Exhibit 10.6


 




 





 


INTERCREDITOR AGREEMENT


 


by and among


 


GMAC COMMERCIAL FINANCE LLC,


 


as Senior Agent,


 


and


 


U.S. BANK, NATIONAL ASSOCIATION,


 


as Junior Agent


 


Dated as of April 7, 2010


 




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 1.

  	
  DEFINITIONS; RULES OF CONSTRUCTION

  	
  2

  
	
  1.1.

  	
  Defined Terms

  	
  2

  
	
  1.2.

  	
  Construction

  	
  9

  
	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  Lien Priorities

  	
  10

  
	
  2.1.

  	
  Relative Priorities

  	
  10

  
	
  2.2.

  	
  Prohibition on Contesting Liens

  	
  11

  
	
  2.3.

  	
  New Liens

  	
  11

  
	
  2.4.

  	
  Similar Liens and Agreements

  	
  12

  
	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  Exercise of Remedies

  	
  12

  
	
  3.1.

  	
  Exercise of Remedies

  	
  12

  
	
  3.2.

  	
  Exclusive Enforcement Rights

  	
  14

  
	
  3.3.

  	
  Junior Permitted Actions

  	
  14

  
	
  3.4.

  	
  Unsecured Creditor Remedies

  	
  15

  
	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  Proceeds

  	
  15

  
	
  4.1.

  	
  Application of Proceeds

  	
  15

  
	
  4.2.

  	
  Turnover

  	
  15

  
	
  4.3.

  	
  No Subordination of the Relative
  Priority of Claims

  	
  16

  
	
  4.4.

  	
  Revolving Nature of Senior
  Obligations

  	
  16

  
	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  Releases; Dispositions; Other
  Agreements

  	
  16

  
	
  5.1.

  	
  Releases

  	
  16

  
	
  5.2.

  	
  Insurance

  	
  18

  
	
  5.3.

  	
  Amendments; Refinancings; Legend

  	
  18

  
	
  5.4.

  	
  Bailee for Perfection

  	
  20

  
	
  5.5.

  	
  When Discharge of Senior Lien
  Obligations Deemed to Not Have Occurred

  	
  21

  
	
  5.6.

  	
  Injunctive Relief

  	
  22

  
	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  Insolvency Proceedings

  	
  22

  
	
  6.1.

  	
  Enforceability and Continuing
  Priority

  	
  22

  
	
  6.2.

  	
  Financing

  	
  23

  
	
  6.3.

  	
  Section 363 Sales of
  Collateral and Releases of Liens securing Senior Lien Obligations

  	
  23

  
	
  6.4.

  	
  Relief from the Automatic Stay

  	
  24

  
	
  6.5.

  	
  Adequate Protection

  	
  24

  
	
  6.6.

  	
  Section 1111(b) of the
  Bankruptcy Code

  	
  26

  
	
  6.7.

  	
  No Waiver

  	
  26

  
	
  6.8.

  	
  Avoidance Issues

  	
  26

  
	
  6.9.

  	
  Plan of Reorganization

  	
  27

  



 


i

















 


	
  6.10.

  	
  Nature of Obligations;
  Post-Petition Interest

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  Reliance; Waivers; Etc.

  	
  28

  
	
  7.1.

  	
  Reliance

  	
  28

  
	
  7.2.

  	
  No Warranties or Liability

  	
  28

  
	
  7.3.

  	
  No Waiver of Lien Priorities

  	
  29

  
	
  7.4.

  	
  Obligations Unconditional

  	
  31

  
	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  Representations and Warranties

  	
  32

  
	
  8.1.

  	
  Representations and Warranties of
  Each Party

  	
  32

  
	
  8.2.

  	
  Representations and Warranties of
  Each Agent

  	
  32

  
	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  Miscellaneous

  	
  33

  
	
  9.1.

  	
  Conflicts

  	
  33

  
	
  9.2.

  	
  Effectiveness; Continuing Nature of
  this Agreement; Severability

  	
  33

  
	
  9.3.

  	
  Amendments; Waivers

  	
  33

  
	
  9.4.

  	
  Information Concerning Financial
  Condition of the Loan Parties and their Respective Subsidiaries

  	
  34

  
	
  9.5.

  	
  Subrogation

  	
  35

  
	
  9.6.

  	
  SUBMISSION TO JURISDICTION; WAIVERS

  	
  35

  
	
  9.7.

  	
  Notices

  	
  36

  
	
  9.8.

  	
  Further Assurances

  	
  36

  
	
  9.9.

  	
  APPLICABLE LAW

  	
  36

  
	
  9.10.

  	
  Binding on Successors and Assigns

  	
  36

  
	
  9.11.

  	
  Headings

  	
  36

  
	
  9.12.

  	
  Counterparts

  	
  36

  
	
  9.13.

  	
  No Third Party Beneficiaries

  	
  37

  
	
  9.14.

  	
  Provisions Solely to Define
  Relative Rights

  	
  37

  
	
  9.15.

  	
  Patriot Act Compliance

  	
  37

  



 


ii

















 


INTERCREDITOR AGREEMENT


 


This INTERCREDITOR
AGREEMENT (this “Agreement”) is
dated as of April 7, 2010 and entered into by and among GMAC COMMERCIAL FINANCE LLC, a Delaware limited liability company (“GMACCF”), in its capacity as agent
under the Senior Loan Documents (as defined herein) (in such capacity, together
with its successors and assigns in such capacity from time to time, “Senior Agent”), and U.S. BANK, NATIONAL
ASSOCIATION,  a national banking association (“U.S. Bank”),  in its capacity as trustee and collateral agent under
the Junior Lien Documents (as defined below) (in such capacity, including its
successors and assigns in such capacity from time to time, the “Junior Agent”).


 


RECITALS


 


A.            SQUARETWO
FINANCIAL CORPORATION, a Delaware
corporation (“SquareTwo”), PREFERRED
CREDIT RESOURCES LIMITED, an Ontario corporation (“Preferred”) (Preferred and SquareTwo, collectively, “Borrowers” and each, individually, a “Borrower”),
the other ‘Loan Parties’ from time to time party thereto, the lenders from time
to time party thereto, GMACCF, as Senior Agent, have entered into that certain
Loan Agreement, dated as of April 7, 2010 (as amended, restated,
supplemented, Refinanced (as defined below), modified, renewed, extended,
refunded or replaced from time to time in accordance with the terms of this
Agreement, the “Senior Credit Agreement”);


 


B.            The
obligations of the Loan Parties under the Senior Credit Agreement are secured
on a senior priority basis by liens on substantially all of the assets of the
Grantors (as defined herein), pursuant to the terms of certain of the Senior
Loan Documents (as defined below);


 


C.            The
U.S. Grantors and U.S. Bank, in its capacity as trustee and collateral agent
(in such capacity, the “Trustee”) for
the Junior Claimholders (as defined below), have entered into that certain
Indenture dated as of the date hereof (as amended, restated, supplemented,
Refinanced (as defined below), modified, renewed, extended, refunded or
replaced from time to time in accordance with the terms of this Agreement, the “Junior Debt Agreement”) providing for the
issuance of notes and the guaranty of the Junior Lien Obligations (as defined
below) by such U.S. Grantors;


 


D.            The
obligations of the U.S. Grantors under the Junior Debt Agreement are secured on
a junior priority basis by liens on substantially all of the assets of the U.S.
Grantors pursuant to the terms of certain of the Junior Lien Documents;


 


E.             The
Senior Loan Documents and the Junior Lien Documents provide, among other
things, that the parties thereto shall set forth in this Agreement their
respective rights and remedies with respect to the Collateral (as defined
below) and certain other matters; and


 


F.             In
order to induce the Senior Claimholders to consent to the U.S. Grantors
granting the Liens to secure the Junior Lien Obligations and to induce the
Senior Claimholders to extend credit and other financial accommodations and
lend monies to or for the benefit of the Borrowers, the Junior Agent and, by
virtue of accepting the Junior Notes (as defined below), the 


 

















 


Junior Claimholders, have agreed to the intercreditor
and other provisions 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; RULES OF CONSTRUCTION.


 


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


 


“Additional Credit Facility”
means any “Credit Facility” (other than the Senior Credit Agreement and related
Senior Loan Documents) as defined in and permitted under the Junior Debt
Agreement, as the same may be amended, restated, supplemented, Refinanced,
modified, renewed, extended, refunded or replaced from time to time; provided,
that any such “Credit Facility” shall only constitute an Additional Credit
Facility hereunder if either (a) a Discharge of Senior Lien Obligations
under the Senior Credit Agreement and other related Senior Loan Documents
occurs and a Refinancing thereof occurs pursuant to a Refinancing that will be
secured by a first priority Lien in any Collateral, or (b) the Senior
Agent and existing Senior Lenders consent to such Credit Facility being
designated as an “Additional Credit Facility” in accordance with the terms and
conditions of the Senior Loan Documents. 
The authorized representative of the lenders or holders under any
Additional Credit Facility shall execute a joinder agreement to this Agreement
substantially in the form of Exhibit A, appropriately completed, and any
such representative of an Additional Credit Facility described in the foregoing
clause (a) shall succeed to all rights, benefits and obligations of the
Senior Agent hereunder.


 


“Additional Credit Facility
Agent” means the authorized representative of the lenders or holders
under any Additional Credit Facility which representative has executed a
joinder agreement to this Agreement substantially in the form of Exhibit A
(appropriately completed).


 


“Adequate Protection”
means the granting of additional Liens, replacement Liens, super-priority
claims, cash payments or any other court ordered charge over any of a Grantor’s
property or assets in order to preserve or substitute value where pre-existing
security is diminished (i) by the granting of prior ranking Liens to
secure DIP Financing (as defined in Section 6.2), (ii) by authorizing
the use of Cash Collateral, or (iii) by any other means.


 


“Agent” means
Senior Agent or Junior Agent as the context requires.


 


“Agreement”
has the meaning set forth in the preamble hereto.


 


“Ancillary Obligations”
has the meaning set forth in the definition of “Maximum Senior Amount.”


 


2

















 


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


 


“Bankruptcy Law”
means the Bankruptcy Code and any other federal, state, or foreign law for the
relief of debtors, each as now or hereafter in effect, or any successor
statute.


 


“Borrower”
and “Borrowers” have the respective meanings
set forth in the recitals to this Agreement.


 


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


 


“Cash Collateral”
has the meaning set forth in Section 6.2.


 


“Claimholders”
means Senior Claimholders and Junior Claimholders.


 


“Collateral”
means all of the assets and property of any Grantor, whether real, personal or
mixed, constituting Senior Collateral or Junior Collateral.


 


“Default Disposition”
has the meaning set forth in Section 5.1(d).


 


“DIP Financing”
has the meaning set forth in Section 6.2.


 


“Discharge of Junior Lien
Obligations” means, except to the extent otherwise expressly
provided in Section 5.5, the payment in full in cash of the Junior
Lien Obligations (other than contingent indemnification obligations as to which
no claim has been asserted) and the termination or expiration of all
commitments, if any, to extend credit that would constitute Junior Lien
Obligations.


 


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


 


(a)           payment
in full in cash of the Senior Lien Obligations (other than (i) outstanding
Letters of Credit and obligations under Interest Rate Agreements which are not
then due and payable, and (ii) contingent obligations or contingent indemnification
obligations except as provided in clause (d) below);


 


(b)           termination
or expiration of all commitments, if any, to extend credit that would
constitute Senior Lien Obligations;


 


(c)           termination
or cash collateralization (in an amount and in the manner required by the
Senior Credit Agreement) of all outstanding Letters of Credit and all
obligations under Interest Rate Agreements and other Ancillary Obligations; and


 


(d)           cash
collateralization (or support by a letter of credit) for any costs, expenses
and contingent indemnification obligations consisting of Senior Lien
Obligations not yet due and payable but with respect to which a claim has been
asserted 


 


3

















 


in writing under any Senior Loan Documents (in an
amount and manner reasonably satisfactory to Senior Agent).


 


“Disposition” or
“Dispose” means the sale, assignment,
transfer, license, lease (as lessor), exchange, or other disposition (including
any sale and leaseback transaction) of any property by any person (or the
granting of any option or other right to do any of the foregoing).


 


“Dollars” or “$” means United States dollars.


 


“Exercise any Secured
Creditor Remedies” or “Exercise of Secured
Creditor Remedies” means (a) the taking of any action to
enforce any Lien in respect of the Collateral, including the institution of any
enforcement or foreclosure proceedings, the noticing of any public or private
sale or other disposition pursuant to Article 9 of the UCC or any
diligently pursued in good faith attempt to vacate or obtain relief from a stay
or other injunction restricting any other action described in this definition
or the enforcement of or execution on any judgment Lien on Collateral, (b) the
exercise of any right or remedy with respect to the Collateral provided to a
secured creditor under the Senior Loan Documents or the Junior Lien Documents
(including, in either case, any delivery of any notice to otherwise seek to
obtain payment directly from any account debtor of any Grantor or the taking of
any action or the exercise of any right or remedy in respect of the setoff or
recoupment against the Collateral or proceeds of Collateral or the exercise of
any right under any lockbox agreement, account control agreement, landlord
waiver or bailee letter or similar agreement or arrangement, but excluding the
collection of Collateral and proceeds of Collateral by Senior Agent under any
lockbox agreement or account control agreement), under applicable law, at
equity, in an Insolvency Proceeding or otherwise, including the acceptance of
Collateral in full or partial satisfaction of a Lien, (c) the sale,
assignment, transfer, lease, license, or other Disposition of all or any
portion of the Collateral, by private or public sale or any other means, (d) the
solicitation of bids from third parties to conduct the liquidation of all or a
material portion of Collateral, (e) the engagement or retention of sales
brokers, marketing agents, investment bankers, accountants, appraisers,
auctioneers, or other third parties for the purposes of valuing, marketing, or
Disposing of, all or a material portion of the Collateral, (f) the
exercise of any other enforcement right relating to the Collateral (including
the exercise of any voting rights relating to any capital stock composing a
portion of the Collateral) whether under the Senior Loan Documents, the Junior
Lien Documents, under applicable law of any jurisdiction, in equity, in an
Insolvency Proceeding, or otherwise, (g) the pursuit of Default
Dispositions relative to all or a material portion of the Collateral, or (h) the
commencement of, or the joinder with any creditor in commencing, any Insolvency
Proceeding against any Grantor or any assets of any Grantor or instituting any
action seeking the appointment of a trustee, receiver, liquidator or similar
official appointed for or over any Collateral.


 


“Governmental
Authority” means the government of the United States of America,
Canada or any other nation, 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.


 


4

















 


“Grantors”
means all Loan Parties (as such term is defined in the Senior Credit
Agreement), and each other person that may from time to time execute and
deliver a Senior Loan Document or a Junior Lien Documents as a “debtor,” “grantor,”
“guarantor” or “pledgor” (or the equivalent thereof).


 


“Guarantor” and “Guarantors” means the “Guarantor” and “Guarantors” as such
terms are defined in the Senior Credit Agreement.


 


“Holding” means
CA Holding, Inc., a Delaware corporation.


 


“Indebtedness” means and includes all obligations that constitute “Indebtedness” within
the meaning of the Senior Credit Agreement.


 


“Insolvency Proceeding”
means:


 


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


 


(b)           any other voluntary or involuntary insolvency or
bankruptcy case or proceeding, or any receivership, interim receivership,
liquidation or other similar case or proceeding with respect to any Grantor or
with respect to a material portion of its assets;


 


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


 


(d)           any assignment for the general benefit of creditors
or any other marshaling of assets and liabilities of any Grantor.


 


“Interest Rate Agreements”
means the “Interest Rate Agreements” as such term is defined in the Senior
Credit Agreement.


 


“Junior Agent”
means (i) so long as the obligations under the Junior Debt Agreement are
outstanding, the Trustee, in its capacity as collateral agent for the holders
of the Junior Notes and other secured parties under the Junior Debt Agreement
and the other Junior Lien Documents, and (ii) at any time thereafter, such
agent or trustee as is designated “Junior Agent” by Junior Claimholders holding
a majority in principal amount of the Junior Lien Obligations then outstanding
or pursuant to such other arrangements as agreed to among the holders of the
Junior Lien Obligations; it being understood that as of the date of this
Agreement, the Trustee shall be so designated Junior Agent.


 


“Junior Claimholders”
means, at any relevant time, the holders of Junior Lien Obligations at that
time, including Junior Creditors and Junior Agent, and any agents or trustee of
any of the foregoing persons and each Permitted Additional Junior Lien
Obligations Representative.


 


“Junior Collateral”
means, subject to any applicable limitations set forth in Section 2.3,
all of the assets and property of any U.S. Grantor subject to the Lien of
Junior Agent and granted as security for any Junior Lien Obligation under the
Junior Security Agreement the Junior Pledge 


 


5

















 


Agreement, or any other Junior Lien Document, as such
agreements may be in effect from time to time.


 


“Junior Creditors”
means the “Holders” (as such terms are defined in the Junior Debt Agreement).


 


“Junior Debt
Agreement” has the meaning set forth in the recitals to this
Agreement.


 


“Junior Lien
Obligations” means
all obligations and all amounts owing, due, or secured under the terms of the
Junior Debt Agreement (as in effect on the date hereof and as amended,
restated, supplemented, Refinanced, modified, renewed, extended, refunded or
replaced as permitted under this Agreement) or any other Junior Lien Documents
(including any Permitted Additional Junior Lien Indebtedness Documents),
whether now existing or arising hereafter, including all principal, premium,
interest, fees, attorneys fees, costs, charges, expenses, reimbursement
obligations, indemnities, guarantees, and all other amounts payable under or
secured by any Junior Lien Documents (including, in each case, all amounts
accruing on or after the commencement of any Insolvency Proceeding relating to
any U.S. Grantor, or that would have accrued or become due under the terms of
the Junior Lien Documents but for the effect of the Insolvency Proceeding and
irrespective of whether a claim for all or any portion of such amounts is
allowable or allowed in such Insolvency Proceeding).


 


“Junior Lien Documents”
means the Junior Security Agreement, the Junior Debt Agreement, the Junior
Pledge Agreement, the Junior Notes and any other agreement, document, or
instrument (other than this Agreement) pursuant to which a Lien is granted
securing any Junior Lien Obligations or under which rights or remedies with
respect to such Liens are governed (including any Permitted Additional Junior
Lien Indebtedness Documents).


 


“Junior Notes”
means the 11.625% Senior Secured Notes due April, 2017 issued by SquareTwo
pursuant to the Junior Debt Agreement.


 


“Junior Pledge Agreement” means the Pledge Agreement (as such term is defined in the Junior Debt
Agreement).


 


“Junior Security Agreement” means the Security Agreement (as such term is defined in the Junior
Debt Agreement).


 


“Letters of Credit”
means the “Lender Letters of Credit,” as that term is defined in the Senior
Credit Agreement.


 


“Lien”
means any mortgage, deed of trust, pledge, hypothecation, assignment, charge,
deposit arrangement, encumbrance, easement, lien (statutory or other), security
interest, or other security arrangement and any other preference, priority, or
preferential arrangement of any kind or nature whatsoever, including any
conditional sale contract or other title retention agreement, the interest of a
lessor under a capital lease and any synthetic or other financing lease having
substantially the same economic effect as any of the foregoing and any
financing statement under the UCC (other than precautionary lease financing statements).


 


6






 










 


“Maximum Senior Amount”
means the greater of (x) $215,000,000 and (y) as of the date that any
Senior Lien Obligations are incurred, the lesser of (A) 35% of Estimated
Remaining Proceeds and (B) an amount equal to the Consolidated Cash Flow
of the Company and its Restricted Subsidiaries for the most recently ended four
fiscal quarters ending immediately prior to such date for which internal
financial statements are available (all capitalized terms in this clause (y) defined
are as defined in the Junior Debt Agreement, as in effect on the date that any
Senior Lien Obligations are incurred in reliance on this clause (y)) (it being
understood that the Maximum Senior Amount shall not be applicable with respect
to (and therefore shall not limit) any Senior Lien Obligations that consist of
obligations incurred with respect to Interest Rate Agreements, currency hedge
agreements or bank product agreements that are secured under the Senior Credit
Agreement or any Additional Credit Facility (the “Ancillary
Obligations”) or any interest, fees, expenses, indemnification
obligations or other Senior Lien Obligations that do not constitute principal).
For purposes of the determining the amount applicable pursuant to clause (y) above,
(i) the Senior Claimholders shall be entitled to rely on a calculation
certified by SquareTwo as being a true and correct valuation of the then
applicable Maximum Senior Amount, and (ii) in the case of a revolving
credit facility or other similar facility involving the incurrence of
extensions of credit from time to time pursuant to commitments to provide such
extensions of credit, 100% of such commitments shall be deemed an incurrence of
indebtedness on the date on which the commitments under such facility were
initially incurred or, if applicable, subsequently increased in reliance on a
certificate delivered pursuant to the immediately preceding clause (i), and any
borrowings, repayments and reborrowings at any time under such commitments
shall not be deemed a new incurrence of indebtedness.


 


“Non-Conforming Plan of
Reorganization” means any Plan of Reorganization whose provisions
are inconsistent with the provisions of this Agreement, including any plan of
reorganization that purports to reorder (whether by subordination,
invalidation, or otherwise) or otherwise disregard, in whole or part, the
provisions of Section 2 (including the Lien priorities of Section 2.1),
the provisions of Section 4, or the provisions of Section 6,
unless such Plan of Reorganization has been accepted by the voluntary required
vote of each class of Senior Claimholders for such class to have approved such
Plan of Reorganization.


 


“Permitted Additional
Junior Lien Indebtedness” means Indebtedness, if any, that, at the
time incurred, is permitted under the Senior Credit Agreement and qualifies as “Permitted
Additional Pari Passu Obligations” under the Junior Debt Agreement.


 


“Permitted Additional
Junior Lien Indebtedness Documents” means each of the agreements,
documents, joinders and instruments providing for or evidencing any Permitted
Additional Junior Lien Indebtedness as well as any other document or instrument
executed or delivered at any time in connection with any Permitted Additional
Junior Lien Indebtedness, to the extent such are effective at the relevant
time, as the same may be amended, restated, supplemented, Refinanced, modified,
renewed, extended, refunded or replaced from time to time in accordance with
this Agreement.


 


“Permitted Additional
Junior Lien Obligations” means Obligations, if any, under the
Permitted Additional Junior Lien Indebtedness Documents with respect to
Permitted Additional Junior Lien Indebtedness; provided that each Permitted
Additional Junior Lien Obligations 


 


7

















 


Representative of such Permitted Additional Junior
Lien Obligations executes a joinder agreement to this Agreement substantially
in the form of Exhibit A, appropriately completed.


 


“Permitted Additional
Junior Lien Obligations Representative” means each duly authorized
representative of any holders of Permitted Additional Junior Lien Obligations
which representative has executed a joinder agreement to this Agreement
substantially in the form of Exhibit A (appropriately completed) and which
is a party to the Permitted Additional Junior Lien Indebtedness Documents.


 


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


 


“Plan of
Reorganization” means any plan or reorganization, plan of
liquidation, or other type of plan of arrangement proposed in or in connection
with any Insolvency Proceeding.


 


“Pledged Collateral”
has the meaning set forth in Section 5.4(a).


 


“Recovery”
has the meaning set forth in Section 6.8.


 


“Refinance”
means, in respect of any indebtedness, to amend, increase, modify, refinance,
extend, renew, defease, supplement, restructure, replace, refund or repay, or
to issue other indebtedness in exchange or replacement for such indebtedness,
in whole or in part, whether with the same or different lenders, creditors,
arrangers, agents, borrowers and/or guarantors and whether or not occurring
contemporaneously with the payoff of the previously existing indebtedness
subject to such transaction.


 


“Refinanced”
and “Refinancing” shall have correlative meanings.


 


“Senior Agent”
has the meaning set forth in the preamble to this Agreement.


 


“Senior Claimholders” means, at any relevant time, Senior
Agent, and the holders of Senior Lien Obligations at that time, including
Senior Lenders, the Additional Credit Facility Agent, and any agents or trustee
of any of the foregoing persons.


 


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


 


“Senior Credit Agreement”
has the meaning set forth in the recitals to this Agreement.


 


“Senior Default”
means any “Event of Default”, as such term is defined in any Senior Loan
Document.


 


“Senior Lenders”
means the “Lenders” as defined in the Senior Credit Agreement and in any
Additional Credit Facility.


 


8

















 


“Senior Lien
Obligations” means
all Obligations (as such term is defined in the Senior Credit Agreement) and
all other amounts owing, due, or secured under the terms of the Senior Credit
Agreement, any Additional Credit Facility or any other Senior Loan Document,
whether now existing or arising hereafter, including all principal, premium,
interest, fees, attorneys fees, costs, charges, expenses, reimbursement
obligations, obligations to post cash collateral in respect of Letters of
Credit, Interest Rate Agreements or other Ancillary Obligations or indemnities
in respect thereof, any other indemnities or guarantees, and all other amounts
payable under or secured by any Senior Loan Document (including, in each case,
all amounts accruing on or after the commencement of any Insolvency Proceeding
relating to any Grantor, or that would have accrued or become due under the
terms of the Senior Loan Documents but for the effect of the Insolvency
Proceeding and irrespective of whether a claim for all or any portion of such
amounts is allowable or allowed in such Insolvency Proceeding) provided that
the aggregate principal amount of, without duplication, revolving credit loans,
letters of credit, term loans, other loans, notes or similar instruments (other
than the Ancillary Obligations) provided for under the Senior Credit Agreement,
any Additional Credit Facility and/or any other Senior Loan Document (or, to
the extent of the Discharge of the Senior Lien Obligations under the Senior
Credit Agreement, any Refinancing thereof) in excess of the Maximum Senior
Amount, and any interest relating to amounts (other than in respect of
Ancillary Obligations) that are in excess of the Maximum Senior Amount, shall
not constitute Senior Lien Obligations for purposes of this Agreement.


 


“Senior Loan
Documents” means the Loan Documents (as defined in the Senior Credit
Agreement) and any comparable term as defined in the Additional Credit
Facility.


 


“Subsidiary” of
a person means a corporation, partnership, limited liability company, or other
entity in which that person directly or indirectly owns or controls the shares
of capital stock having ordinary voting power to elect a majority of the board
of directors (or appoint other comparable managers) of such corporation,
partnership, limited liability company, or other entity.


 


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


 


“U.S. Grantor”
means any Grantor organized or incorporated under the laws of a jurisdiction in
the United States of America, excluding Astrum Financial LLC, Collect Air, LLC
and CA Internet Marketing, LLC.


 


1.2.          Construction.  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.”  The term “or” shall be construed to have,
except where otherwise indicated, the inclusive meaning represented by the
phrase “and/or.”  Any term used in this
Agreement and not defined in this Agreement shall have the meaning set forth in
the Senior Credit Agreement.  Unless the
context requires otherwise:


 


9

















 


(a)           except as otherwise provided herein, 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, extended,
Refinanced, refunded, or replaced;


 


(b)           any reference to any agreement, instrument, or
other document herein “as in effect on the date hereof” shall be construed as
referring to such agreement, instrument, or other document without giving
effect to any amendment, restatement, supplement, modification, or Refinance
after the date hereof;


 


(c)           any definition of or reference to the Senior Lien
Obligations or the Junior Lien Obligations herein shall be construed as
referring to the Senior Lien Obligations or the Junior Lien Obligations (as
applicable) as from time to time amended, restated, supplemented, modified,
renewed, extended, Refinanced, refunded, or replaced;


 


(d)           any reference herein to any person shall be
construed to include such person’s successors and assigns;


 


(e)           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;


 


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


 


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


 


(h)           unless otherwise specified herein and except for Section 9.6
hereof, any reference to the “parties hereto” shall not include the Grantors.


 


SECTION 2.         LIEN PRIORITIES.


 


2.1.          Relative Priorities.  Notwithstanding the date, time, method,
manner, or order of grant, attachment, perfection, enforcement, execution, or
delivery of any Liens securing the Junior Lien Obligations granted with respect
to the Collateral (including, in each case, irrespective of whether any such
Lien is granted, or secures Junior Lien Obligations relating to the period,
before or after the commencement of any Insolvency Proceeding) or of any Liens
securing the Senior Lien Obligations granted with respect to the Collateral
(including, in each case, irrespective of whether any such Lien is granted, or
secures Senior Lien Obligations relating to the period, before or after the
commencement of any Insolvency Proceeding) and notwithstanding any contrary
provision of the UCC or any other applicable law or the Junior Lien Documents
or any defect or deficiencies in, or failure to attach or perfect, the Liens
securing the Senior Lien Obligations, or any other circumstance whatsoever,
Senior Agent, Junior Agent and, by virtue of accepting the Junior Notes, the
Junior Claimholders, hereby agree that:


 


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(a)           any Lien with respect to the Collateral securing
any Senior Lien Obligations now or hereafter held by or on behalf of, or
created for the benefit of, Senior Agent or any Senior Claimholders or any
agent or trustee therefore shall be senior in all respects and prior to any
Lien with respect to the Collateral securing any Junior Lien Obligations; and


 


(b)           any Lien with respect to the Collateral securing
any Junior Lien Obligations now or hereafter held by or on behalf of, or
created for the benefit of, Junior Agent, any Junior Claimholders or any agent
or trustee therefor shall be junior and subordinate in all respects to all
Liens with respect to the Collateral securing any Senior Lien Obligations;


 


All Liens with respect to the Collateral
securing any Senior Lien Obligations shall be and remain senior in all respects
and prior to all Liens with respect to the Collateral securing any Junior Lien
Obligations, for all purposes, whether or not such Liens securing any Senior
Lien Obligations are subordinated to any Lien securing any other obligation of
any Grantor or any other person.  The
Junior Agent and, by virtue of accepting the Junior Notes, the Junior
Claimholders, expressly agree that any Lien purported to be granted on any
Collateral as security for the Senior Lien Obligations shall be and remain
senior in all respects and prior to all Liens on the Collateral securing any
Junior Lien Obligations for all purposes regardless of whether the Lien
purported to be granted is found to be improperly granted, improperly perfected,
a fraudulent conveyance, legally or otherwise deficient in any manner, is
avoided or is equitably subordinated.


 


2.2.          Prohibition on Contesting
Liens.  Each of
Junior Agent, and, by virtue of accepting the Junior Notes, the Junior
Claimholders, and Senior Agent, for itself and on behalf of each Senior
Claimholder, agrees that it will not (and hereby waives any right to), directly
or indirectly, contest, or support any other person in contesting, in any
proceeding (including any Insolvency Proceeding), the attachment, perfection,
priority, validity, or enforceability of a Lien held by or on behalf of any
Senior Claimholders in the Senior Collateral or by or on behalf of any Junior
Claimholders in the Junior Collateral (including the allowability or priority
of the Senior Lien Obligations or the Junior Lien Obligations, as applicable,
in any Insolvency Proceeding), as the case may be, or the validity or
enforceability of this Agreement; provided, however that nothing in this
Agreement shall be construed to prevent or impair the rights of Senior Agent,
any Senior Claimholder, Junior Agent, or any Junior Claimholder to enforce the
terms of this Agreement, including the provisions of this Agreement relating to
the priority of the Liens securing the Senior Lien Obligations as provided in
Sections 2.1 and 3 and the enforcement of Section 2.3(c) against
Junior Agent and Junior Creditors.


 


2.3.          New Liens.  So long as the Discharge of Senior Lien
Obligations has not occurred, the parties hereto agree that:


 


(a)           no Grantor shall grant any additional Liens on any
assets or property to secure any Junior Lien Obligation unless such Grantor has
granted a Lien on such asset or property to Senior Agent to secure the Senior
Lien Obligations contemporaneously with or prior to the time of the grant of a
Lien thereon in favor of Junior Agent, such Lien being a senior Lien in favor
of the Senior Agent pursuant to the terms hereof;


 


(b)           to the extent that the provisions of clause (a) above
are not complied with for any reason, without limiting any other rights and
remedies available to Senior Agent or the 


 


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Senior Claimholders, Junior Agent, on behalf
Junior Claimholders, agrees that (i) if any Junior Claimholder shall
acquire or hold any Lien on any assets of any Grantor securing any Junior Lien
Obligation which assets are not also subject to the first-priority Lien of the
Senior Agent under the Senior Loan Documents, then the Junior Agent (i) shall
hold such Lien for the benefit of and as agent for the Senior Agent and the
Senior Claimholders and (ii) upon demand by the Senior Agent, without the
need for any further consent of any other Junior Claimholder, and
notwithstanding anything to the contrary in any other Junior Lien Documents,
shall, at the direction of Senior Agent, (x) release such Lien or (y) assign
it to the Senior Agent as security for the Senior Lien Obligations (in which
case the Junior Agent shall retain a junior lien on such assets subject to the
terms hereof) and (ii) 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;


 


(c)           notwithstanding any provision in this Agreement or
any of the Junior Lien Documents to the contrary, (i) the obligors and
grantors of Collateral with respect to the Junior Lien Obligations shall be
limited to the U.S. Grantors and shall specifically not at any time include any
obligors or Grantors other than the U.S. Grantors; and (ii) neither the Junior Agent nor any Junior
Claimholder shall at any time have or make any claim against, accept any
payment from, or exercise any remedies of any kind against, any Grantors other
than the U.S. Grantors.


 


2.4.          Similar Liens and
Agreements.  The parties hereto agree, subject to the
other provisions of this Agreement:


 


(a)           upon request by Senior Agent or Junior Agent, to
cooperate in good faith (and to direct their counsel to cooperate in good
faith) from time to time in order to determine the specific items included in
the Senior Collateral and the Junior Collateral and the steps taken or to be
taken to perfect their respective Liens thereon and the identity of the
respective parties obligated under the Senior Loan Documents and the Junior Lien
Documents; and


 


(b)           upon request by a Grantor after the Discharge of
the Senior Lien Obligations, Senior Agent will provide written notice thereof
to each institution in respect of which a control agreement exists in favor of
Senior Agent.


 


SECTION 3.         EXERCISE OF REMEDIES.


 


3.1.          Exercise of Remedies.


 


(a)           Until the Discharge of Senior Lien Obligations has
occurred, whether or not any Insolvency Proceeding has been commenced by or
against any Grantor: Junior Agent, and by virtue of accepting the Junior Note,
each Junior Claimholder agrees that (i) it (x) will not exercise or
seek to exercise any rights or remedies with respect to the Liens on any Junior
Collateral or institute any action or proceeding with respect to such rights or
remedies (including any Exercise of Secured Creditor Remedies with respect to
any Junior Collateral); (y) will not directly or indirectly contest,
protest, or object to or hinder or delay in any manner (whether by judicial
proceeding or otherwise), or otherwise interfere with any Exercise of Secured
Creditor Remedies by Senior Agent or any Senior Claimholder and has no right to
direct Senior Agent to 


 


12

















 


Exercise any Secured Creditor Remedies or take
any other action under the Senior Loan Documents; and (z) will not object
to (and waives any and all claims with respect to) the forbearance by Senior
Agent or Senior Claimholders from Exercising any Secured Creditor Remedies and (ii) the
Senior Agent and the Senior Claimholders shall have the exclusive right to
enforce rights (including setoff), exercise remedies (including, without
limitation, Exercise of Secured Creditor Remedies) and make determinations
regarding the Collateral (including the release, disposition, or restrictions
with respect to the Collateral) without any notice to, consultation with, or
consent of, the Junior Agent or any Junior Claimholder;


 


(b)           Except as may be permitted in Section 3.3, the
Junior Agent and by virtue of accepting the Junior Notes, the Junior Claimholders,
irrevocably, absolutely, and unconditionally waive any and all rights Junior
Agent or Junior Claimholders may have as a junior lien creditor or otherwise to
object (and seek or be awarded any relief of any nature whatsoever based on any
such objection) to the manner in which Senior Agent or any Senior Claimholder (A) enforces
or collects (or attempts to collect) the Senior Lien Obligations or (B) realizes
or seeks to realize upon or otherwise enforce the Liens in and to the Senior
Collateral securing the Senior Lien Obligations, regardless of whether any
action or failure to act by or on behalf of Senior Agent or any Senior
Claimholder is adverse to the interest of Junior Agent or Junior
Claimholders.  Without limiting the
generality of the foregoing, to the maximum extent permitted by law, Junior
Claimholders shall be deemed to have hereby irrevocably, absolutely, and
unconditionally waived any right to object (and seek or be awarded any relief
of any nature whatsoever based on any such objection), at any time prior or
subsequent to any disposition of any of the Senior Collateral, on the ground(s) that
any such disposition of Senior Collateral (x) would not be or was not “commercially
reasonable” within the meaning of any applicable UCC or other applicable law,
or (y) would not or did not comply with any other applicable requirement
under any applicable UCC or under any other applicable law governing the manner
in which a secured creditor (including one with a Lien on real property) is to
realize on its collateral.


 


(c)           The Junior Agent and, by virtue of accepting the
Junior Notes, the Junior Claimholders acknowledge and agree that no covenant,
agreement or restriction contained in the Junior Lien Documents shall be deemed
to restrict in any way the rights and remedies of Senior Agent or any Senior
Claimholder with respect to the Senior Collateral as set forth in this
Agreement and the Senior Loan Documents.


 


(d)           The Junior Agent and, by virtue of accepting the
Junior Notes, the Junior Claimholders acknowledge and agree that they shall not
be entitled to take or receive any Junior Collateral or any proceeds of Junior
Collateral in connection with the exercise of any right or remedy with respect
to any Junior Collateral (including any Exercise of Secured Creditor Remedies
with respect to any Junior Collateral) or by way of distribution in respect of
Junior Collateral or any claim of the Junior Claimholders secured thereby in an
Insolvency Proceeding, unless and until the Discharge of First Lien Obligations
has occurred.  Without limiting the
generality of the foregoing, unless and until the Discharge of Senior Lien
Obligations has occurred, except for actions expressly permitted by Section 3.3
of this Agreement, the sole right of the Junior Agent and the Junior
Claimholders with respect to the Junior Collateral is to hold a Lien on the
Junior Collateral pursuant to the Junior Lien Documents for the period and to
the 


 


13

















 


extent granted therein and to receive a share
of the proceeds thereof, if any, after the Discharge of Senior Lien Obligations
has occurred.


 


3.2.          Exclusive Enforcement
Rights.  Until the
Discharge of Senior Lien Obligations has occurred, whether or not any
Insolvency Proceeding has been commenced by or against any Grantor, Senior
Agent and each Senior Claimholder shall have the exclusive right to Exercise
any Secured Creditor Remedies with respect to the Collateral without any
consultation with or the consent of Junior Agent or any Junior Claimholder.  In connection with any Exercise of Secured
Creditor Remedies, Senior Agent and each Senior Claimholder may enforce the
provisions of the Senior Loan Documents and exercise remedies thereunder, all
in such order and in such manner as they may determine in the exercise of their
sole discretion.  Such exercise and
enforcement shall include the rights of an agent appointed by them to Dispose
of Collateral, to incur expenses in connection with such Disposition, and to
exercise all the rights and remedies of a secured creditor under applicable
law.


 


3.3.          Junior Permitted Actions.  Anything to the contrary in this Agreement
notwithstanding, Junior Agent and any Junior Claimholder may:


 


(a)           if an Insolvency Proceeding has been commenced by
or against any U.S. Grantor, file a claim, proof of claim or statement of
interest with respect to such U.S. Grantor and/or the Junior Lien Obligations;


 


(b)           take any action (not adverse to the priority status
of the Liens on the Collateral securing the Senior Lien Obligations, or the
rights of Senior Agent or any Senior Claimholder to Exercise any Secured
Creditor Remedies) in order to create, perfect, file, protect or preserve (to
the extent such action does not constitute the Exercise of Secured Creditor
Remedies), its Lien in and to the Junior Collateral; provided that no such
action is, or could reasonably be expected to be, inconsistent with the terms
of this Agreement, including the automatic release of Liens provided in Section 5.1;


 


(c)           file any necessary responsive or defensive
pleadings or appeal 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 Junior Claimholders or any disallowance of such
claims, including any claims secured by the Junior Collateral, if any; and


 


(d)           vote on any Plan of Reorganization, file any proof
of claim, make other filings and make any arguments and motions (including in
support of or opposition to, as applicable, the confirmation or approval of any
Plan of Reorganization) that are, in each case, in accordance with, the terms
of this Agreement, with respect to the Junior Lien Obligations and the Junior
Collateral.  Without limiting the generality
of the foregoing or of the other provisions of this Agreement, any vote to
accept, and any other act to support the confirmation or approval of, any
Non-Conforming Plan of Reorganization shall be inconsistent with and,
accordingly, a violation of the terms of this Agreement, and Senior Agent shall
be entitled (under this Agreement, Section 510 of the Bankruptcy Code
and/or other applicable law) to have any such vote to accept a Non-Conforming
Plan of Reorganization changed and any such support of any Non-Conforming Plan
of Reorganization withdrawn.


 


14

















 


3.4.          Unsecured Creditor Remedies.  Except as set forth in Sections 3.1, 5.1 and
6, Junior Agent and Junior Claimholders may exercise rights and remedies as
unsecured creditors against any U.S. Grantor in accordance with the terms of
the Junior Lien Documents and applicable law. 
Except as otherwise set forth in this Agreement (and subject in any
event to any Lien subordination provisions in any Junior Lien Documents),
nothing in this Agreement shall prohibit the receipt by the Junior Agent or any
other Junior Claimholder of payments on the Junior Lien Obligations so long as
such receipt is not (i) the direct or indirect result of the exercise by
the Junior Agent or any other Junior Claimholder of rights or remedies as a
secured creditor with respect to the Junior Collateral (including setoff or
recoupment) or enforcement in contravention of this Agreement of any Lien held
by any of them or (ii) otherwise in contravention of this Agreement.  In the event that any Junior Claimholder
becomes a judgment creditor in respect of Junior Collateral as a result of its
enforcement of its rights as an unsecured creditor with respect to the Junior
Lien Obligations, such judgment Lien shall be subject to the terms of this
Agreement for all purposes as the other Liens securing the Junior Lien
Obligations.


 


SECTION 4.         PROCEEDS.


 


4.1.          Application of Proceeds.  Until the Discharge of Senior Lien
Obligations has occurred, whether or not any Insolvency Proceeding has been
commenced by or against any Grantor, any Junior Collateral or proceeds thereof
received in connection with any Exercise of Secured Creditor Remedies shall (at
such time as such Junior Collateral or proceeds has been monetized) be applied:
(a) first, to the payment in full in cash of costs and expenses of Senior
Agent in connection with such Exercise of Secured Creditor Remedies, (b) second,
to the payment in full in cash or cash collateralization of the Senior Lien
Obligations in accordance with the Senior Loan Documents, (c) third, to
the payment in full in cash of costs and expenses of Junior Agent and any
Permitted Additional Junior Lien Obligations Representative in connection with
such Exercise of Secured Creditor Remedies (to the extent such Exercise of
Secured Creditor Remedies was permitted hereunder), (d) fourth, to the
payment in full in cash of the Junior Lien Obligations in accordance with the
Junior Lien Documents, and (d) fifth, to the applicable U.S. Grantor, such
other person as may be entitled thereto, or as a court of competent
jurisdiction may otherwise direct.  If
any Exercise of Secured Creditor Remedies with respect to the Junior Collateral
produces non-cash proceeds, then such non-cash proceeds shall be held by the
Agent that conducted the Exercise of Secured Creditor Remedies (or, at Senior
Agent’s request, by Senior Agent) as additional Junior Collateral and, at such
time as such non-cash proceeds are monetized, shall be applied as set forth
above.


 


4.2.          Turnover.  Unless and until the Discharge of Senior Lien
Obligations has occurred, any Collateral or proceeds thereof (including assets
or proceeds subject to Liens referred to in the final sentence of Section 2.3
or the proviso in Section 3.4) received by Junior Agent or any Junior Claimholder
relating to the Collateral or that is otherwise inconsistent with the terms of
this Agreement shall be segregated and held in trust and forthwith paid over to
Senior Agent for the benefit of Senior Claimholders in the same form as
received, with any necessary endorsements. 
Senior Agent is hereby authorized to make any such endorsements as agent
for Junior Agent or any such Junior Claimholders.  This authorization is coupled with an
interest and is irrevocable until the Discharge of Senior Lien Obligations.


 


15

















 


4.3.          No Subordination of the
Relative Priority of Claims.  Anything to the contrary contained herein
notwithstanding, the subordination of the Liens of Junior Claimholders to the
Liens of Senior Claimholders in respect of the Senior Lien Obligations as set
forth herein is with respect to the priority of the respective Liens held by or
on behalf of them only and shall not constitute a subordination of the Junior
Lien Obligations in right of payment to the prior payment of the Senior Lien
Obligations.


 


4.4.          Revolving Nature of Senior
Obligations.  Senior Agent, on behalf of the Senior
Claimholders, and Junior Agent, on behalf of the Junior Claimholders, each
acknowledges and agrees that the Senior Credit Agreement includes a revolving
commitment and that the amount of the Senior Obligations that may be
outstanding at any time or from time to time may be increased or reduced and
subsequently reborrowed.


 


SECTION 5.         RELEASES; DISPOSITIONS; OTHER AGREEMENTS.


 


5.1.          Releases.


 


(a)           Until the Discharge of Senior Lien Obligations
occurs, Senior Agent shall have the exclusive right to make determinations
regarding the release or Disposition of any Collateral pursuant to the terms of
the Senior Loan Documents or in accordance with the provisions of this
Agreement, in each case without any consultation with, consent of or notice to
Junior Agent or any Junior Claimholder.


 


(b)           If, in connection with the Exercise of Secured
Creditor Remedies by Senior Agent as provided for in Section 3, Senior
Agent releases any of its Liens on any part of the Junior Collateral or
releases any U.S.Grantor from its obligations in respect of the Senior Lien
Obligations, then the Liens of Junior Agent on such Junior Collateral, and the
obligations of such U.S. Grantor in respect of the Junior Lien Obligations
shall be automatically, unconditionally, and simultaneously released; provided,
that any proceeds of Junior Collateral resulting from such Exercise of Secured
Creditor Remedies shall be applied in accordance with Section 4.1
hereof.  Junior Agent, for itself or on
behalf of any such Junior Claimholders, promptly shall execute and deliver to
Senior Agent such termination or amendment statements, releases, and other
documents as Senior Agent may reasonably request to effectively confirm such
release.


 


(c)           If, in connection with any Disposition of any
Junior Collateral or release that is permitted under the terms of the Senior
Loan Documents (including, without limitation, any release under the Senior
Loan Documents in connection with assets to be acquired pursuant to purchase
money financing or a lease), Senior Agent releases or subordinates to the Liens
of any other creditor of a U.S. Grantor any of its Liens on the portion of the
Junior Collateral that is the subject of such Disposition, release or
subordination, or releases any U.S. Grantor from its obligations in respect of
the Senior Lien Obligations (if such U.S. Grantor is the subject of such
Disposition), then the Liens of Junior Agent on such Junior Collateral, and the
obligations of such Junior Grantor in respect of the Junior Lien Obligations,
shall be automatically, unconditionally, and simultaneously released or
subordinated, as applicable.  Junior
Agent, for itself or on behalf of any such Junior Claimholders, promptly (and
in any event, within five (5) Business Days of receipt of a written
request therefor) shall execute and deliver to Senior Agent 


 


16

















 


and the U.S. Grantors such termination or
amendment statements, releases, subordination agreements and other documents as
Senior Agent or the U.S. Grantors, as applicable, may request in writing to
effectively confirm such release or subordination, as applicable.


 


(d)           In the event of any private or public Disposition
of all or any material portion of the Junior Collateral by one or more U.S.
Grantors with the consent of Senior Agent after the occurrence and during the
continuance of a Senior Default (and prior to the Discharge of Senior Lien
Obligations), which Disposition is conducted by such U.S. Grantors with the
consent of Senior Agent in connection with good faith efforts by Senior Agent
to collect the Senior Lien Obligations through the Disposition of Junior
Collateral (any such Disposition, a “Default Disposition”), then the Liens of
Junior Agent on such Junior Collateral shall be automatically, unconditionally,
and simultaneously released (and if (i) the Default Disposition includes
equity interests in any U.S. Grantor, and (ii) Senior Agent is also
releasing those U.S. Grantors whose equity interests are Disposed of (together
with their respective Subsidiaries) from all of their obligations under the
Senior Loan Documents, Junior Agent further agrees to release those Persons
whose equity interests are Disposed of (together with their respective
Subsidiaries) from all of their obligations under the Junior Lien Documents));
provided that Senior Agent also releases its Liens on such Junior Collateral
and provided further that any proceeds of Junior Collateral resulting from such
Disposition shall be applied in accordance with Section 4.1 hereof.


 


(e)           Until the Discharge of Senior Lien Obligations
occurs, Junior Agent, for itself and on behalf of Junior Claimholders, hereby
irrevocably constitutes and appoints Senior Agent and any officer or agent of
Senior Agent, with full power of substitution, as its true and lawful attorney
in fact, coupled with an interest, with full irrevocable power and authority in
the place and stead of Junior Agent or such holder or in Senior Agent’s own
name, from time to time in Senior Agent’s discretion, for the purpose of
carrying out the terms of this Section 5.1 and 5.3(d), to take any and all
appropriate action and to execute any and all documents and instruments that
may be necessary to accomplish the purposes of this Section 5.1 and
5.3(d), including any endorsements or other instruments of transfer or release.


 


(f)            Until the Discharge of Senior Lien Obligations
occurs, to the extent that Senior Agent or any Senior Claimholder (i) has
released any Lien on Junior Collateral or any U.S. Grantor with respect to the
Senior Lien Obligations, and any such Liens or obligations are later
reinstated, or (ii) has obtained any new Liens from any U.S. Grantor or
obtained a guaranty from any U.S. Grantor of the Senior Lien Obligations, then
Junior Agent, for itself and for Junior Claimholders, shall be entitled to
obtain (and each of the U.S. Grantors by their acknowledgement to this
Agreement agrees to create and otherwise provide) a Lien on any such U.S.
Collateral, subject to the terms (including the lien subordination provisions)
of this Agreement, and a guaranty from such U.S. Grantor, as the case may be,
subject to any applicable limitations set forth in the Junior Security
Agreement and the Junior Pledge Agreement (it being understood that no guaranty
from Holding, and no assets of Holding, other than the pledge of Holding’s
equity interests in SquareTwo under the Junior Pledge Agreement, are required
to secure the Junior Lien Obligations). 
Notwithstanding the foregoing, the failure of any U.S. Grantor to comply
with the terms of this clause (f) shall not affect the rights of Senior
Agent or any Senior Claimholder.


 


17






 










 


(g)           Notwithstanding anything contained in this Section 5
to the contrary, (i) if the Liens securing the Senior Lien Obligations are
released in connection with the Discharge of Senior Lien Obligations (without a
contemporaneous incurrence of new or replacement Senior Lien Obligations), the
second-priority Liens on the Junior Collateral will not be required to be
released (except to the extent the Junior Collateral or any portion thereof was
disposed of or otherwise transferred or used in order to repay the Senior Lien
Obligations secured by the Junior Collateral) and (ii) any release
effected or occasioned by the terms of this Section 5 by Junior Agent of
any Lien in favor of the Junior Agent or any of the Junior Claimholders shall
not extend to or otherwise affect any of the rights of the Junior Agent or any
Junior Claimholder arising under the Junior Lien Documents to any proceeds of
any disposition of any Junior Collateral occurring in connection with such
Senior Lien Release; provided that such rights to such proceeds shall be
subject in all respects to the terms and conditions of this Agreement.


 


5.2.          Insurance.  Unless and until the Discharge of Senior Lien
Obligations has occurred:


 


(a)           The Senior Agent (on behalf of the Senior
Claimholders) shall be named as first loss payee under all insurance policies
maintained from time to time by any Grantor to the extent required by the
Senior Loan Documents and the Junior Agent (on behalf of the Junior
Claimholders) shall be named as the second loss payee on such policies of
insurance (to the extent covering the Junior Collateral).  The Junior Agent shall be named as an
additional insured on all liability insurance policies maintained from time to
time by any U.S. Grantor on which the Senior Agent is an additional
insured.  Unless and until the Discharge
of Senior Lien Obligations has occurred, the Senior Agent shall have the sole
and exclusive right, subject to the rights of Grantors under the Senior Loan
Documents, to adjust and settle any claim under any insurance policy covering
the Collateral in the event of any loss thereunder and to approve any award
granted in any condemnation or similar proceeding (or any deed in lieu of
condemnation) affecting the Collateral. 
Unless and until the Discharge of Senior Lien Obligations has occurred,
and subject to the rights of the U.S. Grantors under the Senior Loan Documents,
all proceeds of any such insurance policy and any such award (or any payments
with respect to a deed in lieu of condemnation) with respect to U.S. Grantors
shall be paid, first to Senior Claimholders and Junior Claimholders in
accordance with the priorities set forth in Section 4.1, until paid in
full in cash, and second, 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


 


(b)           if Junior Agent or any Junior Claimholders shall,
at any time, receive any proceeds of any such insurance policy or any such
award or payment in contravention of this Section 5.2, it shall pay such
proceeds over to Senior Agent in accordance with the terms of Section 4.2.


 


5.3.          Amendments; Refinancings;
Legend.


 


(a)           The Senior Loan Documents may be amended,
supplemented, or otherwise modified in accordance with their terms and the Senior
Lien Obligations may be Refinanced, in each case without notice to, or the
consent of, Junior Agent or Junior Claimholders, all without affecting the lien
subordination or other provisions of this Agreement; provided, however, that,
in the case of a Refinancing, the holders of such Refinancing debt (or 


 


18

















 


their agent on their behalf) shall bind
themselves in writing to the terms of this Agreement; provided further,
however, that any such amendment, supplement, modification, or Refinancing
shall not, without the prior written consent of Junior Agent (which it shall be
authorized to consent to based upon an affirmative vote of Junior Claimholders
holding a majority of the debt under the Junior Lien Debt Agreement) contravene
the provisions of this Agreement. 
Notwithstanding the foregoing, any such amendment, supplement,
modification, or Refinancing of the Senior Loan Documents shall not, without
the prior written consent of Junior Agent increase the outstanding principal
amount of the Senior Lien Obligations to an amount that would exceed the
Maximum Senior Amount.


 


(b)           The Junior Agent and by virtue of accepting the
Junior Notes, the Junior Claimholders, agree that upon prior written notice to
Senior Agent, (i) the Junior Lien Documents may be amended, supplemented,
or otherwise modified and (ii) the Junior Lien Obligations may be
Refinanced; provided, however, that, in the case of a Refinancing, the holders
of such Refinancing debt (or Junior Agent or other representative therefor) to
the extent such Refinancing debt is secured, shall bind themselves in writing
addressed and delivered to Senior Agent for the benefit of itself and the
Senior Claimholders to the terms of this Agreement; provided, further however
that any such amendment, supplement or modification, or the terms of any new
Junior Lien Documents, shall not, without the prior written consent of Senior
Agent, contravene the provisions of this Agreement, the Senior Credit
Agreement, or any other Senior Loan Documents.


 


(c)           Junior Agent agrees that any promissory note
evidencing or security agreement, pledge agreement or mortgage securing the
Junior Lien Obligations shall at all times include the following language (or
language to similar effect approved by Senior Agent):


 


“Anything herein to the contrary notwithstanding, the
liens and security interests [securing the obligations evidenced by this
promissory note][granted pursuant to this agreement] and the exercise of
certain rights or and remedies with respect thereto are subject to the
provisions of the Intercreditor Agreement, dated as of April 7, 2010 (as
amended, restated, supplemented, or otherwise modified from time to time, the “Intercreditor Agreement”), by and among
GMAC Commercial Finance LLC, as Senior Agent, and [U.S. Bank National
Association],  as Junior Agent.  In the event of any conflict between the
terms of the Intercreditor Agreement and this [promissory note][security
agreement][pledge agreement][mortgage], the terms of the Intercreditor
Agreement shall govern and control.”


 


(d)           In the event the Senior Agent or the other Senior
Claimholders and the relevant Grantor(s) enter into any amendment,
restatement, waiver or consent in respect of any provision of the Senior Loan
Documents for the purpose of adding to, or deleting from, or waiving or
consenting to any departures from any provisions of, any such Senior Loan
Documents or changing in any manner the rights of the Senior Agent, the other
Senior Claimholders, the Borrowers or any other Grantor thereunder, including,
without limitation, for the purpose of terminating any control or similar
agreement entered into for the purpose of perfecting security interests granted
under the Senior Loan Documents, then such amendment, restatement, waiver or
consent shall apply automatically to any comparable provision of the 


 


19

















 


Junior Lien Documents (subject to any existing
cushion or setback in such comparable Junior Lien Document provision and subject
to the terms of Section 2.3(c) hereof) without the consent of the
Junior Agent or the other Junior Claimholders and without any action by the
Junior Agent, provided that (A) any such amendment, restatement,
waiver or consent that is prejudicial to the rights of the Junior Claimholders
and does not affect the Senior Agent or the other Senior Claimholders in a like
or similar manner shall not apply to the comparable Junior Lien Documents
without the consent of the Junior Agent, it being agreed that any release
contemplated by Section 5.1 hereof shall be deemed not to be prejudicial
to the rights of the Junior Claimholders, (B) subject to Section 2.3(c) hereof,
no such amendment, restatement, waiver or consent shall result in the liens
securing the Junior Lien Obligations being unperfected with respect to assets
in respect of which the Senior Lien Obligations are perfected, (C) no such
amendment, restatement, waiver or consent shall adversely impact any
indemnification obligations in favor of Junior Agent, (D) in no event
shall any such amendment, restatement, waiver or consent become operative with
respect to any Junior Lien Document until such time (if ever) as written notice
of such amendment, restatement, waiver or consent shall have been given to the Junior
Agent by Square Two (with a copy to the Senior Agent), which notice shall
specify the matters under the Junior Lien Documents that have changed as a
result of the operation of this Section 5.1(d) and (E) in no
event shall this Section 5.1(d) have the effect of changing the terms
any Junior Lien Document that are not specified to be changing in the notice
delivered pursuant to the immediately preceding clause (D).   For clarity, Square Two may, in its sole
discretion, withhold any notice described in clause (D) above.


 


5.4.          Bailee for Perfection.


 


(a)           Senior Agent and Junior Agent agree to hold or
control that part of the Junior Collateral that is in its possession or control
(or in the possession or control of its agents or bailees) to the extent that
possession or control thereof is taken to perfect a Lien thereon under the UCC,
or other applicable law (such Junior Collateral being referred to as the “Pledged
Collateral”) as bailee and as a non-fiduciary agent for Junior Agent or Senior
Agent, as applicable (such bailment and agency being intended, among other
things, to satisfy the requirements of Sections 8-301(a)(2), 9-313(c), 9-104,
9-105, 9-106, and 9-107 of the UCC), solely for the purpose of perfecting the
security interest granted under the Junior Lien Documents or the Senior Loan
Documents, as applicable, subject to the terms and conditions of this Section 5.4(a) and
Senior Agent and Junior Agent hereby appoint each other Agent to act as its
non-fiduciary agent for such purposes and each such Agent accepts such
appointment. Unless and until the Discharge of the Senior Lien Obligations,
Junior Agent agrees to promptly notify Senior Agent of any Pledged Collateral
held by it or by any Junior Claimholders, and, immediately upon the written
request of Senior Agent at any time prior to the Discharge of the Senior Lien
Obligations, Junior Agent agrees to deliver to Senior Agent any such Pledged
Collateral held by it or by any Junior Claimholders, together with any
necessary endorsements (or otherwise allow Senior Agent to obtain sole
possession or control of such Pledged Collateral).


 


(b)           Subject to the terms of this Agreement, until the
Discharge of Senior Lien Obligations has occurred, the Senior Agent shall be
entitled to deal with the Pledged Collateral in accordance with the terms of
the Senior Loan Documents as if the Liens of the Junior Agent under the Junior
Collateral Documents did not exist.  The
rights of the Junior Agent shall at all 


 


20

















 


times be subject to the terms of this
Agreement and to the Senior Agent’s rights under the Senior Loan Documents.


 


(c)           Senior Agent shall not have any obligation
whatsoever to Junior Agent or any Junior Claimholder to ensure that the Pledged
Collateral is genuine or owned by any of Grantors or to preserve rights or
benefits of any person except as expressly set forth in this Section 5.4.  Junior Agent shall have no obligation
whatsoever to Senior Agent or any Senior Claimholder to ensure that the Pledged
Collateral is genuine or owned by any of 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 Senior
Agent under this Section 5.4 shall be limited solely to holding or controlling
the Pledged Collateral as bailee and agent in accordance with this Section 5.4
and delivering the Pledged Collateral upon a Discharge of Senior Lien
Obligations as provided in paragraph (d) of this Section 5.4 (in all
cases subject to the terms of Section 2.3(c)).  The duties or responsibilities of Junior
Agent under this Section 5.4 shall be limited solely to holding or
controlling the Pledged Collateral as bailee and agent in accordance with this Section 5.4.


 


(d)           Senior Agent acting pursuant to this Section 5.4
shall not have by reason of the Senior Loan Documents, the Junior Lien
Documents, or this Agreement a fiduciary relationship in respect of Junior
Agent or any Junior Claimholder.  Junior
Agent acting pursuant to this Section 5.4 shall not have by reason of the
Senior Loan Documents, the Junior Lien Documents, or this Agreement a fiduciary
relationship in respect of Senior Agent or any Senior Claimholder.


 


(e)           Upon the Discharge of Senior Lien Obligations and
subject to Section 2.3(c) hereof, Senior Agent shall deliver the
remaining Pledged Collateral (if any) together with any necessary endorsements
(but without representation or warranty or recourse of any kind), first, to
Junior Agent to the extent Junior Lien Obligations remain outstanding as
confirmed in writing by Junior Agent, and, to the extent that Junior Agent
confirms no Junior Lien Obligations are outstanding, second, to U.S. Grantors
to the extent no Senior Lien Obligations or Junior Lien Obligations remain
outstanding (in each case, so as to allow such person to obtain possession or
control of such Pledged Collateral).


 


5.5.          When Discharge of Senior
Lien Obligations Deemed to Not Have Occurred.


 


(a)           If Borrowers enter into any Refinancing of the
Senior Lien Obligations, then a Discharge of Senior Lien Obligations shall be
deemed not to have occurred for all purposes of this Agreement, and the
obligations under such Refinancing of such Senior Lien Obligations shall be
treated as Senior Lien Obligations for all purposes of this Agreement,
including for purposes of the Lien priorities and rights in respect of
Collateral set forth herein, and Senior Agent under the Senior Loan Documents
effecting such Refinancing shall be Senior Agent for all purposes of this
Agreement.  Senior Agent under the Senior
Loan Documents shall agree (in a writing addressed to Junior Agent for the
benefit of itself and the Junior Claimholders in the form of Exhibit A
hereto) to be bound by the terms of this Agreement.  Promptly after receipt of such writing, Junior
Agent agrees to deliver to Senior Agent any Pledged Collateral held by it or by
any Junior Claimholders, together with any necessary endorsements (or otherwise
allow Senior Agent to obtain possession or control of such Pledged Collateral)
and such other documents as may be reasonably requested to enable the
Refinancing of the Senior 


 


21

















 


Lien Obligations to obtain the same lien
priority and status as the Senior Lien Obligations in existence as of the date of
this Agreement.


 


(b)           If SquareTwo enters into any Refinancing of the
Junior Lien Obligations, then a Discharge of Junior Lien Obligations shall be
deemed not to have occurred for all purposes of this Agreement, and the
obligations under such Refinancing of such Junior Lien Obligations shall be
treated as Junior Lien Obligations for all purposes of this Agreement,
including for purposes of the Lien priorities and rights in respect of
Collateral set forth herein, and Junior Agent under the Junior Lien Documents
effecting such Refinancing shall be Junior Agent for all purposes of this
Agreement.  Junior Agent under such
Junior Lien Documents shall agree (in a writing addressed to Senior Agent for
the benefit of themselves and the Senior Claimholders substantially in the form
of Exhibit A hereto) to be bound by the terms of this Agreement.


 


5.6.          Injunctive Relief.  Should any Junior Claimholder in any way
take, attempt to, or threaten to take any action contrary to terms of this
Agreement with respect to the Collateral, or fail to take any action required
by this Agreement, Senior Agent or any Senior Claimholder may obtain relief
against such Junior Claimholder by injunction, specific performance, or other
appropriate equitable relief, it being understood and agreed by Junior Agent
that (a) Senior Claimholders’ damages from such actions may at that time
be difficult to ascertain and may be irreparable, and (b) each Junior
Claimholder waives any defense that such Grantor and/or Senior Claimholders
cannot demonstrate damage and/or be made whole by the awarding of damages.  Should any Senior Claimholder in any way
take, attempt to, or threaten to take any action contrary to terms of this
Agreement with respect to the Junior Collateral, or fail to take any action required
by this Agreement, Junior Agent or any Junior Claimholder (in its or their own
name or in the name of any U.S. Grantor) or any U.S. Grantor may obtain relief
against such Senior Claimholder by injunction, specific performance, and/or
other appropriate equitable relief, it being understood and agreed by Senior
Claimholders that (i) Junior Claimholders’ damages from such actions may
at that time be difficult to ascertain and may be irreparable, and (ii) each
Senior Claimholder waives any defense that such U.S. Grantor and/or Junior
Claimholders cannot demonstrate damage and/or be made whole by the awarding of
damages.  Senior Agent and Junior Agent
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 Senior Agent or any Senior
Claimholder or Junior Agent or any Junior Claimholder, as the case may be.


 


SECTION 6.         INSOLVENCY PROCEEDINGS.


 


6.1.          Enforceability and
Continuing Priority.  This Agreement shall be applicable both
before and after the commencement of any Insolvency Proceeding and all
converted or succeeding cases in respect thereof.  The relative rights of Claimholders in or to
any distributions from or in respect of any Collateral or proceeds of
Collateral, shall continue after the commencement of any Insolvency
Proceeding.  Accordingly, the provisions
of this Agreement are intended to be and shall be enforceable as a
subordination agreement within the meaning of Section 510 of the
Bankruptcy Code.


 


22

















 


6.2.          Financing.  If any U.S. Grantor shall be subject to any
Insolvency Proceeding and Senior Agent consents to the use of
post-filing/post-petition cash receipts or “cash collateral” (as such term is
defined in Section 363(a) of the Bankruptcy Code) (collectively, “Cash
Collateral”), on which Senior Agent has a Lien or to permit any U.S. Grantor to
obtain financing provided by any one or more Senior Claimholders under Section 364
of the Bankruptcy Code or any similar Bankruptcy Law (such financing, a “DIP
Financing”), then Junior Agent agrees that, subject to the terms and conditions
set forth in Section 6.5(b), it will consent to such Cash Collateral use and
will not be entitled to raise (and will not raise or support any Person in
raising), but instead shall be deemed to have hereby irrevocably and absolutely
waived, any objection, and shall not otherwise in any manner be entitled to
oppose or will oppose or support any Person in opposing, such Cash Collateral
use or such DIP Financing (including, except as provided below (including,
without limitation, in Section 6.5(b)), any claim that the Junior
Claimholders are entitled to Adequate Protection on account of their interests
in the Junior Collateral as a condition thereto) and, to the extent the Liens
securing the Senior Lien Obligations are discharged, subordinated to, or pari
passu with such DIP Financing, Junior Agent will subordinate its Liens in the Junior
Collateral to the Liens securing such DIP Financing; provided that Junior Agent
may object to such DIP Financing if the sum of (i) the maximum aggregate
principal amount of Indebtedness that may be outstanding from time to time
under such DIP Financing plus, without duplication, (ii) the aggregate
principal amount of loans and the aggregate face amount of Letters of Credit
issued but not reimbursed under the Senior Credit Agreement (after giving
effect to any closing with respect to such DIP Financing following the final
hearing in respect thereof) exceeds the Maximum Senior Amount.  Junior Agent agrees that it shall not,
directly or indirectly, provide, offer to provide, or support any DIP Financing
secured by a Lien senior to or pari passu with the Liens securing the Senior
Lien Obligations without the consent of Senior Agent.  If, in connection with any Cash Collateral
use or DIP Financing, any Liens on the Junior Collateral held by Senior
Claimholders are subject to a surcharge or are subordinated to an
administrative priority claim, a professional fee “carve out,” or fees owed to
the United States Trustee, and so long as the amount of such surcharge, claim,
carve out, or fees is reasonable under the circumstances, then the Liens on the
Junior Collateral of Junior Claimholders shall also be subordinated to such
interest or claim and shall remain subordinated to the Liens on the Junior
Collateral of Senior Claimholders consistent with this Agreement.


 


6.3.          Section 363 Sales of
Collateral and Releases of Liens securing Senior Lien Obligations.  Except as otherwise set forth below, until
the Discharge of Senior Lien Obligations has occurred,  Junior Agent agrees that it will be deemed to
have irrevocably, absolutely and unconditionally consented, and will not object
or oppose a motion to Dispose of any Junior Collateral free and clear of the
Liens or other claims in favor of Junior Agent under Section 363 of the
Bankruptcy Code, or pursuant to the terms of any other applicable Bankruptcy
Law or court order in any Insolvency Proceeding, if Senior Agent (with consent
of the requisite Senior Claimholders under the Senior Credit Agreement) has
consented to such Disposition of such assets free and clear of their Liens, and
such motion does not impair, subject to the priorities set forth in this
Agreement, the rights of Junior Claimholders under Section 363(k) of
the Bankruptcy Code, or pursuant to the terms of any other applicable
Bankruptcy Law or court order in any Insolvency Proceeding (so long as the
right of the Junior Claimholders to offset its claim against the purchase price
is only after the Discharge of Senior Lien Obligations has occurred) so long as
the interests of the Junior Creditors in the Junior Collateral (and any
post-petition assets subject to adequate protection liens, if any, in favor of
Junior Agent) attach to the 


 


23

















 


proceeds thereof on the same basis and priority as the other Liens
securing the Junior Lien Obligations under this Agreement (i.e., subordinate to
the Liens securing the Senior Lien Obligations). Notwithstanding the foregoing,
to the extent that Junior Agent and Junior Claimholders reasonably believe that
the Junior Lien Obligations are undersecured, the Junior Agent, on behalf of itself
and the Junior Claimholders, may raise objections to any such Disposition of
Junior Collateral that could be raised by any creditor of the Grantors whose
claims were not secured by any Liens on the Junior Collateral so long as such
objections are not based on the Junior Claimholders’ status as secured
creditors.


 


6.4.          Relief from the Automatic
Stay.  Until the
Discharge of Senior Lien Obligations has occurred; Junior Agent agrees not to (a) seek
(or support any other person seeking) relief from any automatic stay or any
other applicable stay in any Insolvency Proceeding in respect of the Junior
Collateral, without the prior written consent of Senior Agent or (b) oppose
any request by Senior Agent or any Senior Claimholder to seek relief from any
automatic stay or any other applicable stay in any Insolvency Proceeding in
respect of the Junior Collateral; provided that the Senior Claimholders shall
otherwise remain subject to all applicable restrictions of this Agreement
following the foreclosure upon or granting of any such relief from the
automatic stay, and the foregoing clause (b) shall not impair the rights
or entitlements of the Junior Claimholders with respect to and to the extent
such Junior Claimholders hold unsecured claims.


 


6.5.          Adequate Protection.


 


(a)           In any Insolvency Proceeding involving a U.S.
Grantor, until the Discharge of Senior Lien Obligations has occurred, Junior
Agent agrees, and by virtue of accepting the Junior Notes, each Junior
Claimholder agrees, that no Junior Claimholder shall contest (or support any
other person contesting) (but instead shall be deemed to have hereby
irrevocably, absolutely, and unconditionally waived any right):


 


(i)            any request by Senior Agent
or any other Senior Claimholder for Adequate Protection; or


 


(ii)           any objection by Senior
Agent or any other Senior Claimholder to any motion, relief, action, or
proceeding based on Senior Agent or such Senior Claimholder claiming a lack of
Adequate Protection; or


 


(iii)          the payment of interest,
fees, expenses or other amounts to the Senior Agent or any other Senior
Claimholders (or the Person or Persons acting in a similar capacity under any
agreement replacing or Refinancing the Senior Credit Agreement as permitted
hereunder) under Section 506(b) or 506(c) of the Bankruptcy Code
or otherwise.


 


(b)           In any Insolvency Proceeding involving a U.S.
Grantor:


 


(i)            if any one or more Senior
Claimholders are granted Adequate Protection in the form of an additional Lien
or a replacement Lien (on existing or future assets of U.S. Grantors) in
connection with any DIP Financing or use of Cash Collateral, then Senior Agent
agrees that Junior Agent shall also be entitled to seek, without objection from
Senior Claimholders, Adequate Protection in the 


 


24

















 


form of an additional Lien
or a replacement Lien (on such existing or future assets of U.S. Grantors),
which additional or replacement Lien of Junior Agent, if obtained, shall be
subordinate to the Liens securing the Senior Lien Obligations (including those
under a DIP Financing) on the same basis as the other Liens securing the Junior
Lien Obligations are subordinate to the Senior Lien Obligations under this
Agreement;


 


(ii)           if any one or more Junior
Claimholders request Adequate Protection in the form of an additional Lien or a
replacement Lien (on existing or future assets of U.S. Grantors), then Junior
Agent agrees that Junior Agent and/or Junior Claimholder shall not accept such
Adequate Protection unless Senior Agent shall also be granted or offered an
Adequate Protection Lien on existing or future assets of U.S. Grantors as
security for the Senior Lien Obligations and that any Adequate Protection Lien
on such existing or future assets securing the Junior Lien Obligations shall be
subordinated to the Lien on such assets securing the Senior Lien Obligations on
the same basis as the other Liens securing the Junior Lien Obligations are
subordinated to the Senior Lien Obligations under this Agreement;


 


(iii)          if any one or more Senior
Claimholders request and are granted Adequate Protection in the form of a
super-priority claim in connection with any DIP Financing or use of Cash
Collateral, then Senior Agent agrees that Junior Agent shall also be entitled
to seek, without objection from Senior Claimholders (but subject to the terms
of section 2.3(c) hereof), Adequate Protection in the form of a
super-priority claim, which super-priority claim of Junior Agent, if obtained,
shall be subordinate to the super-priority claims of the Senior Agent on the
same basis as the other claims of the Junior Claimholders are subordinate to
the claims of the Senior Claimholders under this Agreement; provided, however,
the Junior Agent, and by virtue of accepting the Junior Notes, the Junior
Claimholders, agree that they shall not accept such Adequate Protection unless
Senior Agent shall also be granted or offered Adequate Protection in the form
of a super-priority claim, which super-priority claim, if obtained, shall be
subordinate to the super-priority claim of the Senior Claimholders;


 


(iv)          if any one or more Junior
Claimholders are granted Adequate Protection in the form of a super-priority
claim, then Junior Agent agrees that Senior Agent shall also be granted or
offered Adequate Protection in the form of a super-priority claim, which
super-priority claim shall be senior to the super-priority claim of the Junior
Claimholders;


 


(v)           consistent with the
foregoing provisions in this Section 6.5, in any Insolvency Proceeding, no
Junior Claimholder shall be entitled (and each Junior Claimholder shall be
deemed to have hereby irrevocably, absolutely, and unconditionally waived any
right) to seek or otherwise be granted any type of Adequate Protection with
respect to its interests in the Junior Collateral (except as expressly set
forth above in this Section 6.5 or as may otherwise be consented to in
writing by Senior Agent with respect to such Junior Collateral or as may 


 


25

















 


otherwise be granted to the
Senior Agent; provided, that any such other type of Adequate Protection granted
to the Junior Agent shall be subordinated to that granted to the Senior Agent;
and


 


(vi)          nothing herein shall limit
the rights of Senior Agent or any Senior Claimholder to seek Adequate Protection
with respect to their rights in the Senior Collateral in any Insolvency
Proceeding (including Adequate Protection in the form of a cash payment,
periodic cash payments or otherwise) so long as such request is not otherwise
inconsistent with this Agreement.


 


(c)           Neither Junior Agent nor any other Junior
Claimholder shall object to, oppose, or challenge any claim by Senior Agent or
any Senior Claimholder for allowance in any Insolvency Proceeding of Senior
Lien Obligations consisting of post-petition interest, fees, or expenses.


 


(d)           So long as Senior Agent and Senior Claimholders
shall have received and shall continue to receive all accrued post-petition
interest, fees or expenses with respect to the Senior Lien Obligations, neither
Senior Agent nor any other Senior Claimholder shall object to, oppose, or
challenge any claim by Junior Agent or any Junior Claimholder for allowance in
any Insolvency Proceeding of Junior Lien Obligations consisting of
post-petition interest, fees, or expenses.


 


6.6.          Section 1111(b) of
the Bankruptcy Code.  Junior Agent, for itself and on behalf of
Junior Claimholders, shall not object to, oppose, support any objection, or
take any other action to impede, the right of any Senior Claimholder to make an
election under Section 1111(b)(2) of the Bankruptcy Code.  Junior Agent, for itself and on behalf of
Junior Claimholders, waives any claim it may hereafter have against any Senior
Claimholder arising out of the election by any Senior Claimholder of the
application of Section 1111(b)(2) of the Bankruptcy Code.


 


6.7.          No Waiver.  Subject to this Section 6, until the
Discharge of Senior Lien Obligations has occurred, nothing contained herein
shall prohibit or in any way limit Senior Agent or any Senior Claimholder from
objecting in any Insolvency Proceeding involving a Grantor to any action taken
by Junior Agent or any Junior Claimholders, including the seeking by Junior
Agent or any Junior Claimholders of Adequate Protection or the assertion by
Junior Agent or any Junior Claimholders of any of its rights and remedies under
the Junior Lien Documents.


 


6.8.          Avoidance Issues.  If any Senior Claimholder is required in any
Insolvency Proceeding or otherwise to turn over, disgorge or otherwise pay to
the estate of any Grantor any amount paid in respect of Senior Lien Obligations
(a “Recovery”), then such Senior Claimholders shall be entitled to a
reinstatement of Senior Lien Obligations with respect to all such recovered
amounts, and all rights, interests, priorities and privileges recognized in
this Agreement shall apply with respect to any such Recovery.  If this Agreement shall have been terminated
prior to such Recovery, this Agreement shall be reinstated in full force and
effect with respect to such Recovery, and such prior termination shall not
diminish, release, discharge, impair, or otherwise affect the obligations of
the parties hereto from such date of reinstatement with respect thereto.  The Junior Agent and, by virtue of accepting
the Junior Notes, the Junior 


 


26

















 


Claimholders agree that none of them shall be entitled to benefit in
any manner from any Lien with respect to any avoidance action affecting or
otherwise relating to any distribution or allocation of Collateral or the
proceeds of Collateral made in accordance with this Agreement, whether by
preference or otherwise, to the extent such Lien is prior to the Lien of Agent
therein, it being understood and agreed that the benefit of such avoidance
action otherwise allocable to them shall instead be allocated and turned over
for application in accordance with the priorities set forth in this Agreement;
provided, however, that the foregoing sentence shall not impair the rights or
entitlements of the Junior Claimholders with respect to and to the extent such
Junior Claimholders hold unsecured claims against U.S. Grantors.


 


6.9.          Plan of Reorganization.


 


(a)           If, in any Insolvency Proceeding involving a U.S.
Grantor, 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
Senior Lien Obligations and on account of Junior Lien Obligations, then, to the
extent the debt obligations distributed on account of the Senior Lien
Obligations and on account of the Junior Lien 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 Liens securing such debt obligations.


 


(b)           Junior Claimholders (whether in the capacity of a
secured creditor or an unsecured creditor) shall not propose, vote in favor of
or support any Plan of Reorganization that is inconsistent with the priorities
or other provisions of this Agreement, other than with the consent of the
Senior Agent or to the extent any such plan is proposed or supported by the
number of Senior Claimholders required under Section 1126(d) of the
Bankruptcy Code.


 


6.10.        Nature of Obligations;
Post-Petition Interest.  The Junior Agent and, by virtue of accepting
the Junior Notes, the Junior Claimholders, acknowledge and agree that (i) the
Junior Claimholders’ claims against the Loan Parties in respect of the Junior
Collateral constitute junior claims separate and apart (and of a different
class) from the senior claims of the Senior Claimholders against the Loan
Parties in respect of the Junior Collateral and (ii) the Senior Lien
Obligations include all interest that accrues after the commencement of any
Insolvency Proceeding of any Loan Party at the rate provided for in the Senior
Loan Documents governing the same, whether or not a claim for post-petition
interest is allowed or allowable in any such Insolvency Proceeding.  By virtue of accepting the Junior Notes, the
Junior Claimholders acknowledge and agree that this Agreement constitutes a “subordination
agreement” under Section 510 of the Bankruptcy Code.  To further effectuate the intent of the
parties as provided in the immediately preceding sentence, if it is held that
the claims against the Loan Parties in respect of the Junior Collateral
constitute only one secured claim (rather than separate classes of senior and
junior claims), then the Junior Agent and, by virtue of accepting the Junior
Notes, the Junior Claimholders, acknowledge and agree that all distributions
pursuant to Section 4.1 or otherwise shall be made as if there were
separate classes of senior and junior secured claims against the Loan Parties
in respect of the Junior Collateral (with the effect being that, to the extent
that the aggregate value of the Junior Collateral is sufficient (for this
purpose ignoring all claims held by the Junior Agent on behalf of the Junior
Claimholders), the Senior Claimholders shall be entitled to receive from the
Collateral or in respect of its secured claim with respect


 


27






 










 


thereto, in addition to amounts distributed to them in respect of
principal, prepetition interest and other claims, all amounts owing in respect
of post-petition interest at the relevant contract rate (even though such
claims may or may not be allowed in whole or in part in the respective
Insolvency Proceeding) before any distribution is made in respect of the claims
relating to the Junior Collateral or the Liens thereon securing the Junior Lien
Obligations held by the Junior Agent, on behalf of the Junior Claimholders,
with the Junior Agent and, by virtue of accepting the Junior Notes, the Junior
Claimholders, acknowledging and agreeing to turn over to the holders of the
Senior Lien Obligations all amounts otherwise received or receivable by them
from the Junior Collateral or in respect of the Liens thereon securing the
Junior Lien Obligations to the extent needed to effectuate the intent of this
sentence even if such turnover of amounts has the effect of reducing the amount
of the claim of the Junior Claimholders).


 


SECTION 7.         RELIANCE; WAIVERS; ETC.


 


7.1.          Reliance.


 


(a)           Other than any reliance on the terms of this
Agreement, Senior Agent acknowledges that it and such Senior Claimholders have,
independently and without reliance on Junior Agent or any Junior Claimholders,
and based on documents and information deemed by them appropriate, made their
own credit analysis and decision to enter into the applicable Senior Loan
Documents and be bound by the terms of this Agreement and they will continue to
make their own credit decision in taking or not taking any action under the
Senior Credit Agreement or this Agreement.


 


(b)           Other than any reliance on the terms of this
Agreement, Junior Agent acknowledges that it and Junior Claimholders have,
independently and without reliance on Senior Agent or any Senior Claimholder,
and based on documents and information deemed by them appropriate, made their
own credit analysis and decision to enter into each of the Junior Lien
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
Junior Lien Documents or this Agreement.


 


7.2.          No Warranties or Liability.  Senior Agent acknowledges and agrees that
each of Junior Agent and Junior Claimholders have made no express or implied
representation or warranty, including with respect to the execution, validity,
legality, completeness, collectability, or enforceability of any of the Junior
Lien Documents (other than this Agreement, to the extent provided in Section 8),
the ownership of any Junior Collateral, or the perfection or priority of any
Liens thereon.  Except as otherwise
expressly provided herein, Junior Claimholders will be entitled to manage and
supervise their respective loans and extensions of credit under the Junior Lien
Documents in accordance with law and as they may otherwise, in their sole
discretion, deem appropriate.  Junior
Agent acknowledges and agrees that none of Senior Agent or any Senior
Claimholder has made any express or implied representation or warranty,
including with respect to the execution, validity, legality, completeness,
collectability, or enforceability of any of the Senior Loan Documents, (other
than this Agreement, to the extent provided in Section 8), the ownership
of any Collateral, or the perfection or priority of any Liens thereon.  Except as otherwise expressly provided
herein, Senior Claimholders will be entitled to manage and supervise their
respective loans and extensions of credit under their respective Senior Loan 


 


28

















 


Documents in accordance with law and as they may otherwise, in their
sole discretion, deem appropriate. 
Except as provided herein, Junior Agent and Junior Claimholders shall
not have any duty to Senior Agent or any Senior Claimholders, and each of
Senior Agent and Senior Claimholders have no duty to Junior Agent or any Junior
Claimholders, to act or refrain from acting in a manner that allows, or results
in, the occurrence or continuance of an event of default or default under any
agreements with any Grantor (including the Senior Loan Documents and the Junior
Lien 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 Senior Claimholders, Senior Agent or
any of them to enforce any provision of this Agreement or any Senior Loan
Document shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of any Grantor or by any act or failure to act by
any Senior Claimholder or Senior Agent, or by any noncompliance by any person
with the terms, provisions, and covenants of this Agreement, any of the Senior
Loan Documents or any of the Junior Lien Documents, regardless of any knowledge
thereof which Senior Agent or Senior Claimholders, or any of them, may have or
be otherwise charged with.


 


(b)           No right of Junior Claimholders, Junior Agent or
any of them to enforce any provision of this Agreement or any Junior Lien
Documents shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of any U.S. Grantor or by any act or failure to act
by any Junior Claimholder or Junior Agent, or by any noncompliance by any
person with the terms, provisions, and covenants of this Agreement, any of the
Junior Lien Documents or any of the Senior Loan Documents, regardless of any
knowledge thereof which Junior Agent or Junior Claimholders, or any of them,
may have or be otherwise charged with.


 


(c)           Without in any way limiting the generality of Section 7.3(a) (but
subject to any rights of Grantors under the Senior Loan Documents and subject
to the provisions of Section 5.3(a)), Senior Claimholders, Senior Agent
and any of them may, at any time and from time to time in accordance with the
Senior Loan Documents and/or applicable law, without the consent of, or notice
to, Junior Agent or any Junior Claimholders, without incurring any liabilities
to Junior Agent or any Junior Claimholders and without impairing or releasing
the Lien priorities and other benefits provided in this Agreement (even if any
right of subrogation or other right or remedy of Junior Agent or any Junior
Claimholders is affected, impaired, or extinguished thereby) do any one or more
of the following without the prior written consent of Junior Agent:


 


(i)            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 Senior Lien
Obligations or any Lien on any Senior Collateral or guarantee 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 Senior Lien
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 Senior Agent or any Senior
Claimholder, the Senior Lien Obligations, or any of the Senior Loan 


 


29

















 


Documents (it being
understood that if any such change or increase results in the principal amount
of such Senior Lien Obligations exceeding the Maximum Senior Amount, the
amounts that are in excess of the Maximum Senior Amount shall not constitute “Senior
Lien Obligations” for purposes of this Agreement);


 


(ii)           sell, exchange, release,
surrender, realize upon, enforce or otherwise deal with in any manner and in
any order any part of the Senior Collateral or any liability of any Grantor to
Senior Claimholders or Senior Agent, or any liability incurred directly or
indirectly in respect thereof;


 


(iii)          settle or compromise any
Senior Lien 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
(including the Senior Lien Obligations) in any manner or order; and


 


(iv)          exercise or delay in or
refrain from exercising any right or remedy against any Grantor or any other
person, elect any remedy and otherwise deal freely with any Grantor or any
Senior Collateral and any security and any guarantor or any liability of any
Grantor to Senior Claimholders or any liability incurred directly or indirectly
in respect thereof.


 


(d)           Without in any way limiting the generality of Section 7.3(b) (but
subject to any rights of Grantors under the Junior Lien Documents and subject
to the provisions of Section 2.3(c) and Section 5.3(b) and
the other provisions of this Agreement), Junior Claimholders, Junior Agent and
any of them may, at any time and from time to time in accordance with the
Junior Lien Documents and/or applicable law, without the consent of, or notice
to, Senior Agent or any Senior Claimholder, without incurring any liabilities
to Senior Agent or any Senior Claimholders and without impairing or releasing
the Lien priorities and other benefits provided in this Agreement (even if any
right of subrogation or other right or remedy of Senior Agent or any Senior
Claimholders is affected, impaired, or extinguished thereby) do any one or more
of the following without the prior written consent of Senior Agent:


 


(i)            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 Junior Lien
Obligations or any Lien on any Junior Collateral or guarantee thereof or any
liability of any U.S. Grantor, or any liability incurred directly or indirectly
in respect thereof (including any increase in or extension of the Junior Lien
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 Junior Agent or any Junior
Claimholders, the Junior Lien Obligations, or any of the Junior Lien Documents;


 


(ii)           sell, exchange, release,
surrender, realize upon, enforce or otherwise deal with in any manner and in
any order any part of the Junior 


 


30

















 


Collateral or any liability
of any U.S. Grantor to Junior Claimholders or Junior Agent, or any liability
incurred directly or indirectly in respect thereof;


 


(iii)          settle or compromise any Junior
Lien Obligation or any other liability of any U.S. Grantor or any security
therefor or any liability incurred directly or indirectly in respect thereof
and apply any sums by whomsoever paid and however realized to any liability
(including the Junior Lien Obligations) in any manner or order; and


 


(iv)          exercise or delay in or
refrain from exercising any right or remedy against any U.S. Grantor or any
other person, elect any remedy and otherwise deal freely with any U.S. Grantor
or any Junior Collateral and any security and any guarantor or any liability of
any U.S. Grantor to Junior Claimholders or any liability incurred directly or
indirectly in respect thereof.


 


(e)           Except as otherwise provided in this Agreement,
Junior Agent also agrees that Senior Claimholders and Senior Agent shall have
no liability to Junior Agent or any Junior Claimholders, and Junior Agent
hereby waives any claim against any Senior Claimholder or Senior Agent, arising
out of any and all actions which Senior Claimholders or Senior Agent may,
pursuant to and not in contravention of the terms hereof, take, permit or omit
to take with respect to:


 


(i)            the Senior Loan Documents;


 


(ii)           the collection of the
Senior Lien Obligations; or


 


(iii)          the enforcement, sale,
liquidation, foreclosure upon or other disposition of, or the failure to
enforce, sell, liquidate, foreclose upon or otherwise dispose of, any Senior
Collateral.  Except as otherwise provided
in this Agreement, Junior Agent agrees that no Senior Claimholders and Senior
Agent have any duty to them in respect of the maintenance or preservation of
the Senior Collateral, the Senior Lien Obligations, or otherwise.


 


(f)            Until the Discharge of Senior Lien Obligations,
Junior Agent and the Junior Claimholders agree not to assert and hereby waive,
to the fullest extent permitted by law, any right to demand, request, plead, or
otherwise assert, or otherwise claim the benefit of, any marshaling, appraisal,
valuation, or other similar right that may otherwise be available under
applicable law with respect to the Junior Collateral or any other similar
rights a junior secured creditor may have under applicable law.


 


7.4.          Obligations Unconditional.  For so long as this Agreement is in full
force and effect, all rights, interests, agreements and obligations of Senior
Agent and Senior Claimholders and Junior Agent and Junior Claimholders,
respectively, hereunder shall remain in full force and effect irrespective of:


 


(a)           any lack of validity or enforceability of any
Senior Loan Documents or any Junior Lien Documents;


 


31

















 


(b)           except as otherwise expressly restricted 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 Senior Lien Obligations or Junior Lien
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 Senior Loan Document or any Junior Lien Documents;


 


(c)           except as otherwise expressly restricted 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 Senior Lien
Obligations or Junior Lien Obligations or any guarantee thereof;


 


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


 


(e)           any other circumstances which otherwise might
constitute a defense available to, or a discharge of, any Grantor in respect of
Senior Agent, the Senior Lien Obligations, any Senior Claimholder, Junior
Agent, the Junior Lien Obligations or any Junior Claimholder in respect of this
Agreement..


 


SECTION 8.         REPRESENTATIONS AND WARRANTIES.


 


8.1.          Representations and
Warranties of Each Party.  Each party hereto represents and warrants to
the other parties hereto as follows:


 


(a)           such party is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization and has
all requisite power and authority to execute and deliver this Agreement and to
perform its obligations hereunder;


 


(b)           this Agreement has been duly executed and delivered
by such party and constitutes a legal, valid and binding obligation of such
party, enforceable in accordance with its terms; and


 


(c)           the execution, delivery, and performance by such
party of this Agreement (i) do not require any consent or approval of,
registration or filing with or any other action by any Governmental Authority
and (ii) will not violate any provision of law, statute, rule or
regulation, or of the governing documents of such party or any order of any
Governmental Authority or any provision of any indenture, agreement or other
instrument binding upon such party.


 


8.2.          Representations and
Warranties of Each Agent.  Senior Agent and Junior Agent each represents
and warrants to the other that it has been authorized by Senior Lenders or
Junior Creditors, as applicable, under the Senior Credit Agreement or the
Junior Debt Agreement, as applicable, to enter into this Agreement and that
each of the agreements, covenants, waivers, and other provisions hereof is
valid, binding, and enforceable against the Senior Lenders or Junior Creditors,
as applicable, as fully as if each such Person had duly executed this
Agreement.


 


32

















 


SECTION 9.         MISCELLANEOUS.


 


9.1.          Conflicts.  Senior Agent, on behalf of the Senior
Claimholders, and Junior Agent, on behalf of the Junior Claimholders, agree
that, as between the Senior Claimholders and the Junior Claimholders, in the
event of any conflict between the provisions of this Agreement and the
provisions of any of the Senior Loan Documents or any of the Junior Lien
Documents, the provisions of this Agreement shall govern and control; provided,
that nothing in this Section 9.1, (x) as between the Senior Agent,
the other Senior Claimholders and the Grantors, shall be deemed to waive any
rights, protections, privileges, immunities or indemnities of the Senior Agent
and the Senior Claimholders as set forth in the Senior Loan Documents and (y) as
between the Junior Agent, the other Junior Claimholders, and the Guarantors,
shall be deemed to waive any rights, protections, privileges, immunities or
indemnities of the Junior Agent and the Junior Claimholders set forth in the
Junior Lien Documents


 


9.2.          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 Senior
Claimholders may continue, at any time and without notice to Junior Agent or
any Junior Claimholder, to extend credit and other financial accommodations to
or for the benefit of any Grantor constituting Senior Lien Obligations in
reliance hereof.  Junior Agent hereby
waives any right it may have under applicable law to revoke this Agreement or
any of the provisions of this Agreement. 
The terms of this Agreement shall survive, and shall continue in full
force and effect, in any Insolvency Proceeding. 
Any provision of this Agreement that is prohibited or unenforceable
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, interim
receiver, trustee-in-bankruptcy, or other similar Person for such Grantor in
any Insolvency Proceeding.  This
Agreement shall terminate and be of no further force and effect on the date of
the Discharge of Senior Lien Obligations.


 


9.3.          Amendments; Waivers.


 


(a)           No amendment, modification, or waiver of any of the
provisions of this Agreement shall be effective unless the same shall be in
writing signed on behalf of each party hereto or its authorized agent and in
the case of amendments, modifications or waivers in respect of Sections
5.1(c), 5.1(d), 5.1(f), 5.3, 5.4(a), 5.5,
5.6, 7.3(c)(i), 7.3(d)(i), 9.3 or 9.13 (or
any amendments to any defined terms used in such Sections, solely to the extent
that such amendments to such defined terms affect such Sections) to the extent
any such amendment, modification or waiver affects any U.S. Grantor, the U.S.
Grantors.  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.  Senior Agent and Junior Agent agree that they
shall provide to the Grantors a copy of any amendment, modification, or waiver
with respect to this Agreement following the execution thereof.


 


(b)           It is understood that the Senior Agent and the
Junior Agent, without the consent of any other Senior Claimholder or Junior
Claimholder, may in their discretion 


 


33

















 


determine
that a supplemental agreement (which may take the form of an amendment and
restatement of this Agreement) is necessary or appropriate to facilitate having
additional indebtedness or other obligations, including, without limitation,
any refinancing of the Senior Lien Obligations, any Additional Credit Facility,
any Permitted Additional Junior Lien Obligation, or any Refinancing of the
Junior Lien Obligations (“Additional Debt”)
of any of the Grantors become Senior Lien Obligations or of any of the U.S.
Grantors become Junior Lien Obligations, as the case may be, under this
Agreement, which supplemental agreement shall specify whether such Additional
Debt constitutes Senior Lien Obligations or Junior Lien Obligations; provided,
that such Additional Debt is permitted to be incurred by the Senior Loan
Documents and the Junior Lien Documents as then in effect, and is permitted by
such agreements to be subject to the provisions of this Agreement as Senior
Lien Obligations or Junior Lien Obligations, as applicable.


 


(c)           In the event that the Junior Agent does not take
the actions contemplated by Section 9.3(b) in connection with
any permitted Additional Debt within ten (10) Business Days after the
delivery of a written request to do so, the Senior Agent, without the consent
of the Junior Agent, may modify this Agreement (which modification may take the
form of an amendment and restatement of this Agreement) for the purpose of
having any Additional Debt become Senior Lien Obligations under this Agreement,
which agreement shall specify that such Additional Debt constitutes Senior Lien
Obligations; provided, that such Additional Debt is permitted to be
incurred pursuant to the Junior Lien Documents as then in effect, and is
permitted by such agreement (as determined by the Senior Agent in good faith
and certified by an officer of the Borrowers to the Junior Agent) to be subject
to the provisions of this Agreement as Senior Lien Obligations.


 


9.4.          Information Concerning
Financial Condition of the Loan Parties and their Respective Subsidiaries.  Senior Agent and Senior Claimholders, on the
one hand, and Junior Claimholders and Junior Agent, on the other hand, shall
each be responsible for keeping themselves informed of (a) the financial
condition of the Loan Parties and their respective subsidiaries and all
endorsers or guarantors of the Senior Lien Obligations or the Junior Lien
Obligations and (b) all other circumstances bearing upon the risk of
nonpayment of the Senior Lien Obligations or the Junior Lien Obligations.  None of Senior Agent or any Senior
Claimholder shall have any duty to advise Junior Agent or any Junior
Claimholder of information known to it or them regarding such condition or any
such circumstances or otherwise.  Junior
Agent and Junior Claimholders shall have no duty to advise Senior Agent or any
Senior Claimholder of information known to it or them regarding such condition
or any such circumstances or otherwise. 
In the event Senior Agent or any Senior Claimholder, in its or their
sole discretion, undertakes at any time or from time to time to provide any such
information to Junior Agent or any Junior Claimholder, it or they shall be
under no obligation:


 


(a)           to make, and none of Senior Agent or any Senior
Claimholder shall 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;


 


34

















 


(c)           to undertake any investigation; or


 


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


 


9.5.          Subrogation.  The Junior Agent and the Junior Claimholders
waive any rights of subrogation they may acquire as a result of any payment
hereunder until the Discharge of Senior Lien Obligations has occurred.


 


9.6.          SUBMISSION TO JURISDICTION;
WAIVERS.


 


(a)           THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
SITTING IN NEW YORK COUNTY, NEW YORK, AND OF THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY
THEREOF. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH PARTY, FOR ITSELF AND
IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY:


 


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


 


(ii)           WAIVES ANY DEFENSE OF FORUM
NON CONVENIENS;


 


(iii)          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 9.7; AND


 


(iv)          AGREES THAT SERVICE AS
PROVIDED IN CLAUSE (iii) 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 (INCLUDING EACH OF THE
GRANTORS ON BEHALF OF ITSELF AND ITS SUBSIDIARIES) HEREBY WAIVES 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 


 


35

















 


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 9.6(b) AND EXECUTED BY SENIOR AGENT AND JUNIOR AGENT),
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.


 


9.7.          Notices.  All notices to Junior Claimholders and Senior
Claimholders permitted or required under this Agreement shall also be sent to
Junior Agent and Senior Agent, respectively. 
Unless otherwise specifically provided herein, any notice hereunder
shall be in writing and may be personally served or sent by telefacsimile,
electronic mail 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 telefacsimile, electronic mail or 3 Business
Days after depositing it in the mail with postage prepaid and properly
addressed.  For the purposes hereof, the
addresses of the parties hereto shall be as designated on Exhibit B
attached hereto or as may be otherwise designated by such party in a written
notice to all of the other parties.


 


9.8.          Further Assurances.  Senior Agent and Junior Agent agree to take
such further action and shall execute and deliver such additional documents and
instruments (in recordable form, if requested) as Senior Agent or Junior Agent
may reasonably request to effectuate the terms of and the Lien priorities
contemplated by this Agreement, all at the expense of Borrowers.


 


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


 


9.10.        Binding on Successors and
Assigns.  This
Agreement shall be binding upon Senior Agent, Senior Claimholders, Junior
Agent, Junior Claimholders, any Additional Credit Facility Agent, any Permitted
Additional Junior Lien Obligations Representative, and their respective
successors and assigns.


 


9.11.        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.


 


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


 


36

















 


9.13.        No Third Party
Beneficiaries.  This Agreement and the rights and benefits
hereof shall inure to the benefit of each of the parties hereto and its
respective successors and assigns and shall inure to the benefit of and bind
each of Senior Claimholders and Junior Claimholders.  In no event shall any Grantor be a third
party beneficiary of this Agreement, except to the extent that the provisions
set forth in Sections 5.1(c), 5.1(d), 5.1(f), 5.3, 5.4(a),
5.5, 5.6, 7.3(c)(i), 7.3(d)(i), 9.3 or 9.13
hereof affect any U.S. Grantor.


 


9.14.        Provisions Solely to Define
Relative Rights.  The provisions of this Agreement are and are
intended solely for the purpose of defining the relative rights of Senior Agent
and Senior Claimholders on the one hand and Junior Agent and Junior
Claimholders on the other hand.  Except
as specifically provided in Section 9.13 hereof, no Grantor or any other
creditor thereof shall have any rights hereunder and no Grantor may rely on the
terms hereof.  Nothing in this Agreement
shall impair, as between Grantors and Senior Agent and Senior Claimholders, or
as between U.S. Grantors and Junior Agent and Junior Claimholders, the rights
of the Grantors under, or the obligations of the applicable Grantors to pay
principal, interest, fees and other amounts as provided in, the Senior Loan
Documents and the Junior Lien Documents, respectively.


 


9.15.        Patriot Act Compliance.  The parties hereto acknowledge that in
accordance with Section 326 of the USA PATRIOT Act Senior Agent, like all
financial institutions and in order to help fight the funding of terrorism and
money laundering, is required to obtain, verify, and record information that
identifies each person or legal entity that establishes a relationship or opens
an account.  The parties to this
Agreement agree that they will provide Senior Agent with such information as it
may request in order for Senior Agent to satisfy the requirements of the USA
PATRIOT Act.


 


37






 










 


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


 


	
   

  	
  GMAC COMMERCIAL FINANCE LLC,

  
	
   

  	
  a Delaware limited liability company,

  
	
   

  	
  as Senior Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas Maiale

  
	
   

  	
  Name:

  	
  Thomas Maiale

  
	
   

  	
  Title:

  	
  Director

  



 

















 


	
   

  	
  U.S. BANK NATIONAL ASSOCIATION,

  
	
   

  	
  a national banking association,

  
	
   

  	
  as Junior Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert J. Dunn

  
	
   

  	
  Name:

  	
  Robert J. Dunn

  
	
   

  	
  Title:

  	
  Vice
  President

  



 

















 


ACKNOWLEDGMENT


 


The Grantors each hereby acknowledge that they have
received a copy of the foregoing Intercreditor Agreement and consent thereto,
agree to recognize all rights granted thereby to Senior Agent, Senior
Claimholders, Junior Agent, and Junior Claimholders, and will not do any act or
perform any obligation the effect of which would result in a breach of the
agreements set forth in the Intercreditor Agreement, as amended, restated,
supplemented or otherwise modified from time to time.  The Grantors and each of the Grantors’
undersigned Subsidiaries each further acknowledge and agree that, except as
provided in Section 9.13 of the Intercreditor Agreement, they are
not an intended beneficiary or third party beneficiary under the foregoing
Intercreditor Agreement, as amended, restated, supplemented or otherwise
modified from time to time.


 


[signatures
on following pages]


 

















 


ACKNOWLEDGED AS OF THE DATE FIRST WRITTEN ABOVE:


 


	
   

  	
  SQUARETWO FINANCIAL CORPORATION,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul A. Larkins

  
	
   

  	
  Name:

  	
  Paul A. Larkins

  
	
   

  	
  Title:

  	
  President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PREFERRED CREDIT RESOURCES LIMITED,

  
	
   

  	
  an Ontario corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Chris Walker

  
	
   

  	
  Name:

  	
  Christopher Walker

  
	
   

  	
  Title:

  	
  President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CACH, LLC

  
	
   

  	
  CACH OF NJ, LLC

  
	
   

  	
  COLLECT AMERICA OF CANADA LLC

  
	
   

  	
  CACV OF COLORADO, LLC

  
	
   

  	
  CACV OF NEW JERSEY, LLC

  
	
   

  	
  HEALTHCARE FUNDING SOLUTIONS, LLC

  
	
   

  	
  ORSA, LLC

  
	
   

  	
  CANDEO, LLC

  
	
   

  	
  AUTUS, LLC, each
  a Colorado limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul A. Larkins

  
	
   

  	
  Name:

  	
  Paul A. Larkins

  
	
   

  	
  Title:

  	
  Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  REFINANCE AMERICA, LTD., a Nevada corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas G. Good

  
	
   

  	
  Name:

  	
  Thomas G. Good

  
	
   

  	
  Title:

  	
  Secretary

  



 

















 


	
   

  	
  METROPOLITAN LEGAL ADMINISTRATION SERVICES INC., an Ontario corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Chris Walker

  
	
   

  	
  Name:

  	
  Christopher Walker

  
	
   

  	
  Title:

  	
  President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CA HOLDING, INC., a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul A. Larkins

  
	
   

  	
  Name:

  	
  Paul A. Larkins

  
	
   

  	
  Title:

  	
  President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CCL FINANCIAL INC., an Ontario corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Chris Walker

  
	
   

  	
  Name:

  	
  Christopher Walker

  
	
   

  	
  Title:

  	
  President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SQUARE TWO FINANCIAL CANADA CORPORATION, a Nova Scotia corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Chris Walker

  
	
   

  	
  Name:

  	
  Christopher Walker

  
	
   

  	
  Title:

  	
  President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SQUARETWO FINANCIAL COMMERCIAL FUNDING
  CORPORATION, a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas G. Good

  
	
   

  	
  Name:

  	
  Thomas G. Good

  
	
   

  	
  Title:

  	
  Secretary

  



 

















 


EXHIBIT A


 


ACKNOWLEDGMENT


 


Reference is hereby made to the Intercreditor
Agreement, dated as of April 7, 2010 (as amended, restated, supplemented
or otherwise modified from time to time, the “Agreement”),
among the Agents referred to therein, to which this Acknowledgment is
attached.  All capitalized terms not
otherwise defined herein shall have the meanings assigned to such terms in the
Agreement when used herein.  The
undersigned, in its capacity as [Senior Agent] [Junior Agent] [Permitted
Additional Junior Liens Obligation Representative] [Additional Credit Facility
Agent] hereby acknowledges the terms and conditions of the Agreement and agrees
to be bound thereby.


 


	
   

  	
  SUCCESSOR [SENIOR AGENT][JUNIOR AGENT] [PERMITTED
  ADDITIONAL JUNIOR LIENS OBLIGATION REPRESENTATIVE] [ADDITIONAL CREDIT
  FACILITY AGENT]:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Exhibit A - 1

















 


EXHIBIT B


 


NOTICE
ADDRESSES


 


	
  If to Junior Agent:

  	
  U.S. BANK NATIONAL ASSOCIATION

  
	
   

  	
  Corporate Trust Services

  
	
   

  	
  950 17th Street

  
	
   

  	
  Denver, CO 80202

  
	
   

  	
  Attn: SquareTwo Administrator

  
	
   

  	
  Facsimile:

  
	
   

  	
  Email:

  
	
   

  	
   

  
	
  If to Senior Agent:

  	
  GMAC COMMERCIAL FINANCE LLC

  
	
   

  	
  Structured Finance Division

  
	
   

  	
  1290 Avenue of the Americas, 3rd Floor

  
	
   

  	
  New York, NY 10104

  
	
   

  	
  Attention:

  	
  Thomas J. Maiale

  
	
   

  	
  Facsimile:

  	
  (212) 884-7692

  
	
   

  	
  Email:

  	
  tmaiale@gmaccf.com

  
	
   

  	
   

  
	
  with copies to:

  	
  GMAC COMMERCIAL FINANCE LLC

  
	
   

  	
  Structured Finance Division

  
	
   

  	
  1290 Avenue of the Americas, 3rd Floor

  
	
   

  	
  New York, NY 10104

  
	
   

  	
  Attn: SFD Counsel

  
	
   

  	
  Facsimile:

  
	
   

  	
  Email:

  
	
   

  	
   

  
	
  with copies to:

  	
  HAHN & HESSEN LLP

  
	
   

  	
  488 Madison Avenue

  
	
   

  	
  New York, NY 10022

  
	
   

  	
  Attention:

  	
  Leonard Lee Podair

  
	
   

  	
  Facsimile:

  	
  (212) 478-7400

  
	
   

  	
  Email:

  	
  lpodair@hahnhessen.com

  
	
   

  	
   

  
	
  If to Grantors:

  	
  SQUARETWO FINANCIAL CORPORATION

  
	
   

  	
  4340 S. Monaco, Second Floor

  
	
   

  	
  Denver, Colorado 80237

  
	
   

  	
  Attention:

  	
  L. Heath Sampson and Thomas Good

  
	
   

  	
  Facsimile:

  	
  (303) 713-2509

  
	
   

  	
  Email:

  	
  hsampson@squaretwofinancial.com and

  
	
   

  	
  tgood@squaretwofinancial.com

  
	
   

  	
   

  
	
  with copies to:

  	
  KRG CAPITAL PARTNERS, L.L.C.

  
	
   

  	
  1515 Arapahoe Street, Tower One Suite 1500

  
	
   

  	
  Denver, Colorado 80202

  
	
   

  	
  Attention:

  	
  Mark M. King and

  
	
   

  	
   

  	
  Chris Bock

  
	
   

  	
  Facsimile:

  	
  (303) 390-5015

  
	
   

  	
  Email:

  	
  mking@krgcapital.com and

  
	
   

  	
  cbock@krgcapital.com

  



 


Exhibit B - 1


 

















 


	
  and:

  	
  HOGAN & HARTSON LLP

  
	
   

  	
  1200 17th Street

  
	
   

  	
  Denver, CO 80202-5840

  
	
   

  	
  Attention:

  	
  George A. Hagerty, Esq.

  
	
   

  	
  Facsimile:

  	
  (303) 899-7333

  
	
   

  	
  Email:

  	
  gahagerty@hhlaw.com