EX-10.11



 





Exhibit 10.11




INTERCREDITOR AGREEMENT 




     This INTERCREDITOR AGREEMENT is dated as of February 28, 2008 (as amended, restated, renewed,
extended, supplemented or otherwise modified from time to time, this “Agreement”), and entered into
by and among SOLUTIA INC., a Delaware corporation (the “Company”), each of the Company’s
Subsidiaries party hereto from time to time and CITIBANK, N.A. (“Citi”), in its capacity as
administrative agent for the holders of the Term Loan Obligations (as defined below) (together with
its successors in such capacity, the “Term Loan Administrative Agent”), and as collateral agent for
the holders of the Term Loan Obligations (together with its successors in such capacity, the “Term
Loan Collateral Agent”), Citi, in its capacity as administrative agent for the holders of the
Revolving Credit Obligations (as defined below) (together with its successors in such capacity, the
“Revolving Credit Facility Administrative Agent”), and as collateral agent for the holders of the
Revolving Credit Obligations (together with its successors in such capacity, the “Revolving Credit
Facility Collateral Agent”). Capitalized terms used but not otherwise defined herein shall have
the meanings assigned to them in Section 1 below.



RECITALS




     The Company, the Term Loan Lenders, the Term Loan Administrative Agent, the Term Loan
Collateral Agent, GOLDMAN SACHS CREDIT PARTNERS L.P. (“GSCP”), as syndication agent, DEUTSCHE BANK
AG NEW YORK BRANCH (“DBNY”), as documentation agent, and CITIGROUP GLOBAL MARKETS INC. (“CGMI”),
GSCP and DEUTSCHE BANK SECURITIES INC. (“DBSI”), as joint lead arrangers and bookrunners, have
entered into that certain Credit Agreement, dated as of the date hereof, providing a term loan
facility to the Company (as amended, restated, supplemented, modified, replaced or refinanced from
time to time, the “Term Loan Agreement”);



     The Revolving Credit Facility Borrowers, the Revolving Credit Lenders, the Revolving Credit
Facility Administrative Agent, the Revolving Credit Facility Collateral Agent, CITIBANK
INTERNATIONAL PLC, as European collateral agent, DBNY, as syndication agent, GSCP, as documentation
agent, and CGMI, DBSI and GSCP, as joint lead arrangers and bookrunners, have entered into that
certain Credit Agreement, dated as of the date hereof, providing a revolving credit and letter of
credit facility to the Revolving Credit Facility Borrowers (as amended, restated, supplemented,
modified, replaced or refinanced from time to time, the “Revolving Credit Agreement”);



     Pursuant to (i) the Term Loan Agreement, the Term Loan Subsidiary Guarantors have agreed to
guaranty the Term Loan Obligations and the Company has agreed to cause certain future Subsidiaries
to guaranty the Term Loan Obligations and (ii) the Revolving Credit Agreement, the Revolving Credit
Facility Subsidiary Guarantors have agreed to guaranty the Revolving Credit Obligations and the
Revolving Credit Facility Borrowers have agreed to cause certain future Subsidiaries to guaranty
the Revolving Credit Obligations; and



     In order to induce the Revolving Credit Facility Administrative Agent, the Revolving Credit
Facility Collateral Agent, the Revolving Credit Lenders and the other parties to the Revolving
Credit Agreement to enter into the Revolving Credit Agreement and in order to induce the Term Loan
Administrative Agent, the Term Loan Collateral Agent and the Term Loan Lenders to enter into the
Term Loan Agreement, the Revolving Credit Facility Collateral Agent, the Revolving Credit Facility
Administrative Agent, the Term Loan Collateral Agent and the Term Loan Administrative Agent have
agreed to the relative priority of their respective Liens 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:



     SECTION 1. Definitions.



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



     “Access Acceptance Notice” has the meaning assigned to that term in Section 3.3(b).



     “Access Period” means, for each parcel of Mortgaged Premises, the period, after the
commencement of an Enforcement Period, which begins on the day that the Revolving Credit Facility
Administrative Agent or the Revolving Credit Facility Collateral Agent provides the Term Loan
Collateral Agent with the notice of its election to request access to any Mortgaged Premises
pursuant to Section 3.3(b) below and ends on the earlier of (i) the 150th day after the Revolving
Credit Facility Collateral Agent obtains the ability to use, take physical possession of, remove or
otherwise control the use or access to the Current Asset Collateral located on such Mortgaged
Premises following a Collateral Enforcement Action plus such number of days, if any, after the
Revolving Credit Facility Collateral Agent obtains access to such Current Asset Collateral that it
is stayed or otherwise prohibited by law or court order from exercising remedies with respect to
Current Asset Collateral located on such Mortgaged Premises, (ii) the date on which all or
substantially all of the Current Asset Collateral located on such Mortgaged Premises is sold,
collected or liquidated, (iii) the date on which the Discharge of Revolving Credit Obligations
occurs or (iv) the date on which the Revolving Credit Facility Default or the Term Loan Default
that was the subject of the applicable Enforcement Notice relating to such Enforcement Period has
been cured to the satisfaction of the Revolving Credit Facility Collateral Agent (in the case of a
Revolving Credit Facility Default) or the Term Loan Collateral Agent (in the case of a Term Loan
Default), or waived in writing in accordance with the requirements of the applicable Credit
Agreement.



     “Account Agreements” means any lockbox 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 Agents and any Grantors and the relevant
financial institution depository or securities intermediary.



     “Affiliate” of any Person means any other Person which, directly or indirectly through one or
more intermediaries, Controls, is Controlled by or is under common Control with such Person
(excluding any trustee under, or any committee with responsibility for administering, any Plan).



     “Agents” means the Revolving Credit Facility Collateral Agent and the Term Loan Collateral
Agent.



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



     “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 each of the Bankruptcy Code, any similar federal, state or foreign
laws, rules or regulations for the relief of debtors or any reorganization, insolvency, moratorium
or assignment for the benefit of creditors or any other marshalling of the assets and liabilities
of any



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Person and any similar laws, rules or regulations relating to or affecting the enforcement of
creditors’ rights generally.




     “Books and Records” means all instruments, files, records, ledger sheets and documents
evidencing, covering or relating to any of the Collateral.



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



     “Capital Stock” means any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation), including partnership interests, membership interests in a
limited liability company and beneficial interests in a trust, and any and all warrants, rights or
options to purchase or other arrangements or rights to acquire any of the foregoing.



     “Cash Management Document” means any certificate, agreement or other document executed by any
Revolving Credit Facility Borrower or any Revolving Credit Facility Subsidiary Guarantor in respect
of the Cash Management Obligations of such Revolving Credit Facility Borrower or Revolving Credit
Facility Subsidiary Guarantor.



     “Cash Management Obligation” means, as applied to any Person, any direct or indirect
liability, contingent or otherwise, of such Person in respect of cash management services
(including treasury, depository, overdraft, credit or debit card, electronic funds transfer and
other cash management arrangements) provided by any Revolving Credit Facility Approved Counterparty
(regardless of whether these or similar services were provided prior to the date hereof by such
Revolving Credit Facility Approved Counterparty), including obligations for the payment of fees,
interest, charges, expenses, attorneys’ fees and disbursements in connection therewith.



     “CGMI” has the meaning assigned to that term in the Recitals to this Agreement.



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



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



     “Claimholder” means, collectively, the Revolving Credit Claimholders and the Term Loan
Claimholders.



     “Collateral” means all of the assets and property of any Grantor, whether real, personal or
mixed, now owned or hereafter acquired, constituting both Revolving Credit Facility Grantor
Collateral and Term Loan Collateral.



     “Collateral Enforcement Action” means, collectively or individually for one or both of the
Revolving Credit Facility Collateral Agent and the Term Loan Collateral Agent, when a Revolving
Credit Facility Default or Term Loan Default, as the case may be, has occurred and is continuing,
whether or not in consultation with any other Agent, to repossess or join any Person in
repossessing, or exercise or join any Person in exercising, or institute or maintain or participate
in any action or proceeding with respect to, any remedies with respect to any Collateral or
commence the judicial enforcement of any of the rights and remedies under the Revolving Credit
Facility Credit Documents, the Term Loan Credit Documents or under any applicable law, but in all
cases (i) including (a) instituting or maintaining, or joining any Person in instituting or
maintaining, any enforcement, contest, protest, attachment, collection,



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execution, levy or foreclosure action or proceeding with respect to any Collateral, whether
under any Credit Document or otherwise, (b) exercising any right of set-off with respect to any
Grantor, (c) 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 or otherwise exercising any right or remedy under any Account Agreement with respect to
Deposit Accounts or Securities Accounts, (d) exercising any right or remedy under any landlord
access agreement, landlord waiver, bailee letter or similar agreement or arrangement or (e) causing
(or, after the occurrence and during the continuance of any Event of Default, consenting to or
requesting) any sale or other disposition of any Collateral and (ii) excluding the imposition of a
default rate or late fee, in each case in accordance with the terms of the Revolving Credit
Facility Credit Documents or the Term Loan Credit Documents; provided that notwithstanding
anything to the contrary in the foregoing, the exercise of rights or remedies by the Revolving
Credit Facility Collateral Agent under any Account Agreement with respect to a Deposit Account or a
Securities Account or the notification of account debtors, in each case, during a “Liquidity Event
Period (Borrowing Base)”, “Liquidity Event Period (Cash Dominion)”, “Liquidity Event Period (Fixed
Charge Coverage Ratio)” or “Liquidity Event Period (European Notification)” (each, as defined in
the Revolving Credit Agreement) shall not constitute a Collateral Enforcement Action under this
Agreement.




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



     “Contingent Obligations” means at any time, any indemnification or other similar contingent
obligations which are not then due and owing at the time of determination.



     “Control” means the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person whether by ownership of voting securities, by
con-tract or otherwise, and the terms “Controlling” and “Controlled” shall have meanings
correlative thereto.



     “Copyrights” means all U.S. and foreign copyrights (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) registrations and applications therefor, (ii) rights
and privileges arising under applicable law with respect thereto, (iii) renewals and extensions
thereof, (iv) income, fees, royalties, damages, claims and payments now or hereafter due and/or
payable with respect thereto, including damage awards 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.



     “Credit Agreements” means, collectively, the Term Loan Agreement and the Revolving Credit
Agreement.



     “Credit Documents” means, collectively, the Revolving Credit Facility Credit Documents and the
Term Loan Facility Credit Documents.



     “Current Asset Collateral” means all Collateral consisting of: (a) accounts, other than
“payment intangibles” (as defined in Article 9 of the UCC) which constitute identifiable proceeds
of Fixed Asset Collateral; (b) all Inventory or documents of title for any Inventory; (c) Deposit
Accounts, Securities Accounts, Instruments (solely to the extent constituting or evidencing
obligations owing on Accounts and excluding Intercompany Notes) and Chattel Paper (solely to the
extent constituting or evidencing obligations owing on accounts); (d) Current Asset General
Intangibles; (e) any credit insurance policy maintained with respect to accounts of any Grantor;
(f) 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



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(g) 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; provided that to the extent that identifiable Proceeds (including
Instruments and Chattel Paper) of Fixed Asset Collateral are deposited or held in any Deposit
Accounts or Securities Accounts that constitute Current Asset Collateral after an Enforcement
Notice, then (as provided in Section 3.5 below) such Collateral or other identifiable Proceeds
shall be treated as Fixed Asset Collateral for purposes of this Agreement.




     “Current Asset General Intangibles” means all General Intangibles arising out of the other
items of property included within clauses (a), (b), (c) and (e) of the definition of Current Asset
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).



     “DBNY” has the meaning assigned to that term in the Recitals to this Agreement.



     “DBSI” has the meaning assigned to that term in the Recitals to this Agreement.



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



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



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



     (a) payment in full in cash of the principal of and interest (including Post-Petition
Interest), on all Indebtedness outstanding under the Revolving Credit Facility Credit Documents and
constituting Revolving Credit Obligations (including any Refinancings of any thereof to the extent
such Refinancings thereof constitute Revolving Credit Obligations);



     (b) payment in full in cash of all other Revolving Credit Obligations that are due and payable
or otherwise accrued and owing at or prior to the time such principal and interest are paid (other
than any indemnification obligations for which no claim or demand for payment, whether oral or
written, has been made at such time);



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



     (d) termination of all letters of credit, bank guarantees and similar instruments issued or
otherwise outstanding under the Revolving Credit Facility Credit Documents and constituting
Revolving Credit Obligations or providing cash collateral or backstop letters of credit reasonably
acceptable to the Revolving Credit Facility Administrative Agent in an amount equal to 103% of the
aggregate undrawn face amount of such letters of credit, bank guarantees and similar instruments
(in a manner reasonably satisfactory to the Revolving Credit Facility Administrative Agent).



     If a Discharge of Revolving Credit Obligations occurs prior to the termination of this
Agreement in accordance with Section 8.2, to the extent that additional Revolving Credit
Obligations are incurred or Revolving Credit Obligations are reinstated in accordance with Sections
4.4 or 6.4, the Discharge of Revolving Credit Obligations shall (effective upon the incurrence of
such additional



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Revolving Credit Obligations or reinstatement of such Revolving Credit Obligations, as
applicable) be deemed to no longer be effective.




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



     (a) payment in full in cash of the principal of and interest (including Post-Petition
Interest), on all Indebtedness outstanding under the Term Loan Credit Documents and constituting
Term Loan Obligations (including any Refinancings of any thereof to the extent such Refinancings
thereof constitute Term Loan Obligations);



     (b) payment in full in cash of all other Term Loan Obligations that are due and payable or
otherwise accrued and owing at or prior to the time such principal and interest are paid (other
than any indemnification obligations for which no claim or demand for payment, whether oral or
written, has been made at such time); and



     (c) termination or expiration of all commitments, if any, to extend credit that would
constitute Term Loan Obligations (including any Refinancings of any thereof).



     If a Discharge of Term Loan Obligations occurs prior to the termination of this Agreement in
accordance with Section 8.2, to the extent that additional Term Loan Obligations are incurred or
Term Loan Obligations are reinstated in accordance with Sections 4.4 or 6.4, the Discharge of Term
Loan Obligations shall (effective upon the incurrence of such additional Term Loan Obligations or
reinstatement of such Term Loan Obligations, as applicable) be deemed to no longer be effective.



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



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



     “Enforcement Period” means the period of time following the receipt by either the Revolving
Credit Facility Administrative Agent or the Term Loan Administrative Agent of an Enforcement Notice
until the earliest of (i) in the case of an Enforcement Period commenced by the Term Loan
Collateral Agent, the Discharge of Term Loan Obligations, (ii) in the case of an Enforcement Period
commenced by the Revolving Credit Facility Administrative Agent or the Revolving Credit Facility
Collateral Agent, the Discharge of Revolving Credit Obligations, (iii) the Revolving Credit
Facility Administrative Agent or the Term Loan Administrative Agent (as applicable) agrees in
writing to terminate the Enforcement Period or (iv) the date on which the Revolving Credit Facility
Default or the Term Loan Default that was the subject of the Enforcement Notice relating to such
Enforcement Period has been cured to the satisfaction of the Revolving Credit Facility
Administrative Agent (in the case of a Revolving Credit Facility Default) or the Term Loan
Administrative Agent (in the case of a Term Loan



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Default), as applicable, or waived in writing in accordance with the requirements of the
applicable Credit Agreement.




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



     “Fixed Asset Collateral” means all Collateral other than the Current Asset Collateral and
including all: (a) Equipment; (b) Real Estate Assets; (c) Intellectual Property; (d) Fixed Asset
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 any of the foregoing; (g)
Capital Stock owned by any Grantor and Intercompany Notes; 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.



     “Fixed Asset General Intangibles” means all General Intangibles which are not Current Asset
General Intangibles.



     “GAAP” means generally accepted accounting principles in the United States applied on a
consistent basis.



     “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.



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



     “Grantors” means the Company, each of the Term Loan Subsidiary Guarantors, each other Person
that has or from time to time hereafter guarantees any of the Term Loan Obligations and executes
and delivers a Term Loan Security Document as a “grantor” or “pledgor” (or the equivalent thereof),
each of the Revolving Credit Facility Subsidiary Guarantors that is also a Term Loan Subsidiary
Guarantor, and each other person that has or from time to time hereafter guarantees any of the U.S.
Obligations (as defined in the Revolving Credit Agreement) and executes and delivers a Revolving
Credit Facility Guarantor Security Document as a “grantor” or “pledgor” (or the equivalent thereof)
(but only if such person has also guaranteed or provided security for the Term Loan Obligations).



     “GSCP” has the meaning assigned to that term in the Recitals to this Agreement.



     “Hedging Agreement” means any interest rate protection agreement, foreign currency exchange
agreement, commodity price protection agreement or other interest or currency exchange rate or
commodity price hedging arrangement and all other similar agreements or arrangements designed to
alter the risks of any Person arising from fluctuations in interest rate, currency values or
commodity prices.



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



     “Insolvency or Liquidation Proceeding” means:



     (a) any voluntary or involuntary case or proceeding under the Bankruptcy Code or any other
Bankruptcy Law with respect to any Grantor;



     (b) any other voluntary or involuntary insolvency, reorganization, winding-up 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 their respective
assets (other than any merger or consolidation, liquidation or dissolution not involving bankruptcy
or insolvency that is expressly permitted pursuant to Section 6.03 of each Credit Agreement);



     (c) any liquidation, dissolution, reorganization or winding up of any Grantor whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy (other than any
merger or consolidation, liquidation or dissolution not involving bankruptcy or insolvency that is
expressly permitted pursuant to Section 6.03 of each Credit Agreement);



     (d) any case or proceeding seeking arrangement, adjustment, protection, relief or composition
of any debt or other property of any Grantor;



     (e) any case or proceeding seeking the entry of an order of relief or the appointment of a
custodian, receiver, trustee or other similar proceeding with respect to any Grantor or any
property or Indebtedness of any Grantor;



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



     (g) any analogous step or procedure under applicable laws of any jurisdiction.



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



     “Intellectual Property” means, collectively, with respect to any Grantor, all intellectual and
similar property rights of every kind and nature, whether arising under United States,
multinational or foreign laws or otherwise, including Patents, Copyrights, Intellectual Property
Licenses, Trademarks, Trade Secrets, intangible rights in software and databases not otherwise
included in the foregoing, and all rights corresponding thereto throughout the world (including the
right to sue and to collect proceeds), and all embodiments or fixations thereof and related
documentation, registrations and franchises, and all additions, improvements and accessions to, and
Books and Records describing or used in connection with, any of the foregoing.



     “Intellectual Property Licenses” means, collectively, with respect to each Grantor, all
agreements pursuant to which such Grantor receives or grants any right in, to, or under
Intellectual Property, including 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, Trade Secrets or other Intellectual Property, 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, and (ii) income,
fees, royalties, damages, claims and payments now and hereafter



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due and/or payable there-under and with respect thereto including damages and payments for
past, present or future infringements or violations thereof.




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



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



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



     “Lender” means each Term Loan Lender and each Revolving Credit Lender.



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



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



     “Lien” means, with respect to any Property, (a) any mortgage, deed of trust, deed to secure
debt, lien, pledge, encumbrance, charge, assignment, hypothecation or security interest in or on
such Property, or any arrangement to provide priority or preference or any filing of any financing
statement under the UCC or any other similar notice of lien under any similar notice or recording
statute of any Governmental Authority, including any easement, right-of-way or other encumbrance on
title to Real Property, in each of the foregoing cases whether voluntary or imposed by law, (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, (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities, (d) in the case of any
investment property or deposit account, any contract or other agreement under which any third party
has the right to control such investment property or deposit account and (e) any other agreement
intended to give or create any of the foregoing.



     “Mortgaged Premises” means any Real Estate Asset which shall now or hereafter be subject to a
Term Loan Mortgage.



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



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



     “Notice of Occupancy” has the meaning assigned to that term in Section 3.3(b).



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



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     “Patents” means, collectively, all United States and foreign patents, patent applications,
certificates of inventions, and industrial designs, 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 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 and includes natural persons, corporations, limited partnerships, general
partnerships, limited liability companies, limited liability partnerships, joint stock companies,
joint ventures, associations, companies, trusts, banks, trust companies, land trusts, business
trusts or other organizations, whether or not legal entities, and Governmental Authorities.



     “Plan” means any “Plan” as defined in the Term Loan Agreement.



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



     “Post-Petition Interest” means interest, fees, expenses and other charges that pursuant to the
Term Loan Agreement or the Revolving Credit Agreement, continue to accrue after the commencement of
any Insolvency or Liquidation Proceeding or would continue to accrue but for the commencement of
any Insolvency or Liquidation Proceeding, whether or not such interest, fees, expenses and other
charges are allowed or allowable under the Bankruptcy Law or in any such Insolvency or Liquidation
Proceeding.



     “Property” or “property” means any right, title or interest in or to property or assets of any
kind whatsoever, whether real, personal or mixed and whether tangible or intangible and including
any ownership interests of any Person.



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



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



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



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



     “Refinance” means, in respect of any Indebtedness, to refinance (including by means of sale of
debt securities to institutional investors), extend, increase, renew, defease, amend, modify,
supplement, restructure, replace (whether upon termination or otherwise), refund or repay, or to
issue other Indebtedness, in exchange or replacement for, such Indebtedness in whole or in part,
and the terms “Refinanced” and “Refinancing” shall have meanings correlative thereto.



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



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     “Revolving Credit Claimholders” means, at any relevant time, the holders of Revolving Credit
Obligations at that time, including the Revolving Credit Lenders, the Issuers (as defined in the
Revolving Credit Agreement), the agents under the Revolving Credit Facility Credit Documents, any
Revolving Credit Facility Approved Counterparties.



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



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



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



     “Revolving Credit Facility Approved Counterparty” means the Revolving Credit Facility
Administrative Agent, any Revolving Credit Facility Lender or any Affiliate of any of them.



     “Revolving Credit Facility Borrowers” means the Company, Solutia Europe SA/NV, a limited
liability company incorporated under Belgian law with registered office Chaussée de Boondael 6,
1050 Bruxelles, registered with the Crossroads Bank for Enterprises under number 0460.474.440,
Commercial Court of Brussels, whose legal form will be converted from a S.A./N.V. (limited
liability company) into a SPRL/BVBA (private limited liability company), Flexsys SA/NV, a Belgian
limited liability company (“société anonyme” / “naamloze vennootschap”), having its registered
office at Woluwedal 24, bus 3, B-1932 Sint-Stevens-Woluwe, Belgium and registered with the Legal
Entities Register (RPM/RPR Brussels) under enterprise number 454.045.419 and any other Person that
becomes a “Borrower” under the Revolving Credit Agreement in accordance with the terms thereof.



     “Revolving Credit Facility Cap Amount” means $450.0 million.



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



     “Revolving Credit Facility Credit Documents” means the Revolving Credit Agreement and the
other “Loan Documents” (as defined in the Revolving Credit Agreement), each Cash Management
Document and each of the other agreements, documents and instruments providing for or evidencing
any other Revolving Credit Obligation, and any other document or instrument executed or delivered
at any time in connection with any Revolving Credit Obligations, including any intercreditor or
joinder agreement among holders of Revolving Credit Obligations to the extent such are effective at
the relevant time, as each may be amended, restated, supplemented, increased, modified, replaced,
renewed, extended or Refinanced from time to time in accordance with the provisions of this
Agreement.



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



     “Revolving Credit Facility Grantor Collateral” means all of the assets and property of any
Grantor, whether real, personal or mixed, with respect to which a Lien is granted or purported to
be granted under the Revolving Credit Grantor Security Documents as security for any Revolving
Credit Obligations.



     “Revolving Credit Facility Grantor Security Documents” means each Revolving Credit Facility
Security Document with respect to which any Grantor is a party.



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



     “Revolving Credit Facility Subsidiary Guarantor” means a “Subsidiary Guarantor” (as defined in
the Revolving Credit Agreement).



     “Revolving Credit Lenders” means the “Lenders” under and as defined in the Revolving Credit
Agreement.



     “Revolving Credit Obligations” means, collectively, (a) the loans made under the Revolving
Credit Agreement, reimbursement obligations in respect of letters of credit, bank guarantees and
similar instruments issued or otherwise outstanding under the Revolving Credit Agreement and all
other amounts, obligations, covenants and duties owing by the Revolving Credit Facility Borrowers
and any Revolving Credit Facility Subsidiary Guarantors to any Revolving Credit Facility Agent, any
Revolving Credit Lender, any Affiliate of any of them or any “Indemnitee” (as defined in the
Revolving Credit Agreement), of every type and description (whether by reason of an extension of
credit, loan, guaranty, indemnification or otherwise), present or future, arising under the
Revolving Credit Agreement or any other Revolving Credit Facility Credit Document, whether direct
or indirect (including those acquired by assignment), absolute or contingent, due or to become due,
now existing or hereafter arising and however acquired and whether or not evidenced by any note,
guaranty or other instrument or for the payment of money, including all fees, interest (including
interest accruing after the maturity of the loans under the Revolving Credit Agreement and
Post-Petition Interest), charges, expenses, attorneys’ fees and disbursements and other sums
chargeable to the Revolving Credit Facility Borrowers or any Revolving Credit Facility Subsidiary
Guarantors under the Revolving Agreement or any other Revolving Credit Facility Credit Document and
(b) the due and punctual payment and performance of all Cash Management Obligations of the
Revolving Credit Facility Borrowers and any Revolving Credit Facility Subsidiary Guarantors.



     Notwithstanding the foregoing, if the sum of (x) the aggregate principal amount of
Indebtedness constituting principal outstanding under the Revolving Credit Agreement and the other
Revolving Credit Facility Credit Documents (other than Indebtedness in respect of Cash Management
Obligations of the Revolving Credit Facility Borrowers and the Revolving Credit Facility Subsidiary
Guarantors ) plus (y) the aggregate face amount of any outstanding letters of credit, bank
guarantees and similar instruments issued under the Revolving Credit Agreement, exceeds the
Revolving Credit Facility Cap Amount, then only that portion of such Indebtedness and such
aggregate face amount of letters of credit, bank guarantees and similar instruments equal to the
Revolving Credit Facility Cap Amount plus Cash Management Obligations of the Revolving Credit
Facility Borrowers and the Revolving Credit Facility Subsidiary Guarantors shall be included in
Revolving Credit Obligations and interest, fees, expenses and indemnification obligations with
respect to such Indebtedness and letters of credit, bank guarantees and similar instruments shall
only constitute Revolving Credit Obligations to the extent related to Indebtedness and the face
amounts of letters of included in the Revolving Credit Obligations; provided that
notwithstanding the foregoing, “Revolving Credit Obligations” shall include, if applicable,
Indebtedness pursuant to a DIP Financing to the extent permitted pursuant to Section 6.1(a).



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



     “Securities” means any stock, shares, partnership interests, voting trust certificates,
certificates of interest or participation in any profit-sharing agreement or arrangement, options,
warrants,



12









 




bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any instruments commonly known as
“securities” or any certificates of interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire,
any of the foregoing.




     “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.



     “Subsidiary” means, with respect to any Person (“parent”), (i) any corporation, limited
liability company, association or other business entity of which more than 50% of the outstanding
Capital Stock having ordinary voting power to elect a majority of the board of directors of such
corporation, limited liability company, association or other business entity (irrespective of
whether at the time any other class or classes of Capital Stock of such corporation, limited
liability company, association or other business entity shall or might have voting power upon the
occurrence of any contingency) is at the time directly or indirectly owned by the parent, by the
parent and one or more other Subsidiaries of the parent, or by one or more other Subsidiaries of
the parent; (ii) any partnership of which more than 50% of the outstanding partnership interests
having the power to act as a general partner of such partnership (irrespective of whether at the
time any partnership interests other than general partnership interests of such partnership shall
or might have voting power upon the occurrence of any contingency) are at the time directly or
indirectly owned by the parent, by the parent and one or more other Subsidiaries of the parent, or
by one or more other Subsidiaries of the parent; or (iii) any other Person that is otherwise
Controlled by the parent, by the parent and one or more other Subsidiaries of the parent, or by one
or more other Subsidiaries of the parent. Unless otherwise indicated, when used in this Agreement,
the term “Subsidiary” shall refer to a Subsidiary of the Company.



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



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



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



     “Term Loan Approved Counterparty” means the counterparty to a Term Loan Hedging Agreement
entered into by the Company or any Term Loan Subsidiary Guarantor.



     “Term Loan Cap Amount” means $1.45 billion.



     “Term Loan Claimholders” means, at any relevant time, the holders of Term Loan Obligations at
that time, including the Term Loan Lenders, the agents under the Term Loan Credit Documents, any
Term Loan Approved Counterparties.



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



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



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



     “Term Loan Default” means an “Event of Default” (as defined in the Term Loan Agreement).



     “Term Loan Hedging Agreement” means each “Pari Passu Secured Hedging Agreement” (as defined in
the Term Loan Agreement).



     “Term Loan Lenders” means the “Lenders” under and as defined in the Term Loan Agreement.



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



     “Term Loan Obligations” means, collectively, (a) the loans made under the Term Loan Agreement
and all other amounts, obligations, covenants and duties owing by the Company and any Term Loan
Subsidiary Guarantors to any Term Loan Agent, any Term Loan Lender, any Affiliate of any of them or
any “Indemnitee” (as defined in the Term Loan Agreement), of every type and description (whether by
reason of an extension of credit, loan, guaranty, indemnification or otherwise), present or future,
arising under the Term Loan Agreement or any other Term Loan Credit Document, whether direct or
indirect (including those acquired by assignment), absolute or contingent, due or to become due,
now existing or hereafter arising and however acquired and whether or not evidenced by any note,
guaranty or other instrument or for the payment of money, including all fees, interest (including
interest accruing after the maturity of the loans under the Term Loan Agreement and Post-Petition
Interest), charges, expenses, attorneys’ fees and disbursements and other sums chargeable to the
Company or any Term Loan Subsidiary Guarantor under the Term Loan Agreement or any other Term Loan
Credit Document and (b) the due and punctual payment and performance of all obligations of the
Company and the Term Loan Subsidiary Guarantors under each Term Loan Hedging Agreement.



     Notwithstanding the foregoing, if the aggregate amount of Indebtedness constituting principal
outstanding under the Term Loan Agreement and the other Term Loan Credit Documents (other than
Indebtedness in respect of Term Loan Hedging Agreements) is in excess of the Term Loan Cap Amount,
then only that portion of such Indebtedness equal to the Term Loan Cap Amount plus obligations in
respect of Term Loan Hedging Agreements shall be included in Term Loan Obligations and interest,
fees, expenses and indemnification obligations with respect to such Indebtedness shall only
constitute Term Loan Obligations to the extent related to Indebtedness included in the Term Loan
Obligations; provided that notwithstanding the foregoing, “Term Loan Obligations” shall
include, if applicable, Indebtedness pursuant to a DIP Financing to the extent permitted pursuant
to Section 6.1(b).



     “Term Loan Security Documents” means the “Security Documents” (as defined in the Term Loan
Agreement) and any other agreement, document or instrument pursuant to which a Lien is



14









 




granted or purported to be granted to secure any Term Loan Obligations or under which rights
or remedies with respect to such Liens are governed.




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



     “Term Loan Subsidiary Guarantor” means a “Subsidiary Guarantor” (as defined in the Term Loan
Agreement).



     “Trademarks” means, collectively, all United States, state, and foreign trademarks, service
marks, certification marks, slogans, logos, certification marks, trade dress, internet domain
names, corporate names, trade names, and other source or business identifiers, whether registered
or unregistered (whether statutory or common law and whether established or registered in the
United States or any other country or any political subdivision thereof), together with any and all
(i) registrations and applications for any of the foregoing, (ii) good-will 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) 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” means all trade secrets and all other confidential or proprietary information
and know-how, whether or not such information has been reduced to a writing or other tangible form,
together with all (i) rights and privileges arising under applicable law with respect to the use of
any of the foregoing, (ii) 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 misappropriation or other violations thereof, (iii) rights corresponding
thereto throughout the world and (iv) rights to sue for past, present and future misappropriation
or other violations thereof.



     “UCC” means the Uniform Commercial Code as from time to time in effect in the State of New
York; provided that in the event that, by reason of mandatory provisions of law, any of the
attachment, perfection or priority of any Collateral Agent’s or any secured party’s security
interest in any Collateral is governed by the Uniform Commercial Code as in effect from time to
time in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform
Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof
relating to such attachment, perfection or priority and for purposes of definitions related to such
provisions.



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



     (a) any definition of or reference to any agreement, instrument or other document herein shall
be construed as referring to such agreement, instrument or other document as from time to time
amended, restated, supplemented, modified, renewed or extended;



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



15









 





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



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



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



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



     SECTION 2. Lien Priorities.



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



     (a) any Lien on the Current Asset Collateral securing any Revolving Credit Obligations,
whether now or hereafter held by or on behalf of the Revolving Credit Facility Collateral Agent or
any Revolving Credit Claimholders 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 and all other respects to all Liens on the Current Asset Collateral
securing any Term Loan Obligations; and



     (b) any Lien on the Fixed Asset Collateral securing any Term Loan Obligations, whether now or
hereafter held by or on behalf of the Term Loan Collateral Agent, any Term Loan Claimholders 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 and all
other respects to all Liens on the Fixed Asset Collateral securing any Revolving Credit
Obligations.



     2.2 Prohibition on Contesting Liens. Each of the Term Loan Collateral Agent, for
itself and on behalf of each Term Loan Claimholder, and the Revolving Credit Facility Collateral
Agent, for itself and on behalf of each Revolving Credit Claimholder, agrees that it will not (and
hereby waives any right to) contest or support any other Person in contesting, in any proceeding
(including any Insolvency or Liquidation Proceeding), the perfection, priority, validity or
enforceability of a Lien held by or on behalf of any of the Revolving Credit Claimholders or any of
the Term Loan Claimholders in the Collateral, or the provisions of this Agreement; provided
that nothing in this Agreement shall be construed to prevent or impair the rights of either Agent
or any Revolving Credit Claimholder or Term Loan Claimholder to enforce this Agreement, including
the provisions of this Agreement relating to the priority of the Liens securing the Obligations as
provided in Sections 2.1, 3.1 and 3.2. The Term Loan Collateral Agent, for itself and on behalf of
each Term Loan Claimholder, acknowledges that the Revolving Credit Obligations are secured by
collateral granted by European Loan Parties (as such term is defined in the Revolving Credit
Agreement) and, in furtherance of this agreement, agrees that it will not



16









 



(and hereby waives any right to) contest or support any other Person in contesting, in any
proceeding (including any Insolvency or Liquidation Proceeding), the perfection, priority, validity
or enforceability of a Lien held by or on behalf of any of the Revolving Credit Claimholders in any
such collateral.




     2.3 No New Liens. So long as the Discharge of Revolving Credit Obligations and the
Discharge of Term Loan Obligations have not occurred, whether or not any Insolvency or Liquidation
Proceeding has been commenced by or against one or more of the Company or any other Grantor, the
parties hereto agree that neither the Company nor any other Grantor nor any other Subsidiary that
is required to be a Grantor pursuant to the terms of the Term Loan Credit Documents, shall:



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



     (b) grant or permit any Liens on any of its property to secure any Revolving Credit
Obligations unless it has granted or concurrently grants a Lien on such property to secure the Term
Loan Obligations (other than cash collateralization of Revolving Credit Obligations consisting of
Letters of Credit (as such term is defined in the Revolving Credit Agreement) pursuant to the terms
of the Revolving Credit Agreement).



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



     2.4 Similar Liens and Agreements. The parties hereto agree that it is their intention
that the Revolving Credit Facility Grantor Collateral and the Term Loan Collateral be identical
(other than cash collateralization of Revolving Credit Obligations consisting of Letters of Credit
(as such term is defined in the Revolving Credit Agreement) pursuant to the terms of the Revolving
Credit Agreement). In furtherance of the foregoing and of Section 8.8, the parties hereto agree,
subject to the other provisions of this Agreement (including Section 5.3):



     (a) upon request by the Revolving Credit Facility Collateral Agent or the Term Loan Collateral
Agent, to cooperate in good faith from time to time in order to determine the specific items
included in the Revolving Credit Facility Grantor Collateral and the Term Loan Collateral and the
steps taken to perfect their respective Liens thereon and the identity of the respective parties
obligated under the Revolving Credit Facility Credit Documents and the Term Loan Credit Documents;
and



     (b) that the Revolving Credit Facility Grantor Security Documents and the Term Loan Security
Documents and guarantees delivered by Grantors for the Revolving Credit Obligations and the Term
Loan Obligations, subject to Section 5.3, shall be in all material respects the same forms of
documents other than with respect to differences to reflect the nature of the lending arrangements
and the respective Obligations secured thereunder and, to the extent relevant, the priority of the
Liens granted thereunder with respect to the Fixed Asset Collateral and the Current Asset
Collateral.



     SECTION 3. Enforcement.



     3.1 Exercise of Remedies – Restrictions on the Term Loan Collateral Agent.




17












 





          (a) Until the Discharge of Revolving Credit Obligations has occurred, whether or not any
Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, the Term Loan
Collateral Agent and the Term Loan Claimholders:



               (1) will not seek to have a trustee, receiver, liquidator or similar official appointed for or
over, attempt any action to take possession of, or otherwise exercise or seek to exercise any
rights or remedies with respect to any Current Asset Collateral (including the exercise of any
right of setoff or any right under any Account Agreement with respect to Deposit Accounts or
Securities Accounts) or institute any action or proceeding with respect to such rights or remedies
(including any action of foreclosure); provided that the Term Loan 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: (A) the date on which the Term Loan Administrative Agent or the Term
Loan Collateral Agent first declared the existence of a Term Loan Default and demanded the
repayment of all the principal amount of any Term Loan Obligations; and (B) the date on which the
Revolving Credit Facility Administrative Agent received notice from the Term Loan Collateral Agent
of such declaration of a Term Loan Default and demand for repayment (the “Term Loan Standstill
Period”); provided, further, that notwithstanding anything herein to the contrary,
in no event shall the Term Loan Collateral Agent or any Term Loan Claimholder exercise any rights
or remedies with respect to the Current Asset Collateral (unless (x) the final step triggering the
“one action rule” or any similar legal provision in any applicable state has occurred and (y) the
applicable Term Loan Claimholder has provided written notice to the Revolving Credit Claimholders
no later than five days prior to the commencement of such final step of its exercise of any rights
or remedies permitted hereunder) if, notwithstanding the expiration of the Term Loan Standstill
Period, the Revolving Credit Facility Collateral Agent or 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 Collateral (prompt notice of such exercise to be given to the Term
Loan Collateral Agent);



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



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


provided that, in the case of (1), (2) and (3) above, the Liens granted to secure the Term
Loan Obligations of the Term Loan Claimholders shall attach to the Proceeds resulting from any such
actions taken by the Revolving Credit Facility Collateral Agent or any Revolving Credit Claimholder
in accordance with this Agreement (after giving effect to any proper application of such Proceeds
to the Revolving Credit Obligations) subject to the relative priorities described in Section 2.




          (b) Until the Discharge of Revolving Credit Obligations has occurred, whether or not any
Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, the Term Loan
Collateral Agent, for itself and on behalf of the Term Loan Claimholders, agrees that the Revolving
Credit Facility Collateral Agent and the Revolving Credit Claimholders shall have the right to
enforce rights, exercise remedies (including set-off and the right to credit bid their debt) and,
in connection therewith (including voluntary Dispositions of Current Asset Collateral by the
respective Grantors after a Revolving Credit Facility Default) make determinations regarding the
release, disposition, or restrictions with respect to the Current Asset Collateral (including
exercising remedies under Account Agreements



18









 




with respect to Deposit Accounts or Securities Accounts) without any consultation with or the
consent of the Term Loan Collateral Agent or any Term Loan Claimholder; provided that the
Lien securing the Term Loan Obligations shall remain on the Proceeds (other than those properly
applied to the Revolving Credit Obligations) of such Collateral released or disposed of subject to
the relative priorities described in Section 2. In exercising rights and remedies with respect to
the Current Asset Collateral, the Term Loan Collateral Agent, for itself and on behalf of the Term
Loan Claimholders, agrees that the Revolving Credit Facility Collateral Agent and the Revolving
Credit Claimholders may enforce the provisions of the Revolving Credit Facility Credit 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 Current Asset 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 (and any similar or equivalent legislation
of any applicable jurisdiction outside the United States) and of a secured creditor under the
Bankruptcy Laws of any applicable jurisdiction.




          (c) Notwithstanding the foregoing, the Term Loan Collateral Agent and any Term Loan
Claimholder may:



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



               (2) take any action in order to create, perfect, preserve or protect its Lien on any of the
Collateral; provided that such action shall not be inconsistent with the terms of this
Agreement and shall not be adverse to the priority status of the Liens on the Current Asset
Collateral, or the rights of the Revolving Credit Facility Collateral Agent or the Revolving Credit
Claimholders to exercise remedies in respect thereof;



               (3) file any necessary responsive or defensive pleadings in opposition to any motion, claim,
adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the
disallowance of the claims of the Term Loan Claimholders, including any claims secured by the
Current Asset Collateral, if any, in each case in accordance with the terms of this Agreement;



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



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



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



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



          The Term Loan Collateral Agent, on behalf of itself and the Term Loan Claimholders, agrees
that it will not take or receive any Current Asset Collateral or any Proceeds of such Collateral in
connection with the exercise of any right or remedy (including set-off) with respect to any such
Collateral



19









 




in its capacity as a creditor in violation of this Agreement. Without limiting the generality
of the foregoing, unless and until, the Discharge of Revolving Credit Obligations has occurred,
except as expressly provided in this Section 3.1(c) and Sections 3.1(a) and 6.3(c)(1), the sole
right of the Term Loan Collateral Agent and the Term Loan Claimholders with respect to the Current
Asset Collateral is to hold a Lien on such Collateral pursuant to the Term Loan Security Documents
for the period and to the extent granted therein and to receive a share of the Proceeds thereof, if
any, after the Discharge of Revolving Credit Obligations has occurred.




          (d) Subject to Sections 3.l(a), 3.1(c) and 6.3(c)(1):



               (1) the Term Loan Collateral Agent, for itself and on behalf of the Term Loan Claimholders,
agrees that the Term Loan Collateral Agent and the Term Loan Claimholders will not, except as not
prohibited herein, take any action that would hinder any exercise of remedies under the Revolving
Credit Facility Credit Documents or that is otherwise prohibited hereunder, including any sale,
lease, exchange, transfer or other disposition of the Current Asset Collateral, whether by
foreclosure or otherwise;



               (2) the Term Loan Collateral Agent, for itself and on behalf of the Term Loan Claimholders,
hereby waives any and all rights it or the Term Loan Claimholders may have as a junior lien
creditor with respect to the Current Asset Collateral or otherwise to object to the manner in which
the Revolving Credit Facility Collateral Agent or the Revolving Credit Claimholders seek to enforce
or collect the Revolving Credit Obligations or the Liens on the Current Asset Collateral securing
the Revolving Credit Obligations granted in any of the Revolving Credit Facility Credit Documents
or to any action that is not prohibited by this Agreement, regardless of whether any action or
failure to act by or on behalf of the Revolving Credit Facility Collateral Agent or Revolving
Credit Claimholders is adverse to the interest of the Term Loan Claimholders; and



               (3) the Term Loan Collateral Agent hereby acknowledges and agrees that no covenant, agreement
or restriction contained in any of the Term Loan Security Documents or any other Term Loan Credit
Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies
of the Revolving Credit Facility Collateral Agent or the Revolving Credit Claimholders with respect
to the Current Asset Collateral as set forth in this Agreement and the Revolving Credit Facility
Credit Documents.



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



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



20









 




may have against the Grantors under the Revolving Credit Facility Credit Documents, other than
with respect to the Fixed Asset Collateral solely to the extent expressly provided herein.




          3.2 Exercise of Remedies – Restrictions on the Revolving Credit Facility Collateral
Agent.



          (a) Until the Discharge of Term Loan Obligations has occurred, whether or not any Insolvency
or Liquidation Proceeding has been commenced by or against any Grantor, the Revolving Credit
Facility Collateral Agent and the Revolving Credit Claimholders:



               (1) will not seek to have a trustee, receiver, liquidator or similar official appointed for or
over, attempt any action to take possession of, or otherwise exercise or seek to exercise any
rights or remedies with respect to any Fixed Asset Collateral or institute any action or proceeding
with respect to such rights or remedies (including any action of foreclosure); provided
that the Revolving Credit Facility Collateral Agent may exercise the rights provided for in Section
3.3 (with respect to any Access Period) and may exercise any or all such other rights or remedies
after the passage of a period of at least 180 days has elapsed since the later of: (A) the date on
which the Revolving Credit Facility Administrative Agent or the Revolving Credit Facility
Collateral Agent declared the existence of any Revolving Credit Facility Default and demanded the
repayment of all the principal amount of any Revolving Credit Obligations; and (B) the date on
which the Term Loan Collateral Agent received notice from the Revolving Credit Facility Collateral
Agent of such declaration of a Revolving Credit Facility Default and demand for repayment (the
“Revolving Credit Standstill Period”); provided, further, that notwithstanding
anything herein to the contrary, in no event shall the Revolving Credit Facility Collateral Agent
or any Revolving Credit Claimholder exercise any rights or remedies (other than those under Section
3.3) with respect to the Fixed Asset Collateral (unless (x) the final step triggering the “one
action rule” or any similar legal provision in any applicable state has occurred and (y) the
applicable Revolving Credit Claimholder has provided written notice to the Term Loan Claimholders
no later than five days prior to the commencement of such final step of its exercise of any rights
or remedies permitted hereunder) if, notwithstanding the expiration of the Revolving Credit
Standstill Period, the Term Loan Collateral Agent or Term Loan Claimholders shall have commenced
and be diligently pursuing the exercise of their rights or remedies with respect to all or any
material portion of such Collateral (prompt notice of such exercise to be given to the Revolving
Credit Facility Collateral Agent);



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



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


provided that in the case of (1), (2) and (3) above, the Liens granted to secure the
Revolving Credit Obligations of the Revolving Credit Claimholders shall attach to any Proceeds
resulting from any such actions taken by the Term Loan Collateral Agent or any Term Loan
Claimholder in accordance with this Agreement (after giving effect to any proper application of
such Proceeds to the Term Loan Obligations) subject to the relative priorities described in Section
2.




          (b) Until the Discharge of Term Loan Obligations has occurred, whether or not any Insolvency
or Liquidation Proceeding has been commenced by or against any Grantor, the Revolving



21









 




Credit Facility Collateral Agent, on behalf of itself and the Revolving Credit Claimholders,
agrees that the Term Loan Collateral Agent and the Term Loan Claimholders shall have the right to
enforce rights, exercise remedies (including set-off and the right to credit bid their debt) and,
in connection therewith (including voluntary Dispositions of Fixed Asset Collateral by the
respective Grantors after a Term Loan Default) make determinations regarding the release,
disposition, or restrictions with respect to the Fixed Asset Collateral without any consultation
with or the consent of the Revolving Credit Facility Collateral Agent or any Revolving Credit
Claimholder; provided that the Lien securing the Revolving Credit Obligations shall remain
on the Proceeds (other than those properly applied to the Term Loan Obligations) of such Collateral
released or disposed of subject to the relative priorities described in Section 2. In exercising
rights and remedies with respect to the Fixed Asset Collateral, the Revolving Credit Facility
Collateral Agent, on behalf of itself and the Revolving Credit Claimholders, agrees that the Term
Loan Collateral Agent and the Term Loan Claimholders may enforce the provisions of the Term Loan
Credit 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 Fixed Asset 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 (and any similar or equivalent
legislation of any applicable jurisdiction outside the United States) and of a secured creditor
under the Bankruptcy Laws of any applicable jurisdiction.




          (c) Notwithstanding the foregoing, the Revolving Credit Facility Collateral Agent and any
Revolving Credit Claimholder may:



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



               (2) take any action in order to create, perfect, preserve or protect its Lien on any of the
Collateral; provided that such action shall not be inconsistent with the terms of this
Agreement and shall not be adverse to the priority status of the Liens on the Fixed Asset
Collateral, or the rights of the Term Loan Collateral Agent or any of the Term Loan Claimholders to
exercise remedies in respect thereof;



               (3) file any necessary responsive or defensive pleadings in opposition to any motion, claim,
adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the
disallowance of the claims of the Revolving Credit Claimholders, including any claims secured by
the Fixed Asset Collateral, if any, in each case in accordance with the terms of this Agreement;



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



               (5) vote on any plan of reorganization, file any proof of claim, make other filings and make
any arguments and motions that are, in each case, in accordance with the terms of this Agreement,
with respect to the Revolving Credit Obligations and the Current Asset 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 to the extent permitted by Section 3.2(a)(1);
and



22









 





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



          The Revolving Credit Facility Collateral Agent, on behalf of itself and the Revolving Credit
Claimholders, agrees that it will not take or receive any Fixed Asset Collateral or any Proceeds of
such Collateral in connection with the exercise of any right or remedy (including set-off) with
respect to any such Collateral in its capacity as a creditor in violation of this Agreement.
Without limiting the generality of the foregoing, unless and until the Discharge of Term Loan
Obligations has occurred, except as expressly provided in this Section 3.2(c) and Sections 3.2(a),
3.3 and 6.3(c)(2), the sole right of the Revolving Credit Facility Collateral Agent and the
Revolving Credit Claimholders with respect to the Fixed Asset Collateral is to hold a Lien on such
Collateral pursuant to the Revolving Credit Facility Security Documents for the period and to the
extent granted therein and to receive a share of the Proceeds thereof, if any, after the Discharge
of Term Loan Obligations has occurred.



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



               (1) the Revolving Credit Facility Collateral Agent, for itself and on behalf of the Revolving
Credit Claimholders, agrees that the Revolving Credit Facility Collateral Agent and the Revolving
Credit Claimholders will not, except as not prohibited herein, take any action that would hinder
any exercise of remedies under the Term Loan Credit Documents or that is otherwise prohibited
hereunder, including any sale, lease, exchange, transfer or other disposition of the Fixed Asset
Collateral, whether by foreclosure or otherwise;



               (2) the Revolving Credit Facility Collateral Agent, for itself and on behalf of the Revolving
Credit Claimholders, hereby waives any and all rights it or the Revolving Credit Claimholders may
have as a junior lien creditor with respect to the Fixed Asset Collateral or otherwise to object to
the manner in which the Term Loan Collateral Agent or the Term Loan Claimholders seek to enforce or
collect the Term Loan Obligations or the Liens on the Fixed Asset Collateral securing the Term Loan
Obligations granted in any of the Term Loan Credit Documents or to any action that is not
prohibited by this Agreement, regardless of whether any action or failure to act by or on behalf of
the Term Loan Collateral Agent or the Term Loan Claimholders is adverse to the interest of the
Revolving Credit Claimholders; and



               (3) the Revolving Credit Facility Collateral Agent hereby acknowledges and agrees that no
covenant, agreement or restriction contained in any of the Revolving Credit Facility Security
Documents or any other Revolving Credit Facility Credit Document (other than this Agreement) shall
be deemed to restrict in any way the rights and remedies of the Term Loan Collateral Agent or the
Term Loan Claimholders with respect to the Fixed Asset Collateral as set forth in this Agreement
and the Term Loan Credit Documents.



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



23









 





          (f) Nothing in this Agreement shall prohibit the receipt by the Revolving Credit Facility
Collateral Agent or any Revolving Credit Claimholders of payments of interest, principal and other
amounts owed in respect of the Revolving Credit Obligations so long as such receipt is not the
direct or indirect result of the exercise by the Revolving Credit Facility Collateral Agent or any
Revolving Credit Claimholders of rights or remedies as a secured creditor (including set-off) or
enforcement of any Lien held by any of them, in each case in contravention of this Agreement.
Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the Term
Loan Collateral Agent or the Term Loan Claimholders may have against the Grantors under the Term
Loan Credit Documents, other than with respect to the Current Asset Collateral solely to the extent
expressly provided herein.



          3.3 Exercise of Remedies – Collateral Access Rights.



          (a) The Revolving Credit Facility Collateral Agent and the Term Loan Collateral Agent agree
not to commence any Collateral Enforcement Action until the earlier to occur of (i) delivery of an
Enforcement Notice to the other Agent and (ii) the date on which any Insolvency or Liquidation
Proceeding is commenced by or against any Grantor (provided that in the case of this clause
(ii), the relevant Agent shall deliver an Enforcement Notice to the other Agent promptly following
commencement of any such Collateral Enforcement Action). Subject to the provisions of Sections 3.1
and 3.2 above, either Agent may, to the extent permitted by applicable law, join in any judicial
proceedings commenced by the other Agent to enforce Liens on the Collateral, provided that neither
Agent, nor the Revolving Credit Claimholders or the Term Loan Claimholders, as the case may be,
shall interfere with the Collateral Enforcement Actions of the other with respect to Collateral in
which such party has the benefit of the priority Lien in accordance herewith.



          (b) If the Term Loan Collateral Agent, or any agent or representative of the Term Loan
Collateral Agent, or any receiver, shall obtain possession or physical control of any of the
Mortgaged Premises, the Term Loan Collateral Agent shall promptly notify the Revolving Credit
Facility Collateral Agent of that fact (such notice, a “Notice of Occupancy”) and the Revolving
Credit Facility Collateral Agent shall, within ten Business Days thereafter, notify the Term Loan
Collateral Agent as to whether the Revolving Credit Facility Collateral Agent desires to exercise
access rights under this Agreement (such notice, an “Access Acceptance Notice”), at which time the
parties shall confer in good faith to coordinate with respect to the Revolving Credit Facility
Collateral Agent’s exercise of such access rights; provided, that it is understood and
agreed that the Term Loan Collateral Agent shall obtain possession or physical control of the
Mortgaged Premises in the manner provided in the applicable Term Loan Security Documents. Access
rights may apply to differing parcels of Mortgaged Premises at differing times, in which case, a
differing Access Period may apply to each such parcel. In the event that the Revolving Credit
Facility Collateral Agent elects to exercise its access rights as provided in this Agreement, the
Term Loan Collateral Agent agrees, for itself and on behalf of the Term Loan Claimholders, that in
the event that any Term Loan Claimholder exercises its rights to sell or otherwise dispose of any
Mortgaged Premises, whether before or after the delivery of a Notice of Occupancy to the Revolving
Credit Facility Collateral Agent, the Term Loan Collateral Agent shall (i) provide access rights to
the Revolving Credit Facility Collateral Agent for the duration of the Access Period in accordance
with this Agreement and (ii) if such a sale or other disposition occurs prior to the Revolving
Credit Facility Collateral Agent delivering an Access Acceptance Notice during the time period
provided therefor, or if applicable, the expiration of the applicable Access Period, shall ensure
that the purchaser or other transferee of such Mortgaged Premises provides the Revolving Credit
Facility Collateral Agent the opportunity to exercise its access rights, and upon delivery of an
Access Acceptance Notice to such purchaser or transferee, continued access rights to the Revolving
Credit Facility for the duration of the applicable Access Period, in the manner and to the extent
required by this Agreement.



24









 





          (c) Upon delivery of notice to the Term Loan Collateral Agent as provided in Section 3.3(b),
the Access Period shall commence for the subject parcel of Mortgaged Premises. During the Access
Period, the Revolving Credit Facility Collateral Agent and its agents, representatives and
designees shall have a non-exclusive right to have access to, and a rent free right to use, the
Fixed Asset Collateral for the purpose of arranging for and effecting the sale or disposition of
Current Asset Collateral, including the production, completion, packaging and other preparation of
such Current Asset Collateral for sale or disposition. During any such Access Period, the
Revolving Credit Facility Collateral Agent and its agents, representatives and designees (and
Persons employed on their respective behalves), may continue to operate, service, maintain, process
and sell the Current Asset Collateral, as well as to engage in bulk sales of Current Asset
Collateral. The Revolving Credit Facility Collateral Agent shall take proper care of any Fixed
Asset Collateral that is used by the Revolving Credit Facility Collateral Agent during the Access
Period and repair and replace any damage (ordinary wear-and-tear excepted) caused by the Revolving
Credit Facility Collateral Agent or its agents, representatives or designees and the Revolving
Credit Facility Collateral Agent shall comply with all applicable laws in connection with its use
or occupancy of the Fixed Asset Collateral. The Revolving Credit Facility Collateral Agent and the
Revolving Credit Claimholders shall (to the extent that there are sufficient available proceeds of
Current Asset Collateral for the purposes of paying such indemnity) indemnify and hold harmless the
Term Loan Collateral Agent and the Term Loan Claimholders for any injury or damage to Persons or
property caused by the acts or omissions of Persons under its control. The Revolving Credit
Facility Collateral Agent and the Term Loan Collateral Agent shall cooperate and use reasonable
efforts to ensure that their activities during the Access Period as described above do not
interfere materially with the activities of the other as described above, including the right of
the Term Loan Collateral Agent to commence foreclosure of the Term Loan Mortgages, to show the
Fixed Asset Collateral to prospective purchasers and to ready the Fixed Asset 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 Facility Collateral Agent from exercising any of its rights
hereunder, then at the Revolving Credit Facility Collateral Agent’s option, the Access Period
granted to the Revolving Credit Facility Collateral Agent under this Section 3.3 shall be stayed
during the period of such prohibition and shall continue thereafter for the number of days
remaining as required under this Section 3.3. If the Term Loan Collateral Agent shall foreclose or
otherwise sell any of the Fixed Asset Collateral, the Term Loan Collateral Agent will notify the
buyer thereof of the existence of this Agreement and that the buyer is acquiring the Fixed Asset
Collateral subject to the terms of this Agreement.



          3.4 Exercise of Remedies – Intellectual Property Rights/Access to Information. The
Term Loan Collateral Agent, on behalf of itself and the Term Loan Claimholders, hereby grants (to
the full extent of the Term Loan Collateral Agent’s rights and interests therein) the Revolving
Credit Facility Collateral Agent and its agents, representatives and designees, (a) a royalty free,
rent free non-exclusive worldwide license (or sublicense, as applicable, subject to the terms of
the underlying license) and lease (or sublease, as applicable, subject to the terms of the
underlying lease) to use all of the Fixed Asset Collateral constituting Intellectual Property,
solely to the extent necessary to complete the sale, lease transfer or other disposition of
inventory and (b) a royalty free nonexclusive 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 Intellectual Property, in each case, at any time in
connection with its Collateral Enforcement Action; provided that the royalty free, rent
free non-exclusive license (or sublicense, as applicable) and lease (or sublease, as applicable)
granted in clause (a) shall immediately expire upon the earlier of (i) the sale, lease, transfer or
other disposition of all such inventory and (ii) the occurrence of the Discharge of Revolving
Credit Obligations.



          3.5 Exercise of Remedies – Set Off and Tracing of and Priorities in Proceeds.



25









 





          (a) The Revolving Credit Facility Collateral Agent, for itself and on behalf of the Revolving
Credit Claimholders, acknowledges and agrees that, to the extent the Revolving Credit Facility
Collateral Agent or any Revolving Credit Claimholder exercises its rights of setoff against any
Grantors’ Deposit Accounts or Securities Accounts that contain identifiable Proceeds of Fixed Asset
Collateral, a percentage of the amount of such setoff equal to the percentage that such Proceeds
bear to the total amount on deposit in or credited to the balance of such Deposit Accounts or
Securities Accounts shall be deemed to constitute Fixed Asset Collateral, which amount shall be
held and distributed pursuant to Section 4.3; provided that the foregoing shall not apply
to any setoff by the Revolving Credit Facility Collateral Agent against any Current Asset
Collateral to the extent applied to the payment of Revolving Credit Obligations.



          (b) The Term Loan Collateral Agent, for itself and on behalf of the Term Loan Claimholders,
also agrees that prior to an issuance of an Enforcement Notice, all funds deposited in a Deposit
Account or a Securities Account that is subject to an Account Agreement in favor of the Revolving
Credit Facility Collateral Agent and constitutes Current Asset Collateral and then applied to the
Revolving Credit Obligations shall be treated as Current Asset Collateral and, unless the Revolving
Credit Facility Collateral Agent has actual knowledge to the contrary, any claim that payments made
to the Revolving Credit Facility Collateral Agent through the Deposit Accounts and Securities
Accounts that are subject to such Account Agreements, are Proceeds of or otherwise constitute Fixed
Asset Collateral are waived by the Term Loan Collateral Agent and the Term Loan Claimholders.



          (c) The Revolving Credit Facility Collateral Agent, for itself and on behalf of the Revolving
Credit Claimholders, and the Term Loan Collateral Agent, for itself and on behalf of the Term Loan
Claimholders, further agree that prior to an issuance of an Enforcement Notice, any Proceeds of
Collateral, whether or not deposited in a Deposit Account or a Securities Account subject to an
Account Agreement in favor of the Revolving Credit Facility Collateral Agent, shall not (as between
the Agents, the Revolving Credit Claimholders and the Term Loan Claimholders) be treated as
Proceeds of Collateral for purposes of determining the relative priorities in the Collateral.



          SECTION 4. Payments.



          4.1  Application of Proceeds.



          (a) So long as the Discharge of Revolving Credit Obligations has not occurred, whether or not
any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, all Current
Asset Collateral or Proceeds thereof received in connection with the sale or other disposition of,
or collection on, such Collateral upon the exercise of remedies by the Revolving Credit Facility
Collateral Agent or any Revolving Credit Claimholder, shall be applied by the Revolving Credit
Facility Collateral Agent to the Revolving Credit Obligations in such order as specified in the
relevant Revolving Credit Facility Credit Documents. Upon the Discharge of Revolving Credit
Obligations, (A) if the Discharge of Term Loan Obligations has not occurred, the Revolving Credit
Facility Collateral Agent shall deliver to the Term Loan Collateral Agent any Collateral and
Proceeds of Collateral held by it as a result of the exercise of remedies in the same form as
received, with any necessary endorsements or as a court of competent jurisdiction may otherwise
direct to be applied by the Term Loan Collateral Agent to the Term Loan Obligations in such order
as specified in the Term Loan Security Documents or (B) if the Discharge of Term Loan Obligations
has occurred, the Revolving Credit Facility Collateral Agent shall direct and deliver such
Collateral and Proceeds of Collateral held by it as a result of the exercise of remedies as a court
of competent jurisdiction directs.



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



26









 




Asset Collateral or Proceeds thereof received in connection with the sale or other disposition
of, or collection on, such Collateral upon the exercise of remedies by the Term Loan Collateral
Agent or any Term Loan Claimholder, shall be applied by the Term Loan Collateral Agent to the Term
Loan Obligations in such order as specified in the relevant Term Loan Credit Documents. Upon the
Discharge of Term Loan Obligations, (A) if the Discharge of Revolving Credit Obligations has not
occurred, the Term Loan Collateral Agent shall deliver to the Revolving Credit Facility Collateral
Agent any Collateral and Proceeds of Collateral held by it as a result of the exercise of remedies
in the same form as received, with any necessary endorsements or as a court of competent
jurisdiction may otherwise direct to be applied by the Revolving Credit Facility Collateral Agent
to the Revolving Credit Obligations in such order as specified in the Revolving Credit Facility
Security Documents or (B) if the Discharge of Revolving Credit Obligations has occurred, the Term
Loan Collateral Agent shall direct and deliver such Collateral and Proceeds of Collateral held by
it as a result of the exercise of remedies as a court of competent jurisdiction directs.




          4.2 Payments Over in Violation of Agreement. So long as neither the Discharge of
Revolving Credit Obligations nor the Discharge of Term Loan Obligations has occurred, whether or
not any Insolvency or Liquidation Proceeding has been commenced by or against any 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 either Agent or any Term Loan Claimholders or Revolving
Credit Claimholders 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 appropriate Agent for the benefit of the Term
Loan Claimholders or the Revolving Credit Claimholders, as the case may be, in the same form as
received, with any necessary endorsements or as a court of competent jurisdiction may otherwise
direct. Each Agent is hereby authorized by the other Agent to make any such endorsements as agent
for the other Agent or any Term Loan Claimholders or Revolving Credit Claimholders, as the case may
be. This authorization is coupled with an interest and is irrevocable until both the Discharge of
Revolving Credit Obligations and the Discharge of Term Loan Obligations have occurred.



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



          4.4 Reinstatement.



          (a) To the extent any payment with respect to any Revolving Credit Obligation (whether by or
on behalf of any Grantor, as Proceeds of security, enforcement of any right of setoff or otherwise)
is declared to be a fraudulent conveyance or a preference in any respect, set aside or required to
be paid to a debtor in possession, any Term Loan Claimholders, receiver or similar Person, whether
in connection with any Insolvency or Liquidation Proceeding or otherwise, then the obligation or
part thereof originally intended to be satisfied shall, for the purposes of this Agreement and the
rights and obligations of the Revolving Credit Claimholders and the Term Loan Claimholders, be
deemed to be reinstated and outstanding as if such payment had not occurred. To the extent that
any interest, fees, expenses or other charges (including Post-Petition Interest) to be paid
pursuant to the Revolving Credit Facility Credit Documents are disallowed by order of any court,
including by order of a Bankruptcy Court in any Insolvency or Liquidation Proceeding, such
interest, fees, expenses and charges (including Post-Petition Interest) shall, as between the
Revolving Credit Claimholders and the Term Loan Claimholders,



27









 




be deemed to continue to accrue and be added to the amount to be calculated as the “Revolving
Credit Obligations.”




          (b) To the extent any payment with respect to any Term Loan Obligation (whether by or on
behalf of any Grantor, as Proceeds of security, enforcement of any right of setoff or otherwise) is
declared to be a fraudulent conveyance or a preference in any respect, set aside or required to be
paid to a debtor in possession, any Revolving Credit Claimholders, receiver or similar Person,
whether in connection with any Insolvency or Liquidation Proceeding or otherwise, then the
obligation or part thereof originally intended to be satisfied shall, for the purposes of this
Agreement and the rights and obligations of the Term Loan Claimholders and the Revolving Credit
Claimholders, be deemed to be reinstated and outstanding as if such payment had not occurred. To
the extent that any interest, fees, expenses or other charges (including Post-Petition Interest) to
be paid pursuant to the Term Loan Credit Documents are disallowed by order of any court, including
by order of a Bankruptcy Court in any Insolvency or Liquidation Proceeding, such interest, fees,
expenses and charges (including Post-Petition Interest) shall, as between the Term Loan
Claimholders and the Revolving Credit Claimholders, be deemed to continue to accrue and be added to
the amount to be calculated as the “Term Loan Obligations.”



          SECTION 5. Other Agreements.



          5.1 Releases.



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



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



          (b) If in connection with any sale, lease, exchange, transfer or other disposition of any
Collateral (collectively, a “Disposition”) permitted under the terms of both the Revolving Credit
Facility Credit Documents and the Term Loan Credit Documents (other than in connection with the
exercise of the respective Agent’s rights and remedies in respect of the Collateral as provided for
in Sections 3.1 and 3.2), (i) the Revolving Credit Facility Collateral Agent, for itself or on
behalf of any of the Revolving Credit Claimholders, releases any of its Liens on any part of the
Current Asset Collateral, in each case other than (A) in connection with the Discharge of Revolving
Credit Obligations or (B) after



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the occurrence and during the continuance of a Term Loan Default, then the Liens, if any, of
the Term Loan Collateral Agent, for itself or for the benefit of the Term Loan Claimholders, on
such Collateral shall be automatically, unconditionally and simultaneously released, and (ii) the
Term Loan Collateral Agent, for itself or on behalf of any of the Term Loan Claimholders, releases
any of its Liens on any part of the Fixed Asset Collateral, in each case other than (A) in
connection with the Discharge of Term Loan Obligations or (B) after the occurrence and during the
continuance of a Revolving Credit Facility Default, then the Liens, if any, of the Revolving Credit
Facility Collateral Agent, for itself or for the benefit of the Revolving Credit Claimholders, on
such Collateral (and, if such Collateral includes the Capital Stock of any Subsidiary, the Liens on
Collateral owned by such Subsidiary) shall be automatically, unconditionally and simultaneously
released. The Revolving Credit Facility Collateral Agent and Term Loan Collateral Agent, each for
itself and on behalf of any such Revolving Credit Claimholders or Term Loan Claimholders, as the
case may be, promptly shall execute and deliver to the other Agent or such Grantor such termination
statements, releases and other documents as the other Agent or such Grantor may request to
effectively confirm such release.




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



          (d) Until the Discharge of Revolving Credit Obligations and the Discharge of Term Loan
Obligations shall occur, to the extent that the Agents or the Revolving Credit Claimholders or the
Term Loan Claimholders (i) have released any Lien on Collateral and such Lien is later reinstated
or (ii) obtain any new Liens from any Grantor, then the other Agent, for itself and for the
Revolving Credit Claimholders or Term Loan Claimholders, as the case may be, shall, subject to the
exceptions set forth in Section 2.3, be granted a Lien on any such Collateral, subject to the lien
priority provisions of this Agreement.



          5.2 Insurance.



          (a) Unless and until the Discharge of Revolving Credit Obligations has occurred, subject to
the terms of, and the rights of the Grantors under, the Revolving Credit Facility Credit Documents,
the Term Loan Collateral Agent, for itself and on behalf of the Term Loan Claimholders agrees, that
(i) the Revolving Credit Facility Collateral Agent and the Revolving Credit Claimholders shall have
the sole and exclusive right to adjust settlement for any insurance policy covering the Current
Asset 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 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
such Collateral and to the extent required by the Revolving Credit Facility Credit Documents shall
be paid to the Revolving Credit Facility Collateral Agent for the benefit of the Revolving Credit
Claimholders pursuant to the terms of the Revolving Credit Facility Credit Documents (including for
purposes of cash collateralization of letters of credit, bank guarantees and similar instruments)
and thereafter, to the extent no Revolving Credit Obligations are outstanding, and subject to the
rights of the Grantors under the Term Loan Credit Documents, to the Term Loan Collateral Agent for
the benefit of the Term Loan Claimholders to the



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extent required under the Term Loan Security Documents and then, to the extent no Term Loan
Obligations 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 the
Term Loan Collateral Agent or any Term Loan Claimholder shall, at any time, receive any Proceeds of
any such insurance policy or any such award or payment in contravention of this Agreement, it shall
segregate and hold in trust and forthwith pay such Proceeds over to the Revolving Credit Facility
Collateral Agent in accordance with the terms of Section 4.2.




          (b) Unless and until the Discharge of Term Loan Obligations has occurred, subject to the terms
of, and the rights of the Grantors under, the Term Loan Credit Documents, the Revolving Credit
Facility Collateral Agent, for itself and on behalf of the Revolving Credit Claimholders, agrees
that (i) the Term Loan Collateral Agent and the Term Loan Claimholders shall have the sole and
exclusive right to adjust settlement for any insurance policy covering the Fixed Asset 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 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 such Collateral
and to the extent required by the Term Loan Credit Documents shall be paid to the Term Loan
Collateral Agent for the benefit of the Term Loan Claimholders pursuant to the terms of the Term
Loan Credit Documents and thereafter, to the extent no Term Loan Obligations are outstanding, and
subject to the rights of the Grantors under the Revolving Credit Facility Credit Documents, to the
Revolving Credit Facility Collateral Agent for the benefit of the Revolving Credit Claimholders to
the extent required under the Revolving Credit Facility Security Documents and then, to the extent
no Revolving Credit Obligations 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 the Revolving Credit Facility Collateral Agent or any Revolving Credit Claimholder shall,
at any time, receive any Proceeds of any such insurance policy or any such award or payment in
contravention of this Agreement, it shall segregate and hold in trust and forthwith pay such
Proceeds over to the Term Loan Collateral Agent in accordance with the terms of Section 4.2.



          (c) To effectuate the foregoing, the Agents shall each receive separate lender’s loss payable
endorsements naming themselves as loss payee and additional insured, as their interests may appear,
with respect to policies which insure Collateral hereunder. To the extent any Proceeds are
received for business interruption or for any liability or indemnification and those Proceeds are
not compensation for a casualty loss with respect to the Fixed Asset Collateral, such Proceeds
shall first be applied to repay the Revolving Credit Obligations (to the extent required pursuant
to the Revolving Credit Agreement) and then be applied, to the extent required by the Term Loan
Credit Documents, to the Term Loan Obligations.



          5.3 Amendments to Revolving Credit Facility Credit Documents and Term Loan Credit
Documents; Refinancing.



          (a) The Term Loan Credit Documents may be amended, supplemented or otherwise modified in
accordance with their terms and the Term Loan Agreement may be Refinanced, in each case, without
notice to, or the consent of the Revolving Credit Facility Collateral Agent or the Revolving Credit
Claimholders, all without affecting the lien subordination or other provisions of this Agreement;
provided that the holders of such Refinancing debt bind themselves in a writing addressed
to the Revolving Credit Facility Collateral Agent and the Revolving Credit Claimholders to the
terms of this Agreement and any such amendment, supplement, modification or Refinancing shall not:



               (1) increase the sum of the then outstanding aggregate principal amount of the Term Loan
Agreement in excess of the Term Loan Cap Amount;




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               (2) increase the “Applicable Margin” or similar component of the interest rate by more than 3%
per annum at any level of the pricing grid applicable thereto (excluding increases resulting from
the accrual of interest at the default rate); or



               (3) contravene any provision of this Agreement.



          (b) The Revolving Credit Facility Credit Documents may be amended, supplemented or otherwise
modified in accordance with their terms and the Revolving Credit Agreement may be Refinanced, in
each case, without notice to, or the consent of the Term Loan Collateral Agent or the Term Loan
Claimholders, all without affecting the lien subordination or other provisions of this Agreement;
provided that the holders of such Refinancing debt bind themselves in a writing addressed
to the Term Loan Collateral Agent and the Term Loan Claimholders to the terms of this Agreement and
any such amendment, supplement, modification or Refinancing shall not:




               (1) except to the extent permitted pursuant to Section 6.1(a), increase the aggregate
commitments of the Revolving Credit Lenders to an amount greater than the Revolving Credit Facility
Cap Amount;



               (2) increase the “Applicable Margin” or similar component of the interest rate by more than 3%
per annum at any level of the pricing grid applicable thereto (excluding increases resulting from
the accrual of interest at the default rate); or



               (3) contravene any provision of this Agreement.



          (c) The Revolving Credit Facility Collateral Agent and the Term Loan Collateral Agent shall
each use good faith efforts to notify the other party of any written amendment or modification to
the Revolving Credit Agreement or the Term Loan Agreement, but the failure to do so shall not
create a cause of action against the party failing to give such notice or create any claim or right
on behalf of any third party.




          (d) Except to the extent such legend would be prohibited by or inconsistent with the laws of
any applicable jurisdiction outside of the United States, each of the Revolving Credit Facility
Administrative Agent and the Term Loan Administrative Agent will cause to be clearly, conspicuously
and prominently inserted on the face of each Revolving Credit Facility Security Document and Term
Loan Security Document to which a Grantor is a party, as well as any renewals or replacements
thereof, the following legend “This instrument, the rights and obligations evidenced hereby, and
the liens created hereunder, are subordinate in the manner and to the extent set forth in the
Intercreditor Agreement, dated as of February 28, 2008, by and among SOLUTIA INC., a Delaware
corporation (the “Company”), each of the Company’s Subsidiaries party thereto from time to time and
CITIBANK, N.A. (“Citi”), in its capacity as administrative agent for the holders of the Term Loan
Obligations, and as collateral agent for the holders of the Term Loan Obligations, Citi, in its
capacity as administrative agent for the holders of the Revolving Credit Obligations, and as
collateral agent for the holders of the Revolving Credit Obligations, as amended from time to time;
and each holder of this instrument, by its acceptance hereof, irrevocably agrees to be bound by the
provisions of the Intercreditor Agreement.”




          5.4 Bailees for Perfection.




          (a) (i) Each Agent 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) (such Collateral being the
“Pledged Collateral”) as collateral agent for the Revolving Credit Claimholders or the Term Loan
Claimholders, as the case may be, and on behalf of and for the benefit of the other Agent (such
bailment being intended,




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among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and
9-313(c) of the UCC) and any of such other Agent’s assignees solely for the purpose of perfecting
the security interest granted under the Revolving Credit Facility Credit Documents and the Term
Loan Credit Documents, respectively, subject to the terms and conditions of this Section 5.4.




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



               (iii) In the event the Term Loan Collateral Agent becomes subject to liability, or suffers any
costs, damages or expenses as a result of acting in any such capacity under Section 5.4(a)(ii) for
the Revolving Credit Facility Collateral Agent or the Revolving Credit Claimholders, (A) the
Grantors shall pay, reimburse, indemnify and hold harmless the Term Loan Collateral Agent for any
such liabilities, costs, damages or expenses subject to the limitation set forth in Section 9.05 of
the Term Loan Agreement (but without giving effect to clause (B) of the first proviso to Section
9.05(b)) to the extent applicable and (B) in the event the Grantors fail to so pay, reimburse,
indemnify and hold harmless the Term Loan Collateral Agent, the Revolving Credit Claimholders shall
pay, reimburse, indemnify and hold harmless the Term Loan Collateral Agent for any such
liabilities, costs, damages or expenses.



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



               (v) In the event the Revolving Credit Facility Collateral Agent becomes subject to liability,
or suffers any costs, damages or expenses as a result of acting in any such capacity under Section
5.4(a)(iv) for the Term Loan Collateral Agent or the Term Loan Claimholders, (A) the Grantors shall
pay, reimburse, indemnify and hold harmless the Revolving Credit Facility Collateral Agent for any
such liabilities, costs, damages or expenses subject to the limitation set forth in Section 9.05 of
the Revolving Credit Agreement (but without giving effect to clause (B) of the first proviso to
Section 9.05(b)) to the extent applicable and (B) in the event the Grantors fail to so pay,
reimburse, indemnify and hold harmless the Revolving Credit Facility Collateral Agent, the Term
Loan Claimholders shall pay, reimburse, indemnify and hold harmless the Revolving Credit Facility
Collateral Agent for any such liabilities, costs, damages or expenses.



32









 





          (b) Neither Agent shall have any obligation whatsoever to the other Agent, to any Revolving
Credit Claimholder, or to any Term Loan Claimholder to ensure that any Collateral is genuine or
owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly
set forth in this Section 5.4. The duties or responsibilities of the respective Agents under this
Section 5.4 shall be limited solely to (i) holding the Pledged Collateral as collateral agent
and/or bailee in accordance with this Section 5.4 and delivering the Pledged Collateral upon a
Discharge of Revolving Credit Obligations or Discharge of Term Loan Obligations, as the case may
be, as provided in paragraph (d) below and (ii) holding a Lien on Fixed Asset Collateral (in the
case of the Term Loan Collateral Agent) or Current Asset Collateral (in the case of the Revolving
Credit Facility Collateral Agent) as sub-agent for the other Agent in accordance with this Section
5.4.




          (c) Neither Agent acting pursuant to this Section 5.4 shall have by reason of the Revolving
Credit Facility Credit Documents, the Term Loan Credit Documents, this Agreement or any other
document a fiduciary relationship in respect of the other Agent, or any Revolving Credit
Claimholders or any Term Loan Claimholders.




          (d) Upon the Discharge of Revolving Credit Obligations or the Discharge of Term Loan
Obligations, as the case may be, the Agent under the credit facility which has been discharged
shall deliver the remaining Pledged Collateral in its (or its agents’) possession or control (if
any) together with any necessary endorsements and without recourse or warranty, first, to
the other Agent to the extent the other Obligations (other than Contingent Obligations) remain
outstanding, and second, to the applicable Grantor to the extent no Revolving Credit
Obligations or Term Loan Obligations, as the case may be, remain outstanding (in each case, so as
to allow such Person to obtain possession or control of such Pledged Collateral). Each Agent
further agrees, to the extent that any other Obligations (other than Contingent Obligations) remain
outstanding, to take all other commercially reasonable action as shall be reasonably requested by
the other Agent, at the sole cost and expense of such other Agent or the Credit Parties, to permit
such other Agent to obtain, for the benefit of the Revolving Credit Claimholders or the Term Loan
Claimholders, as applicable, a first-priority security interest in the Collateral or as a court of
competent jurisdiction may otherwise direct.




          (e) Subject to the terms of this Agreement, (i) so long as the Discharge of Revolving Credit
Obligations has not occurred, the Revolving Credit Facility Collateral Agent shall be entitled to
deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of
this Agreement and other Revolving Credit Facility Credit Documents, but only to the extent that
such Collateral constitutes Current Asset Collateral, as if the Liens of the Term Loan Collateral
Agent and Term Loan Claimholders did not exist and (ii) so long as the Discharge of Term Loan
Obligations has not occurred, the Term Loan Collateral Agent shall be entitled to deal with the
Pledged Collateral or Collateral within its “control” in accordance with the terms of this
Agreement and other Term Loan Credit Documents, but only to the extent that such Collateral
constitutes Fixed Asset Collateral, as if the Liens of the Revolving Credit Facility Collateral
Agent and Revolving Credit Claimholders did not exist. In furtherance of the foregoing, promptly
following the Discharge of Revolving Credit Obligations, unless a New Debt Notice in respect of new
Revolving Credit Facility Credit Documents shall have been delivered as provided in Section 5.5
below, the Revolving Credit Facility Collateral Agent hereby agrees to deliver, at the cost and
expense of the Grantors, to each financial institution depository or securities intermediary, if
any, that is counterparty to an Account Agreement, written notice as contemplated in such Account
Agreement, directing such financial institution depository or securities intermediary, as
applicable, to comply with the instructions of the Term Loan Collateral Agent, unless the Discharge
of Term Loan Obligations has occurred (as notified to the Revolving Credit Facility Collateral
Agent by the Term Loan Collateral Agent), in which case, such Account Agreement shall be
terminated.




          (f) Notwithstanding anything in this Agreement to the contrary:




33









 








               (1) the Revolving Credit Facility Collateral Agent, for itself and on behalf of the Revolving
Credit Claimholders, agrees that any requirement under any Revolving Credit Facility Security
Document that any Grantor deliver any Collateral that constitutes Fixed Asset Collateral to the
Revolving Credit Facility Collateral Agent, or that requires any Grantor to vest the Revolving
Credit Facility Collateral Agent with possession or “control” (as defined in the UCC) of any
Collateral that constitutes Fixed Asset Collateral, in each case, shall be deemed satisfied to the
extent that, prior to the Discharge of Term Loan Obligations, such Collateral is delivered to the
Term Loan Collateral Agent, or the Term Loan Collateral Agent shall have been vested with such
possession or (unless, pursuant to the UCC, control may be given concurrently to the Revolving
Credit Facility Collateral Agent and the Term Loan Collateral Agent) “control”, in each case,
subject to the provisions of Section 5.4; and



               (2) the Term Loan Collateral Agent, for itself and on behalf of the Term Loan Claimholders,
agrees that any requirement under any Term Loan Security Document that any Grantor deliver any
Collateral that constitutes Current Asset Collateral to the Term Loan Collateral Agent, or that
requires any Grantor to vest the Term Loan Collateral Agent with possession or “control” (as
defined in the UCC) of any Collateral that constitutes Current Asset Collateral, in each case,
shall be deemed satisfied to the extent that, prior to the Discharge of Revolving Credit
Obligations, such Collateral is delivered to the Revolving Credit Facility Collateral Agent, or the
Revolving Credit Facility Collateral Agent shall have been vested with such possession or (unless,
pursuant to the UCC, control may be given concurrently to the Term Loan Collateral Agent and the
Revolving Credit Facility Collateral Agent) “control”, in each case, subject to the provisions of
Section 5.4.



          5.5 When Discharge of Revolving Credit Obligations and Discharge of Term Loan Obligations
Deemed to Not Have Occurred. If in connection with the Discharge of Revolving Credit
Obligations or the Discharge of Term Loan Obligations, any of the Grantors substantially
concurrently enter into any Refinancing of any Revolving Credit Obligation or Term Loan Obligation,
as the case may be, which Refinancing is permitted by both the Term Loan Credit Documents and the
Revolving Credit Facility Credit Documents, then such Discharge of Revolving Credit Obligations or
Discharge of Term Loan Obligations, shall automatically be deemed not to have occurred for all
purposes of this Agreement (other than with respect to any actions taken pursuant to this Agreement
as a result of the occurrence of such Discharge of Revolving Credit Obligations or Discharge of
Term Loan Obligations, as applicable) and, from and after the date on which the New Debt Notice is
delivered to the appropriate Agent in accordance with the next sentence, the Indebtedness,
liabilities and other obligations under such Refinancing shall automatically be treated as
Revolving Credit Obligations or Term Loan 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 Facility Collateral Agent or Term Loan Collateral Agent, as the case may be, under
such new Revolving Credit Facility Credit Documents or new Term Loan Credit Documents shall be the
Revolving Credit Facility Collateral Agent or the Term Loan Collateral Agent for all purposes of
this Agreement. Upon receipt of a notice (the “New Debt Notice”) stating that any of the Grantors
have entered into new Revolving Credit Facility Credit Documents or new Term Loan Credit Documents
(which notice shall include a complete copy of the relevant new documents (but excluding any
commitment and fee letters) and provide the identity of the new collateral agent, such agent, the
“New Agent”), the other Agent shall promptly (a) enter into such documents and agreements
(including amendments or supplements to this Agreement) as such Grantors or such New Agent shall
reasonably request in order to provide to the New Agent the rights contemplated hereby, in each
case consistent in all material respects with the terms of this Agreement and (b) deliver to the
New Agent any Pledged Collateral (that is Fixed Asset Collateral, in the case of a New Agent that
is the agent under any new Term Loan Credit Documents or that is Current Asset Collateral, in the
case of a New Agent that is the agent under any new Revolving Credit Facility Credit Documents)
held by it together with any necessary endorsements (or otherwise allow the New Agent to obtain
control of such Pledged Collateral). The New Agent shall agree in a writing in form and substance
reasonably acceptable to the other Agent




34









 




and addressed to the other Agent and the Revolving Credit Claimholders or the Term Loan
Claimholders, as the case may be, to be bound by the terms of this Agreement. If the new Revolving
Credit Obligations under the new Revolving Credit Facility Credit Documents or the new Term Loan
Obligations under the new Term Loan Credit Documents are secured by property of the Grantors (or
any other Subsidiary that is required to be a Grantor pursuant to the terms of the Term Loan Credit
Documents) that does not also secure the other Obligations, then the other Obligations shall be
secured at such time by a Lien on such property to the same extent provided in the Revolving Credit
Facility Credit Documents, Term Loan Security Documents and this Agreement.




          SECTION 6. Insolvency or Liquidation Proceedings.




          6.1  Finance and Sale Issues.




          (a) Until the Discharge of Revolving Credit Obligations has occurred, if any Grantor shall be
subject to any Insolvency or Liquidation Proceeding and the Revolving Credit Facility Collateral
Agent or the other Revolving Credit Claimholders shall desire to permit the use of “Cash
Collateral” (as such term is defined in Section 363(a) of the Bankruptcy Code) constituting Current
Asset Collateral on which the Revolving Credit Facility Collateral Agent or any other creditor has
a Lien or to permit any Grantor to obtain financing, whether from the Revolving Credit Claimholders
or any other Person under Section 364 of the Bankruptcy Code or any similar Bankruptcy Law or
pursuant to the order of a court of competent jurisdiction (“DIP Financing”) then the Term Loan
Collateral Agent, on behalf of itself and the Term Loan Claimholders, agrees that it will have been
deemed to have consented to, and will raise no objection (nor support any other Person objecting)
to, such Cash Collateral use or DIP Financing so long as such Cash Collateral use or DIP Financing
meets the following requirements: (i) a judicial finding is made that it is on commercially
reasonable terms, (ii) the aggregate principal amount of the DIP Financing plus the
aggregate outstanding principal amount of Revolving Credit Obligations (other than Cash Management
Obligations of the Revolving Credit Facility Borrowers and the Revolving Credit Facility Subsidiary
Guarantors) does not exceed the sum of (I) the Revolving Credit Facility Cap Amount plus
(II) $50,000,000, (iii) the Term Loan Collateral Agent and the Term Loan Claimholders retain the
right to object to any ancillary agreements or arrangements regarding the Cash Collateral use or
the DIP Financing that are materially prejudicial to their interests in the Fixed Asset Collateral,
and (iv) the terms of the DIP Financing (A) do not compel any Grantor to seek confirmation of a
specific plan of reorganization for which all or substantially all of the material terms are set
forth in the DIP Financing documentation or a related document, (B) do not expressly require the
liquidation of the Collateral prior to a default under the DIP Financing documentation or Cash
Collateral order and (C) do not require that any Lien of the Term Loan Collateral Agent on the
Fixed Asset Collateral be subordinated to or pari passu with the Lien on the Fixed Asset Collateral
securing such DIP Financing. To the extent the Liens on the Current Asset Collateral securing the
Revolving Credit Obligations are subordinated to or pari passu with the Liens securing such DIP
Financing which meets the requirements of clauses (i) through (iv) of this Section 6.1(a), the Term
Loan Collateral Agent will subordinate its Liens on the Current Asset Collateral to the Liens
securing such DIP Financing (and all obligations relating thereto) and to any adequate protection
provided to the Revolving Credit Claimholders in respect of the Current Asset Collateral and to any
“carve-out,” including for debtors’ professionals, agreed to by the Revolving Credit Facility
Administrative Agent or the other Revolving Credit Claimholders and will not request adequate
protection or any other relief in connection therewith (except, as expressly agreed by the
Revolving Credit Facility Collateral Agent or to the extent permitted by Section 6.3).




          (b) Until the Discharge of Term Loan Obligations has occurred, if any Grantor shall be subject
to any Insolvency or Liquidation Proceeding and the Term Loan Collateral Agent or the other Term
Loan Claimholders shall desire to permit the use of “Cash Collateral” (as such term is defined in
Section 363(a) of the Bankruptcy Code) constituting Fixed Asset Collateral on which the Term Loan




35









 




Collateral Agent has a Lien or to permit any Grantor to obtain DIP Financing, then the
Revolving Credit Facility Collateral Agent, on behalf of itself and the Revolving Credit
Claimholders, agrees that it will have been deemed to have consented to, and will raise no
objection (nor support any other Person objecting) to, such Cash Collateral use or DIP Financing so
long as such Cash Collateral use or DIP Financing meet the following requirements: (i) a judicial
finding is made that it is on commercially reasonable terms, (ii) the aggregate principal amount of
the DIP Financing plus the aggregate outstanding principal amount of Term Loan Obligations
(other than the Term Loan Obligations in respect of Term Loan Hedging Agreements) does not exceed
the Term Loan Cap Amount, (iii) the Revolving Credit Facility Collateral Agent and the Revolving
Credit Claimholders retain the right to object to any ancillary agreements or arrangements
regarding the Cash Collateral use or the DIP Financing that are materially prejudicial to their
interests in the Current Asset Collateral, and (iv) the terms of the DIP Financing (A) do not
compel any Grantor to seek confirmation of a specific plan of reorganization for which all or
substantially all of the material terms are set forth in the DIP Financing documentation or a
related document, (B) do not expressly require the liquidation of the Collateral prior to a default
under the DIP Financing documentation or Cash Collateral order, and (C) do not require that any
Lien of the Revolving Credit Facility Collateral Agent on the Current Asset Collateral be
subordinated to or pari passu with the Lien on the Current Asset Collateral securing such DIP
Financing. To the extent the Liens on the Fixed Asset Collateral securing the Term Loan
Obligations are subordinated to or pari passu with the Liens securing such DIP Financing which
meets the requirements of clauses (i) through (iv) of this Section 6.1(b), the Revolving Credit
Facility Collateral Agent will subordinate its Liens on the Fixed Asset Collateral to the Liens
securing such DIP Financing (and all obligations relating thereto) and to any adequate protection
provided to the Term Loan Claimholders in respect of the Fixed Asset Collateral and to any
“carve-out,” including for debtors’ professionals, agreed to by the Term Loan Administrative Agent
or the other Term Loan Claimholders and will not request adequate protection or any other relief in
connection therewith (except, as expressly agreed by the Term Loan Collateral Agent or to the
extent permitted by Section 6.3).




          6.2 Relief from the Automatic Stay.




          (a) Until the Discharge of Revolving Credit Obligations has occurred, the Term Loan Collateral
Agent, on behalf of itself and the Term Loan Claimholders, 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 the Current Asset Collateral, without the prior
written consent of the Revolving Credit Facility Collateral Agent, unless a motion for adequate
protection permitted under Section 6.3 has been denied by the relevant bankruptcy court.




          (b) Until the Discharge of Term Loan Obligations has occurred, the Revolving Credit Facility
Collateral Agent, on behalf of itself and the Revolving Credit Claimholders, 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 the Fixed Asset Collateral (other
than to the extent such relief is required to exercise its rights under Section 3.3), without the
prior written consent of the Term Loan Collateral Agent, unless a motion for adequate protection
permitted under Section 6.3 has been denied by the relevant bankruptcy court.




          6.3 Adequate Protection.




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




               (1) any request by the Revolving Credit Facility Collateral Agent or the Revolving Credit
Claimholders for adequate protection with respect to the Current Asset Collateral;



36









 







provided that (A) such adequate protection claim shall not seek the creation of any
Lien over additional property of any Grantor other than with respect to property that constitutes
Revolving Credit Facility Grantor Collateral and (B) if such additional property shall also
constitute Fixed Asset Collateral, (i) a Lien shall have been created in favor of the Term Loan
Claimholders in respect of such Collateral and (ii) the Lien in favor of the Revolving Credit
Claimholders shall be subordinated to the extent set forth in this Agreement; or



               (2) any objection by the Revolving Credit Facility Collateral Agent or the Revolving Credit
Claimholders to any motion, relief, action or proceeding based on the Revolving Credit Facility
Collateral Agent or the Revolving Credit Claimholders claiming a lack of adequate protection with
respect to the Current Asset Collateral; provided that if the Revolving Credit Facility
Collateral Agent is granted adequate protection in the form of additional collateral, the Term Loan
Collateral Agent and the Term Loan Claimholders may seek or request adequate protection in the form
of a Lien on such additional collateral; it being understood and agreed that (A) to the extent such
additional collateral shall also constitute Fixed Asset Collateral, the Lien on such additional
collateral in favor of the Revolving Credit Facility Collateral Agent shall be subordinated to the
Lien on such additional collateral in favor of the Term Loan Collateral Agent and (B) to the extent
such additional collateral shall also constitute Current Asset Collateral, the Lien on such
additional collateral in favor of the Revolving Credit Facility Collateral Agent shall be senior to
the Lien on such additional collateral in favor of the Term Loan Collateral Agent, in each case
with respect to the foregoing clauses (A) and (B) of this Section 6.3(a)(2), to the extent required
by this Agreement.



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




               (1) any request by the Term Loan Collateral Agent or the Term Loan Claimholders for adequate
protection with respect to the Fixed Asset Collateral; provided that (A) such adequate
protection claim shall not seek the creation of any Lien over additional property of any Grantor
other than with respect to property that constitutes Term Loan Collateral and (B) if such
additional property shall also constitute Current Asset Collateral, (i) a Lien shall have been
created in favor of the Revolving Credit Claimholders in respect of such Collateral and (ii) the
Lien in favor of the Term Loan Claimholders shall be subordinated to the extent set forth in this
Agreement; or



               (2) any objection by the Term Loan Collateral Agent or the Term Loan Claimholders to any
motion, relief, action or proceeding based on the Term Loan Collateral Agent or the Term Loan
Claimholders claiming a lack of adequate protection with respect to the Fixed Asset Collateral;
provided that if the Term Loan Collateral Agent is granted adequate protection in the form
of additional collateral, the Revolving Credit Facility Collateral Agent and the Revolving Credit
Claimholders may seek or request adequate protection in the form of a Lien on such additional
collateral; it being understood and agreed that (A) to the extent such additional collateral shall
also constitute Current Asset Collateral, the Lien on such additional collateral in favor of the
Term Loan Collateral Agent shall be subordinated to the Lien on such additional collateral in favor
of the Revolving Credit Facility Collateral Agent and (B) to the extent such additional collateral
shall also constitute Fixed Asset Collateral, the Lien on such additional collateral in favor of
the Term Loan Collateral Agent shall be senior to the Lien on such additional collateral in favor
of the Revolving Credit Facility Collateral Agent, in each case with respect to the foregoing
clauses (A) and (B) of this Section 6.3(b)(2), to the extent required by this Agreement.



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




37









 








               (1) if the Revolving Credit Claimholders (or any subset thereof) are granted adequate
protection with respect to the Current Asset Collateral in the form of additional collateral (even
if such collateral is not of a type which would otherwise have constituted Current Asset
Collateral) in connection with any Cash Collateral use or DIP Financing, then the Term Loan
Collateral Agent, on behalf of itself or any of the Term Loan Claimholders, may seek or request
adequate protection with respect to its interests in such Collateral in the form of a Lien on the
same additional collateral, which Lien will be subordinated to the Liens securing the Revolving
Credit Obligations and such Cash Collateral use or DIP Financing (and all obligations relating
thereto) on the same basis as the other Liens of the Term Loan Collateral Agent on Current Asset
Collateral;



               (2) if the Term Loan Claimholders (or any subset thereof) are granted adequate protection with
respect to the Fixed Asset Collateral in the form of additional collateral (even if such collateral
is not of a type which would otherwise have constituted Fixed Asset Collateral) in connection with
any Cash Collateral use or DIP Financing, then the Revolving Credit Facility Collateral Agent, on
behalf of itself or any of the Revolving Credit Claimholders, may seek or request adequate
protection with respect to its interests in such Collateral in the form of a Lien on the same
additional collateral, which Lien will be subordinated to the Liens securing the Term Loan
Obligations and such Cash Collateral use or DIP Financing (and all obligations relating thereto) on
the same basis as the other Liens of the Revolving Credit Facility Collateral Agent on Fixed Asset
Collateral;



               (3) in the event the Revolving Credit Facility Collateral Agent, on behalf of itself or any of
the Revolving Credit Claimholders, seeks or requests adequate protection in respect of Current
Asset Collateral and such adequate protection is granted in the form of additional collateral (even
if such collateral is not of a type which would otherwise have constituted Current Asset
Collateral), then the Revolving Credit Facility Collateral Agent, on behalf of itself and any of
the Revolving Credit Claimholders, agrees that the Term Loan Collateral Agent may also be granted a
Lien on the same additional collateral as security for the Term Loan Obligations and for any Cash
Collateral use or DIP Financing provided by the Term Loan Claimholders, and the Term Loan
Collateral Agent, on behalf of itself and any of the Term Loan Claimholders, agrees that any Lien
on such additional collateral securing the Term Loan Obligations shall be subordinated to the Liens
on such collateral securing the Revolving Credit Obligations, any such use of Cash Collateral or
any such DIP Financing provided by the Term Loan Claimholders (and all obligations relating
thereto) and to any other Liens granted to the Term Loan Claimholders as adequate protection, all
on the same basis as the other Liens of the Term Loan Collateral Agent on Current Asset Collateral;
and



               (4) in the event the Term Loan Collateral Agent, on behalf of itself or any of the Term Loan
Claimholders, seeks or requests adequate protection in respect of Fixed Asset Collateral and such
adequate protection is granted in the form of additional collateral (even if such collateral is not
of a type which would otherwise have constituted Fixed Asset Collateral), then the Term Loan
Collateral Agent, on behalf of itself and any of the Term Loan Claimholders, agrees that the
Revolving Credit Facility Collateral Agent may also be granted a Lien on the same additional
collateral as security for the Revolving Credit Obligations and for any Cash Collateral use or DIP
Financing provided by the Revolving Credit Claimholders, and the Revolving Credit Facility
Collateral Agent, on behalf of itself and any of the Revolving Credit Claimholders, agrees that any
Lien on such additional collateral securing the Revolving Credit Obligations shall be subordinated
to the Liens on such collateral securing the Term Loan Obligations, any such use of cash Collateral
or any such DIP Financing provided by the Revolving Credit Claimholders (and all obligations
relating thereto) and to any other Liens granted to the Revolving Credit Claimholders as adequate
protection, all on the same basis as the other Liens of the Revolving Credit Facility Collateral
Agent on Fixed Asset Collateral.



38









 





          (d) Except as otherwise expressly set forth in this Section 6 or in connection with the
exercise of remedies with respect to (i) the Current Asset Collateral, nothing herein shall limit
the rights of the Term Loan Collateral Agent or the Term Loan Claimholders from seeking adequate
protection with respect to their rights in the Fixed Asset 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 Fixed Asset Collateral, nothing herein shall limit the rights of
the Revolving Credit Facility Collateral Agent or the Revolving Credit Claimholders from seeking
adequate protection with respect to their rights in the Current Asset Collateral in any Insolvency
or Liquidation Proceeding (including adequate protection in the form of a cash payment, periodic
cash payments or otherwise).




          6.4 Avoidance Issues. If any Revolving Credit Claimholder or Term Loan Claimholder is
required in any Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay to
the estate of the applicable Grantor any amount paid in respect of Revolving Credit Obligations or
the Term Loan Obligations, as the case may be (a “Recovery”), then such Revolving Credit
Claimholders or Term Loan Claimholders shall be entitled to a reinstatement of Revolving Credit
Obligations or the Term Loan Obligations, as the case may be, with respect to all such recovered
amounts. If this Agreement shall have been terminated prior to such Recovery, this Agreement shall
be reinstated in full force and effect, and such prior termination shall not diminish, release,
discharge, impair or otherwise affect the obligations of the parties hereto from such date of
reinstatement.




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




          6.6 Post-Petition Interest.




          (a) Neither the Term Loan Collateral Agent nor any Term Loan Claimholder shall oppose or seek
to challenge any claim by the Revolving Credit Facility Collateral Agent or any Revolving Credit
Claimholder for allowance in any Insolvency or Liquidation Proceeding of Revolving Credit
Obligations consisting of Post-Petition Interest, fees or expenses to the extent of (i) the value
of the Lien on the Current Asset Collateral securing any Revolving Credit Obligations, without
regard to the existence of any Lien of the Term Loan Collateral Agent on behalf of the Term Loan
Claimholders on the Current Asset Collateral and (ii) the value of the Lien on the Fixed Asset
Collateral securing any Revolving Credit Obligations, taking into account the existence of any Lien
of the Term Loan Collateral Agent on behalf of the Term Loan Claimholders on the Fixed Asset
Collateral.




          (b) Neither the Revolving Credit Facility Collateral Agent nor any other Revolving Credit
Claimholder shall oppose or seek to challenge any claim by the Term Loan Collateral Agent or any
Term Loan Claimholder for allowance in any Insolvency or Liquidation Proceeding of Term Loan
Obligations consisting of Post-Petition Interest, fees or expenses to the extent of (i) the value
of the Lien on the Fixed Asset Collateral securing any Term Loan Obligations, without regard to the
existence of any Lien of the Revolving Credit Facility Collateral Agent on behalf of the Revolving
Credit Claimholders on the Fixed Asset Collateral and (ii) the value of the Lien on the Current
Asset Collateral securing any Term Loan Obligations, taking into account the existence of any Lien
of the Revolving Credit Facility Collateral Agent on behalf of the Revolving Credit Claimholders on
the Current Asset Collateral.




39









 








          6.7 Waiver – 1111(b)(2) Issues.




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




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




          6.8 Asset Dispositions in an Insolvency or Liquidation Proceeding.




          (a) Neither the Term Loan Collateral Agent nor any Term Loan Claimholder shall, in any
Insolvency or Liquidation Proceeding or otherwise, oppose any sale or disposition of any Current
Asset Collateral that is supported by the Revolving Credit Claimholders, and the Term Loan
Collateral Agent and the Term Loan Claimholders shall be deemed to have consented under Section 363
of the Bankruptcy Code (and otherwise) to any sale of any Current Asset Collateral supported by the
Revolving Credit Claimholders and to have released their Liens on such assets.




          (b) Neither the Revolving Credit Facility Collateral Agent nor any Revolving Credit
Claimholder shall, in any Insolvency or Liquidation Proceeding or otherwise, oppose any sale or
disposition of any Fixed Asset Collateral that is supported by the Term Loan Claimholders, and the
Revolving Credit Facility Collateral Agent and the Revolving Credit Claimholders shall be deemed to
have consented under Section 363 of the Bankruptcy Code (and otherwise) to any sale of any Fixed
Asset Collateral supported by the Term Claimholders and to have released their Liens on such
assets; provided that this Section 6.8(b) shall not apply to any sale or disposition of
Real Property unless the Revolving Credit Facility Collateral Agent have received at least 90 days’
prior notice of the consummation of any such sale.




          6.9 Additional Section 363 and Section 364 Matters.




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




          (b) To the extent that the Term Loan Collateral Agent or any Term Loan Claimholder has or
acquires rights under Section 363 or Section 364 of the Bankruptcy Code or otherwise with respect
to any of the Current Asset Collateral, the Term Loan Collateral Agent, for itself and on behalf of
the Term Loan Claimholders, agrees not to assert any of such rights without the prior written
consent of the Revolving Credit Facility Collateral Agent; provided that if requested by
the Revolving




40









 




Credit Facility Collateral Agent, the Term Loan Collateral Agent shall timely exercise such
rights in the manner reasonably requested by the Revolving Credit Facility Collateral Agent,
including any rights to payments in respect of such rights.




          6.10 Effectiveness in Insolvency or Liquidation Proceedings. The parties hereto
expressly acknowledge that this Agreement is a “subordination agreement” under Section 510(a) of
the Bankruptcy Code.




          6.11 Separate Grants of Security and Separate Classification.




          (a) The Term Loan Collateral Agent, for itself and on behalf of the Term Loan Claimholders,
and the Revolving Credit Facility Collateral Agent, for itself and on behalf of the Revolving
Credit Claimholders, acknowledges and agrees that the grants of Liens pursuant to the Revolving
Credit Facility Security Documents and the Term Loan Security Documents constitute separate and
distinct grants of Liens, and because of, among other things, their differing rights in the
Collateral, the Term Loan Obligations are fundamentally different from the Revolving Credit
Obligations and must be separately classified in any plan of reorganization proposed or adopted in
an Insolvency or Liquidation Proceeding. In furtherance of the foregoing, each of the Term Loan
Collateral Agent, for itself and on behalf of the Term Loan Claimholders, and the Revolving Credit
Facility Collateral Agent, for itself and on behalf of the Revolving Credit Claimholders, agrees
that the Term Loan Claimholders and the Revolving Credit Claimholders will vote as separate classes
in connection with any plan of reorganization in any Insolvency or Liquidation Proceeding and that
neither any Agent nor any Claimholder will seek to vote with the other as a single class in
connection with any plan of reorganization in any Insolvency or Liquidation Proceeding.




          (b) To further effectuate the intent of the parties as provided in this Section 6.11, if it is
held that the claims of the Term Loan Claimholders and the Revolving Credit Claimholders in respect
of the Fixed Asset Collateral constitute only one secured claim (rather than separate classes of
senior and junior secured claims), then each of the Term Loan Collateral Agent, for itself and on
behalf of the Term Loan Claimholders and the Revolving Credit Facility Collateral Agent, for itself
and on behalf of the Revolving Credit Claimholders, hereby acknowledges and agrees that, subject to
Sections 2.1 and 4.1, all distributions shall be made as if there were separate classes of senior
and junior secured claims against the Grantors in respect of the Fixed Asset Collateral (with the
effect being that, to the extent that the aggregate value of the Fixed Asset Collateral is
sufficient (for this purpose ignoring all claims held by the Revolving Credit Claimholders), the
Term Loan Claimholders shall be entitled to receive, in addition to amounts distributed to them in
respect of principal, pre-petition interest and other claims, all amounts owing in respect of
Post-Petition Interest, including any additional interest payable pursuant to the Term Loan
Agreement, arising from or related to a default, which is disallowed as a claim in any Insolvency
or Liquidation Proceeding) before any distribution is made in respect of the claims held by the
Revolving Credit Claimholders, with the Revolving Credit Facility Collateral Agent, for itself and
on behalf of the Revolving Credit Claimholders, hereby acknowledging and agreeing to turn over to
the Term Loan Collateral Agent, for itself and on behalf of the Term Loan Claimholders, amounts
otherwise received or receivable by them to the extent necessary to effectuate the intent of this
sentence, even if such turnover has the effect of reducing the claim or recovery of the Revolving
Credit Claimholders).




          (c) To further effectuate the intent of the parties as provided in this Section 6.11, if it is
held that the claims of the Term Loan Claimholders and the Revolving Credit Claimholders in respect
of the Current Asset Collateral constitute only one secured claim (rather than separate classes of
senior and junior secured claims), then each of the Term Loan Collateral Agent, for itself and on
behalf of the Term Loan Claimholders and the Revolving Credit Facility Collateral Agent, for itself
and on behalf of the Revolving Credit Claimholders, hereby acknowledges and agrees that, subject to
Sections 2.1 and 4.1,




41









 




all distributions shall be made as if there were separate classes of senior and junior secured
claims against the Grantors in respect of the Current Asset Collateral (with the effect being that,
to the extent that the aggregate value of the Current Asset Collateral is sufficient (for this
purpose ignoring all claims held by the Term Loan Claimholders), the Revolving Credit Claimholders
shall be entitled to receive, in addition to amounts distributed to them in respect of principal,
pre-petition interest and other claims, all amounts owing in respect of Post-Petition Interest,
including any additional interest payable pursuant to the Revolving Credit Agreement, arising from
or related to a default, which is disallowed as a claim in any Insolvency or Liquidation
Proceeding) before any distribution is made in respect of the claims held by the Term Loan
Claimholders, with the Term Loan Collateral Agent, for itself and on behalf of the Term Loan
Claimholders, hereby acknowledging and agreeing to turn over to the Revolving Credit Facility
Collateral Agent, for itself and on behalf of the Revolving Credit Claimholders, amounts otherwise
received or receivable by them to the extent necessary to effectuate the intent of this sentence,
even if such turnover has the effect of reducing the claim or recovery of the Term Loan
Claimholders).




          (d) Notwithstanding anything in the foregoing to the contrary, each of the Term Loan
Collateral Agent and the Term Loan Claimholders, on the one hand, and the Revolving Credit Facility
Collateral Agent and the Revolving Credit Claimholders, on the other hand, shall retain the right
to vote and otherwise act in any Insolvency or Liquidation Proceeding (including the right to vote
to accept or reject any plan of reorganization) to the extent not inconsistent with the provisions
hereof.




          SECTION 7. Reliance; Waivers, Etc.




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




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




42









 




any of the Revolving Credit Facility Credit 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 Facility Collateral Agent and the Revolving Credit Claimholders will be entitled
to manage and supervise their respective loans and extensions of credit under their respective
Revolving Credit Facility Credit Documents in accordance with law and the Revolving Credit
Documents, as they may, in their sole discretion, deem appropriate. The Term Loan Collateral Agent
and the Term Loan Claimholders shall have no duty to the Revolving Credit Facility Collateral Agent
or any of the Revolving Credit Claimholders, and the Revolving Credit Facility Collateral Agent and
the Revolving Credit Claimholders shall have no duty to the Term Loan Collateral Agent or any of
the Term Loan Claimholders, to act or refrain from acting in a manner which allows, or results in,
the occurrence or continuance of an event of default or default under any agreements with any
Grantor (including the Revolving Credit Facility Credit Documents and the Term Loan Credit
Documents), regardless of any knowledge thereof which they may have or be charged with.




          7.3 No Waiver of Lien Priorities.




          (a) No right of the Agents, the Revolving Credit Claimholders or the Term Loan Claimholders to
enforce any provision of this Agreement or any Revolving Credit Facility Credit Document or any
Term Loan Credit Document shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of any Grantor or by any act or failure to act by such Agents, Revolving
Credit Claimholders or Term Loan Claimholders or by any noncompliance by any Person with the terms,
provisions and covenants of this Agreement, any of the Revolving Credit Facility Credit Documents
or any of the Term Loan Credit Documents, regardless of any knowledge thereof which the Agents or
the Revolving Credit Claimholders or the Term Loan Claimholders, 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 Grantors under the Revolving Credit Facility Credit Documents and Term Loan Credit
Documents and subject to the provisions of Sections 2.3, 2.4 and 5.3), the Agents, the Revolving
Credit Claimholders and the Term Loan Claimholders may, at any time and from time to time in
accordance with the Revolving Credit Facility Credit Documents and Term Loan Credit Documents
and/or applicable law, without the consent of, or notice to, the other Agent or the Revolving
Credit Claimholders or the Term Loan Claimholders (as the case may be), without incurring any
liabilities to such Persons (except for liabilities for breach of obligations under this Agreement)
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 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 amend, renew,
exchange, extend, modify or supplement in any manner any Liens held by the applicable Agent or any
rights or remedies under any of the Revolving Credit Facility Credit Documents or the Term Loan
Credit Documents; provided that any such increase in the Revolving Credit Obligations or
the Term Loan Obligations, as applicable, shall not, except to the extent permitted pursuant to
Section 6.1(a), increase the sum of the Indebtedness (as defined in the Revolving Credit Agreement
or Term Loan Agreement, as applicable) constituting principal under the Revolving Credit Agreement
or Term Loan Agreement, as applicable, and (in the case of the Revolving Credit Obligations), the
face amount of any letters of credit, bank guarantees and similar instruments issued or otherwise
outstanding under the Revolving Credit Agreement and not



43









 







reimbursed, to an amount in excess of the Revolving Credit Facility Cap Amount or Term Loan
Cap Amount, as applicable;



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



               (3) settle or compromise any Obligation or any other liability of any 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) exercise or delay in or refrain from exercising any right or remedy against any security
or any Grantor or any other Person, elect any remedy and otherwise deal freely with any Grantor.



          (c) Except as otherwise provided herein, the Revolving Credit Facility Collateral Agent, on
behalf of itself and the Revolving Credit Claimholders, also agrees that the Term Loan Claimholders
and the Term Loan Collateral Agent shall have no liability to the Revolving Credit Facility
Collateral Agent or any Revolving Credit Claimholders, and the Revolving Credit Facility Collateral
Agent, on behalf of itself and the Revolving Credit Claimholders, hereby waives any claim against
any Term Loan Claimholder or the Term Loan Collateral Agent, arising out of any and all actions
which the Term Loan Claimholders or the Term Loan Collateral Agent may take or permit or omit to
take with respect to:




               (1) the Term Loan Credit Documents;



               (2) the collection of the Term Loan Obligations; or



               (3) the foreclosure upon, or sale, liquidation or other disposition of, any Fixed Asset
Collateral.



          The Revolving Credit Facility Collateral Agent, on behalf of itself and the Revolving Credit
Claimholders, agrees that the Term Loan Claimholders and the Term Loan Collateral Agent have no
duty to them in respect of the maintenance or preservation of the Fixed Asset Collateral, the Term
Loan Obligations or otherwise.




          (d) Except as otherwise provided herein, the Term Loan Collateral Agent, on behalf of itself
and the Term Loan Claimholders, also agrees that the Revolving Credit Claimholders and the
Revolving Credit Facility Collateral Agent shall have no liability to the Term Loan Collateral
Agent or any Term Loan Claimholders, and the Term Loan Collateral Agent, on behalf of itself and
the Term Loan Lenders, hereby waives any claim against any Revolving Credit Claimholder or the
Revolving Credit Facility Collateral Agent, arising out of any and all actions which the Revolving
Credit Claimholders or the Revolving Credit Facility Collateral Agent may take or permit or omit to
take with respect to:




               (1) the Revolving Credit Facility Credit Documents;



               (2) the collection of the Revolving Credit Obligations; or



               (3) the foreclosure upon, or sale, liquidation or other disposition of, any Current Asset
Collateral.



44









 





          The Term Loan Collateral Agent, on behalf of itself and the Term Loan Claimholders, agrees
that the Revolving Credit Claimholders and the Revolving Credit Facility Collateral Agent have no
duty to them in respect of the maintenance or preservation of the Current Asset Collateral, the
Revolving Credit Obligations or otherwise.




          (e) Until the Discharge of Term Loan Obligations, the Revolving Credit Facility Collateral
Agent, on behalf of itself and the Revolving Credit Claimholders, agrees not to assert and hereby
waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise
assert or otherwise claim the benefit of, any marshalling, appraisal, valuation or other similar
right that may otherwise be available under applicable law with respect to the Fixed Asset
Collateral or any other similar rights a junior secured creditor may have under applicable law.




          (f) Until the Discharge of Revolving Credit Obligations, the Term Loan Collateral Agent, on
behalf of itself and the Term Loan Claimholders, agrees not to assert and hereby waives, to the
fullest extent permitted by law, any right to demand, request, plead or otherwise assert or
otherwise claim the benefit of, any marshalling, appraisal, valuation or other similar right that
may otherwise be available under applicable law with respect to the Current Asset Collateral or any
other similar rights a junior secured creditor may have under applicable law.




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




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




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




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




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




          SECTION 8. Miscellaneous.




          8.1 Conflicts. In the event of any conflict between the provisions of this Agreement
and the provisions of any Revolving Credit Facility Credit Document or any Term Loan Credit
Document, the provisions of this Agreement shall govern and control. Notwithstanding the
foregoing, the parties




45









 




hereto acknowledge that, except as expressly set forth herein, this Agreement does not impose
any obligations on the Loan Parties.




          8.2 Effectiveness; Continuing Nature of this Agreement; Severability. This Agreement
shall become effective when executed and delivered by the parties hereto. This is a continuing
agreement of lien subordination and the Revolving Credit Claimholders and Term Loan Claimholders
may continue, at any time and without notice to any Agent, to extend credit and other financial
accommodations and lend monies to or for the benefit of any Grantor in reliance hereon. Each of
the Agents, on behalf of itself and the Revolving Credit Claimholders or the Term Loan
Claimholders, as the case may be, 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, during and after the commencement of an
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 Grantor shall
include such Grantor as debtor and debtor-in-possession and any receiver or trustee for any 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 Facility Collateral Agent, the Revolving Credit
Facility Administrative Agent, the Revolving Credit Claimholders and the Revolving Credit
Obligations, on the date of the Discharge of Revolving Credit Obligations, subject to the
provisions of Section 5.5 and the rights of the Revolving Credit Claimholders under Sections 4.4
and 6.4; and




          (b) with respect to the Term Loan Collateral Agent, the Term Loan Administrative Agent, the
Term Loan Claimholders and the Term Loan Obligations, on the date of the Discharge of Term Loan
Obligations, subject to the provisions of Section 5.5 and the rights of the Term Loan Claimholders
under Sections 4.4 and 6.4.




          8.3 Amendments; Waivers. No amendment, modification or waiver of any of the
provisions of this Agreement by the Term Loan Collateral Agent or the Revolving Credit Facility
Collateral Agent shall be deemed to be made unless the same shall be in writing signed on behalf of
each party hereto or its authorized agent and each waiver, if any, shall be a waiver only with
respect to the specific instance involved and shall in no way impair the rights of the parties
making such waiver or the obligations of the other parties to such party in any other respect or at
any other time. Notwithstanding the foregoing, no 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 that such amendment, modification or waiver (i) directly and adversely affects or impairs
its rights under this Agreement, under the Term Loan Credit Documents or under the Revolving Credit
Facility Credit Documents, or (ii) directly imposes any additional obligation or liability upon it.




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




46









 




event that either the Revolving Credit Facility Collateral Agent or any of the Revolving
Credit Claimholders, on the one hand, or the Term Loan Collateral Agent and the Term Loan
Claimholders, on the other hand, undertakes at any time or from time to time to provide any such
information to any of the others, it or they shall be under no obligation:




          (a) to make, and shall not make, any express or implied representation or warranty, including
with respect to the accuracy, completeness, truthfulness or validity of any such information so
provided;




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




          (c) to undertake any investigation; or




          (d) to disclose any information, which pursuant to accepted or reasonable commercial finance
practices, such party wishes to maintain confidential or is otherwise required to maintain
confidential.




          8.5 Subrogation.




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




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




          8.6 SUBMISSION TO JURISDICTION; WAIVERS.




          (a) JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO MAY BE
BROUGHT IN ANY STATE OR




47









 




FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY
EXECUTING AND DELIVERING THIS AGREEMENT, EACH PARTY FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, IRREVOCABLY:




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



               (2) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;



               (3) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE PARTY AT ITS ADDRESS
PROVIDED IN ACCORDANCE WITH SECTION 8.7 (OR IN THE CASE OF ANY GRANTOR ORGANIZED OR EXISTING UNDER
THE LAWS OF A JURISDICTION OUTSIDE THE UNITED STATES, TO ITS AGENT SPECIFIED IN SECTION 8.18); AND



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



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




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




48









 








          8.7 Notices. All notices to the Term Loan Claimholders and the Revolving Credit
Claimholders permitted or required under this Agreement shall also be sent to the Term Loan
Collateral Agent and the Revolving Credit Facility Collateral Agent, respectively. Unless
otherwise specifically provided herein, any notice hereunder shall be in writing and may be
personally served or sent by telecopier or 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 telecopier transmission, or upon deposit in the mail with postage prepaid and properly
addressed. For the purposes hereof, the addresses of the parties hereto shall be as set forth
below each party’s name on the signature pages hereto, or, as to each party, at such other address
as may be designated by such party in a written notice to all of the other parties.




          8.8 Further Assurances. The Revolving Credit Facility Collateral Agent, on behalf of
itself and the Revolving Credit Claimholders under the Revolving Credit Facility Credit Documents,
and the Term Loan Collateral Agent, on behalf of itself and the Term Loan Claimholders under the
Term Loan Credit Documents, and the Grantors, agree that each of them shall take such further
action and shall execute and deliver such additional documents and instruments (in recordable form,
if requested) as the Revolving Credit Facility Collateral Agent or the Term Loan Collateral Agent
may reasonably request to effectuate the terms of and the Lien priorities contemplated by this
Agreement.




          8.9 APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.




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




          8.11 Specific Performance. Each of the Revolving Credit Facility Collateral Agent and
the Term Loan Collateral Agent may demand specific performance of this Agreement. The Revolving
Credit Facility Collateral Agent, on behalf of itself and the Revolving Credit Claimholders, and
the Term Loan Collateral Agent, on behalf of itself and the Term Loan Claimholders, hereby
irrevocably waive 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
the Revolving Credit Facility Collateral Agent or the Revolving Credit Claimholders or the Term
Loan Collateral Agent or the Term Loan Claimholders, as the case may be.




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




49









 








          8.13 Counterparts. This Agreement may be executed in counterparts (and by different
parties hereto in different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. Delivery of an executed counterpart
of a signature page of this Agreement or any document or instrument delivered in connection
herewith by telecopier or other electronic image scan transmission (e.g., “PDF” or “tif” via
e-mail) shall be effective as delivery of a manually executed counterpart of this Agreement or such
other document or instrument, as applicable.




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




          8.15 No Third Party Beneficiaries. This Agreement and the rights and benefits hereof
shall inure to the benefit of each of the Agents, the Revolving Credit Claimholders and the Term
Loan Claimholders, and to the extent applicable, to the Grantors. Nothing in this Agreement shall
impair, as between the Grantors and the Revolving Credit Facility Collateral Agent and the
Revolving Credit Claimholders, or as between the Grantors and the Term Loan Collateral Agent and
the Term Loan Claimholders, the obligations of the Grantors to pay principal, interest, fees and
other amounts as provided in the Revolving Credit Facility Credit Documents and the Term Loan
Credit Documents, respectively.




          8.16 Provisions to Define Relative Rights. Except with respect to the bailee and
agency provisions of Section 5.4, the provisions of this Agreement are and are intended for the
purpose of defining the relative rights of the Revolving Credit Facility Collateral Agent and the
Revolving Credit Claimholders on the one hand and the Term Loan Collateral Agent and the Term Loan
Claimholders on the other hand. No Grantor nor any other creditor of any Grantor shall have any
rights hereunder (other than the rights of the Grantors expressly set forth in Section 8.3) and no
Grantor may rely on the terms hereof, except that the Grantors may rely on Sections 5.4 and 8.3
hereof with respect to matters set forth therein and, to the extent that any provision hereof
governs the priority of security interests, the Grantors may rely on such provision in making
representations and warranties relating to priority of security interests in the Revolving Credit
Facility Credit Documents and the Term Loan Credit Documents. Nothing in this Agreement is
intended to or shall impair the obligations of any Grantor, which are absolute and unconditional,
to pay and perform the Revolving Credit Obligations and the Term Loan Obligations as and when the
same shall become due and payable in accordance with their terms.




          8.17 Actions Upon Breach. If any Term Loan Claimholder or Revolving Credit
Claimholder, contrary to this Agreement, commences or participates in any action or proceeding
against any Grantor or the Collateral, such Grantor, with the prior written consent of the
Revolving Credit Facility Collateral Agent or the Term Loan Collateral Agent, as applicable, may
interpose as a defense or dilatory plea the making of this Agreement, and any Revolving Credit
Claimholder or Term Loan Claimholder, as applicable, may intervene and interpose such defense or
plea in its or their name or in the name of such Grantor.




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




50









 




of each Grantor hereunder shall remain in full force and effect notwithstanding the addition
of any new Grantor as a party to this Agreement.




[Remainder of page intentionally left blank]





51









 








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




CITIBANK, N.A.,

as Term Loan Administrative Agent and as Term

Loan Collateral Agent




By:
/s/Aaron Dannenberg                                        

Name: Aaron Dannenberg

Title: Vice President




Citibank, N.A.

2 Penn’s Way

New Castle, DE 19720

Attention of: Brenna Makin

Telecopier No.: 212-994-0849

E-Mail Address: brenna.makin@citigroup.com




CITIBANK, N.A.,

as Revolving Credit Facility Administrative

Agent and as Revolving Credit Facility

Collateral Agent




By: /s/David Jaffe                                        

Name: David Jaffe

Title: Director/Vice President




Citibank, N.A.

2 Penn’s Way

New Castle, DE 19720

Attention of: Brenna Makin

Telecopier No.: 212-994-0849

E-Mail Address: brenna.makin@citigroup.com




 









 





Acknowledged and Agreed to by:




SOLUTIA INC.

BEAMER ROAD MANAGEMENT COMPANY

CPFILMS INC.

FLEXSYS AMERICA CO.

FLEXSYS AMERICA L.P.

         by FLEXSYS AMERICA CO.,

         its general partner

MONCHEM INTERNATIONAL, INC.

SOLUTIA BUSINESS ENTERPRISES INC.

SOLUTIA GREATER CHINA, INC.

SOLUTIA INTER-AMERICA, INC.

SOLUTIA OVERSEAS, INC.

SOLUTIA SYSTEMS, INC.




By:  /s/James A. Tichenor                                        

        Name: James A. Tichenor

         Title: Authorized Officer




575 Maryville Centre Drive

P.O. Box 66760

St. Louis, Missouri 63166-6760

(courier delivers to: 575 Maryville Centre Drive, St. Louis, Missouri 63141)

Attention of: James Tichenor and Rosemary Klein

Telecopier No.: 314-674-2721

E-Mail Address: