharge of Subordinated Lien Secured Obligations has not then
occurred, to the Authorized Subordinated Lien Collateral Agent and (iii) if the Discharge of
Revolving Credit Secured Obligations and the Discharge of Subordinated Lien Secured
Obligations has each occurred, to the Grantors or their successors or assigns, or as a court
of competent jurisdiction may otherwise direct.


Notwithstanding the foregoing, with respect to any Common Pari Passu Collateral for which a third
party (other than a Pari Passu Secured Party) has a lien or security interest that is junior in
priority to the security interest of any Series of Pari Passu Secured Obligations but senior (as
determined by appropriate legal proceedings in the case of any dispute) to the security interest of
any other Series of Pari Passu Secured Obligations (such third party a “Pari Passu Intervening
Creditor”), the value of any Common Collateral or Pari Passu Collateral Proceeds which are
allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Pari
Passu Collateral Proceeds to be distributed in respect of the Series of Pari Passu Secured
Obligations with respect to which such Impairment exists.



All amounts received by the Authorized Pari Passu Collateral Agent from proceeds of Collateral that
do not constitute Common Pari Passu Collateral (and which the Pari Passu Secured Creditors are
entitled to retain) will be applied (after deduction of amounts payable under clause FIRST,
above) pro rata among the Pari Passu Secured Parties with Pari Passu Secured Obligations secured by
a Lien on such Collateral in accordance with the amounts of the Pari Passu Secured Obligations owed
to them on the date of any such distribution (subject to adjustments for Pari Passu Intervening
Creditor payments as provided above).




          (b) Anything contained herein or in any of the Subordinated Lien Loan Documents to the
contrary notwithstanding (but subject to Section 1.3(b) of this Agreement), if a
Subordinated Lien Event of Default has occurred and is continuing, and the Authorized Subordinated
Lien Collateral Agent is taking action to enforce rights in respect of any Common Subordinated Lien
Collateral, or the Authorized Subordinated Lien Collateral Agent receives any proceeds of any
Common Pari Passu Collateral from any Revolving Credit Claimholder or any Pari Passu Secured Party
or any distribution is made in respect of any Common Subordinated Lien Collateral in any Insolvency
or Liquidation Proceeding of any Grantor, or any Subordinated Lien Secured Party receives any
payment with respect to any Common Subordinated Lien Collateral, in each case to the extent the
Subordinated Lien Secured Parties are entitled to retain such proceeds, distribution or payment
under the terms of this Agreement, then the proceeds of any sale, collection or other liquidation
of any such Collateral by any Subordinated Lien Secured Party or received by any Subordinated Lien
Representative or any other Subordinated Lien Secured Party with respect to such Common
Subordinated Lien Collateral and proceeds of any



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such distribution (subject, in the case of any
such distribution, to the sentence immediately following) to which the Subordinated Lien Secured
Obligations are entitled under any agreement
(other than this Agreement) (all proceeds of any sale, collection or other liquidation of any
Collateral and all proceeds of any such distribution being collectively referred to as
"Subordinated Lien Collateral Proceeds”), shall be applied as follows:





     FIRST, to the payment of all reasonable costs and expenses incurred by the
Subordinated Lien Collateral Agents or any other Subordinated Lien Representative in
connection with such collection or sale or otherwise in connection with this Agreement, or
any other Subordinated Lien Security Document or any of the Subordinated Lien Secured
Obligations, including all court costs and the reasonable fees and expenses of their agents
and legal counsel, the repayment of all advances made by the Subordinated Lien Collateral
Agents or any other Subordinated Lien Representative, as applicable, hereunder or under any
other Subordinated Lien Security Document on behalf of Grantors and any other reasonable
costs or expenses incurred in connection with the exercise of any right or remedy hereunder
or under any other Subordinated Lien Security Document;




     SECOND, subject to Section 1.3(b), to the payment of all other
Subordinated Lien Secured Obligations (the amounts so applied to be distributed pro rata
among the Subordinated Lien Secured Parties in accordance with the amounts of the
Subordinated Lien Secured Obligations owed to them on the date of any such distribution);
and




     THIRD, after payment in full of all Subordinated Lien Secured Obligations:




     (i) if such proceeds constitute proceeds of Revolving Credit Priority
Collateral, and (A) if the Discharge of Revolving Credit Secured Obligations has not
then occurred, to Revolving Credit Collateral Agent, (B) if the Discharge of
Revolving Credit Secured Obligations has then occurred but the Discharge of Pari
Passu Secured Obligations has not then occurred, to the Authorized Pari Passu Lien
Collateral Agent and (C) if the Discharge of Revolving Credit Secured Obligations
and the Discharge of Pari Passu Secured Obligations has each occurred, to the
Grantors or their successors or assigns, or as a court of competent jurisdiction may
otherwise direct; and




     (ii) if such proceeds constitute proceeds of Pari Passu Priority Collateral,
and (A) if the Discharge of Pari Passu Secured Obligations has not then occurred, to
Authorized Pari Passu Collateral Agent, (B) if the Discharge of Pari Passu Secured
Obligations has then occurred but the Discharge of Revolving Credit Secured
Obligations has not then occurred, to the Revolving Credit Collateral Agent and (C)
if the Discharge of Pari Passu Secured Obligations and the Discharge of Revolving
Credit Secured Obligations has each occurred, to the Grantors or their successors or
assigns, or as a court of competent jurisdiction may otherwise direct.



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Notwithstanding the foregoing, with respect to any Common Subordinated Lien Collateral for which a
third party (other than a Subordinated Lien Secured Party) has a lien or security interest that is
junior in priority to the security interest of any Series of Subordinated Lien Secured Obligations
but senior (as determined by appropriate legal proceedings in the case of any
dispute) to the security interest of any other Series of Subordinated Lien Secured Obligations
(such third party a “Subordinated Lien Intervening Creditor”), the value of any Common Collateral
or Subordinated Lien Collateral Proceeds which are allocated to such Intervening Creditor shall be
deducted on a ratable basis solely from the Subordinated Lien Collateral Proceeds to be distributed
in respect of the Series of Subordinated Lien Secured Obligations with respect to which such
Impairment exists.



All amounts received by the Authorized Subordinated Lien Collateral Agent from proceeds of
Collateral that do not constitute Common Subordinated Lien Collateral (and which the Subordinated
Lien Creditors are entitled to retain) will be applied (after deduction of amounts payable under
clause FIRST, above), pro rata among the Subordinated Lien Secured Parties with
Subordinated Lien Secured Obligations secured by a Lien on such Collateral in accordance with the
amounts of the Subordinated Lien Secured Obligations owed to them on the date of any such
distribution (subject to adjustments for Subordinated Lien Intervening Creditor payments as
provided above).





               (c) Subject to the other terms of this Agreement (i) 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 Secured Obligations to the extent provided for herein and
in the Revolving Credit Loan Documents; and (ii) all payments received by the Authorized Pari Passu
Collateral Agent or any Pari Passu Secured Party may be applied, reversed and reapplied, in whole
or in part, to the Pari Passu Secured Obligations to the extent provided for herein and in the Pari
Passu Loan Documents.



     VII. OTHER AGREEMENTS.



          7.1 Releases.




               (a) (i) If in connection with the exercise by any Revolving Credit Agent of remedies in
respect of any Revolving Credit Priority Collateral, 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 Pari Passu Secured Parties and
the Subordinated Lien Secured Parties on the Revolving Credit Primary Collateral sold or disposed
of in connection with such exercise, shall be automatically, unconditionally and simultaneously
released. The Pari Passu Representatives and the Subordinated Lien Representatives 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 the Authorized Pari Passu Collateral Agent of
remedies in respect of any Pari Passu Priority Collateral, the Authorized Pari Passu Collateral
Agent, for itself and/or on behalf of any of the other Pari Passu Secured Parties, releases its
Liens on any part of the Pari Passu Priority Collateral, then the Liens, if any, of the



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Revolving
Credit Agents, the Subordinated Lien Representatives, and the other Revolving Credit Claimholders,
and the Subordinated Lien Secured Parties, on the Pari Passu Priority Collateral sold or disposed
of in connection with such exercise, shall be automatically, unconditionally and simultaneously
released. Each Revolving Credit Agent and each Subordinated Lien Representative shall promptly execute and deliver to the Authorized Pari
Passu Collateral Agent such termination statements, releases and other documents as the Authorized
Pari Passu Collateral Agent 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 the Revolving Credit Loan Documents, the Pari Passu Loan Documents and the
Subordinated Lien Loan Documents, (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 other than (A) in connection with the
Discharge of Revolving Credit Secured Obligations or (B) after the occurrence and during the
continuance of a Pari Passu Default, then the Liens, if any, of the Pari Passu Representatives, the
Subordinated Lien Collateral Agent, the Pari Passu Secured Parties and the Subordinated Lien
Secured Parties on such Collateral subject to Disposition shall be automatically, unconditionally
and simultaneously released, and (ii) the Authorized Pari Passu Collateral Agent, for itself and/or
on behalf of any of the other Pari Passu Secured Parties, releases its Liens on any part of the
Pari Passu Priority Collateral subject to such Disposition other than (A) in connection with the
Discharge of Pari Passu Secured 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, the
Subordinated Lien Representatives and the other Revolving Credit Claimholders and Subordinated Lien
Secured Parties on such Collateral shall be automatically, unconditionally and simultaneously
released. Each of the Revolving Credit Agents, for itself and/or on behalf of the other Revolving
Credit Claimholders, each Authorized Pari Passu Collateral Agent, for itself and/or on behalf of
the Pari Passu Secured Parties, and each Subordinated Lien Representative, for itself and/or on
behalf of the Subordinated Lien Secured Parties, as the case may be, shall promptly execute and
deliver to the Authorized Pari Passu Collateral Agent or the Revolving Credit Agents, as the case
may be, such termination statements, releases and other documents as the Authorized Pari Passu
Collateral Agent or the Revolving Credit Agents may request to effectively confirm such release.



               (c) Until the Discharge of Revolving Credit Secured Obligations shall occur, each Pari Passu
Representative, for itself and on behalf of the other Pari Passu Secured Parties, and each
Subordinated Lien Representative, for itself and on behalf of the Subordinated Lien Secured
Parties, 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 each Pari Passu Representative, each
Subordinated Lien Representative or each such Pari Passu Secured Party or Subordinated Lien Secured
Party, whether in such Revolving Credit Agent’s name or, at the option of such Revolving Credit
Agent, in each such Pari Passu Representative’s, such Subordinated Lien Representative’s, any Pari
Passu Secured Party’s, or any Subordinated Lien Secured Party’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
7.1, to take any and all appropriate action and to execute any and all documents and



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instruments which may be necessary to accomplish the purposes of this Section 7.1,
including any endorsements or other instruments of transfer or release.




               (d) Until the Discharge of Pari Passu Secured Obligations shall occur, each Revolving Credit
Agent, for itself and on behalf of the other Revolving Credit Claimholders, and the Subordinated
Lien Representative, for itself and on behalf of the Subordinated Lien Secured
Parties, hereby irrevocably constitutes and appoints the Authorized Pari Passu Collateral
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, the Subordinated Lien Representative or such other Revolving Credit Claimholder or
Subordinated Lien Secured Party, whether in the Authorized Pari Passu Collateral Agent’s name or,
at the option of the Authorized Pari Passu Collateral Agent, in any Revolving Credit Agent’s, the
Subordinated Lien Collateral Agent’s, any other Revolving Credit Claimholder’s or any Subordinated
Lien Secured Party’s own name, from time to time in the Authorized Pari Passu Collateral Agent’s
discretion, for the purpose of carrying out the terms of this Section 7.1, 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 7.1, including any endorsements or other
instruments of transfer or release.



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          7.2 Insurance.




               (a) Unless and until the Discharge of Revolving Credit Secured 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 shall be paid to the
Revolving Credit Agents for the benefit of the Revolving Credit Claimholders or as the Revolving
Credit Agents may direct pursuant to the terms of the Revolving Credit Loan Documents (including
for purposes of cash collateralization of letters of credit and including allowing the Grantors to
receive and retain such proceeds) and thereafter, subject to the terms of, and the rights of the
Grantors under, the Pari Passu Loan Documents, to the Authorized Pari Passu Collateral Agent for
the benefit of the Pari Passu Secured Parties (including for purposes of cash collateralization of
letters of credit and including allowing the Grantors to receive and retain such proceeds) and
thereafter, to the extent no Pari Passu Secured Obligations are outstanding, and subject to the
terms of, and the rights of the Grantors under, the Subordinated Lien Loan Documents, to the
Authorized Subordinated Lien Collateral Agent for the benefit of the Subordinated Lien Secured
Parties to the extent required under the Subordinated Lien Loan Documents and then, to the extent
no Subordinated Lien Secured 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 Pari Passu Secured Party or
Subordinated Lien Secured Party 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 Article VI.



               (b) Unless and until the Discharge of Pari Passu Secured Obligations has occurred, subject to
the terms of, and the rights of the Grantors under, the Pari Passu Loan Documents, (i) the Pari
Passu Secured Parties shall have the sole and exclusive right to adjust settlement for any
insurance policy covering the Pari Passu 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 Pari Passu 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 Pari
Passu Priority Collateral shall be paid to the Authorized Pari Passu Collateral Agent for the
benefit of the Pari Passu Secured Parties (including for purposes of cash collateralization of
letters of credit and including allowing the Grantors to receive and retain such proceeds) and
thereafter, 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
or as the Revolving Credit Agents may direct pursuant to the terms of the Revolving Credit Loan
Documents (including for purposes of cash collateralization of letters of credit and including
allowing the Grantors to receive and retain such proceeds) and thereafter, to the extent no
Revolving Credit Secured



64









 







Obligations are outstanding, and subject to the terms of, and the rights
of the Grantors under, the Authorized Subordinated Lien Loan Documents, to the Subordinated Lien
Collateral Agent for the benefit of the Subordinated Lien Secured Parties to the extent required
under the Subordinated Lien Loan Documents and then, to the extent no Subordinated Lien Secured
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 Claimholder or any Subordinated Lien Secured
Party 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 Authorized Pari Passu Collateral Agent in accordance with the terms of
Article VI.



               (c) To effectuate the foregoing, the applicable Revolving Credit Agents, each Pari Passu
Collateral Agent and each Subordinated Lien Collateral Agent 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 Pari Passu Priority Collateral, such proceeds shall first be
applied to the payment of the Revolving Credit Secured Obligations, then be applied, to the extent
required by the Pari Passu Loan Documents, to the payment of the Pari Passu Secured Obligations and
then be applied, to the extent required under the Subordinated Lien Loan Documents, to the payment
of the Subordinated Lien Secured 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 Pari Passu Priority Collateral, such proceeds shall be applied to compensate or
reimburse the Pari Passu Secured Parties, Revolving Credit Claimholders and the Subordinated Lien
Secured Parties in accordance with such liability or indemnification claims.




     7.3 Amendments to Revolving Credit Loan Documents and Pari Passu Loan Documents;
Refinancings; Legending Provisions.



               (a) The Revolving Credit Security Documents, the Pari Passu Security Documents and the
Subordinated Lien Security Documents, as applicable, may be Modified in accordance with the terms
of the Revolving Credit Loan Documents, the Pari Passu Loan Documents and the Subordinated Lien
Loan Documents, as applicable. 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,
any Pari Passu Loan Document or any Subordinated Lien Loan
Document, as applicable) of any Revolving Credit Agent or any other Revolving Credit
Claimholder, any Pari Passu Representative or any Pari Passu Secured Party or any Subordinated Lien
Representative or any Subordinated Lien Secured Party, 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 each 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 Pari Passu
Security Document and the Comparable Subordinated Lien Security Document without the



65









 







consent of or
action by any Pari Passu Representative or any Pari Passu Secured Party or any Subordinated Lien
Representative or any Subordinated Lien Secured Party, as the case may be (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 Pari Passu Security Document or
Subordinated Lien Security Document, except to the extent that a release of such Lien is permitted
by Section 7.1, (B) any such Modification that materially and adversely affects the rights
of any of the Pari Passu Secured Parties or the Subordinated Lien Secured Parties and does not
affect the Revolving Credit Claimholders in a like or similar manner shall not apply to the Pari
Passu Security Documents or Subordinated Lien Security Documents, as the case may be, without the
consent of the Pari Passu Representatives or the Subordinated Lien Representatives, as the case may
be, (C) no such Modification with respect to any provision applicable to the Pari Passu
Representative under any Pari Passu Loan Documents shall be made without the prior written consent
of such Pari Passu Representative, (D) no such Modification with respect to any provision
applicable to any Subordinated Lien Representative under any Subordinated Lien Loan Documents shall
be made without the prior written consent of such Subordinated Lien Representative and (E) notice
of such Modification shall be given to each Pari Passu Representative and each Subordinated Lien
Representative no later than 30 days after its effectiveness (provided that the failure to give
such notice shall not affect the effectiveness and validity thereof)




               (ii) In the event each Pari Passu Representative enters into (or otherwise agrees or consents
to) any Modification in respect of any of the Pari Passu Security Documents for the purpose of
adding to, or deleting from, or waiving or consenting to any departures from any provisions of,
any Pari Passu Security Document or changing in any manner the rights of any parties thereunder,
in each case solely with respect to any Pari Passu Priority Collateral, then such Modification
shall apply automatically to any comparable provision of the Comparable Revolving Credit Security
Document and the Comparable Subordinated Lien Security Document without the consent of or action
by any Revolving Credit Agent or any other Revolving Credit Claimholder or the Subordinated Lien
Representative or any Subordinated Lien Secured Party, as the case may be (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 or any Subordinated lien Security Document, except to the extent that a release of such
Lien is permitted by Section 7.1, (B) any such Modification that materially and adversely
affects the rights of any of the Revolving Credit Claimholders or the Subordinated Lien Secured
Parties and does not affect the Pari Passu Secured Parties in a like or similar manner shall not
apply to the Revolving
Credit Security Documents or Subordinated Lien Security Documents, as the case may be,
without the consent of the Revolving Credit Agents or the Subordinated Lien Representatives, as
the case may be, (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) no such Modification with respect to any
provision applicable to any Subordinated Lien Representative under any Subordinated Lien Loan
Documents shall be made without the prior written consent of such Subordinated Lien Representative
and (E) notice of such Modification shall be given to the Revolving Credit Agents and each
Subordinated Lien Representative no later than 30 days after its effectiveness (provided that the
failure to give such notice shall not affect the effectiveness and validity thereof)



66









 





               (c) The Revolving Credit Secured Obligations, the Pari Passu Secured Obligations and the
Subordinated Lien Secured 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, any Pari Passu Loan Document or the
Subordinated Lien Loan Documents) of any Revolving Credit Claimholder, Pari Passu Secured Party or
any Subordinated Lien Secured Party, 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 which shall be a Secured Debt Representative in the case of any such Refinancing
Indebtedness which constitutes Pari Passu Debt or Subordinated Lien Debt and a Revolving Credit
Agent (if applicable) in the case of any Refinancing Indebtedness which constitutes Revolving
Credit Secured Obligations) and each relevant Grantor bind themselves to this Agreement through the
execution and delivery of an Intercreditor Joinder Agreement and such other documents or agreements
(including amendments or supplements to this Agreement) as the Revolving Credit Agents or any Pari
Passu Representative, as the case may be, shall reasonably request and in form and substance
reasonably acceptable to the Revolving Credit Agents and its Pari Passu Representatives, as the
case may be, and any such Refinancing transaction shall be in accordance with the provisions of the
Revolving Credit Loan Documents, the Pari Passu Loan Documents and the Subordinated Lien Loan
Documents.



               (d) Each Revolving Credit Security Document, Pari Passu Security Document and Subordinated
Lien Security Document shall include the following language (or language to similar effect approved
by each of the Revolving Credit Agents and each Pari Passu Representative, such approval not to be
unreasonably withheld or delayed):




“NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIEN AND SECURITY
INTEREST GRANTED TO [COLLATERAL AGENT 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 [COLLATERAL AGENT OR OTHER PERSON, AS
APPLICABLE] HEREUNDER ARE SUBJECT TO THAT CERTAIN INTERCREDITOR AGREEMENT,
DATED AS OF DECEMBER 17, 2010 (AS AMENDED, RESTATED, AMENDED AND RESTATED,
SUPPLEMENTED OR OTHERWISE MODIFIED
FROM TIME TO TIME, THE “INTERCREDITOR AGREEMENT”), AMONG NOVELIS INC.,
NOVELIS CORPORATION, NOVELIS CAST HOUSE TECHNOLOGY LTD., 4260848 CANADA
INC., 4260856 CANADA INC., NOVELIS NO. 1 LIMITED PARTNERSHIP, NOVELIS
CORPORATION, NOVELIS PAE CORPORATION, NOVELIS BRAND LLC, NOVELIS SOUTH
AMERICA HOLDINGS LLC, ALUMINUM UPSTREAM HOLDINGS LLC, NOVELIS EUROPE
HOLDINGS LIMITED, NOVELIS UK LTD., NOVELIS SERVICES LIMITED., NOVELIS
DEUTSCHLAND GMBH, NOVELIS AG, NOVELIS SWITZERLAND SA, NOVELIS TECHNOLOGY
AG, NOVELIS ALUMINUM HOLDING



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COMPANY, NOVELIS DO BRASIL LTDA., NOVELIS
LUXEMBOURG S.A., NOVELIS PAE, NOVELIS MADEIRA UNIPESSOAL, LDA, AV METALS
INC. (“HOLDINGS”), THE OTHER SUBSIDIARIES OF HOLDINGS FROM TIME TO TIME
PARTY THERETO, BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT FOR THE
REVOLVING CREDIT LENDERS (AS DEFINED IN THE INTERCREDITOR AGREEMENT), BANK
OF AMERICA, N.A., AS COLLATERAL AGENT FOR THE REVOLVING CREDIT
CLAIMHOLDERS (AS DEFINED IN THE INTERCREDITOR AGREEMENT), BANK OF AMERICA,
N.A., AS ADMINISTRATIVE AGENT FOR THE TERM LOAN LENDERS (AS DEFINED IN THE
INTERCREDITOR AGREEMENT), BANK OF AMERICA, N.A., AS COLLATERAL AGENT FOR
THE TERM LOAN SECURED PARTIES (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
THIS AGREEMENT, THE PROVISIONS OF THE INTERCREDITOR AGREEMENT SHALL GOVERN
AND CONTROL.




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



          7.4 Bailee or Agency for Perfection.




               (a) Each Revolving Credit Agent and the Authorized Pari Passu Collateral 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 the PPSA or under the law of
any other applicable jurisdiction outside of the United States (such Collateral being the “Pledged
Collateral”), as sub-agent and as bailee for the Authorized Pari Passu Collateral Agent and the
other Pari Passu Collateral Agents (for the benefit of the Pari Passu Secured Parties) and the
Revolving Credit Agents (for the benefit of the Revolving Credit Claimholders), respectively, and
for the Authorized Subordinated Lien Collateral Agent and the other Subordinated Lien Collateral
Agents (for the benefit of the Subordinated Lien Secured Parties) (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 Pari Passu Loan Documents and the Revolving Credit Loan Documents,



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respectively,
and the Subordinated Lien Loan Documents, respectively, subject to the terms and conditions of this
Section 7.4. To the extent a junior pledge of or junior lien on any Pari Passu Priority
Collateral is prohibited or unenforceable under the law of any applicable jurisdiction outside of
the United States, the Authorized Pari Passu Collateral Agent may, in its sole discretion, elect to
hold any such Pari Passu Priority Collateral, as sub-agent for the Revolving Credit Agents, for the
benefit of the Revolving Lien Claimholders, and for the Subordinated Lien Collateral Agents (for
the benefit of the Subordinated Lien Secured Parties), solely for the purpose of the creation
and/or perfection of Liens in such Pari Passu Priority Collateral to secure the Revolving Credit
Secured Obligations and the Subordinated Lien Secured Obligations, and subject to the terms and
conditions of this Section 7.4, it being expressly understood and agreed that the claims of
the Revolving Credit Claimholders and the Subordinated Lien Secured Parties in respect of such Pari
Passu Priority Collateral shall be subordinated to the claims of the Senior Secured Parties in
respect of such Pari Passu Priority Collateral on the same basis as the Liens on the other Pari
Passu Priority Collateral securing any Revolving Credit Secured Obligations or Subordinated Lien
Secured Obligations, respectively, are subordinated to the Liens on such other Pari Passu Priority
Collateral securing any Pari Passu Secured Obligations, and nothing in this Section 7.4
shall affect the status of such Collateral as Pari Passu Priority Collateral.



               In addition, the Authorized Pari Passu Collateral Agent is hereby appointed by the Revolving
Credit Agent and by the Subordinated Lien Representatives as agent for the benefit of the Revolving
Credit Claimholders and the Subordinated Lien Secured Parties, respectively, for the purpose of
holding the Collateral subject to the Italian Pledge Agreements, the Korea Share Pledge Agreements,
Swiss Stock and IP Agreements, the Security Transfer Agreement, the German Pari Passu Non-Accessory
Security Documents and any other Security Document that grants a Lien on Pari Passu Primary
Collateral in favor of a Pari Passu Collateral Agent to secure any Revolving Credit Secured
Obligations or Subordinated Lien Secured Obligations, on behalf of the Pari Passu Secured Parties,
the Revolving Credit Claimholders and the Subordinated Lien Secured Parties (but only, in case of
the Revolving Credit Secured Parties and the Subordinated Lien Secured Parties, to the extent the
grant in such Collateral secures the related Revolving Credit Secured Obligations or Subordinated
Lien Secured Obligations, as the case may be), it being understood that the Collateral subject to
the Italian Pledge Agreements, the Korea Share Pledge Agreements, the Swiss Stock and IP
Agreements, the Security Transfer Agreement and the German Pari Passu Non-Accessory Security
Documents constitutes Pari Passu Priority Collateral.



               In the event the Authorized Pari Passu Collateral 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 or for the Subordinated Lien Representatives or the
Subordinated Lien Secured Parties, (i) the Grantors shall pay, reimburse, indemnify and hold
harmless the Authorized Pari Passu Collateral Agent for any such liabilities, costs, damages or
expenses subject to any limitations contained in the Pari Passu Security Document to the extent
applicable and (ii) in the event the Grantors fail to so pay, reimburse, indemnify and hold
harmless the Authorized Pari Passu Collateral Agent, the Revolving Credit Claimholders or the
Subordinated Lien Secured Parties, as the case may be, shall pay, reimburse, indemnify and hold
harmless the Authorized Pari Passu Collateral Agent for any such liabilities,



69









 




costs, damages or
expenses suffered by the Authorized Pari Passu Collateral Agent as a result of acting in such
capacity for the benefit of such Persons.




               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 Pari Passu Secured Parties and the Subordinated
Lien Secured Parties solely for the purpose of the creation and/or perfection of Liens in such
Revolving Credit Priority Collateral to secure the Pari Passu Secured Obligations and the
Subordinated Lien Secured Obligations, and subject to the terms and conditions of this Section
7.4, it being expressly understood and agreed that the claims of the Pari Passu Secured Parties
and the Subordinated Lien Secured Parties 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 Pari Passu Secured Obligations or any Subordinated Lien Secured
Obligations, as the case may be, are subordinated to the Liens on such other Revolving Credit
Priority Collateral securing any Revolving Obligations, and nothing in this Section 7.4
shall affect the status of such Collateral as Revolving Credit Priority Collateral.



               In addition, the Revolving Credit Collateral Agent is hereby appointed by the Pari Passu
Representatives and the Subordinated Lien Representatives as agent for the benefit of the Pari
Passu Secured Parties and the Subordinated Lien Secured Parties, respectively, for the purpose of
holding the Collateral subject to the Swiss Security Agreement, the German Revolving Credit
Non-Accessory Security Documents, the Madeira Assignment of Credits Agreement and any other
Security Document that grants, in favor of the Revolving Credit Collateral Agent to secure any Pari
Passu Secured Obligations or Subordinated Lien Secured Obligations on behalf of the Revolving
Credit Claimholders, the Pari Passu Secured Parties and the Subordinated Lien Secured Parties (but
only, in case of the Pari Passu Secured Parties and the Subordinated Lien Secured Parties, to the
extent the grant in such Collateral secures the related Pari Passu Secured Obligations or
Subordinated Lien Secured Obligations, as the case may be), it being understood that the Collateral
subject to the Swiss Security Agreement, the German Revolving Credit Non-Accessory Security
Documents and the Madeira Assignment of Credits constitutes Revolving Credit Priority Collateral.



               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 Pari Passu Secured Parties
or for the Subordinated Lien Secured Parties, (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 limitations set forth in 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 Pari Passu Secured Parties and the Subordinated
Lien Secured Parties, as the case may be, shall pay, reimburse, indemnify and hold harmless the
Revolving Credit Agents for any such liabilities, costs, damages or expenses suffered by any
Revolving Credit Agent as a result of acting in such capacity for the benefit of such Persons.



               (b) No Person shall have any obligation whatsoever to any other Person to ensure that the
Pledged Collateral (or any other Collateral held by any Pari Passu Collateral



70









 







Agent for the
Revolving Credit Secured Parties or the Subordinated Lien Secured Parties, or by the Revolving
Credit Agents for the Pari Passu Lien Secured Parties or the Subordinated Lien Secured Parties) 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 7.4. The duties or responsibilities under this
Section 7.4 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 7.4 and delivering the Pledged Collateral upon a Discharge of
Revolving Credit Secured Obligations or Discharge of Pari Passu Collateral Secured Obligations, as
the case may be, as provided in paragraph (d) below.



               (c) No Person acting pursuant to this Section 7.4 shall have by reason of the
Revolving Credit Loan Documents, the Pari Passu Loan Documents, the Subordinated Lien 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 Secured 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 Authorized Pari Passu Collateral Agent to the extent the Pari Passu Secured Obligations which
are secured by such Pledged Collateral remain outstanding, second to the Authorized
Subordinated Lien Collateral Agent to the extent the Subordinated Lien Secured Obligations which
are secured by such Pledged Collateral remain outstanding and third, 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 the Authorized Pari Passu Collateral Agent or Authorized Subordinated Lien Collateral
Agent, as the case may be, in connection with the Authorized Pari Passu Collateral Agent or
Authorized Subordinated Lien Collateral 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 Pari Passu Secured Obligations, the Authorized Pari Passu
Collateral Agent shall deliver the remaining Pledged Collateral (if any) in its possession or
control (or in the possession or control of its agents), together with any necessary endorsements,
first, to the Revolving Credit Agents to the extent any Revolving Credit Secured
Obligations which are secured by such Pledged Collateral remain outstanding, second to the
Authorized Subordinated Lien Collateral Agent to the extent the Subordinated Lien Secured
Obligations which are secured by such Pledged Collateral remain outstanding and third, to
the applicable Grantor (in each case, so as to allow such Person to obtain possession or control of
such Pledged Collateral). The Authorized Pari Passu Collateral Agent further agrees to take
all other action reasonably requested by any Revolving Credit Agent or Authorized Subordinated Lien
Collateral Agent, as the case may be, in connection with such Revolving Credit Agent or
Subordinated Lien Collateral 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
Secured 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



71









 







Credit Loan Documents, but
only to the extent that such Collateral constitutes Revolving Credit Priority Collateral, as if the
Liens (if any) of the Pari Passu Representatives and Subordinated Lien Representatives did not
exist and (ii) so long as the Discharge of Pari Passu Secured Obligations has not occurred, the
Authorized Pari Passu Collateral 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 Pari Passu Loan Documents, but only to the extent that such
Collateral constitutes Pari Passu Priority Collateral, as if the Liens of the Revolving Credit
Agents and Subordinated Lien Representatives did not exist.



          7.5 Additional Secured Debt.




               (a) The Parent Borrower will be permitted to designate additional Revolving Credit Secured
Obligations, Pari Passu Secured Obligations or Subordinated Lien Secured Obligations, as the case
may be, incurred by any Grantor after the date of this Agreement permitted by the terms of all
applicable Revolving Credit Loan Documents, Pari Passu Loan Documents or Subordinated Lien Loan
Documents (collectively, the “Secured Debt Loan Documents”). The Borrower may effect such
designation by delivering to each Revolving Credit Agent, each Pari Passu Representative and each
Subordinated Lien Representative an Additional Secured Debt Designation stating that:




               (i) such Grantor intends to incur additional secured debt (“Additional Secured Debt”)
which will be one of the following: (x) Revolving Credit Secured Obligations permitted by
each applicable Secured Debt Loan Document to be secured by the Collateral, including Liens
on the Revolving Credit Priority Collateral entitled to priority over the Liens securing the
Pari Passu Secured Obligations and the Subordinated Lien Secured Obligations (provided,
there may only be one series of Revolving Credit Secured Obligations outstanding at any
time), (y) Pari Passu Debt permitted by each applicable Secured Debt Loan Document to be
secured by the Collateral (to the extent provided in the documentation for such Additional
Secured Debt), including a Lien on the Pari Passu Priority Collateral (to the extent
provided in the documentation for such Additional Secured Debt) entitled to priority over
the Liens securing the Revolving Credit Secured Obligations and the Subordinated Lien
Secured Obligations (Equally and Ratably with all previously existing and future Pari Passu
Debt); it being acknowledged that Revolving Credit Secured Obligations may be Refinanced as
Pari Passu Secured Obligations if so designated pursuant to this Section 7.5, and (z)
Subordinated Lien Debt permitted by each applicable Secured Debt Loan Document to be secured
by the Collateral (to the extent provided in the documentation for such Additional Secured
Debt), subject to the senior Liens securing the Revolving Credit Secured Obligations
and the Pari Passu Secured Obligations (Equally and Ratably with all previously existing and
future Subordinated Lien Debt);




               (ii) specifying the name and address of the Revolving Credit Agent or Secured Debt
Representative for such series of Additional Secured Debt for purposes of Section
11.9; and




               (iii) attaching complete copies (or substantially final drafts) of the material
operative agreements constituting Revolving Credit Loan Documents, Pari Passu



72









 






Loan Documents
or Subordinated Lien Loan Documents, as the case may be, relating to such Additional Secured
Debt.


Although the Parent Borrower shall be required to deliver a copy of each Additional Secured Debt
Designation to each then existing Revolving Credit Agent and Secured Debt Representative, the
failure to so deliver a copy of the Additional Secured Debt Designation to any then existing
Revolving Credit Agents and Secured Debt Representatives shall not affect the status of such debt
as Additional Secured Debt if the other requirements of this Section 7.5 are complied with.
Each Revolving Credit Agent and Secured Debt Representative shall have the right to request that
the Parent Borrower provide a legal opinion (in form and substance customary in the jurisdiction(s)
covered by such opinions at such time, and subject to customary qualifications and assumptions,
which opinion may be a copy of a legal opinion of counsel provided to the holders of Additional
Secured Debt or their Secured Debt Representatives) as to the Additional Secured Debt being secured
by a valid and perfected security interest (which legal opinion may be provided by internal counsel
to the extent the holders of Additional Secured Debt or their Secured Debt Representatives relied
on an opinion of internal counsel on such matters); provided, however, that such
legal opinion or opinions need not address any collateral of a type or located in a jurisdiction
not previously covered by any legal opinion delivered by or on behalf of the Parent Borrower.
Notwithstanding the foregoing, nothing in this Agreement will be construed to allow any Grantor to
incur additional Indebtedness or Liens if prohibited by the terms of any applicable Secured Debt
Loan Documents or the Revolving Credit Loan Documents.



Each Revolving Credit Agent and Secured Debt Representative shall have the right to request that
the Grantors (i) reaffirm, amend and/or re-execute any of the then-existing Security Documents (and
do all acts and execute all documents required or advisable in connection therewith) to the extent
such reaffirmation, amendment and/or re-execution is required or advisable to maintain the
validity, enforceability, perfection and, to the extent possible, priority of the Liens granted
thereunder and/or (ii) to the extent required or advisable, execute any additional Security
Document (and do all acts and execute all documents required or advisable in connection therewith)
to establish the validity, enforceability, perfection and, to the extent possible, priority of new
Lien(s) over the Collateral.



The Security Documents creating or evidencing the Liens securing the Revolving Credit Secured
Obligations, the Pari Passu Secured Obligations and the Subordinated Lien Secured Obligations shall
comply with Sections 2.4 and 7.5(d).




               (b) No Revolving Credit Claimholder under any Additional Secured Debt shall be entitled to the
benefits of this Intercreditor Agreement unless the Revolving Credit Agent, acting on its behalf
and pursuant to the authority provided in the Revolving Credit Loan Documents governing the terms
of the related Revolving Credit Secured Obligations signs an Intercreditor Joinder Agreement and
delivers the same to each Secured Debt Representative existing at the time such Additional Secured
Debt is incurred.



               (c) No Pari Passu Secured Party shall be entitled to the benefits of this Intercreditor
Agreement unless the Pari Passu Representative, acting on its behalf and pursuant to the authority
provided in the Loan Documents governing the terms of the related Pari Passu



73









 







Secured Obligations
signs an Intercreditor Joinder Agreement and delivers the same to each Revolving Credit Agent and
each Secured Debt Representative existing at the time such Additional Secured Debt is incurred.



               (d) The Security Documents creating or evidencing the Liens securing the Revolving Credit
Secured Obligations, the Pari Passu Secured Obligation and the Subordinated Lien Secured
Obligations in relation to any Additional Secured Debt shall be in all material respects
substantially the same forms of documents other than with respect to the first lien, second lien or
third lien nature of the Obligations thereunder and except (i) to the extent that the creditors who
have the direct benefit of such agreements or documents agree that such documents and agreements
may grant Liens in less than all the Collateral and/or are less restrictive on the Grantors (or
provide fewer rights or remedies to the secured party) than the forms of documents and agreements
on the date hereof (and the satisfaction of such requirement will be conclusively established if
the Parent Borrower delivers to each Secured Debt Representative and the Revolving Credit Agents an
officers’ certificate certifying that the Parent Borrower has determined in good faith that such
Pari Passu Documents satisfy the foregoing requirements unless any Senior Secured Debt
Representative or any Revolving Credit Agent notifies the Borrower within five Business Days that
it disagrees with such determination (including a reasonable description of the basis upon which it
disagrees)), (ii) the representations and covenants relating to Revolving Credit Priority
Collateral contained in the Revolving Credit Loan Documents may be more restrictive that those
contained in the Pari Passu Loan Documents and (iii) the representations and covenants relating to
Pari Passu Secured Obligations contained in the Pari Passu Loan Documents may be more restrictive
that those contained in the Revolving Credit Loan Documents. Notwithstanding the foregoing,
nothing in this Agreement will be construed to allow any Grantor to incur additional Indebtedness
or Liens if prohibited by the terms of any applicable Secured Debt Loan Documents.




     7.6 When Discharge of Revolving Credit Secured Obligations or Pari Passu Secured Obligations Deemed
to Not Have Occurred.



               (a) If concurrently with the Discharge of Revolving Credit Secured Obligations, any of the
Grantors thereafter enters into any Refinancing of any Revolving Credit Secured Obligations
designated to constitute Revolving Credit Secured Obligations pursuant to Section 7.5, which
Refinancing is permitted by the Pari Passu Loan Documents and the Subordinated Lien Loan Documents,
then such Discharge of Revolving Credit Secured Obligations 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 Secured
Obligations) and, from and after the date the Parent Borrower and the new Revolving Credit
Agent each complies with the requirements set forth in Section 7.5 with respect to such
Revolving Credit Secured Obligations, the obligations under such Refinancing shall automatically be
treated as Revolving Credit Secured Obligations 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 under such new Revolving Credit Loan Documents shall be the Revolving
Credit Agents for all purposes of this Agreement. Upon receipt of an Additional Secured Debt
Designation stating that the applicable Grantors have entered into new Revolving Credit Loan
Documents, such new Revolving Credit Agents, each Pari Passu Representative and each Subordinated
Lien Representative shall promptly (a) enter into such documents and agreements (including



74









 







amendments or supplements to this Agreement) as such Grantors or such new Revolving Credit Agents
shall reasonably request in order to provide to the new Revolving Credit 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 Revolving
Credit Agent any Pledged Collateral in its possession or control, together with any necessary
endorsements (or otherwise allow such new Revolving Credit 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 the Pari Passu Collateral Agent to deliver or otherwise
allow any new Revolving Credit Agent to obtain possession or control of Pledged Collateral
constituting Pari Passu Priority Collateral).



               (b) If concurrently with the Discharge of Pari Passu Secured Obligations, any of the Grantors
thereafter enters into any Refinancing of any Pari Passu Secured Obligations, which Refinancing is
permitted by the Revolving Credit Loan Documents and the Subordinated Lien Loan Documents, then
such Discharge of Pari Passu Secured Obligations 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 Pari Passu Secured Obligations) and, from and after the date
the Parent Borrower and the new Pari Passu Representative complies with the requirements set forth
in Section 7.5 with respect to such Pari Passu Secured Obligations, the obligations under
such Refinancing shall automatically be treated as Pari Passu Secured Obligations for all purposes
of this Agreement, including for purposes of the Lien priorities and rights in respect of
Collateral set forth herein. Upon receipt of an Additional Secured Debt Designation stating that
the applicable Grantors have entered into new Pari Passu Loan Documents, each other Pari Passu
Representative, each Revolving Credit Agent and each Subordinated Lien Representative shall
promptly (a) enter into such documents and agreements (including amendments or supplements to this
Agreement) as such Grantors or such Pari Passu Collateral Agent shall reasonably request in order
to provide to such Pari Passu Collateral 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 Pari Passu Collateral Agent any Pledged Collateral in its
possession or control, together with any necessary endorsements (or otherwise allow such Pari Passu
Collateral 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 the
Revolving Credit Agents to deliver or otherwise allow such Pari Passu Collateral Agent to obtain
possession or control of Pledged Collateral constituting Revolving Credit Priority Collateral).



     VIII. INSOLVENCY OR LIQUIDATION PROCEEDINGS.




     8.1 Finance and Sale Issues.



               (a) If any Grantor becomes subject to any Insolvency or Liquidation Proceeding at any time
prior to the Discharge of Revolving Credit Secured Obligations, and if any Revolving Credit Agent
or any of the other Revolving Credit Claimholders desire to consent (or does not object) to the use
of cash collateral that constitutes Revolving Credit Priority Collateral under the Bankruptcy Code
or to the provision of financing to any Grantor under the Bankruptcy Code or to consent (or does
not object) to the provision of such financing to any Grantor by any third party (any such
financing, “Revolving Credit DIP Financing”), which Revolving Credit DIP Financing



75









 







shall be secured
by the Revolving Credit Priority Collateral, then each Pari Passu Representative and each
Subordinated Lien Representative agrees, on behalf of itself and the other Pari Passu Secured
Parties and Subordinated Lien Secured Parties, respectively, that so long as (1) the Pari Passu
Representatives and the Subordinated Lien Representatives, as the case may be, retains the Liens on
the Collateral to secure the Pari Passu Secured Obligations and the Subordinated Lien Secured
Obligations, respectively (in each case, including proceeds thereof arising after the commencement
of any such Insolvency or Liquidation Proceeding), and, as to the Lien on the Pari Passu Primary
Collateral securing the Pari Passu Secured Obligations only, such Lien has the same priority as
existed prior to the commencement of such Insolvency or Liquidation Proceeding and any Lien
securing such Revolving Credit DIP Financing is junior and subordinate to the Lien securing the
Pari Passu Secured Obligations on the Pari Passu Priority Collateral, (2) all Liens on Revolving
Credit Priority Collateral securing any such Revolving Credit DIP Financing shall be senior to or
on a parity with the Liens securing the Revolving Credit Secured Obligations on such Revolving
Credit Priority Collateral and (3) if the Revolving Credit Agents receive a replacement or adequate
protection Lien on post-petition assets of any Grantor that constitute Pari Passu Priority
Collateral (the “Pari Passu Post-Petition Assets”) to secure the Revolving Credit Secured
Obligations, (x) such replacement or adequate protection Lien on such Pari Passu Post-Petition
Assets is junior and subordinate to the Lien on the Pari Passu Post-Petition Assets securing the
Pari Passu Secured Obligations (but may be senior to the Lien securing the Subordinated Lien
Secured Obligations) and (y) the Pari Passu Representatives and the Subordinated Lien
Representatives also receive a replacement or adequate protection Lien on such Pari Passu
Post-Petition Assets to secure the Pari Passu Secured Obligations and the Subordinated Lien Secured
Obligations, respectively, the Pari Passu Representatives, on behalf of itself and each Pari Passu
Secured Party, and each Subordinated Lien Representatives, on behalf of itself and each
Subordinated Lien Secured Party:




               (1) will be deemed to have consented to, will raise no objection to, nor support any
other Person objecting to, the use of such cash collateral or to such Revolving Credit DIP
Financing,




               (2) will not request or accept adequate protection or any other relief in connection
with the use of such cash collateral or such Revolving Credit DIP Financing except as set
forth in Section 8.3 below, and




               (3) will subordinate (and will be deemed hereunder to have subordinated) the Lien
securing the Pari Passu Secured Obligations and the Lien securing the Subordinated Lien
Secured Obligations, respectively, on the Revolving Credit
Priority Collateral (i) to such Revolving Credit DIP Financing on the same terms as the
Lien securing the Revolving Credit Secured Obligations (and such subordination will not
alter in any manner the terms of this Agreement), (ii) to any adequate protection provided
to the Revolving Credit Claimholders on the same terms as the Lien securing the Revolving
Credit Secured Obligations (and such subordination will not alter in any manner the terms of
this Agreement) and (iii) to any “carve-out,” including for debtor’s professionals, agreed
to by the Revolving Credit Representative or the other Revolving Credit Claimholders.



               (b) If any Grantor becomes subject to any Insolvency or Liquidation Proceeding at any time
prior to the Discharge of Pari Passu Secured Obligations, and if any Pari Passu



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Representative or
any of the other Pari Passu Secured Parties desire to consent (or not object) to the use of cash
collateral that constitutes Pari Passu Priority Collateral under the Bankruptcy Code or to provide
financing to any Grantor under the Bankruptcy Code or to consent (or not object) to the provision
of such financing to any Grantor by any third party (any such financing, “Pari Passu DIP
Financing”), which Pari Passu DIP Financing shall be secured by the Pari Passu Priority Collateral,
then each of the Revolving Credit Agents agrees, on behalf of the Revolving Credit Claimholders,
and each Subordinated Lien Representative agrees, on behalf of itself and the other Subordinated
Lien Secured Parties, respectively, that so long as (1) the Revolving Credit Agent and the
Subordinated Lien Representatives, as the case may be, retains the Liens on the Collateral to
secure the Revolving Credit Secured Obligations and the Subordinated Lien Secured Obligations,
respectively (in each case, including proceeds thereof arising after the commencement of any such
Insolvency or Liquidation Proceeding), and, as to the Lien on the Revolving Credit Primary
Collateral securing the Revolving Credit Secured Obligations only, such Lien has the same priority
as existed prior to the commencement of such Insolvency or Liquidation Proceeding and any Lien
securing such Pari Passu DIP Financing is junior and subordinate to the Lien securing the Revolving
Credit Secured Obligations on the Revolving Credit Priority Collateral, (2) all Liens on Pari Passu
Priority Collateral securing any such Pari Passu DIP Financing shall be senior to or on a parity
with the Liens securing the Pari Passu Secured Obligations on such Pari Passu Priority Collateral
and (3) if the Pari Passu Representatives receive a replacement or adequate protection Lien on
post-petition assets of any Grantor that constitute Revolving Credit Priority Collateral (the
“Revolving Credit Lien Post-Petition Assets”) to secure the Pari Passu Secured Obligations, (x)
such replacement or adequate protection Lien on such Revolving Credit Lien Post-Petition Assets is
junior and subordinate to the Lien on the Revolving Credit Lien Post-Petition Assets securing the
Revolving Credit Secured Obligations (but may be senior to the Lien securing the Subordinated Lien
Secured Obligations) and (y) the Revolving Credit Agents and Subordinated Lien Representatives also
receives a replacement or adequate protection Lien on such Revolving Credit Lien Post-Petition
Assets to secure the Revolving Credit Secured Obligations and the Subordinated Lien Secured
Obligations, respectively, the Revolving Credit Agents, on behalf of itself and each Revolving
Credit Secured Party, and each Subordinated Lien Representative, on behalf of itself and each
Subordinated Lien Secured Party:




               (1) will be deemed to have consented to, will raise no objection to, nor support any
other Person objecting to, the use of such cash collateral or to such Pari Passu DIP
Financing,




               (2) will not request or accept adequate protection or any other relief in connection
with the use of such cash collateral or such Pari Passu DIP Financing except as set forth in
Section 8.3 below, and




               (3) will subordinate (and will be deemed hereunder to have subordinated) the Lien
securing the Revolving Credit Secured Obligations and the Lien securing the Subordinated
Lien Secured Obligations, respectively, on the Pari Passu Priority Collateral (i) to such
Pari Passu DIP Financing on the same terms as the Lien securing the Pari Passu Secured
Obligations (and such subordination will not alter in any manner the terms of this Agreement), (ii) to any adequate protection provided to the Pari Passu Secured Parties on
the same terms as the Lien securing the Pari Passu Secured Obligations (and such
subordination will not alter in any manner the terms of this



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Agreement) and (iii) to any
“carve-out,” including for debtor’s professionals, agreed to by such Pari Passu
Representatives or the other Pari Passu Secured Parties.



               (c) If any Grantor becomes subject to any Insolvency or Liquidation Proceeding at any time
prior to the Discharge of Pari Passu Secured Obligations, and if the Authorized Pari Passu
Collateral Agent consents (or not object) to the use of cash collateral that constitutes Pari Passu
Priority Collateral under the Bankruptcy Code or to provide financing to any Grantor under the
Bankruptcy Code or consents (or not object) to the provision of a Pari Passu DIP Financing, which
Pari Passu DIP Financing shall be secured by the Pari Passu Priority Collateral, then each Pari
Passu Representative agrees, on behalf of itself and each of the Pari Passu Secured Parties,
respectively, that so long as (1) each of the Pari Passu Representatives retains the Liens on the
Collateral to secure the Pari Passu Secured Obligations (in each case, including proceeds thereof
arising after the commencement of any such Insolvency or Liquidation Proceeding), and such Lien has
the same priority as existed prior to the commencement of such Insolvency or Liquidation
Proceeding, (2) all Liens on Pari Passu Priority Collateral securing any such Pari Passu DIP
Financing shall be senior to or on a parity with the Liens securing the Pari Passu Secured
Obligations on such Pari Passu Priority Collateral, and (3) if any Pari Passu Representative
receives a replacement or adequate protection Lien on post-petition assets of any Grantor, each
other Pari Passu Representative also receives a replacement or adequate protection Lien on
post-petition assets of such Grantor (each such Lien to be Equally and Ratably secured), each
Non-Controlling Secured Party:




               (1) will be deemed to have consented to, will raise no objection to, nor support any
other Person objecting to, the use of such cash collateral or to such Pari Passu DIP
Financing,




               (2) will not request or accept adequate protection or any other relief in connection
with the use of such cash collateral or such Pari Passu DIP Financing except as set forth in
Section 8.3 below, and




               (3) will subordinate (and will be deemed hereunder to have subordinated) its Liens
securing its pre-petition Pari Passu Secured Obligations on the Collateral (i) to such Pari
Passu DIP Financing (and such subordination will not alter in any manner the terms of this
Agreement), (ii) to any adequate protection provided to the Pari Passu Secured Parties (and
such subordination will not alter in any manner the terms
of this Agreement) and (iii) to any “carve-out,” including for debtor’s professionals,
agreed to by such Pari Passu Representatives or the other Pari Passu Secured Parties.




If any Pari Passu Secured Party is granted any form of adequate protection payments,
including in the form of periodic payments, in connection with any Revolving Credit DIP
Financing or Pari Passu DIP Financing, the proceeds of such adequate protection shall be
applied pursuant to Section 6.3(a) hereof.



               (d) All Liens granted to the Revolving Credit Agents or any Pari Passu Representative or any
Subordinated Lien Representative in any Insolvency or Liquidation Proceeding, whether as adequate
protection or otherwise, are intended to be and shall be deemed to



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be subject to the lien
priorities set forth in Section 2.1 and the other terms and conditions of this Agreement.




     8.2 Relief from the Automatic Stay.



               (a) Until the Discharge of Revolving Credit Secured Obligations has occurred, each Pari Passu
Representative, on behalf of itself and each other Pari Passu Secured Party, and each Subordinated
Lien Representative, on behalf of itself and the other Subordinated Lien Secured Parties, 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, in the case of any Pari Passu Representative, to the extent such
relief is required to exercise its rights under Section 5.3), without the prior written
consent of the Revolving Credit Agents.



               (b) Until the Discharge of Pari Passu Secured Obligations has occurred, each Revolving Credit
Agent, on behalf of itself and each other Revolving Credit Claimholder each Subordinated Lien
Representative, on behalf of itself and the Subordinated Lien Secured Parties, and each
Non-Controlling Secured Party 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 Pari Passu Priority Collateral (other than, in the case of any
Revolving Credit Agent, to the extent such relief is required to exercise its rights under
Section 5.3), without the prior written consent of the Authorized Pari Passu Collateral
Agent.




     8.3 Adequate Protection.



               (a) Each Pari Passu Representative, on behalf of itself and each of the Pari Passu Secured
Parties, and each Subordinated Lien Representative, on behalf of itself and the Subordinated Lien
Secured Parties, 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 any adequate protection provided to any
Revolving Credit Agents or any Revolving Credit Claimholder in respect of its interests in
the Revolving Credit Priority Collateral;




               (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; or




               (3) the payment of interest, fees, expenses or other amounts to the Revolving Credit
Agents or any other Revolving Credit Claimholder under Section 506(b) or 506(c) of the
Bankruptcy Code or otherwise; provided that any action described in the foregoing
clauses (1) and (2) does not violate Section 8.1.




Each Pari Passu Representative, on behalf of itself and the other Pari Passu Secured Parties, and
each Subordinated Lien Representative, on behalf of itself and the other Subordinated Lien



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Secured Parties, further agrees that, prior to the Discharge of Revolving Credit Secured Obligations, none
of them shall assert or enforce any claim under Section 506(b) or 506(c) of the Bankruptcy Code or
otherwise that is senior to or on a parity with the Liens on the Revolving Credit Primary
Collateral securing the Revolving Credit Secured Obligations for costs or expenses of preserving or
disposing of any Revolving Credit Priority Collateral.



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




               (1) any request by any Pari Passu Representative for adequate protection with respect
to any Pari Passu Priority Collateral or any adequate protection provided to any Pari Passu
Representative or any other Pari Passu Secured Party in respect of its interests in the Pari
Passu Priority Collateral;




               (2) any objection by any Pari Passu Representative to any motion, relief, action or
proceeding based on any Pari Passu Representative or any Pari Passu Secured Party claiming a
lack of adequate protection with respect to the Pari Passu Priority Collateral; or




               (3) the payment of interest, fees, expenses or other amounts to the Pari Passu
Representatives or any other Pari Passu Secured Party under Section 506(b) or 506(c) of the
Bankruptcy Code or otherwise; provided that any action described in the foregoing
clauses (1) and (2) does not violate Section 8.1.




Each Revolving Credit Agent, on behalf of each Revolving Credit Claimholder, and each Subordinated
Lien Representative, on behalf of itself and the other Subordinated Lien Secured Parties, further
agrees that, prior to the Discharge of Pari Passu Secured Obligations, none of them shall assert or
enforce any claim under Section 506(b) or 506(c) of the Bankruptcy Code or otherwise that is senior
to or on a parity with the Liens on the Pari Passu Priority Collateral securing the Pari Passu
Secured Obligations for costs or expenses of preserving or disposing of any Pari Passu Priority
Collateral.



               (c) Notwithstanding the foregoing provisions in this Section 8.3, in any Insolvency or
Liquidation Proceeding:




               (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 Pari Passu Secured Parties and the Subordinated Lien Secured Parties may
also be granted a Lien on the same additional collateral as security for (x) the Pari Passu
Secured Obligations and for any Cash Collateral use or Pari Passu DIP Financing and (y) the
Subordinated Lien Secured Obligations, as the case may be; and each Pari Passu
Representative, on behalf of itself and each Pari Passu Secured Party,



80









 







and each Subordinated
Lien Representative, on behalf of itself and the Subordinated Lien Secured Parties, agrees
that any Lien on such additional collateral securing the Pari Passu Secured Obligations or
the Subordinated Lien Secured Obligations, as the case may be, shall be subordinated
(except, in the case of the Pari Passu Secured Obligations, to the extent that the Pari
Passu Secured Parties 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 Secured Obligations and any Cash Collateral use or Revolving Credit DIP
Financing (and all Obligations relating thereto), all on the same basis as the other Liens
of the Pari Passu Secured Parties and the Liens of the Subordinated Lien Secured Parties on
the Revolving Credit Priority Collateral; and




               (2) in the event any of the Pari Passu Secured Parties is granted adequate protection
in respect of Pari Passu Priority Collateral in the form of additional collateral (even if
such collateral is not of a type which would otherwise have constituted Pari Passu Priority
Collateral), then the Pari Passu Representative, on behalf of itself and the Pari Passu
Secured Parties agree that the Revolving Credit Agents, the other Revolving Credit
Claimholders, the Subordinated Lien Representative and the Subordinated Lien Secured Parties
may also be granted a Lien on the same additional collateral as security for (x) the
Revolving Credit Secured Obligations and for any Cash Collateral use or Revolving Credit DIP
Financing and (y) the Subordinated Lien Secured Obligations, as the case may be, and each
Revolving Credit Agent, on behalf of itself and each Revolving Credit Claimholder, and the
Subordinated Lien Representative, on behalf of itself and the Subordinated Lien Secured
Parties, agrees that any Lien on such additional collateral securing the Revolving Credit
Secured Obligations or the Subordinated Lien Secured Obligations, as the case may be, shall
be subordinated (except, in the case of the Revolving Credit Secured Obligations, 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 Pari Passu Secured
Obligations and any Cash Collateral use or Pari Passu DIP Financing provided by any Pari
Passu Secured Parties (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 and
the Liens of the Subordinated Lien Representatives and the Subordinated Secured Parties on
the Pari Passu Priority Collateral.



               (d) Except as otherwise expressly set forth in Section 8.1 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 Pari Passu Representatives and the Pari Passu Secured Parties to
seek adequate protection with respect to their rights in the Pari Passu 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 Pari Passu 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).




81












 






     8.4 Avoidance Issues. If any Revolving Credit Claimholders, Pari Passu Secured Parties or
Subordinated Lien Secured Parties 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 Secured Obligations, the Pari Passu Secured Obligations
or the Subordinated Lien Secured Obligations, as the case may be, (a “Recovery”), then such
Revolving Credit Claimholders, Pari Passu Secured Parties, or Subordinated Lien Secured Parties, as
the case may be, shall be entitled to a reinstatement of Revolving Credit Secured Obligations, the
Pari Passu Secured Obligations or the Subordinated Lien Secured 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.




     8.5 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, on
account of one or more of the Revolving Credit Secured Obligations, the Pari Passu Secured
Obligations or the Subordinated Lien Secured Obligations, then, to the extent the debt obligations
distributed on account of two or more of the Revolving Credit Secured Obligations, the Pari Passu
Secured Obligations and the Subordinated Lien Secured 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.




     8.6 Post-Petition Interest.



               (a) Each Pari Passu Representative, on behalf of itself and the Pari Passu Secured Parties,
and each Subordinated Lien Representative, on behalf of itself and the Subordinated Lien Secured
Parties, 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 Secured 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 Secured Obligations, without regard to the existence of
any Lien of the Pari Passu Representatives (on behalf of the Pari Passu Secured Parties) on the
Revolving Credit Priority Collateral or the existence of any Lien of the Subordinated Lien
Representatives (on behalf of the Subordinated Lien Secured Parties) on the Revolving Credit
Priority Collateral and (y) the value of the Lien on Pari Passu Priority Collateral securing any
Revolving Credit Secured Obligations, taking into account the existence of any Lien of the Pari
Passu Representatives on behalf of the Pari Passu Secured Parties on any Pari Passu Priority
Collateral.



               (b) Each of the Revolving Credit Agents, on behalf of itself and the other Revolving Credit
Claimholders, and the Subordinated Lien Representatives, on behalf of itself and the Subordinated
Lien Secured Parties, agrees that none of them shall oppose or seek to challenge any claim by any
Pari Passu Secured Party for allowance in any Insolvency or Liquidation Proceeding of Pari Passu
Secured Obligations consisting of Post-Petition Interest, fees or expenses



82









 




to the extent of (x) the value of the Lien on Pari Passu Priority Collateral securing any Pari
Passu Secured Obligations, without regard to the existence of any Lien of any Revolving Credit
Agent (on behalf of the Revolving Credit Claimholders) or the existence of any Lien of the
Subordinated Lien Representatives (for the benefit of the Subordinated Lien Secured Creditors) on
any Pari Passu Priority Collateral and (y) the value of the Lien on any Revolving Credit Priority
Collateral securing any Pari Passu Secured 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.





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




          (a) The Pari Passu Secured Parties and the Subordinated Lien Secured Parties each waives any
objection or claim that any Pari Passu Secured Party or Subordinated Lien Secured Party 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, and each Subordinated Lien Representative, on behalf of itself and the Subordinated
Lien Secured Parties, each waives any objection or claim that any Revolving Credit Claimholder or
Subordinated Lien Secured Party may hereafter have against any Pari Passu Secured Party arising out
of the election of any Pari Passu Secured Party of the application of Section 1111(b)(2) of the
Bankruptcy Code to any claims of any Pari Passu Secured Party and agrees that in the case of any
such election it shall have no claim or right to payment with respect to the Pari Passu Priority
Collateral in or from such Insolvency or Liquidation Proceeding.




     8.8 Asset Dispositions in an Insolvency or Liquidation Proceeding.



               (a) No Pari Passu Secured Party or Subordinated Lien Secured Party 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 Agents or object to any related sale
process (including any sale or bidding procedures motion), and the Pari Passu Secured Parties and
the Subordinated Secured Parties will be deemed (i) 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 Agents and (ii) to have released their Liens on such assets (but not on the
proceeds of such assets).



               (b) No Revolving Credit Claimholder or Subordinated Lien Secured Party shall, in an Insolvency
or Liquidation Proceeding or otherwise, oppose any sale or disposition of any Pari Passu Priority
Collateral that is supported by the Authorized Pari Passu Collateral Agent or object to any related
sale process (including any sale or bidding procedures motion), and the other Revolving Credit
Claimholders and the Subordinated Lien Secured Parties will be deemed (i) to have consented under
Section 363 of the Bankruptcy Code (and otherwise) to any sale of any Pari Passu Priority
Collateral supported by the Authorized Pari Passu Collateral Agent and (ii) to have released their
Liens on such assets (but not on the proceeds of such assets); provided that this



83









 




Section 8.8(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.





     8.9 Additional Section 363 and Section 364 Matters.



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



               (b) To the extent that any Pari Passu Secured Party or any Subordinated Lien Secured Party 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 Pari Passu Representative, on
behalf of itself and the Pari Passu Secured Parties, and each Subordinated Lien Representative, on
behalf of itself and the Subordinated Lien Secured Parties, 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, each Pari Passu Representative and each Subordinated Lien
Representative shall each timely exercise such rights in the manner requested by the Revolving
Credit Agents, including any rights to payments in respect of such rights.




     8.10 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.




     8.11 Separate Grants of Security and Separate Classification. Each Revolving Credit
Claimholder, Pari Passu Secured Party, and Subordinated Lien Secured Party, hereby acknowledges and
agrees that (a) the grants of Liens pursuant to the Revolving Credit Security Documents, the Pari
Passu Security Documents and the Subordinated Lien Security Documents constitute three separate and
distinct grants of Liens and (b) because of, among other things, their differing rights in the
Collateral, the Pari Passu Secured Obligations, the Revolving Credit Secured Obligations and the
Subordinated Lien Secured Obligations are each fundamentally different from the each other 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 any of the Revolving Credit
Claimholders, the Pari Passu Secured Parties and the Subordinated Lien Secured Parties 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 Claimholder, Pari Passu Secured Party, and
Subordinated Lien Secured Party, hereby acknowledges and agrees that all distributions shall be
made as if there were separate classes of Revolving Credit Secured Obligation claims, Pari Passu
Secured Obligation claims and Subordinated Lien Secured



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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 Pari Passu Secured Parties and the Subordinated Lien Secured
Parties), 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 Pari Passu Secured
Parties or the Subordinated Lien Secured Parties, (ii) to the extent that the aggregate value of
the Pari Passu Priority Collateral is sufficient (for this purpose ignoring all claims held by the
Revolving Credit Claimholders and the Subordinated Lien Secured Parties), the Pari Passu Secured
Parties 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 Pari Passu Priority Collateral, before any distribution is made
in respect of the claims held by the Revolving Credit Claimholders and the Subordinated Lien
Secured Parties and (iii) to the extent that the aggregate value of the Collateral is sufficient
(for this purpose ignoring all claims held by the Subordinated Lien Secured Parties), the Pari
Passu Secured Parties and 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
Collateral, before any distribution is made in respect of the claims held by the Subordinated Lien
Secured Parties, 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.



     IX. RELIANCE; WAIVERS; ETC.




     9.1 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 Pari Passu
Secured Party or any Subordinated Lien Secured Party, 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 Pari Passu
Representative, on behalf of itself and the Pari Passu Secured Parties, acknowledges that it and
such other Pari Passu Secured Parties have, independently and without reliance on any Revolving
Credit Claimholder or any Subordinated Lien Secured Party, and based on documents and information
deemed by them appropriate, made their own credit analysis and decision to enter into the Pari
Passu 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 Pari Passu Loan Documents or
this Agreement. Other than any reliance on the terms of this Agreement, the Subordinated Lien
Representative, on behalf of itself and the Subordinated Lien Secured Parties, acknowledges that it
and the Subordinated Lien Secured Parties have, independently and without reliance on any Revolving
Credit Claimholder or any Pari Passu Secured Party, and based on documents and



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information deemed by them appropriate, made their own credit analysis and decision to enter into
the Subordinated Lien 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
Subordinated Lien Loan Documents or this Agreement.




     9.2 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 Pari Passu Secured Parties
and the Subordinated Lien Secured Parties 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 Pari Passu Loan Documents or any Subordinated Lien Loan Documents,
the ownership of any Collateral or the perfection or priority of any Liens thereon. Except as
otherwise provided in this Agreement, the Pari Passu Secured Parties will be entitled to manage and
supervise their respective loans and extensions of credit under the Pari Passu Loan Documents in
accordance with law and as they may otherwise, in their sole discretion, deem appropriate. Each
Pari Passu Representative, on behalf of itself and the Pari Passu Secured Parties, acknowledges and
agrees that none of the Revolving Credit Claimholders or the Subordinated Lien Secured Parties has
made any 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 or any Subordinated Lien 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 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. Each Subordinated Lien Representative,
on behalf of itself and the Subordinated Lien Secured Parties, acknowledges and agrees that none of
the Revolving Credit Claimholders or the Pari Passu Secured Parties has made any 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 or the
Pari Passu Loan Documents, the ownership of any Collateral or the perfection or priority of any
Liens thereon. Except as otherwise provided in this Agreement, the Subordinated Lien Secured
Parties will be entitled to manage and supervise their respective loans and extensions of credit
under the Subordinated Lien Loan Documents in accordance with law and as they may otherwise, in
their sole discretion, deem appropriate. The Pari Passu Secured Parties and the Subordinated Lien
Secured Parties shall have no duty to the Revolving Credit Agents or any of the other Revolving
Credit 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), regardless of any knowledge
thereof which they may have or be charged with. The Subordinated Lien Secured Parties and the
Revolving Credit Agents and the other Revolving Credit Claimholders shall have no duty to the Pari
Passu Representatives or any of the Pari Passu Secured Parties 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 Pari Passu Loan
Documents), regardless of any knowledge thereof which they may have or be charged with. The Pari
Passu Representatives and Pari Passu Secured Parties and the Revolving Credit Agents and the other
Revolving Credit Claimholders shall have no duty to the Subordinated Lien Representatives or



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any of the other Subordinated Lien Secured Parties 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 Subordinated Lien Loan Documents),
regardless of any knowledge thereof which they may have or be charged with.





     9.3 No Waiver of Lien Priorities.



               (a) No right of any Revolving Credit Claimholder, any Pari Passu Secured Party or any
Subordinated Lien Secured Party to enforce any provision of this Agreement, any Revolving Credit
Loan Document, any Pari Passu Loan Document or any Subordinated Lien 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, any of the Pari Passu Loan Documents or any of the Subordinated Lien 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, Pari
Passu Loan Documents and the Subordinated Lien Loan Document and subject to the provisions of
Section 7.3), the Revolving Credit Claimholders, the Pari Passu Secured Parties and the
Subordinated Lien Secured Parties may, at any time and from time to time in accordance with the
Revolving Credit Loan Documents, the Pari Passu Loan Documents, the Subordinated Lien 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, any Pari Passu Representative or any Subordinated Lien
Representative or any rights or remedies under any of the Revolving Credit Loan Documents,
the Pari Passu Loan Documents or the Subordinated Lien Loan Documents (it being understood
that the Revolving Credit Loan Documents, the Pari Passu Loan Documents or the Subordinated
Lien Loan Documents each may contain restrictions on any such amendments, renewals,
exchanges, increases, alterations and other Modifications, and nothing contained in this
clause (1) shall be deemed to permit any amendments, renewals, exchanges, increases,
alterations and other Modifications otherwise prohibited thereunder);




          (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



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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.




     9.4 Obligations Unconditional. All rights, interests, agreements and obligations of the
Revolving Credit Claimholders, the Pari Passu Secured Parties, and the Subordinated Lien Secured
Parties, respectively, hereunder shall remain in full force and effect irrespective of:



               (a) except as expressly provided hereunder with respect to Impairments (including under
Sections 1.3 and 6.3 and Articles III and IV), any lack of validity
or enforceability of any Revolving Credit Loan Document, any Pari Passu Loan Document or any
Subordinated Lien 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 Secured
Obligations, the Pari Passu Secured Obligations or the Subordinated Lien Secured 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, any Pari Passu Loan Document or any
Subordinated Lien 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 Secured Obligations, the Pari
Passu Secured Obligations or the Subordinated Lien Secured 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 Claimholder or
any Revolving Credit Secured Obligations, any Pari Passu Secured Party or any Pari Passu Secured
Obligations, or any Subordinated Lien Secured Parties or any Subordinated Lien Secured Obligations,
in respect of this Agreement.



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     X. THE AUTHORIZED COLLATERAL AGENT.




     10.1 Authority.




          (a) Notwithstanding any other provision of this Agreement, nothing herein shall be construed
to impose any fiduciary or other duty on either Authorized Collateral Agent to any Revolving Credit
Claimholder, any Pari Passu Secured Party or any Subordinated Lien Secured Party or give any
Non-Controlling Secured Party the right to direct the Authorized Collateral Agent, except that the
Authorized Collateral Agent shall be obligated to distribute proceeds of any Common Collateral in
accordance with Article VI hereof.




          (b) In furtherance of the foregoing, each of the Non-Controlling Secured Parties acknowledges
and agrees that each Authorized Collateral Agent shall be entitled, for the benefit of the Pari
Passu Secured Parties or the Subordinated Lien Secured Parties, as the case may be, to sell,
transfer or otherwise dispose of or deal with any Common Collateral as provided herein and in the
Security Documents, as applicable, for which the Authorized Collateral Agent is the collateral
agent of such Common Collateral, without regard to any rights to which the Non-Controlling Secured
Parties would otherwise be entitled. Without limiting the foregoing, each Non-Controlling Secured
Party agrees that the Authorized Collateral Agent and any other Pari Passu Secured Party or
Subordinated Lien Secured Party, as the case may be, shall not have any duty or obligation first to
marshal or realize upon any type of Common Collateral (or any other Collateral securing any of the
Pari Passu Secured Obligations or the Subordinated Lien Secured Obligations), or to sell, dispose
of or otherwise liquidate all or any portion of such Common Collateral (or any such other
Collateral), in any manner that would maximize the return to the Non-Controlling Secured Parties,
notwithstanding that the order and timing of any such realization, sale, disposition or liquidation
may affect the amount of proceeds actually received by the Non-Controlling Secured Parties from
such realization, sale, disposition or liquidation. In addition, whether or not it is the
Authorized Collateral Agent, no Secured Debt Representative, Pari Passu Secured Party or
Subordinated Secured Party shall have any duty or obligation first to marshal or realize upon any
type of Collateral not constituting Common Collateral, or to sell, dispose of or otherwise
liquidate all or any portion of such Collateral not constituting Common Collateral, in any manner
that would maximize the return to the holders of any other Series of Secured debt, notwithstanding
that the order and timing of any such realization, sale, disposition or liquidation may affect the
amount of proceeds actually received by the holders of any other Series of Secured Debt from such
realization, sale, disposition or liquidation. Each of the Revolving Credit Claimholders, the Pari
Passu Secured Parties and the Subordinated Lien Secured Parties waives any claim it may now or
hereafter have against any Secured Debt Representative or the Authorized Collateral Agent of either
Class or any other holder of Secured Obligations of any other Series or Class arising out of (i)
any actions which any Secured Debt Representative, any Authorized Collateral Agent or any other
holder of Secured Obligations may take or omit to take (including, actions with respect to the
creation, perfection or continuation of Liens on any Collateral, actions with respect to the
foreclosure upon, sale, release or depreciation of, or failure to realize upon, any of the
Collateral and actions with respect to the collection of any claim for all or any part of the
Obligations from any account debtor, guarantor or any other party) in accordance with the
applicable Security Documents or any other agreement related thereto or to the collection of the
any Secured Obligations or the valuation, use, protection or



89









 






release of any security for any Secured Obligations, (ii) any election by either Authorized
Collateral Agent or any holders of Secured Obligations, in any proceeding instituted under any
Insolvency or Liquidation Proceeding, of the application of Section 1111(b) of the Bankruptcy Code
or (iii) subject to Section 8.1, any borrowing by, or grant of a security interest or
administrative expense priority under Section 364 of the Bankruptcy Code (or similar provision of
law in any other jurisdiction) by, Holdings, Parent Borrower or any of its Subsidiaries, as
debtor-in-possession. Notwithstanding any other provision of this Agreement, no Secured Debt
Representative (including any Authorized Collateral Agent) shall accept any Common Collateral in
full or partial satisfaction of any Secured Obligations pursuant to Section 9-620 of the Uniform
Commercial Code of any jurisdiction (or similar provision in any other jurisdiction) , without the
consent of each of the Secured Debt Representatives representing holders of Pari Passu Secured
Obligations or Subordinated Lien Secured Obligations (as the case may be) for whom such Collateral
constitutes Common Collateral.




     10.2 Rights as a Secured Party. Any Person serving as an Authorized Collateral Agent hereunder
shall have the same rights and powers in its capacity as any other holder of Pari Passu Secured
Obligations or Subordinated Lien Secured Obligations, as the case may be, under any Series of
Secured Obligations that it holds as any other holder of Indebtedness of such Series and may
exercise the same as though it were not the Authorized Collateral Agent Such Person and its
Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with the Parent Borrower or any
Subsidiary or other Affiliate thereof as if such Person were not an Authorized Collateral Agent
hereunder and without any duty to account therefor to any other holder of Secured Obligations.




     10.3 Exculpatory Provisions.




          (a) No Authorized Collateral Agent shall have any duties or obligations except those expressly
set forth herein and in the other Security Documents. Without limiting the generality of the
foregoing, no Authorized Collateral Agent:




          (i) shall be subject to any fiduciary or other implied duties of any kind or nature to
any Person, regardless of whether an Event of Default has occurred and is continuing;




          (ii) shall have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the
Revolving Credit Loan Documents, the Pari Passu Loan Documents or the Subordinated Lien Loan
Documents; provided that no Authorized Collateral Agent shall be required to take
any action that, in its opinion or the opinion of its counsel, may expose such Authorized
Collateral Agent to liability or expense or that is contrary to any Security Document or
applicable law;




          (iii) shall, except as expressly set forth herein and in the Revolving Credit Loan
Documents, the Pari Passu Loan Documents or the Subordinated Lien Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any information
relating to the Parent Borrower or any of its Affiliates that is



90









 






communicated to or obtained by the Person serving as an Authorized Collateral Agent or any
of its Affiliates in any capacity;




          (iv) shall be liable for any action taken or not taken by it (A) with the consent or at
the request of either Term Loan Agent or the Controlling Secured Parties or (B) in the
absence of its own gross negligence or willful misconduct or (C) in reliance on a
certificate of an authorized officer of the Parent Borrower stating that such action is
permitted by the terms of this Agreement. No Authorized Collateral Agent shall be deemed to
have knowledge of any Event of Default under any Series or Class of Secured Obligations
unless and until notice describing such Event Default is given to such Authorized Collateral
Agent by the Secured Debt Representative of such Series or Class of Secured Obligations or
the Parent Borrower;




          (v) shall be responsible for or have any duty to ascertain or inquire into (A) any
statement, warranty or representation made in or in connection with this Agreement or any
Security Document, (B) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (C) the performance or
observance of any of the covenants, agreements or other terms or conditions set forth herein
or therein or the occurrence of any Event of Default, (D) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Security Document or any other
agreement, instrument or document, or the creation, perfection or priority of any Lien
purported to be created by any Security Documents, (E) the value or the sufficiency of any
Collateral for any Series of Pari Passu Secured Obligations or Subordinated Lien Secured
Obligations, or (F) the satisfaction of any condition set forth in any document or
agreement, other than to confirm receipt of items expressly required to be delivered to such
Authorized Collateral Agent;




          (vi) shall have any fiduciary duties or contractual obligations of any kind or nature
under any Additional Secured Debt (but shall be entitled to all protections provided to the
Additional Secured Debt Representative therein);




          (vii) with respect to any Pari Passu Loan Document or Subordinated Lien Loan Document,
may conclusively assume that the Grantors have complied with all of their obligations
thereunder unless advised in writing by the Secured Debt Representative thereunder to the
contrary specifically setting forth the alleged violation; and




          (viii) subject to Section 10.4, may conclusively rely on any certificate of an
officer of the Parent Borrower.




          (b) Each Pari Passu Secured Party and each Subordinated Loan Secured Party acknowledges that,
in addition to acting as the initial Authorized Pari Passu Collateral Agent, Bank of America, N.A.
also serves as Revolving Credit Administrative Agent, Revolving Credit Collateral Agent, Term Loan
Administrative Agent and Term Loan Collateral Agent, and each Pari Passu Secured Party and each
Subordinated Loan Secured Party hereby waives any right to make any objection or claim against Bank
of America, N.A. (or any successor Authorized Pari



91









 






Passu Collateral Agent, any future Authorized Subordinated Lien Collateral Agent or any of their
respective counsel) based on any alleged conflict of interest or breach of duties arising from any
Authorized Collateral Agent also serving in any such agency capacity.




     10.4 Reliance by Authorized Collateral Agents. Each Authorized Collateral Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed by it in good faith
to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. Each
Authorized Collateral Agent also may rely upon any statement made to it orally or by telephone and
believed by it in good faith to have been made by the proper Person, and shall not incur any
liability for relying thereon. Each Authorized Collateral Agent may consult with legal counsel (who
may include, but shall not be limited to counsel for the Parent Borrower or counsel for any Secured
Debt Representative), independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in good faith in accordance with the advice of any
such counsel, accountants or experts.




     10.5 Delegation of Duties. Each Authorized Collateral Agent may perform any and all of its
duties and exercise its rights and powers hereunder or under any other Security Document by or
through any one or more sub-agents appointed by such Authorized Collateral Agent. Each Authorized
Collateral Agent and any such sub-agent may perform any and all of its duties and exercise its
rights and powers by or through their respective Affiliates. The exculpatory provisions of this
Article shall apply to any such sub-agent and to the Affiliates of either Authorized Collateral
Agent and any such sub-agent.




     10.6 Existence and Amounts of Liens and Obligations. Whenever either Authorized Collateral Agent
or any Secured Debt Representative shall be required, in connection with the exercise of its rights
or the performance of its obligations hereunder, to determine the existence or amount of any Pari
Passu Secured Obligations or Subordinated Lien Secured Obligations of any Series, or the Common
Collateral subject to any Lien securing the Obligations of any Series, it may request that such
information be furnished to it in writing by each other Secured Debt Representative and shall be
entitled to make such determination on the basis of the information so furnished; provided,
however, that if a Secured Debt Representative shall fail or refuse reasonably promptly to
provide the requested information, the requesting Authorized Collateral Agent or Secured Debt
Representative shall be entitled to make any such determination or not make any determination by
such method as it may, in the exercise of its good faith judgment, determine, including by reliance
upon a certificate of the Parent Borrower. Each Authorized Collateral Agent and each Secured Debt
Representative may rely conclusively, and shall be fully protected in so relying, on any
determination made by it in accordance with the provisions of the preceding sentence (or as
otherwise directed by a court of competent jurisdiction) and shall have no liability to any
Grantor, any holder of Secured Obligations or any other Person as a result of such determination.



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     XI. MISCELLANEOUS.




     11.1 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, any Pari Passu Loan
Document or any Subordinated Lien 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, (ii) to the extent the
provisions of any applicable Pari Passu Loan Documents reserve in favor of any Pari Passu
Representative or any other Pari Passu Secured Parties (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 Pari Passu Secured Parties solely as a result of the provisions of this
Agreement and (iii) to the extent the provisions of any applicable Subordinated Lien Loan Documents
reserve in favor of any Subordinated Lien Representative or any other Subordinated Lien Secured
Parties (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 Subordinated Lien Secured
Parties solely as a result of the provisions of this Agreement.




     11.2 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 Claimholders, the Pari Passu Secured Parties, and
the Subordinated Lien Collateral Agent and the Subordinated Lien Secured Parties 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 Secured Obligations, on the date of the Discharge of Revolving Credit
Secured Obligations, subject to the provisions of Section 7.6 and the rights of the
Revolving Credit Agents and the other Revolving Credit Claimholders under Section 8.4;



               (b) with respect to the Pari Passu Representatives and the Pari Passu Secured Parties and the
Pari Passu Secured Obligations, on the date of the Discharge of Pari Passu Secured Obligations,
subject to the provisions of Section 7.6 and the rights of the Pari Passu Representatives
and the other Pari Passu Secured Parties under Section 8.4; and



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               (c) with respect to the Subordinated Lien Representatives and the other Subordinated Lien
Secured Parties and the Subordinated Lien Secured Obligations, on the earlier of (i) the date of
the Discharge of Subordinated Lien Secured Obligations, subject to the rights of the Subordinated
Lien Representatives and the other Subordinated Lien Secured Parties under Section 8.4 and
(ii) the date that both of the conditions set forth in clauses (a) and (b) above have occurred.




     11.3 Amendments; Waivers. No amendment, modification or waiver of any of the provisions of this
Agreement (other than pursuant to any Intercreditor Joinder Agreement) shall be deemed to be made
unless the same shall be in writing signed on behalf of Borrower (to the extent required pursuant
to the last sentence of this Section 11.3), the Revolving Credit Agents, the Pari Passu
Representatives, the Subordinated Lien Representatives 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,
any Revolving Credit Agent or Secured Debt Representative may become a party hereto by execution
and delivery of an Intercreditor Joinder Agreement substantially in the form of Exhibit B hereto
without the consent of any Revolving Credit Agent or any other Revolving Credit Claimholder, any
Pari Passu Representative or any other Pari Passu Secured Party or any Subordinated Lien
Representative or any other Subordinated Lien Secured Party, and upon such execution and delivery,
such Revolving Credit Agent or Secured Debt Representative, as the case may be, and the additional
Claimholders and Additional Secured Debt of the Series for which such Revolving Credit Agent or
Secured Debt Representative is acting shall be subject to the terms hereof.




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 or interests 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 Secured Obligations, Pari Passu Secured Obligations or
Subordinated Lien Secured Obligations as such Grantor may designate).




     11.4 Information Concerning Financial Condition of Holdings, the Borrowers and their Respective
Subsidiaries. The Revolving Credit Claimholders, the Pari Passu Secured Parties, and the
Subordinated Lien Secured Parties 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 Secured Obligations, the Pari Passu Secured
Obligations or Subordinated Lien Secured Obligations and (b) all other circumstances bearing upon
the risk of nonpayment of any of the Revolving Credit Secured Obligations, the Pari Passu Secured
Obligations or Subordinated Lien Secured Obligations. None of the Revolving Credit Claimholders,
the Pari Passu Secured Parties or the Subordinated Lien Secured Parties shall have any duty to
advise the other of information known to it or them regarding any such condition or any such
circumstances or otherwise. In the event that any of the Revolving Credit Claimholders, the Pari
Passu Secured Parties, or the Subordinated Lien Secured Parties 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:



94









 





               (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.




     11.5 Subrogation.



               (a) With respect to the value of any payments or distributions in cash, property or other
assets that any Pari Passu Secured Party pays over to any Revolving Credit Claimholder under the
terms of this Agreement, the Pari Passu Secured Parties shall be subrogated to the rights of the
Revolving Credit Claimholders; provided, however, that each Pari Passu
Representative, on behalf of itself and the Pari Passu Secured Parties, 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 Secured 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 Pari Passu Representative or any Pari Passu
Secured Party 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 Pari Passu Secured 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
Pari Passu Secured Party under the terms of this Agreement, the Revolving Credit Agents and the
other Revolving Credit Claimholders shall be subrogated to the rights of the Pari Passu Secured
Parties; 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 Pari
Passu Secured 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 Pari Passu Representative or any Pari Passu Secured Party pursuant to this
Agreement shall not reduce any of the Revolving Credit Secured Obligations.



               (c) With respect to the value of any payments or distributions in cash, property or other
assets that the Subordinated Lien Representative or any Subordinated Lien Secured Party pays over
to any Pari Passu Secured Party or any other Revolving Credit Claimholder under the terms of this
Agreement, the Subordinated Lien Secured Parties shall be subrogated to the rights of the Pari
Passu Secured Party and the Revolving Credit Claimholders, as the case may be; provided,
however, that Subordinated Lien Representative, on behalf of itself and the Subordinated
Lien Secured Parties, hereby agrees not to assert or enforce any such rights of subrogation it may
acquire



95









 




as a result of any payment hereunder until the Discharge of Revolving Credit Secured
Obligations and the Discharge of Pari Passu Secured Obligations has each 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 Subordinated Lien Secured Party
that are paid over to any Pari Passu Secured Party or any Revolving Credit Claimholder pursuant to
this Agreement shall not reduce any of the Subordinated Lien Secured Obligations.





     11.6 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.




     11.7 CONSENT TO JURISDICTION; WAIVER OF VENUE; SERVICE OF PROCESS.



               (a) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND
ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW YORK
SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW
YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT
A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
AGREEMENT SHALL AFFECT ANY RIGHT THAT ANY PARTY HERETO MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT IN THE COURTS OF ANY JURISDICTION.



               (b) EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY COURT
REFERRED TO IN THE PREVIOUS PARAGRAPH. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.



               (c) EACH OF THE PARTIES HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, IN THE MANNER PROVIDED FOR NOTICES (OTHER



96









 




THAN TELECOPIER, E-MAIL OR OTHER ELECTRONIC TRANSMISSION) IN SECTION 11.9. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED
BY APPLICABLE REQUIREMENTS OF LAW.





     11.8 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.




     11.9 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 Pari Passu Secured Parties permitted or required under
this Agreement shall be sent to the Pari Passu Representatives, on behalf of the Pari Passu Secured
Parties (and the Pari Passu Representatives shall distribute such notices to the other Pari Passu
Secured Parties). All notices to the Subordinated Lien Secured Parties permitted or required under
this Agreement shall be sent to the Subordinated Lien Representatives on behalf of the Subordinated
Lien Secured Parties (and the Subordinated Lien Representatives for further distribution to the
other Subordinated Lien Secured Parties). 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.




     11.10 Further Assurances. Each Revolving Credit Agent, on behalf of itself and the other
Revolving Credit Claimholders, each Pari Passu Representative, on behalf of itself and the Pari
Passu Secured Parties, and each Subordinated Lien Representative, on behalf of itself and the
Subordinated Lien Secured Parties, 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, the Pari Passu Representative or the Subordinated Lien
Representative may reasonably request to effectuate the terms of, and the Lien priorities
contemplated by, this Agreement.



97









 






     11.11 Binding Effect on Successors and Assigns and on Claimholders and Agents. This Agreement
shall be binding upon the Revolving Credit Agents and the other Revolving Credit Claimholders, the
Pari Passu Representatives and the Pari Passu Secured Parties, the Subordinated Lien
Representatives and the Subordinated Lien Secured Parties, 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, each Pari Passu Representative represents that it has not
agreed to any modification of the provisions in the Pari Passu Loan Documents authorizing it to
execute this Agreement and bind the other Pari Passu Secured Parties and each Subordinated Lien
Representative represents that it has not agreed to any modification of the provisions in the
Subordinated Lien Loan Documents authorizing it to execute this Agreement and bind the other
Subordinated Lien Secured Parties. Notwithstanding any implication to the contrary in any
provision in any other section of the Agreement, no Revolving Credit Agent, Pari Passu
Representative or any Subordinated Lien Representative makes any representation regarding the
validity or binding effect of any of the Revolving Credit Loan Documents, any of the Pari Passu
Loan Documents or any of the Subordinated Lien Loan Documents, respectively, or their authority to
bind any of the Claimholders through their execution of this Agreement.




     11.12 Specific Performance. Each of the Revolving Credit Agents, each Pari Passu Representative
and each Subordinated Lien Representative may demand specific performance of this Agreement. Each
Revolving Credit Agent, on behalf of itself and the other Revolving Credit Claimholders, each Pari
Passu Representative, on behalf of itself and the Pari Passu Secured Parties, and each Subordinated
Lien Representative, on behalf of itself and the Subordinated Lien Secured Parties, 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 Claimholder, by any Pari Passu Secured Party, or by any Subordinated Lien
Secured Party, as the case may be.




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




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




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




     11.16 No Third Party Beneficiaries. This Agreement and the rights and benefits hereof shall
inure to the benefit of each of the parties hereto and its respective successors and assigns



98









 






and shall inure to the benefit of each of the Revolving Credit Agents and the other Revolving
Credit Claimholders, the Pari Passu Representatives and the Pari Passu Secured Parties, and the
Subordinated Lien Representatives and the Subordinated Lien Secured Parties. 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, as between any of
the Borrower and any of the other Grantors and the Pari Passu Representatives and any of the Pari
Passu Secured Parties, or as between any of the Borrower and any of the other Grantors and the
Subordinated Lien Representatives and any of the Subordinated Lien Secured Parties, 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, the Pari Passu Loan Documents and the Subordinated
Lien Loan Documents, respectively.




     11.17 Provisions Solely to Define Relative Rights. Except with respect to the bailee and agency
provisions of Section 7.4, Sections 7.5(a) and (to the extent expressly provided therein)
Section 7.6, the provisions of this Agreement are and are intended solely for the purpose of
defining the relative rights of (i) the Revolving Credit Agents and the other Revolving Credit
Claimholders, (ii) the Pari Passu Representatives and the Pari Passu Secured Parties and (iii) the
Subordinated Lien Representatives and the Subordinated Lien Secured Parties. Except with respect
to the bailee and agency provisions of Section 7.4, Sections 7.5(a) and (to the extent
expressly provided therein) Section 7.6, 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 to pay or perform the Revolving Credit Secured Obligations,
the Pari Passu Secured Obligations and the Subordinated Lien Secured Obligations as and when the
same shall become due and payable in accordance with their terms.




     11.18 Marshalling of Assets. Each Pari Passu Representative, on behalf of itself and the Pari
Passu Secured Parties, and each Subordinated Lien Representative, on behalf of itself and the
Subordinated Lien Secured Parties, each 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, and
each Subordinated Lien Representative, on behalf of itself and the Subordinated Lien Secured
Parties, each hereby waives any and all rights to have the Pari Passu Priority Collateral, or any
part thereof, marshaled upon any foreclosure or other enforcement of any Pari Passu Secured Party’s
Liens on the Pari Passu Priority Collateral.




     11.19 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,
any Pari Passu Security Document or any Subordinated Lien Security Document as a “Grantor” or a
“Pledgor” (or the equivalent thereof), to execute and deliver to the Agents an Intercreditor
Joinder Agreement within five Business 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, such Pari Passu Security Document and/or such Subordinated Lien 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.



99









 






The execution and delivery of such Intercreditor Joinder Agreement 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.




     11.20 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]






100









 








               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




BANK OF AMERICA, N.A., as Revolving Credit

Administrative Agent and as Revolving Credit

Collateral Agent, and in such capacity, as

authorized representative of the Revolving Credit

Claimholders

 	 
	 	By:  	/s/
Peter M. Walther	 
	 	 	Name:  	Peter M. Walther	 
	 	 	Title:  	Senior
Vice President	 
	 
	 	NOTICE ADDRESS

 	 
	 	135
S. Lasalle, Suite 927 124-135-09-27	 
	 	Chicago,
IL 60603	 
	 	Attention: Account
Officer	 
	 	Telecopier No. :  312-453-5555	 



[Signature Page to Intercreditor Agreement]







 









 








	 	 	 	 	 
	 	TERM LOAN AGENTS



BANK OF AMERICA, N.A., as Term Loan Agent,

and in such capacity, as a Pari Passu 

Representative of certain Pari Passu Secured

Parties

 	 
	 	By:  	/s/
Christopher Kelly Wall	 
	 	 	Name:  	Christopher Kelly Wall	 
	 	 	Title:  	Managing
Director	 
	 
	 	NOTICE ADDRESS

 	 
	 	1455
Market Street	 
	 	San
Francisco, CA 94103	 
	 	Attention: 	 
	 	 	 	 
	 	Facsimile No. : 	 
	 	 	 	       




[Signature Page to Intercreditor Agreement]





 









 








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




NOVELIS INC., as a Grantor

 	 
	 	By:  	/s/ Randal P. Miller	 
	 	 	Name:  	Randal P. Miller	 
	 	 	Title:  	 	 
	 
	 	NOVELIS CORPORATION, as a Grantor

 	 
	 	By:  	/s/ Leslie J. Parrette Jr.	 
	 	 	Name:  	Leslie
J. Parrette Jr.	 
	 	 	Title:  	 	 
	 
	 	NOVELIS PAE CORPORATION, as a Grantor

 	 
	 	By:  	/s/ Leslie J. Parrette Jr.	 
	 	 	Name:  	Leslie
J. Parrette Jr.	 
	 	 	Title:  	 	 
	 
	 	NOVELIS BRAND LLC, as a Grantor

 	 
	 	By:  	/s/ Marion Barnes	 
	 	 	Name:  	Marion Barnes	 
	 	 	Title:  	 	 
	 
	 	NOVELIS SOUTH AMERICA HOLDINGS LLC, as a Grantor

 	 
	 	By:  	/s/ Leslie J. Parrette Jr.	 
	 	 	Name:  	Leslie J. Parrette Jr.	 
	 	 	Title:  	 	 



[Signature Page to Intercreditor Agreement]





 









 








	 	 	 	 	 
	 	ALUMINUM UPSTREAM HOLDINGS LLC, as a Grantor

 	 
	 	By:  	/s/ Leslie J. Parrette Jr.	 
	 	 	Name:  	Leslie J. Parrette Jr.	 
	 	 	Title:  	 	 
	 
	 	NOVELIS ACQUISITIONS LLC, as a Grantor

 	 
	 	By:  	/s/ Leslie J. Parrette Jr.	 
	 	 	Name:  	Leslie J. Parrette Jr.	 
	 	 	Title:  	 	 
	 
	 	NOVELIS NORTH AMERICA HOLDINGS INC., as a Grantor

 	 
	 	By:  	/s/ Leslie J. Parrette Jr.	 
	 	 	Name:  	Leslie J. Parrette Jr.	 
	 	 	Title:  	 	 
	 
	 	NOVELIS UK LTD., as a Grantor

 	 
	 	By:  	/s/ Randal P. Miller	 
	 	 	Name:  	Randal P. Miller	 
	 	 	Title:  	 	 
	 
	 	NOVELIS SERVICES LIMITED, as a Grantor

 	 
	 	By:  	/s/ Randal P. Miller	 
	 	 	Name:  	Randal P. Miller	 
	 	 	Title:  	 	 
	 






[Signature Page to Intercreditor Agreement]



 









 







	 	 	 	 	 
	 	NOVELIS AG, as a Grantor

 	 
	 	By:  	/s/ Randal P. Miller	 
	 	 	Name:  	Randal P. Miller	 
	 	 	Title:  	 	 
	 
	 	NOVELIS CAST HOUSE TECHNOLOGY LTD., as a Grantor

 	 
	 	By:  	/s/ Marion Barnes	 
	 	 	Name:  	Marion Barnes	 
	 	 	Title:  	 	 
	 
	 	4260848 CANADA INC., as a Grantor

 	 
	 	By:  	/s/ Marion Barnes	 
	 	 	Name:  	Marion Barnes	 
	 	 	Title:  	 	 
	 
	 	4260856 CANADA INC., as a Grantor

 	 
	 	By:  	/s/ Marion Barnes	 
	 	 	Name:  	Marion Barnes	 
	 	 	Title:  	 	 
	 
	 	NOVELIS NO. 1

LIMITED PARTNERSHIP, as a Grantor

by its general partner,

4260848 Canada Inc.

 	 
	 	By:  	/s/ Marion Barnes	 
	 	 	Name:  	Marion Barnes	 
	 	 	Title:  	 	 
	 



[Signature Page to Intercreditor Agreement]





 









 








	 	 	 	 	 
	 	NOVELIS EUROPE HOLDINGS LIMITED, as a Grantor

 	 
	 	By:  	/s/ Randal P. Miller	 
	 	 	Name:  	Randal P. Miller	 
	 	 	Title:  	 	 
	 
	 	NOVELIS SWITZERLAND SA, as a Grantor

 	 
	 	By:  	/s/ Randal P. Miller	 
	 	 	Name:  	Randal P. Miller	 
	 	 	Title:  	 	 
	 
	 	NOVELIS TECHNOLOGY AG, as a Grantor

 	 
	 	By:  	/s/ Randal P. Miller	 
	 	 	Name:  	Randal P. Miller	 
	 	 	Title:  	 	 
	 
	 	NOVELIS MADEIRA UNIPESSOAL, LDA, as a Grantor

 	 
	 	By:  	/s/ Randal P. Miller	 
	 	 	Name:  	Randal P. Miller	 
	 	 	Title:  	 	 
	 
	 	NOVELIS PAE S.A.S., as a Grantor

 	 
	 	By:  	/s/ Randal P. Miller	 
	 	 	Name:  	Randal P. Miller	 
	 	 	Title:  	 	 
	 



[Signature Page to Intercreditor Agreement]






 









 








	 	 	 	 	 
	 	NOVELIS LUXEMBOURG S.A., as a Grantor

 	 
	 	By:  	/s/ Randal P. Miller	 
	 	 	Name:  	Randal P. Miller	 
	 	 	Title:  	 	 
	 
	 	AV METALS INC., as a Grantor

 	 
	 	By:  	/s/ Randal P. Miller	 
	 	 	Name:  	Randal P. Miller	 
	 	 	Title:  	 	 
	 



[Signature Page to Intercreditor Agreement]






 









 








	 	 	 	 	 
	 	NOVELIS DEUTSCHLAND GMBH, as a Grantor

 	 
	 	By:  	/s/ Randal P. Miller	 
	 	 	Name:  	Randal P. Miller	 
	 	 	Title:  	 	 
	 



[Signature Page to Intercreditor Agreement]





 









 








	 	 	 	 	 
	 	NOVELIS DO BRASIL LTDA., as a Grantor

 	 
	 	By:  	/s/ Randal P. Miller	 
	 	 	Name:  	Randal P. Miller	 
	 	 	Title:  	 	 
	 



[Signature Page to Intercreditor Agreement]





 









 








	 	 	 	 	 
	 	Present when the Common Seal of



SIGNED AND DELIVERED AS A DEED

for and on behalf of Novelis Aluminium Holding Company

by its lawfully appointed attorney

in the presence of: Randal P. Miller









(Witness): Nina Mansoori

 	 



[Signature Page to Intercreditor Agreement]








 









 








ANNEX I




FORM OF ADDITIONAL SECURED DEBT DESIGNATION




     Reference is made to the Intercreditor Agreement dated as of December 17, 2010 (as amended,
supplemented, amended and restated or otherwise modified and in effect from time to time, the
“Intercreditor Agreement”) among Novelis Inc., a corporation amalgamated under the Canada Business
Corporations Act (the “Parent Borrower“), the other Grantors from time to time party thereto, Bank
of America, N.A., as Revolving Credit Administrative Agent, Bank of America, N.A., as Revolving
Credit Collateral Agent, Bank of America, N.A., as Term Loan Administrative Agent, Bank of
America, N.A., as Term Loan Collateral Agent, and the other Secured Debt Representatives from time
to time party thereto. Capitalized terms used but not otherwise defined herein shall have the
meaning set forth in the Intercreditor Agreement. This Additional Secured Debt Designation is
being executed and delivered in order to designate additional secured debt as either Revolving
Credit Secured Obligations, Pari Passu Debt or Subordinated Lien Debt entitled to the benefit of
the Intercreditor Agreement.



     The undersigned, the duly appointed [specify title] of the Parent Borrower hereby certifies
that:




          (A) [insert name of the Borrower or Guarantor] intends to incur [Revolving
Credit Secured Obligations] [additional Pari Passu Debt] [Subordinated Lien Debt]
(“Additional Secured Debt“) which will be [select appropriate alternative]
[Revolving Credit Secured Obligations permitted by each Revolving Credit Loan
Document, each Pari Passu Loan Document and each Subordinated Lien Loan Document to
be secured by Liens on the Collateral with priority on the Revolving Credit Priority
Collateral] [Pari Passu Debt permitted by each Revolving Credit Loan Document, each
Pari Passu Loan Document and each Subordinated Lien Loan Document to be secured by
Liens on the Collateral Equally and Ratably with all previously existing and future
Pari Passu Debt] or [Subordinated Lien Debt permitted by each Revolving Credit Loan
Document, each Pari Passu Loan Document and each Subordinated Lien Loan Document to
be secured with a subordinated Lien on the Collateral Equally and Ratably with all
previously existing and future Subordinated Lien Debt];




          (B) the name and address of the Secured Debt Representative for the Additional
Secured Debt for purposes of Section 11.9 of the Intercreditor Agreement is:


_____________________________



_____________________________



Telephone: ___________________

Fax: _______________________



Attention: ____________________







 









 









          (C) attached are complete copies (or substantially final drafts) of the
material operative agreements constituting the [Revolving Credit Loan Documents]
[Pari Passu Loan Documents] [Subordinated Lien Loan Documents] relating to such
Additional Secured Debt; and




          (D) the Parent Borrower has caused a copy of this Additional Secured Debt
Designation to be delivered to each Revolving Credit Agent and each existing Secured
Debt Representative; provided, however, that a failure to deliver
such copies shall not effect the status of the Additional Secured Debt if the other
requirements of Section 7.5 of the Intercreditor Agreement are satisfied.



 









 





     IN WITNESS WHEREOF, the Parent Borrower has caused this Additional Secured Debt Designation to
be duly executed by the undersigned officer as of ___________________, 201.



	 	 	 	 	 
	 	NOVELIS INC.

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



Acknowledgement of Receipt



The undersigned, [a Revolving Credit Agent] [a [Pari Passu][Subordinated Lien] Representative]
under the Intercreditor Agreement, hereby acknowledges receipt of an executed copy of this
Additional Secured Debt Designation.




	 	 	 	 	 
	 	[-], as [Revolving Credit Agent] [[Pari Passu]

[Subordinated Lien] Representative]

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



EXHIBIT A




FORM OF INTERCREDITOR JOINDER AGREEMENT (GRANTOR)



          The undersigned, _____________________, a _______________, hereby agrees to become party as a
Grantor under the Intercreditor Agreement, dated as of December __, 2010 (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 amalgamated under the Canada Business Corporations Act, the other
Grantors from time to time party thereto, BANK OF AMERICA, N.A., as administrative agent for the
Revolving Credit Lenders and as collateral agent for the Revolving Credit Claimholders and BANK OF
AMERICA, N.A., as administrative agent and collateral agent under the Term Loan Agreement, 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 10 of the Intercreditor Agreement will apply with like
effect to this Intercreditor Joinder Agreement.




          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:  	 	 



 









 






	 	 	 	 	 



EXHIBIT B




FORM OF INTERCREDITOR JOINDER AGREEMENT — ADDITIONAL DEBT



          Reference is made to the Intercreditor Agreement, dated as of December 17, 2010 (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 amalgamated under the Canada Business Corporations Act,
the other Grantors from time to time party thereto, BANK OF AMERICA, N.A., as administrative agent
for the Revolving Credit Lenders and as collateral agent for the Revolving Credit Claimholders,
BANK OF AMERICA, N.A., as administrative agent under the Term Loan Agreement and as collateral
agent for the Term Loan. This Intercreditor Joinder Agreement is being executed and delivered
pursuant to Section 7.5 of the Intercreditor Agreement as a condition precedent to the debt
for which the undersigned is acting as agent or another representative capacity being entitled to
the benefits of being Additional Secured Debt under the Intercreditor Agreement.




          1. Joinder. The undersigned, _____________________, a _______________, (the [“New
Representative”]) as [trustee] [administrative agent] under that certain [describe applicable
indenture, credit agreement or other document governing the Additional Secured Debt] hereby agrees
to become party as [a Revolving Credit Agent] [a Pari Passu Representative] [a Subordinated Lien
Representative] under the Intercreditor Agreement 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.




          2. Lien Sharing and Priority Confirmation.




          The undersigned New Representative, on behalf of itself and each holder of Obligations in
respect of the [Revolving Credit Lien Obligations] [Series of [Pari Passu] [Subordinated Lien] Debt
for which the undersigned is acting as [Pari Passu] [Subordinated Lien] Representative] hereby
agrees, for the enforceable benefit of all holders of the Obligations, each existing and future
Revolving Credit Agent, each existing and future Pari Passu Representative, and each [existing and]
future Subordinated Lien Representative and as a condition to being treated as [Revolving Credit
Lien Obligations] [Pari Passu] [Subordinated Lien] Debt] under the Intercreditor Agreement:






     (a) that the New Representative and each holder of Obligations in respect of
the [Revolving Credit Lien Obligations] [Series of [Pari Passu] [Subordinated Lien]
Debt for which the undersigned is acting as [a Revolving Credit Agent] [Pari Passu]
[Subordinated Lien] Representative] are bound by the provisions of the Intercreditor
Agreement, including the provisions relating to the ranking of Liens securing the
Obligations and the order of application of proceeds from the enforcement of Liens
securing the Obligations; and




     (c) to the terms of the Intercreditor Agreement.



 









 





               3. Governing Law and Miscellaneous Provisions. The provisions of Article 10
of the Intercreditor Agreement will apply with like effect to this Intercreditor Joinder Agreement.



               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: