Exhibit
4.38


 


INTERCREDITOR
AGREEMENT


 


This Intercreditor Agreement
is dated as of August 14, 2009, and entered into by and among Clean
Harbors, Inc., a Massachusetts corporation (the “Company”), the
subsidiaries of the Company listed on the signature pages hereof (together
with any subsidiary that becomes a party hereto after the date hereof, the “Company
Subsidiaries”), Bank of America, N.A., in its capacity as administrative
agent under the ABL Loan Agreement, including its successors and assigns from
time to time (the “Initial ABL Agent”) and U.S. Bank National
Association, as Trustee (the “Senior Secured Notes Trustee”), not in its
individual capacity, but solely in its capacity as trustee and collateral agent
under the Senior Secured Notes Indenture. 
Capitalized terms used in this Agreement have the meanings assigned to
them in Section 1.


 


RECITALS


 


The Company, the ABL Lenders
and the Initial ABL Agent have entered into that certain Credit Agreement,
dated as of July 31, 2009 (as amended, restated, supplemented or modified
from time to time, the “Initial ABL Loan Agreement”);


 


The Company has issued, or
will issue, $300,000,000 principal amount of 75/8% senior secured notes due 2016 (the “Initial Senior Secured Notes”)
under an indenture, dated as of August 14, 2009 (as amended, restated,
supplemented or modified from time to time, the “Senior Secured Notes Indenture”)
among the Company, each Guarantor (as defined in the Senior Secured Notes
Indenture) and the Senior Secured Notes Trustee;


 


Following the date hereof,
the Company may issue Junior Secured Notes and enter into a Junior Secured
Notes Agreement to the extent permitted by the ABL Loan Documents and the
Senior Secured Notes Documents;


 


The Company may from time to
time following the date hereof issue Additional Pari Passu Senior Secured Notes
Obligations to the extent permitted by the ABL Loan Agreement, the Senior
Secured Notes Indenture and the Junior Secured Notes Agreement (if any);


 


In order to induce the ABL
Agent and the ABL Lenders to consent to the Grantors incurring the Senior
Secured Notes Obligations and the Junior Secured Notes Obligations (if any) and
granting the Liens to the Senior Secured Notes Agent and the Junior Secured
Notes Agent and in order to induce the Senior Secured Notes Agent and the
Senior Secured Noteholders to consent to the Grantors incurring the ABL
Obligations and the Junior Secured Notes Obligations (if any) and granting the
Liens to the ABL Agent and the Junior Secured Notes Agent, the ABL Agent, on
behalf of the ABL Claimholders, the Senior Secured Notes Agent, on behalf of
the Senior Secured Notes Claimholders and, should a Junior Secured Notes
Agreement be entered into, following the execution of the Junior Secured Notes
Joinder Agreement, the Junior Secured Notes Agent, on behalf of the Junior
Secured Notes Claimholders, have agreed to the relative priority of their
respective Liens on the Collateral and certain other rights, priorities and
interests as set forth in this Agreement.


 


AGREEMENT


 


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


 

















 


I.

DEFINITIONS


 


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


 


“ABL Agent” means the
Initial ABL Agent and any successor or other agent under the ABL Loan
Agreement.


 


“ABL Claimholders”
means, at any relevant time, the holders of ABL Obligations at that time,
including, without limitation, the ABL Lenders and the ABL Agent under the ABL
Loan Agreement, in each case solely in their capacities as such and not in any
other capacity (except to the extent that such ABL Claimholder is acting in
such other capacity for the primary purpose of benefiting its ABL Obligations).


 


“ABL 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 ABL
Obligations.


 


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


 


“ABL Lenders” means
the “Lenders” under and as defined in the ABL Loan Agreement or any other
Person which extends credit under the ABL Loan Agreement in each case solely in
their capacities as such and not in any other capacity (except to the extent
that such ABL Lender is acting in such other capacity for the primary purpose
of benefiting its ABL Obligations).


 


“ABL Loan Agreement”
means collectively, (a) the Initial ABL Loan Agreement and (b) any
other credit agreement or credit agreements, one or more debt facilities,
and/or commercial paper facilities, in each case, with banks or other
institutional or commercial lenders providing for revolving credit loans, term
loans, receivables financing (including through the sale of receivables to such
lenders or to special purpose entities formed to borrow from (or sell such
receivables to) such lenders against such receivables), letters of credit,
bankers’ acceptances, or other borrowings, that has been incurred to increase,
replace (whether upon or after termination or otherwise), Refinance or refund
in whole or in part from time to time the Obligations outstanding under the
Initial ABL Loan Agreement or any other agreement or instrument referred to in
this clause which (I) is designated to each ABL Agent as an “ABL Loan Agreement”
by (x) if any other ABL Loan Agreement is then in effect, the ABL Agent
(and, so long as an ABL Default has not occurred and is continuing at the time
of such designation, the Company) or (y) if no other ABL Loan Agreement is
then in effect, the Company, and (II) the ABL Agent for such agreement
shall have executed a supplement to this Agreement agreeing to be bound hereby
on the same terms applicable to the Initial ABL Agent, whether or not such
increase, replacement, refinancing or refunding occurs (i) with the
original parties thereto, (ii) on one or more separate occasions or (iii) simultaneously
or not with the termination or repayment of the Initial ABL Loan Agreement or
any other agreement or instrument referred to in this clause, unless such
agreement or instrument is not a Permitted Refinancing Agreement.  Any reference to the ABL Loan Agreement hereunder
shall be deemed a reference to any ABL Loan Agreement then in existence.


 


“ABL Loan Documents”
means the ABL Loan Agreement and the “Loan Documents” (as defined in the
ABL Loan Agreement), and each of the other agreements, documents and
instruments executed pursuant thereto, and any other document or instrument
executed or delivered at any time in connection with the ABL Loan Agreement,
including any intercreditor or joinder agreement among holders of ABL
Obligations, to the extent such are effective at the relevant time, as each may
be amended, restated, 


 


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supplemented, modified,
renewed, extended or Refinanced from time to time in accordance with the provisions
of this Agreement.


 


“ABL
Obligations”
means all advances to, and Indebtedness, liabilities, obligations, covenants
and duties of the Company and the Company Subsidiaries (whether for principal,
premium, interest, penalties, fees, indemnifications, reimbursements, damages
and other liabilities payable under the documentation governing such
Indebtedness, liabilities, obligations, covenants and duties) arising under (i) the
ABL Loan Agreement or otherwise with respect to any loans or letters of credit
issued or borrowed pursuant to the ABL Loan Agreement, (ii) any Secured
Cash Management Agreement or (iii) any Secured Hedge Agreement, in each
case whether direct or indirect (including those acquired by assumption), absolute
or contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against
the Company or any Company Subsidiary or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in
such proceeding, regardless of whether such interest and fees are allowed
claims in such proceeding.


 


“ABL Priority Collateral”
means all now-owned or hereafter acquired ABL Collateral that constitutes:


 


(a)           Accounts, other than Accounts which arise from the sale,
license, assignment or other Disposition of Senior Secured Notes Priority
Collateral;


 


(b)           Deposit Accounts and Securities Accounts (including all
cash, cash equivalents, Money, checks, Instruments, funds, ACH transfers, wired
funds, Investment Property, and other funds and property held in or on deposit
in any of the foregoing, but excluding any identifiable Proceeds of Senior
Secured Notes Priority Collateral held in any of the foregoing), in each case,
to the extent arising out of, or related to, or derivative of the foregoing;


 


(c)           Letter of Credit Rights arising out of, or related to, or
derivative of any of the property or interests in property described in this
definition;


 


(d)           Supporting Obligations and Commercial Tort Claims, in each
case, to the extent arising out of, or related to, or derivative of, the
property or interests described in this definition;


 


(e)           all contracts, contract rights and other General
Intangibles (other than any Intellectual Property and the Senior Secured Notes
Priority Collateral), all Documents, Chattel Paper, and Instruments (including
promissory notes), in each case, to the extent arising out of, or related to,
or derivative of the property or interests in property described in this definition;


 


(f)            all books and Records relating to the items referred to
in the preceding clauses (a) through (e) (including all books,
databases, data processing software, customer lists, engineer drawings, and
Records, whether tangible or electronic, which contain any information relating
to any of the items referred to in the preceding clauses (a) through (e));
and


 


(g)           all collateral security and guarantees with respect to any
of the foregoing and, subject to Section 3.5, all proceeds,
products, substitutions, replacements, accessions, cash, Money, insurance proceeds,
Instruments, Securities, Security Entitlements, Financial Assets and Deposit
Accounts (excluding any identifiable Proceeds of Senior Secured Notes Priority
Collateral held in any of the foregoing) received as proceeds of any of the
foregoing, but excluding proceeds of Senior Secured Notes Priority Collateral.


 


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 “ABL Security Documents” means any
agreement, document or instrument pursuant to which a Lien is granted securing
any ABL Obligations or under which rights or remedies with respect to such
Liens are governed.


 


“Account Agreements”
means any lockbox account agreement, pledged account agreement, blocked account
agreement, securities account control agreement, or any similar deposit or
securities account agreements among the Senior Secured Notes Agent and the ABL
Agent, one or more Grantors and the relevant financial institution depository
or securities intermediary.


 


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


 


“Additional Joinder
Agreement” shall mean a joinder agreement in the form of Exhibit B
hereto.


 


“Additional Pari Passu
Senior Secured Notes Agent” means the Person appointed to act as trustee,
agent or representative for the holders of Additional Pari Passu Senior Secured
Notes Obligations pursuant to any Additional Pari Passu Senior Secured Notes
Agreement.


 


“Additional Pari Passu
Senior Secured Notes Agreement” means the indenture, credit agreement or
other agreement under which any Additional Pari Passu Senior Secured Notes
Obligations are incurred.


 


“Additional Pari Passu
Senior Secured Notes Obligations” means Indebtedness of the Grantors issued
following the date of this Agreement to the extent (a) such Indebtedness
is not prohibited by the terms of the ABL Loan Agreement, the Senior Secured
Notes Indenture, the Junior Secured Notes Agreement (if any) from being secured
by Liens on the Collateral ranking pari  passu with the Liens securing
the Senior Secured Notes Obligations, (b) the Grantors have granted Liens,
consistent with clause (a), on the Collateral to secure the Obligations in
respect of such Indebtedness, and (c) the Additional Pari Passu Senior
Secured Notes Agent, for the holders of such Indebtedness, has entered into an
Additional Joinder Agreement on behalf of the Senior Secured Notes Claimholders
under such agreement acknowledging that such holders shall be bound by the
terms hereof applicable to Senior Secured Notes Claimholders.


 


“Affiliate” means,
with respect to a specified Person, another Person that directly, or indirectly
through one or more intermediaries, controls or is controlled by or is under
common control with the Person specified. 
For purposes of this definition, a Person shall be deemed to “control”
or be “controlled by” a Person if such Person possesses, directly or
indirectly, power to direct or cause the direction of the management or
policies of such Person whether through ownership of equity interests, by
contract or otherwise.


 


“Agents” means the
ABL Agent, the Senior Secured Notes Agent and the Junior Secured Notes Agent.


 


“Agreement” means
this Intercreditor Agreement, as amended, restated, renewed, extended, supplemented
or otherwise modified from time to time.


 


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


 


“Bankruptcy Law”
means the Bankruptcy Code and any similar federal or state law for the relief
of debtors.


 


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


 


“Capital Stock” means
(a) in the case of a corporation, capital stock, (b) in the case of
an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of capital
stock, (c) in the case of a partnership, partnership interests (whether general
or limited), (d) in the case of a limited liability company, membership
interests and (e) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person and all rights, warrants or
options exchangeable for or convertible into any of the items described in
clauses (a) through (e) above; provided that with respect to
the foregoing, Capital Stock shall exclude any debt securities convertible into
Capital Stock, whether or not such debt securities include any right of vote or
participation with Capital Stock.


 


“Cash
Management Agreement” means any agreement to provide cash management
services, including treasury, depository, overdraft, credit or debit card,
electronic funds transfer and other cash management arrangements.


 


“Cash Management Bank” means any
Person that, at the time it enters into a Cash Management Agreement, is a
lender under the ABL Loan Agreement or an Affiliate of a lender under the ABL
Loan Agreement, in such Person’s capacity as a party to such Cash Management
Agreement.


 


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


 


“Claimholder” means
any Senior Secured Notes Claimholder, Junior Secured Notes Claimholder or ABL
Claimholder, as applicable.


 


“Collateral” means
any and all of the assets and property of any Grantor, whether real, personal
or mixed, which constitute ABL Collateral, Senior Secured Notes Collateral or
Junior Secured Notes Collateral.


 


“Commercial Tort Claims”
means all present and future “commercial tort claims” (as defined in Article 9
of the UCC).


 


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


 


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


 


“Conforming Plan of
Reorganization” means any Plan of Reorganization whose provisions are
consistent with the provisions of this Agreement.


 


“Copyrights” means (a) all
registered United States copyrights in any works which are subject to copyright
protection pursuant to Title 17 of the United States Code, now existing or
hereafter created or acquired, all registrations and recordings thereof, and
all applications in connection therewith, including, without limitation,
registrations, recordings and applications in the United States Copyright
Office and (b) all renewals thereof.


 


“Debtor Relief Laws” means the
Bankruptcy Code of the United States, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, 


 


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insolvency, reorganization,
or similar debtor relief laws or regulations of the United States or other applicable
jurisdictions from time to time in effect and affecting the rights of creditors
generally.


 


“Deposit Accounts”
means all present and future “deposit accounts” (as defined in Article 9
of the UCC).


 


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


 


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


 


(a)           payment in full in cash of all ABL Obligations (other than
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 under the ABL Loan Documents;


 


(c)           termination, cash collateralization (in an amount and
manner reasonably satisfactory to the ABL Agent, but in no event greater than
105% of the aggregate undrawn face amount, plus commissions, fees, and
expenses) or backstop of all letters of credit issued under the ABL Loan
Agreement in compliance with the terms of the ABL Loan Agreement; and


 


(d)           cash collateralization (or support by a letter of credit)
for any costs, expenses and contingent indemnification obligations consisting
of ABL Obligations not yet due and payable but with respect to which a claim
has been asserted in writing under any ABL Loan Documents (in an amount and
manner reasonably satisfactory to the ABL Agent).


 


“Discharge of Junior
Secured Notes Obligations” means, except to the extent otherwise expressly
provided in Section 5.5, (x) payment in full in cash (or, to
the extent provided in the applicable Junior Secured Notes Documents, other
property) of all Junior Secured Notes Obligations (other than contingent
obligations or indemnification obligations, in each case for which no claim has
been asserted) or (y) any discharge or legal defeasance of the Junior
Secured Notes Agreement in accordance with the express terms thereof.


 


“Discharge of Prior Lien
Obligations” means:


 


(a)           with respect to the Junior Secured Notes Claimholders, the
Discharge of ABL Obligations and the Discharge of Senior Secured Notes Obligations;


 


(b)           with respect to the ABL Priority Collateral as it relates
to the Senior Secured Notes Claimholders, the Discharge of ABL Obligations; and


 


(c)           with respect to the Senior Secured Notes Priority
Collateral as it relates to the ABL Claimholders, the Discharge of Senior
Secured Notes Obligations.


 


“Discharge of Senior
Secured Notes Obligations” means, except to the extent otherwise expressly
provided in Section 5.5, (x) payment in full in cash of all
Senior Secured Notes Obligations (other than contingent obligations or
indemnification obligations, in each case for which no claim has been asserted
in writing) or (y) any discharge or legal defeasance of the Senior Secured
Notes Indenture and each Additional Pari Passu Senior Secured Notes Agreement
in accordance with the express terms thereof.


 


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“Disposition” means
any sale, lease, exchange, transfer or other disposition of any Collateral.


 


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


 


“Enforcement” means,
collectively or individually for one or more of the ABL Agent, the Senior
Secured Notes Agent or the Junior Secured Notes Agent to enforce or attempt to
enforce any right or power to repossess, replevy, attach, garnish, levy upon,
collect the Proceeds of, foreclose or realize in any manner whatsoever its Lien
upon, sell, liquidate or otherwise dispose of, or otherwise restrict or
interfere with the use of, or exercise any remedies with respect to, any Collateral,
whether by judicial enforcement of any of the rights and remedies under the ABL
Loan Documents, the Senior Secured Notes Documents, the Junior Secured Notes
Documents and/or under any applicable law, by self-help repossession, by
non-judicial foreclosure sale, lease, or other Disposition, by set-off, by
notification to account obligors of any Grantor, by any sale, lease, or other
Disposition implemented by any Grantor at the direction of the ABL Agent, the
Senior Secured Notes Agent or the Junior Secured Notes Agent, or otherwise, but
in all cases excluding (i) the establishment of borrowing base reserves,
collateral ineligibles, or other conditions for advances, (ii) the
changing of advance rates or advance sublimits, (iii) the imposition of a
default rate or late fee, (iv) the collection and application (including
pursuant to “cash dominion” provisions) of Accounts or other monies deposited
from time to time in Deposit Accounts or Securities Accounts, in each case,
against the ABL Obligations pursuant to the provisions of the ABL Loan
Documents (including, without limitation, the notification of account debtors,
depositary institutions or any other Person to deliver proceeds of Collateral
to the ABL Agent), (v) the cessation of lending pursuant to the provisions
of the ABL Loan Documents, including upon the occurrence of a default on the
existence of an over-advance, (vi) the filing of a proof of claim in any
Insolvency or Liquidation Proceeding, (vii) the consent by the ABL Agent
to Disposition by any Grantor of any of the ABL Priority Collateral, and (viii) the
acceleration of the Senior Secured Notes Obligations, the ABL Obligations or
the Junior Secured Notes Obligations.


 


“Enforcement Notice”
means a written notice delivered, at a time when an ABL Default or Senior
Secured Notes Default has occurred and is continuing, by either the ABL Agent
or the Senior Secured Notes Agent to the other announcing that such party
intends to commence Enforcement against its Priority Collateral and specifying
the relevant event of default.


 


“Equipment” means, as
to each Grantor, all of such Grantor’s now owned and hereafter acquired
equipment, as defined in Article 9 of the UCC, wherever located.


 


“Financial Assets”
means all present and future “financial assets” (as defined in Article 9
of the UCC).


 


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


 


“Governmental Authority”
means any federal, state, municipal, national or other government, governmental
department, commission, board, bureau, court, agency or instrumentality or
political subdivision thereof or any entity or officer exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to any government or any court, in each case whether associated with a state of
the United States, the United States, or a foreign entity or government.


 


“Grantors” means
Holdings, the Company, each Company Subsidiary and each other Person that has
or may from time to time hereafter execute and deliver an ABL Security
Document, a Senior Secured 


 


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Notes Security Document or a
Junior Secured Notes Security Document, as a grantor of a security interest (or
the equivalent thereof).


 


“Hedge Bank” means any Person that, at the time it
enters into a Swap Contract permitted under the indenture, is a lender under
the ABL Loan Agreement or an Affiliate of a lender under the ABL Loan
Agreement, in such Person’s capacity as a party to such Swap Contract.


 


“Indebtedness” means
and includes all “Indebtedness,” or any similar term within the meaning of the
ABL Loan Agreement, the Senior Secured Notes Indenture or the Junior Secured
Notes Agreement, as applicable.


 


“Initial ABL Loan
Agreement” has the meaning assigned to that term in the Recitals.


 


“Initial Senior Secured
Notes” has the meaning assigned to that term in the Recitals.


 


“Insolvency or
Liquidation Proceeding” means:


 


(a)           any voluntary or involuntary case or proceeding under the
Bankruptcy Code or other applicable bankruptcy or insolvency laws of another
jurisdiction with respect to any Grantor;


 


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


 


(c)           any composition of liabilities or similar arrangement
relating to any Grantor, whether or not under a court’s jurisdiction or
supervision;


 


(d)           any liquidation, dissolution, reorganization or winding up
of any Grantor, whether voluntary or involuntary, whether or not under a court’s
jurisdiction or supervision, and whether or not involving insolvency or
bankruptcy; or


 


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


 


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


 


“Intellectual Property”
means, all of the following in any jurisdiction throughout the world:  (a) patents, patent applications and
inventions, including all renewals, extensions, combinations, divisions, or
reissues thereof (“Patents”); (b) trademarks, service marks, trade
names, trade dress, logos, internet domain names and other business
identifiers, together with the goodwill symbolized by any of the foregoing, and
all applications, registrations, renewals and extensions thereof (“Trademarks”);
(c) copyrights and all works of authorship including all registrations,
applications, renewals, extensions and reversions thereof (“Copyrights”);
(d) all computer software, source code, executable code, data, databases
and documentation thereof; (e) all trade secret rights in information,
including trade secret rights in any formula, pattern, compilation, program,
device, method, technique, or process, that (1) derives independent
economic value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other Persons who can obtain
economic value from its disclosure or use, and (2) is the subject of
efforts that are reasonable under the circumstances to maintain its secrecy; (f) all
other intellectual property or proprietary rights in any discoveries, concepts,
ideas, research and development, 


 


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know-how, formulae,
patterns, inventions, compilations, compositions, manufacturing and production
processes and techniques, program, device, method, technique, technical data,
procedures, designs, recordings, graphs, drawings, reports, analyses,
specifications, databases, and other proprietary or confidential information,
including customer lists, supplier lists, pricing and cost information,
business and marketing plans and proposals and advertising and promotional
materials; and (g) all rights to sue at law or in equity for any
infringement or other impairment or violation thereof and all products and
proceeds of the foregoing.


 


“Inventory” means as
to each Grantor, all of such Grantor’s now owned and hereafter existing or
acquired inventory, as defined in Article 9 of the UCC, wherever located.


 


“Investment Property”
means all present and future “investment property” (as defined in Article 9
of the UCC), including, without limitation, all Capital Stock of Subsidiaries
of the Grantors.


 


 “Junior Secured Noteholders” means the
holders of the Junior Secured Notes, solely in their capacities as such and not
in any other capacity (except to the extent that such Junior Secured Noteholder
is acting in such other capacity for the primary purpose of benefiting its
Junior Secured Notes Obligations).


 


“Junior Secured Notes”
any indebtedness that has been incurred after the date hereof which is
designated to each Agent as “Junior Secured Notes” by the Junior Secured Notes
Agent; provided that (a) the Junior
Secured Notes Agent under the Junior Secured Notes Agreement under which such
indebtedness has been incurred shall have executed a supplement to this
Agreement agreeing to bound hereby, (b) the Indebtedness represented by
such Junior Secured Notes is not prohibited by the terms of the ABL Loan
Documents or the Senior Secured Notes Documents and (c) the Grantors have
granted Liens on all or a portion of the Collateral to secure the Obligations
in respect of such Indebtedness.


 


“Junior Secured Notes
Agent” means the Person appointed to act as trustee, agent or representative
for the holders of Junior Secured Notes Obligations pursuant to any Junior
Secured Notes Agreement.


 


“Junior Secured Notes
Agreement” means the indenture, credit agreement or other agreement under
which any Junior Notes Obligations are incurred pursuant to the issuance and
sale of the Junior Secured Notes.


 


 “Junior Secured Notes Claimholders”
means, at any relevant time, the holders of Junior Secured Notes Obligations at
that time, including the Junior Secured Noteholders and the Junior Secured
Notes Agent, in each case solely in their capacities as such and not in any
other capacity (except to the extent that such Junior Secured Notes Claimholder
is acting in such other capacity for the primary purpose of benefiting its
Junior Secured Notes Obligations).


 


“Junior Secured Notes
Collateral” means any and 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 Junior Secured Notes Obligations.


 


“Junior Secured Notes
Default” means an “Event of Default” as defined in the Junior Secured Notes
Agreement.


 


“Junior Secured Notes
Documents” means the Junior Secured Notes Agreement, the Junior Secured
Notes, the Junior Secured Notes Security Documents and each of the other
agreements, documents and instruments executed pursuant thereto, and any other
document or instrument executed or delivered at 


 


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any time in connection with
any Junior Secured Notes Obligations, including any intercreditor or joinder
agreement among holders of Junior Secured Notes Obligations to the extent such
are effective at the relevant time, as each may be amended, restated,
supplemented, modified, renewed, extended or Refinanced from time to time in
accordance with the provisions of this Agreement.


 


“Junior Secured Notes
Joinder Agreement” means a joinder agreement in the form of Exhibit A
hereto.


 


“Junior Secured Notes
Obligations” means all Obligations outstanding under the Junior Secured
Notes and the other Junior Secured Notes Documents.  “Junior Secured Notes Obligations” shall
include all interest accrued or accruing (or which would, absent commencement
of an Insolvency or Liquidation Proceeding, accrue) after commencement of an
Insolvency or Liquidation Proceeding in accordance with the rate specified in
the relevant Junior Secured Notes Document, whether or not the claim for such
interest is allowed as a claim in such Insolvency or Liquidation Proceeding.


 


“Junior Secured Notes
Security Documents” means any agreement, document or instrument pursuant to
which a Lien is granted securing any Junior Secured Notes Obligations or under
which rights or remedies with respect to such Liens are governed.


 


“Letter of Credit Rights”
means all present and future “letter of credit rights” (as defined in Article 9
of the UCC).


 


“Lien” means any
mortgage, pledge, hypothec, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest or
any other security agreement (including, without limitation, any conditional
sale or other title retention agreement and any capital lease having
substantially the same economic effect as any of the foregoing).


 


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


 


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


 


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


 


“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 re-order (whether by subordination,
invalidation, or otherwise) or otherwise disregard, in whole or part, the
provisions of Article II (including the Lien priorities of Section 2.1),
the provisions of Article IV, or the provisions of Article VI,
unless such Plan of Reorganization has been accepted by the voluntary required
vote of each class of Priority Claimholders for such class to have approved
such Plan of Reorganization.


 


“Obligations” means
all present and future loans, advances, liabilities, obligations, covenants, duties,
and debts from time to time owing by any Grantor to any agent or trustee
(including any Agent), the ABL Claimholders, the Senior Secured Notes Claimholders,
the Junior Secured Notes Claimholders or any of them or their respective
Affiliates, arising from or in connection with the ABL Loan Documents, the
Senior Secured Notes Documents or the Junior Secured Notes Documents, whether
for principal, interest or payments for early termination, whether or not
evidenced by any note, or other instrument or document, whether arising from an
extension of credit, opening of a letter of credit, acceptance, loan, guaranty,
indemnification or otherwise, whether direct or indirect, absolute or
contingent, due or to become due, primary or secondary, as principal or
guarantor, and including all principal, interest, charges, 


 


10

















 


expenses, fees, attorneys’
fees, filing fees and any other sums chargeable to the Grantors, including, without
limitation, the “Obligations” as defined in the ABL Loan Agreement and any
corresponding term used in the Senior Secured Notes Indenture or the Junior
Secured Notes Agreement.


 


“Permitted Refinancing”
means any Refinancing the governing documentation of which constitutes
Permitted Refinancing Agreements.


 


“Permitted Refinancing
Agreements” means, with respect to either the ABL Loan Agreement, the
Senior Secured Notes, any Additional Pari Passu Senior Secured Notes
Obligations or the Junior Secured Notes, as applicable, any credit agreement,
loan agreement, note agreement, promissory note, indenture or other agreement
or instrument evidencing or governing the terms of any indebtedness or other
financial accommodation that has been incurred to increase, replace, (whether
upon or after termination or otherwise) Refinance or refund in whole or in part
the Obligations outstanding under the ABL Loan Agreement, the Senior Secured
Notes, any Additional Pari Passu Senior Secured Notes Obligations or the Junior
Secured Notes, whether or not such increase, replacement, refinancing or
refunding occurs (i) with the original parties thereto, (ii) on one
or more separate occasions or (iii) simultaneously or not with the termination
or repayment of the ABL Loan Agreement, the Senior Secured Notes, any
Additional Pari Passu Senior Secured Notes Obligations or the Junior Secured
Notes or any other agreement or instrument referred to in this clause, unless
such agreement or instrument expressly provides that it is not intended to be
and is not a Permitted Refinancing Agreement, as such financing documentation
may be amended, restated, supplemented or otherwise modified from time to time
and that, in each case, would not be prohibited by Section 5.3(a).


 


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


 


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


 


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


 


“Prior Lien Agent”
means:


 


(a)           as it relates to the Junior Secured Notes Agent and the
Junior Secured Notes Claimholders for all purposes of this Agreement, each of
the ABL Agent and the Senior Secured Notes Agent;


 


(b)           as it relates to the ABL Agent and the ABL Claimholders
with respect to all matters relating to the Senior Secured Notes Priority
Collateral (but not the ABL Priority Collateral) prior to the Discharge of
Senior Secured Notes Obligations, the Senior Secured Notes Agent; and


 


(c)           as it relates to the Senior Secured Notes Agent and the
Senior Secured Notes Claimholders with respect to all matters relating to the
ABL Priority Collateral (but not the Senior Secured Notes Priority Collateral)
prior to the Discharge of ABL Obligations, the ABL Agent.


 


“Prior Lien Claimholders”
mean:


 


(a)           as it relates to the Junior Secured Notes Claimholders for
all purposes of this Agreement, the ABL Claimholders and the Senior Secured
Notes Claimholders;


 


11
















 


(b)           as it relates to the ABL Claimholders with respect to all
matters relating to the Senior Secured Notes Priority Collateral (but not the
ABL Priority Collateral) prior to the Discharge of Senior Secured Notes
Obligations, the Senior Secured Notes Claimholders; and


 


(c)           as it relates to the Senior Secured Notes Claimholders
with respect to all matters relating to the ABL Priority Collateral (but not
the Senior Secured Notes Priority Collateral) prior to the Discharge of ABL
Obligations, the ABL Claimholders.


 


“Prior Lien Collateral”
means with respect to any Person, all Collateral with respect to which (and
only for so long as) such Person is a “Prior Lien Claimholder” as provided in
the definition thereof.


 


“Prior Lien Documents”
mean:


 


(a)           as it relates to the Junior Secured Notes Claimholders for
all purposes of this Agreement, the ABL Loan Documents and the Senior Secured
Notes Documents;


 


(b)           as it relates to the ABL Claimholders with respect to all
matters relating to the Senior Secured Notes Priority Collateral (but not the
ABL Priority Collateral) prior to the Discharge of Senior Secured Notes Obligations,
the Senior Secured Notes Documents; and


 


(c)           as it relates to the Senior Secured Notes Claimholders
with respect to all matters relating to the ABL Priority Collateral (but not
the Senior Secured Notes Priority Collateral) prior to the Discharge of ABL
Obligations, the ABL Loan Documents.


 


“Prior Lien Obligations”
mean:


 


(a)           as it relates to the Junior Secured Notes Obligations for
all purposes of this Agreement, the ABL Obligations and the Senior Secured
Notes Obligations;


 


(b)           as it relates to the ABL Obligations with respect to all
matters relating to the Senior Secured Notes Priority Collateral (but not the
ABL Priority Collateral) prior to the Discharge of Senior Secured Notes
Obligations, the Senior Secured Notes Obligations; and


 


(c)           as it relates to the Senior Secured Notes Obligations with
respect to all matters relating to the ABL Priority Collateral (but not the
Senior Secured Notes Priority Collateral) prior to the Discharge of ABL
Obligations, the ABL Obligations.


 


“Proceeds” means all “proceeds”
(as defined in Article 9 of the UCC), including any payment or property
received on account of any claim secured by Collateral in any Insolvency or
Liquidation Proceeding.


 


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


 


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


 


“Recovery” has the
meaning set forth in Section 6.4.


 


“Refinance” means, in
respect of any Indebtedness, to refinance, extend, renew, defease, amend,
modify, supplement, restructure, replace, refund or repay, or to issue other
indebtedness, in exchange or 


 


12

















 


replacement for, such Indebtedness,
in any case in whole or in part.  “Refinanced”
and “Refinancing” shall have correlative meanings.


 


“Secured Cash Management Agreement” means any Cash Management Agreement that is entered into by
and between the Company or any Company Subsidiary and any Cash Management Bank.


 


“Secured Hedge Agreement” means any Swap Contract permitted under the ABL Loan Documents, the Senior Secured Notes Dcouments
and the Junior Secured Notes Documents that is entered into by and between
the Company or any Company Subsidiary and any Hedge Bank.


 


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


 


“Securities Accounts”
means all present and future “securities accounts” (as defined in Article 8
of the UCC), including all monies, “uncertificated securities,” and “securities
entitlements” (as defined in Article 8 of the UCC) contained therein.


 


“Security Entitlements”
means all present and future “security entitlements” (as defined in Article 9
of the UCC).


 


“Senior Secured
Noteholders” means the “Holders” as defined in the Senior Secured Notes Indenture
and any holders of Additional Pari Passu Senior Secured Notes Obligations in
each case solely in their capacities as such and not in any other capacity
(except to the extent that such Senior Secured Noteholder is acting in such
other capacity for the primary purpose of benefiting its Senior Secured Notes Obligations).


 


“Senior Secured Notes”
means, collectively, (a) the Initial Senior Secured Notes and (b) any
other credit agreement, loan agreement, note agreement, promissory note,
indenture or other agreement or instrument evidencing or governing the terms of
any indebtedness or other financial accommodation (other than ABL Obligations)
that has been incurred to increase, replace, Refinance or refund in whole or in
part the Obligations outstanding under the Initial Senior Secured Notes or any
other agreement or instrument referred to in this clause which (I) is
designated as “Senior Secured Notes” by (x) so long as the Senior Secured
Notes Indenture or any Additional Pari Passu Senior Secured Notes Agreement is
in effect, the Senior Secured Notes Agent (and, so long as a Senior Secured
Notes Default has not occurred and is continuing at the time of such
designation, the Company) or (y) otherwise, the Company, and (II) the
Senior Secured Notes Agent for such agreement shall have executed a supplement
to this Agreement agreeing to be bound hereby on the same terms applicable to
the Initial Senior Secured Notes Agent whether or not such increase,
replacement, refinancing or refunding occurs (i) with the original parties
thereto, (ii) on one or more separate occasions or (iii) simultaneously
or not with the termination or repayment of the Initial Senior Secured Notes,
unless such agreement or instrument is not a Permitted Refinancing
Agreement.  Any reference to the Senior
Secured Notes hereunder shall be deemed a reference to any Senior Secured Notes
then in existence.


 


“Senior Secured Notes
Agent” means (i) the Senior Secured Notes Trustee, including its successors
and assigns from time to time, for so long as any Initial Senior Secured Notes
are outstanding and (ii) thereafter, any Additional Pari Passu Senior
Secured Notes Agent.


 


“Senior Secured Notes
Claimholders” means, at any relevant time, the holders of Senior Secured
Notes Obligations at that time, including the Senior Secured Noteholders, each
Additional Pari Passu Senior Secured Notes Agent and the Senior Secured Notes
Agent in each case solely in their capacities as 


 


13

















 


such and not in any other
capacity (except to the extent that such Senior Secured Notes Claimholder is acting
in such other capacity for the primary purpose of benefiting its Senior Secured
Notes Obligations).


 


“Senior Secured Notes
Collateral” means any and 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 Secured Notes Obligations.


 


“Senior Secured Notes
Default” means an “Event of Default” as defined in the Senior Secured Notes
Indenture or in any Additional Pari Passu Senior Secured Notes Agreement.


 


“Senior Secured Notes
Documents” means the Senior Secured Notes Indenture, the Senior Secured
Notes, each Additional Pari Passu Senior Secured Notes Agreement, the Senior
Secured Notes Security Documents and each of the other agreements, documents
and instruments executed pursuant thereto, and any other document or instrument
executed or delivered at any time in connection with any Senior Secured Notes
Obligations, including any intercreditor or joinder agreement among holders of
Senior Secured Notes Obligations to the extent such are effective at the
relevant time, as each may be amended, restated, supplemented, modified,
renewed, extended or Refinanced from time to time in accordance with the provisions
of this Agreement.


 


“Senior Secured Notes
General Intangibles” means all General Intangibles, including Intellectual
Property, which are not ABL Priority Collateral.


 


“Senior Secured Notes
Indenture” has the meaning assigned to that term in the Recitals to this
Agreement.


 


“Senior Secured Notes
Obligations” means all Obligations outstanding under the Senior Secured
Notes and the other Senior Secured Notes Documents, and all Additional Pari
Passu Senior Secured Notes Obligations.  “Senior
Secured Notes Obligations” shall include all interest accrued or accruing (or
which would, absent commencement of an Insolvency or Liquidation Proceeding,
accrue) after commencement of an Insolvency or Liquidation Proceeding in
accordance with the rate specified in the relevant Senior Secured Notes Document,
whether or not the claim for such interest is allowed as a claim in such
Insolvency or Liquidation Proceeding.


 


“Senior Secured Notes
Pledged Collateral” means any Collateral consisting of Capital Stock owned
by any Grantor that is not Excluded Collateral (as defined in the Indenture).(1)


 


“Senior Secured Notes
Priority Collateral” means all now owned or hereafter acquired Senior Secured
Notes Collateral that constitutes:


 


(a)           Real Estate Assets;


 


(b)           Equipment;


 


(c)           Inventory;


 






(1)           These could be securities of a
non-affiliate


 


14

















 


(d)           Senior Secured Notes General Intangibles;


 


(e)           Senior Secured Notes Pledged Collateral;


 


(f)            Documents related to Equipment or Inventory;


 


(g)           Deposit Accounts and Securities Accounts to the extent
containing identifiable proceeds of the foregoing (including all cash, cash
equivalents, Money, checks, Instruments, funds, ACH transfers, wired funds,
Investment Property, and other funds and property held in or on deposit in any
of the foregoing, but excluding any identifiable Proceeds of ABL Priority Collateral);


 


(h)           Letter of Credit Rights arising out of, or related to, or
derivative of any of the property or interests in property described in this
definition;


 


(i)            Supporting Obligations and Commercial Tort Claims, in
each case, to the extent arising out of, or related to, or derivative of, the
property or interests described in this definition;


 


(j)            all other Collateral other than ABL Priority Collateral
and Excluded Collateral (as defined in the Indenture); and


 


(k)           all collateral security and guarantees with respect to any
of the foregoing and, subject to Section 3.5, all proceeds,
products, substitutions, replacements, accessions, cash, Money, insurance
proceeds, Instruments, Securities, Security Entitlements, Financial Assets and
Deposit Accounts received as proceeds of any of the foregoing, but excluding
proceeds of ABL Priority Collateral.


 


“Senior
Secured Notes Security Documents” means any agreement, document or
instrument pursuant to which a Lien is granted securing any Senior Secured
Notes Obligations or under which rights or remedies with respect to such Liens
are governed.


 


“Subordinated Lien Agent”
means:


 


(a)           with respect to all Collateral, the Junior Secured Notes
Agent;


 


(b)           with respect to all matters relating to the ABL Priority
Collateral (but not the Senior Secured Notes Priority Collateral) prior to the
Discharge of ABL Obligations, the Senior Secured Notes Agent; and


 


(c)           with respect to all matters relating to the Senior Secured
Notes Priority Collateral (but not the ABL Priority Collateral) prior to the
Discharge of Senior Secured Notes Obligations, the ABL Agent.


 


“Subordinated Lien
Claimholders” mean:


 


(a)           with respect to all Collateral, the Junior Secured Notes
Claimholders;


 


(b)           with respect to all matters relating to the ABL Priority
Collateral (but not the Senior Secured Notes Priority Collateral) prior to the
Discharge of ABL Obligations, the Senior Secured Notes Claimholders; and


 


15

















 


(c)           with respect to all matters relating to the Senior Secured
Notes Priority Collateral (but not the ABL Priority Collateral) prior to the
Discharge of Senior Secured Notes Obligations, the ABL Claimholders.


 


“Subordinated Lien
Collateral” means with respect to any Person, all Collateral with respect
to which (and only for so long as) such Person is a “Subordinated Lien
Claimholder” as provided in the definition thereof.


 


“Subordinated Lien
Documents” mean:


 


(a)           the Junior Secured Notes Documents for all purposes of
this Agreement;


 


(b)           with respect to all matters relating to the ABL Priority
Collateral (but not the Senior Secured Notes Priority Collateral) prior to the
Discharge of ABL Obligations, the Senior Secured Notes Documents; and


 


(c)           with respect to all matters relating to the Senior Secured
Notes Priority Collateral (but not the ABL Priority Collateral) prior to the
Discharge of Senior Secured Notes Obligations, the ABL Loan Documents.


 


“Subordinated Lien
Obligations” mean:


 


(a)           the Junior Secured
Notes Obligations for all purposes of this Agreement;


 


(b)           with respect to all
matters relating to the ABL Priority Collateral (but not the Senior Secured
Notes Priority Collateral) prior to the Discharge of ABL Obligations, the
Senior Secured Notes Obligations; and


 


(c)           with respect to all
matters relating to the Senior Secured Notes Priority Collateral (but not the
ABL Priority Collateral) prior to the Discharge of Senior Secured Notes
Obligations, the ABL Obligations.


 


“Subsidiary” means,
with respect to any Person, any corporation, partnership, limited liability
company, association, joint venture or other business entity of which more than
50% of the total voting power of shares of stock or other ownership interests
entitled (without regard to the occurrence of any contingency) to vote in the
election of the Person or Persons (whether directors, managers, trustees or
other Persons performing similar functions) having the power to direct or cause
the direction of the management and policies thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof.


 


“Supporting Obligations”
mean all present and future “supporting obligations” (as defined in Article 9
of the UCC).


 


“Swap Contract” means (a) any
and all rate swap transactions, basis swaps, credit derivative transactions,
forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond
price or bond index swaps or options or forward bond or forward bond price or
forward bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar transactions
or any combination of any of the foregoing (including any options to enter into
any of the foregoing), 


 


16

















 


whether or not any such
transaction is governed by or subject to any master agreement, and (b) any
and all transactions of any kind, and the related confirmations, which are
subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master
agreement (any such master agreement, together with any related schedules, a “Master Agreement”),
including any such obligations or liabilities under any Master Agreement.


 


“UCC” means the
Uniform Commercial Code (or any similar equivalent legislation) as in effect
from time to time in the State of New York; provided, however,
that, at any time, if by reason of mandatory provisions of law, any or all of
the perfection or priority of the Agents’ security interest in any item or
portion of the Collateral is governed by the Uniform Commercial Code as in
effect in a jurisdiction other that the State of New York, the term “UCC” shall
mean the Uniform Commercial Code as in effect, at such time, in such other
jurisdiction for purposes of the provisions hereof relating to such perfection
or priority and for purposes of definitions relating to such provisions.


 


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


 


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


 


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


 


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


 


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


 


(e)           all uncapitalized
terms have the meanings, if any, given to them in the UCC, as now or hereafter
enacted in the State of New York (unless otherwise specifically defined
herein);


 


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


 


(g)           any reference herein
to a Person in a particular capacity or capacities excludes such Person in any
other capacity or individually;


 


(h)           any reference herein
to any law shall be construed to refer to such law as amended, modified,
codified, replaced, or re-enacted, in whole or in part, and in effect on the pertinent
date; and


 


17

















 


(i)            in the compilation
of periods of time hereunder from a specified date to a later specified date,
the word “from” means “from and including” and the words “to” and “until” each
means” to, but not through.”


 


II.

LIEN PRIORITIES


 


2.1.          Relative Priorities. 
Irrespective of the date, time, method, manner or order of grant,
attachment or perfection of any Liens securing the ABL Obligations, the Senior
Secured Notes Obligations or the Junior Secured Notes Obligations (including,
in each case, irrespective of whether any such Lien is granted (or secures
Obligations relating to the period) before or after the commencement of any
Insolvency or Liquidation Proceeding) and notwithstanding any provision of any
UCC, or any other applicable law, or the ABL Loan Documents, the Senior Secured
Notes Documents or the Junior Secured Notes Documents or any defect or
deficiencies in, or failure to attach or perfect, the Liens securing the ABL
Obligations, the Senior Secured Notes Obligations or the Junior Secured Notes
Obligations or any other circumstance whatsoever, the ABL Agent, on behalf of
the ABL Claimholders, the Senior Secured Notes Agent, on behalf of the Senior
Secured Notes Claimholders and the Junior Secured Notes Agent, on behalf of the
Junior Secured Notes Claimholders, each hereby agree that:


 


(a)           any Lien of the
Prior Lien Agent on the ABL Priority Collateral securing Prior Lien
Obligations, whether such Lien is now or hereafter held by or on behalf of the
Prior Lien Agent or any other Prior Lien Claimholder or any other agent or
trustee therefor, regardless of how or when acquired, whether by grant,
possession, statute, operation of law, subrogation or otherwise, shall be
senior in all respects and prior to any Lien on the ABL Priority Collateral securing
any Subordinated Lien Obligations; and


 


(b)           any Lien of the
Prior Lien Agent on the Senior Secured Notes Priority Collateral securing Prior
Lien Obligations, whether such Lien is now or hereafter held by or on behalf of
the Prior Lien Agent, any other Prior Lien Claimholder or any other agent or
trustee therefor, regardless of how or when acquired, whether by grant,
possession, statute, operation of law, subrogation or otherwise, shall be
senior in all respects to all Liens on the Senior Secured Notes Priority Collateral
securing any Subordinated Lien Obligations.


 


2.2.          Prohibition on Contesting Liens.  Each of the Senior Secured Notes Agent, on
behalf of each Senior Secured Notes Claimholder, the ABL Agent, on behalf of
each ABL Claimholder, and the Junior Secured Notes Agent, on behalf of each
Junior Secured Notes Claimholder, consents to the granting of Liens in favor of
the other Agents to secure the ABL Obligations, the Senior Secured Notes
Obligations and the Junior Secured Notes Obligations, as applicable, and agrees
that no Claimholder will be entitled to, and it will not (and shall be deemed
to have irrevocably, absolutely, and unconditionally waived any right to),
contest (directly or indirectly) or support (directly or indirectly) any other
Person in contesting, in any proceeding (including any Insolvency or
Liquidation Proceeding):  (a) the
attachment, perfection, priority, validity or enforceability of any Lien in the
Collateral held by or on behalf of any of the ABL Claimholders to secure the
payment of the ABL Obligations, any of the Senior Secured Notes Claimholders to
secure the payment of the Senior Secured Notes Obligations or any of the Junior
Secured Notes Claimholders to secure the payment of the Junior Secured Notes
Obligations, (b) the priority, validity or enforceability of the ABL
Obligations, the Senior Secured Notes Obligations or the Junior Secured Notes
Obligations, including the allowability or priority of the ABL Obligations, the
Senior Secured Notes Obligations or the Junior Secured Notes Obligations, as
applicable, in any Insolvency or Liquidation Proceeding, or (c) the
validity or enforceability of the provisions of this Agreement; provided
that nothing in this Agreement shall be construed to prevent or impair the
rights of the ABL Agent, on 


 


18





















 


behalf of the ABL Claimholders, the Senior
Secured Notes Agent, on behalf of the Senior Secured Notes Claimholders, or the
Junior Secured Notes Agent, on behalf of the Junior Secured Notes Claimholders
to enforce this Agreement, including the provisions of this Agreement relating
to the priority of the Liens securing the Obligations as provided in Sections
2.1, 3.1, 3.2 and 6.1.


 


2.3.          No New Liens. 
During the term of this Agreement, whether or not any Insolvency or
Liquidation Proceeding has been commenced by or against one or more of the
Company or any other Grantor, the parties hereto agree, subject to Article VI,
that the Company shall not, and shall not permit any other Grantor to:


 


(a)           grant or permit any
additional Liens on any asset or property to secure any Senior Secured Notes
Obligations unless it has granted or concurrently grants a Lien on such asset
or property to secure the ABL Obligations and the Junior Secured Notes
Obligations (if any) with the respective priorities required by Section 2.1;


 


(b)           grant or permit any
additional Liens on any asset or property to secure any ABL Obligations unless
it has granted or concurrently grants a Lien on such asset or property to
secure the Senior Secured Notes Obligations and the Junior Secured Notes
Obligations (if any) with the respective priorities required by Section 2.1;
and


 


(c)           grant or permit any
additional Liens on any asset or property to secure any Junior Secured Notes
Obligations unless it has granted or concurrently grants a Lien on such asset
or property to secure the Senior Secured Notes Obligations and the ABL
Obligations with the respective priorities required by Section 2.1;


 


provided that with
respect to the Junior Secured Notes Obligations, clauses (a) and (b) above
shall not apply to Pledged Collateral or Securities which are specifically
excluded from the Junior Secured Notes Collateral pursuant to the terms of the
Junior Secured Notes Security Documents.


 


To the extent any additional
Liens are granted on any asset or property in contravention of this Section 2.3
for any reason, without limiting any other rights and remedies available
hereunder, the ABL Agent, on behalf of the ABL Claimholders, the Senior Secured
Notes Agent, on behalf of the Senior Secured Notes Claimholders and the Junior
Secured Notes Agent, on behalf of the Junior Secured Notes Claimholders, agree
that any amounts received by or distributed to any of them pursuant to or as a
result of Liens granted in contravention of this Section 2.3 shall
be subject to Section 4.2.


 


2.4.          Similar Liens and Agreements.  The parties hereto agree that it is their
intention that the ABL Collateral, the Senior Secured Notes Collateral and the
Junior Secured Notes Collateral be identical except (a) the Junior Secured
Notes Collateral shall not include certain Pledged Collateral or Securities
which are specifically excluded from the Junior Secured Notes Collateral
pursuant to the terms of the Junior Secured Notes Security Documents and (b) as
provided in Article VI and as otherwise provided herein.  In furtherance of the foregoing and of Section 8.8,
the parties hereto agree, subject to the other provisions of this Agreement,
upon request by the ABL Agent, the Senior Secured Notes Agent or the Junior
Secured Notes 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 ABL Collateral, the Senior Secured Notes Collateral and
the Junior Secured Notes Collateral and the steps taken to perfect their
respective Liens thereon and the identity of the respective parties obligated
under the ABL Loan Documents, the Senior Secured Notes Documents and the Junior
Secured Notes Documents.


 


19

















 


III.

EXERCISE OF REMEDIES; ENFORCEMENT


 


3.1.          Restrictions on the Subordinated Lien Agents and the
Subordinated Lien Claimholders with respect to ABL Priority Collateral.


 


(a)           Until the Discharge of Prior Lien Obligations has
occurred, whether or not any Insolvency or Liquidation Proceeding has been
commenced by or against any Grantor, the Subordinated Lien Agents and the
Subordinated Lien Claimholders:


 


(i)            will
not exercise or seek to exercise (but instead shall be deemed to have hereby
irrevocably, absolutely and unconditionally waived), any rights, powers, or
remedies with respect to any ABL Priority Collateral (including (A) any
right of set-off or any right under any Account Agreement, landlord waiver or
bailee’s letter or similar agreement or arrangement to which any Subordinated
Lien Agent or any other Subordinated Lien Claimholder is a party, (B) any
right to undertake self-help re-possession or non-judicial Disposition of any
ABL Priority Collateral (including any partial or complete strict foreclosure),
and/or (C) any right to institute, prosecute, or otherwise maintain any
action or proceeding with respect to such rights, powers or remedies (including
any action of foreclosure));


 


(ii)           will
not, directly or indirectly, contest, protest or object to or hinder any
judicial or non-judicial foreclosure proceeding or action (including any
partial or complete strict foreclosure) brought by the Prior Lien Agent or any
Prior Lien Claimholder relating to the ABL Priority Collateral or any other
exercise by the Prior Lien Agent or any other Prior Lien Claimholder of any
other rights, powers and remedies relating to the ABL Priority Collateral,
including any sale, lease, exchange, transfer, or other Disposition of the ABL
Priority Collateral, whether under the Prior Lien Documents, applicable law, or
otherwise;


 


(iii)          will
not object to the forbearance by the Prior Lien Agent or any Prior Lien
Claimholders from bringing or pursuing any Enforcement action with respect to
the ABL Priority Collateral;


 


(iv)          except
as may be permitted by Section 3.1(c), irrevocably, absolutely, and
unconditionally waive any and all rights the Subordinated Lien Agent or the
Subordinated Lien 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 the Prior Lien Agent or the Prior
Lien Claimholders (A) enforce or collect (or attempt to collect) the Prior
Lien Obligations or (B) realize or seek to realize upon or otherwise
enforce the Liens in and to the ABL Priority Collateral securing the Prior Lien
Obligations, regardless of whether any action or failure to act by or on behalf
of the Prior Lien Agent or Prior Lien Claimholders is adverse to the interest
of the Subordinated Lien Agent or the Subordinated Lien Claimholders.  Without limiting the generality of the
foregoing, to the maximum extent permitted by law, the Subordinated Lien
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 ABL Priority Collateral, on the ground(s) that
any such Disposition of ABL Priority Collateral (x) would not be or was
not “commercially reasonable” within the meaning of any applicable UCC and/or (y) would
not or did not comply with any other 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;
and


 


20





















 


(v)           acknowledge
and agree that no covenant, agreement or restriction contained in the
Subordinated Lien Documents shall be deemed to restrict in any way the rights
and remedies of the Prior Lien Agent or the Prior Lien Claimholders with respect
to the ABL Priority Collateral as set forth in this Agreement and the Prior
Lien Documents;


 


provided, however,
that, in the case of (i), (ii) and (iii) above, the Liens granted to
secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders
shall attach to any Proceeds resulting from actions taken by the Prior Lien
Agent or any Prior Lien Claimholder with respect to the ABL Priority Collateral
in accordance with the respective priorities set forth in Section 2.1
of this Agreement after application of such Proceeds to the extent necessary to
meet the requirements of a Discharge of Prior Lien Obligations.


 


(b)           Until the Discharge of Prior Lien Obligations has
occurred, whether or not any Insolvency or Liquidation Proceeding has been
commenced by or against any Grantor, the Prior Lien Agent and the other Prior
Lien Claimholders shall have the right to enforce rights, exercise remedies
(including set-off) and, in connection therewith (including any Enforcement)
make determinations regarding the release, Disposition, or restrictions with
respect to the ABL Priority Collateral without any consultation with or the
consent of any Subordinated Lien Agent or any Subordinated Lien Claimholder; provided,
however, that the Liens securing the Subordinated Lien Obligations shall
remain on the Proceeds (other than those applied to the Prior Lien Obligations
in accordance with Section 4.1) of such ABL Priority Collateral
released or disposed of subject to the relative priorities described in Section 2.1.  In exercising rights, powers, and remedies
with respect to the ABL Priority Collateral, the Prior Lien Agent and the Prior
Lien Claimholders may enforce the provisions of the Prior Lien Documents and
exercise rights, powers, and/or remedies thereunder and/or under applicable law
or otherwise, all in such order and in such manner as they may determine in the
exercise of their sole discretion.  Such
exercise and enforcement shall include the rights of an agent appointed by them
to sell or otherwise dispose of the ABL Priority Collateral upon foreclosure,
to incur expenses in connection with such sale or Disposition, and to exercise
all the rights and remedies of a secured creditor under the UCC and of a
secured creditor under the Bankruptcy Laws of any applicable jurisdiction.


 


(c)           Notwithstanding anything to the contrary contained herein,
any Subordinated Lien Agent or Subordinated Lien Claimholder may:


 


(i)            file
a claim or statement of interest with respect to its Subordinated Lien Obligations;
provided that an Insolvency or Liquidation Proceeding has been commenced
by or against any Grantor;


 


(ii)           take
any action (not adverse to the priority status of the Liens on the ABL Priority
Collateral, or the rights of the Prior Lien Agent or any of the Prior Lien
Claimholders to exercise rights, powers, and/or remedies in respect thereof,
including those under Article VI) in order to create, perfect,
preserve or protect (but not enforce) its Lien on any of the ABL Priority Collateral;


 


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


 


21
















 


(iv)          file
any pleadings, objections, motions or agreements which assert rights or interests
available to unsecured creditors of the Grantors arising under either any
Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each
case not inconsistent with the terms of this Agreement or applicable law
(including the Bankruptcy Laws of any applicable jurisdiction) and, subject to
the restrictions set forth in Section 3.2, any pleadings,
objections, motions or agreements which assert rights or interests available to
secured creditors solely with respect to the Senior Secured Notes Priority Collateral;


 


(v)           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.  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 the Prior Lien Agent shall be entitled 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;
and


 


(vi)          to
the extent not otherwise permitted by the terms of the Senior Secured Notes
Documents, in the case of the Senior Secured Notes Agent or any Senior Secured
Notes Claimholder, exercise any of its rights, powers, and/or remedies with
respect to any of the Senior Secured Notes Priority Collateral.


 


The Subordinated Lien
Agents, on behalf of the Subordinated Lien Claimholders, agrees that no Subordinated
Lien Claimholder will take or receive any ABL Priority Collateral (including
Proceeds) in connection with the exercise of any right or remedy (including
set-off) in its capacity as a creditor in violation of this Agreement.  Without limiting the generality of the
foregoing, unless and until the Discharge of Prior Lien Obligations has
occurred, except as expressly provided in Section 6.7, the sole
right of the Subordinated Lien Agents and the Subordinated Lien Claimholders
with respect to the ABL Priority Collateral is to hold a Lien on such
Collateral pursuant to the Subordinated Lien Documents for the period and to
the extent granted therein and to receive a share of the Proceeds thereof, if any,
in accordance with Section 4.1.


 


(d)           Except as otherwise specifically set forth in Sections
3.1(a), 3.1(c)(v) and Article VI, any Subordinated
Lien Agent or Subordinated Lien Claimholders with respect to the ABL Priority
Collateral may exercise rights and remedies as unsecured creditors against any
Grantor and, subject to Section 3.2, may exercise rights and
remedies with respect to the Senior Secured Notes Priority Collateral, in each
case, in accordance with the terms of the Subordinated Lien Documents and
applicable law; provided, however, that in the event that any
Subordinated Lien Agent or any Subordinated Lien Claimholder becomes a judgment
Lien creditor in respect of ABL Priority Collateral as a result of its enforcement
of its rights as an unsecured creditor (or secured creditor with respect to the
Senior Secured Notes Priority Collateral) with respect to the Subordinated Lien
Obligations, such judgment Lien shall be subject to the terms of this Agreement
for all purposes (including in relation to the Prior Lien Obligations) as the
other Liens on ABL Priority Collateral securing the Subordinated Lien
Obligations are subject to this Agreement.


 


(e)           Subject to Section 6.3, nothing in this Section 3.1
shall prohibit the receipt by any Subordinated Lien Agent or any other
Subordinated Lien Claimholders of the required payments of interest, principal
and other amounts owed in respect of the Subordinated Lien Obligations so long
as such receipt is not the direct or indirect result of the exercise by any Subordinated
Lien Agent or any Subordinated 


 


22





















 


Lien Claimholders of rights
or remedies as a secured creditor (including set-off) with respect to ABL Priority
Collateral or enforcement in contravention of this Agreement of any Lien held
by any of them.  Nothing in this Section 3.1
impairs or otherwise adversely affects any rights or remedies the Prior Lien
Agent or the Prior Lien Claimholders may have against the Grantors under the
Prior Lien Documents.


 


3.2.          Restrictions on the Subordinated Lien Agents and the
Subordinated Lien Claimholders with respect to Senior Secured Notes Priority
Collateral.


 


(a)           Until the Discharge of Prior Lien Obligations has
occurred, whether or not any Insolvency or Liquidation Proceeding has been
commenced by or against any Grantor, subject to the limited extent provided in Article VI,
the Subordinated Lien Agents and the other Subordinated Lien Claimholders:


 


(i)            will not exercise or seek to exercise (but instead shall
be deemed to have hereby irrevocably, absolutely and unconditionally waived)
any rights, powers, or remedies with respect to any Senior Secured Notes
Priority Collateral (including (A) any right of set-off or any right under
any Account Agreement, landlord waiver or bailee’s letter or similar agreement
or arrangement to which any Subordinated Lien Agent or any Subordinated Lien
Claimholder is a party, (B) any right to undertake self-help repossession
or nonjudicial Disposition of any Senior Secured Notes Priority Collateral
(including any partial or complete strict foreclosure), or (C) any right
to institute, prosecute or otherwise maintain any action or proceeding with
respect to such rights, powers, or remedies (including any action of
foreclosure));


 


(ii)           will
not, directly or indirectly, contest, protest or object to or hinder any judicial
or non-judicial foreclosure proceeding or action (including any partial or
complete strict foreclosure) brought by the Prior Lien Agent or any other Prior
Lien Claimholder relating to the Senior Secured Notes Priority Collateral or
any other exercise by the Prior Lien Agent or any other Prior Lien Claimholder
of any rights, powers and remedies relating to the Senior Secured Notes Priority
Collateral, including any sale, lease, exchange, transfer, or other Disposition
of the Senior Secured Notes Priority Collateral, whether under the Prior Lien
Documents, applicable law, or otherwise;


 


(iii)          will
not object to the forbearance by the Prior Lien Agent or the Prior Lien
Claimholders from bringing or pursuing any Enforcement with respect to the
Senior Secured Notes Priority Collateral;


 


(iv)          except
as may be permitted by Section 3.2(c), irrevocably, absolutely and
unconditionally waive any and all rights the Subordinated Lien Agent and
Subordinated Lien 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 the Prior Lien Agent or the Prior
Lien Claimholders (a) enforce or collect (or attempt to collect) the Prior
Lien Obligations or (b) realize or seek to realize upon or otherwise
enforce the Liens in and to the Senior Secured Notes Priority Collateral
securing the Prior Lien Obligations, regardless of whether any action or
failure to act by or on behalf of the Prior Lien Agent or Prior Lien Claimholders
is adverse to the interest of the Subordinated Lien Claimholders.  Without limiting the generality of the
foregoing, the Subordinated Lien 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 to or subsequent to any Disposition of any Senior
Secured Notes Priority Collateral, on the ground(s) that any such Disposition
of Senior Secured Notes Priority Collateral (a) would not be or was not “commercially



 


23





















 


reasonable” within the meaning of any applicable UCC and/or (b) would
not or did not comply with any other 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;
and


 


(v)           acknowledge
and agree that no covenant, agreement or restriction contained in any
Subordinated Lien Document shall be deemed to restrict in any way the rights
and remedies of the Prior Lien Agent or the Prior Lien Claimholders with respect
to the Senior Secured Notes Priority Collateral as set forth in this Agreement
and the Prior Lien Documents;


 


provided, however,
that in the case of (i), (ii) and (iii) above, the Liens granted to
secure the Subordinated Lien Obligations of the Subordinated Lien Claimholders
shall attach to any Proceeds resulting from actions taken by the Prior Lien
Agent or any Prior Lien Claimholder with respect to the Senior Secured Notes
Priority Collateral in accordance with the respective priorities set forth in Section 2.1
of this Agreement after application of such Proceeds to the extent necessary to
meet the requirements of a Discharge of Prior Lien Obligations.


 


(b)           Until the Discharge of Prior Lien Obligations has
occurred, whether or not any Insolvency or Liquidation Proceeding has been
commenced by or against any Grantor, the Prior Lien Agent and the Prior Lien
Claimholders shall have the right to enforce rights, exercise remedies
(including set-off) and make, in connection therewith (including Enforcements)
determinations regarding the release, Disposition, or restrictions with respect
to the Senior Secured Notes Priority Collateral without any consultation with
or the consent of any Subordinated Lien Agent or any Subordinated Lien
Claimholder; provided, however, that the Liens securing the
Subordinated Lien Obligations shall remain on the Proceeds (other than those
properly applied to the Prior Lien Obligations in accordance with the Prior
Lien Documents) of such Collateral released or disposed of subject to the
relative priorities described in Section 2.1.  In exercising rights, powers and remedies
with respect to the Senior Secured Notes Priority Collateral, the Prior Lien
Agent and the Prior Lien Claimholders may enforce the provisions of the Prior
Lien Documents and exercise rights, powers and/or remedies thereunder, all in
such order and in such manner as they may determine in the exercise of their
sole discretion.  Such exercise and
enforcement shall include the rights of an agent appointed by them to sell or
otherwise dispose of the Senior Secured Notes Priority Collateral upon
foreclosure, to incur expenses in connection with such sale or Disposition, and
to exercise all the rights, powers and remedies of a secured creditor under the
UCC and of a secured creditor under the Bankruptcy Laws of any applicable
jurisdiction.


 


(c)           Notwithstanding anything to the contrary contained herein,
any Subordinated Lien Agent and any Subordinated Lien Claimholder may:


 


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


 


(ii)           take
any action (not adverse to the priority status of the Liens on the Senior Secured
Notes Priority Collateral, or the rights of the Prior Lien Agent or any of the
Prior Lien Claimholders to exercise rights, powers and/or remedies in respect
thereof, including those under Article VI) in order to create,
perfect, preserve or protect (but not enforce) its Lien on any of the Senior
Secured Notes Priority Collateral;


 


(iii)          file
any necessary responsive or defensive pleadings in opposition to any motion,
claim, adversary proceeding or other pleading made by any Person objecting to
or otherwise 


 


24





















 


seeking the disallowance of the claims of the Subordinated Lien
Claimholders, including any claims secured by the Senior Secured Notes Priority
Collateral, if any, in each case in accordance with the terms of this Agreement;


 


(iv)          file
any pleadings, objections, motions or agreements which assert rights or interests
available to unsecured creditors of the Grantors arising under either any
Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each
case not inconsistent with the terms of this Agreement or applicable law
(including the Bankruptcy Laws of any applicable jurisdiction) and, subject to
the restrictions set forth in Section 3.1, any pleadings,
objections, motions or agreements which assert rights or interests available to
secured creditors solely with respect to the ABL Priority Collateral;


 


(v)           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.  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 the Prior Lien Agent shall be entitled 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;
and


 


(vi)          to
the extent otherwise permitted by the ABL Loan Documents, in the case of the
ABL Agent or any ABL Claimholder, exercise any of its rights, powers, and/or
remedies with respect to any of the ABL Priority Collateral.


 


Each Subordinated Lien
Agent, on behalf of the Subordinated Lien Claimholders, agrees that no Subordinated
Lien Claimholder will take or receive any Senior Secured Notes Priority
Collateral (including Proceeds) in connection with the exercise of any right or
remedy (including set-off) with respect to any Senior Secured Notes Priority
Collateral in violation of this Agreement. 
Without limiting the generality of the foregoing, unless and until the
Discharge of Prior Lien Obligations has occurred, except as expressly provided
in Section 3.2(c)(vi), the sole right of the Subordinated Lien
Agents and the Subordinated Lien Claimholders with respect to the Senior
Secured Notes Priority Collateral is to hold a Lien on such Collateral pursuant
to the Subordinated Lien Documents for the period and to the extent granted
therein and to receive a share of the Proceeds thereof, if any, in accordance
with Section 4.1.


 


(d)           Except as otherwise specifically set forth in Sections
3.2(a), 3.2(c)(v) and Article VI, the Subordinated
Lien Agents and the Subordinated Lien Claimholders with respect to the Senior
Secured Notes Collateral may exercise rights and remedies as unsecured
creditors against any Grantor and, subject to Section 3.1, may
exercise rights and remedies with respect to the ABL Priority Collateral, in
each case, in accordance with the terms of the Subordinated Lien Documents and
applicable law; provided, however, that in the event that any
Subordinated Lien Agent or Subordinated Lien Claimholder becomes a judgment
Lien creditor in respect of Senior Secured Notes Priority Collateral as a
result of its enforcement of its rights as an unsecured creditor (or a secured
creditor with respect to the ABL Priority Collateral) with respect to the Subordinated
Lien Obligations, such judgment Lien shall be subject to the terms of this
Agreement for all purposes (including in relation to the Prior Lien
Obligations) as the other Liens securing the Subordinated Lien Obligations are
subject to this Agreement.


 


(e)           Subject to Section 6.3, nothing in this Section 3.2
shall prohibit the receipt by any Subordinated Lien Agent or any Subordinated
Lien Claimholders of the required payments of interest, principal 


 


25





















 


and other amounts owed in
respect of the Subordinated Lien Obligations so long as such receipt is not the
direct or indirect result of the exercise by a Subordinated Lien Agent or any
Subordinated Lien Claimholders of rights or remedies as a secured creditor
(including set-off) with respect to Senior Secured Notes Priority Collateral or
enforcement in contravention of this Agreement of any Lien held by any of
them.  Nothing in this Section 3.2
impairs or otherwise adversely affects any rights or remedies the Prior Lien
Agent or the Prior Lien Claimholders may have against the Grantors under the
Prior Lien Documents.


 


3.3.          Set-Off and Tracing of and Priorities in Proceeds.  The Senior Secured Notes Agent, on behalf of
the Senior Secured Notes Claimholders, and the Junior Secured Notes Agent, on
behalf of the Junior Secured Notes Claimholders, acknowledge and agree that, to
the extent the Senior Secured Notes Agent, any Senior Secured Notes
Claimholder, the Junior Secured Notes Agent or any Junior Secured Notes
Claimholder exercises its rights of set-off against any ABL Priority
Collateral, the amount of such set-off shall be held and distributed pursuant
to Section 4.1.  The ABL
Agent, for itself and on behalf of the ABL Claimholders, the Senior Secured
Notes Agent, for itself and on behalf of the Senior Secured Notes Claimholders,
and the Junior Secured Notes Agent, for itself and on behalf of the Junior
Secured Notes Claimholders, each further agrees that, solely as between Agents
and Claimholders, prior to an issuance of an Enforcement Notice or the
commencement of any Insolvency or Liquidation Proceeding, any Collateral
purchased or acquired by a Grantor using Proceeds of Collateral shall be
treated as Collateral, and not Proceeds of Collateral, for purposes of
determining the relative priorities in such Collateral.  In addition, unless and until the Discharge
of ABL Obligations occurs, subject to Section 4.2, the Senior
Secured Notes Agent, on behalf of itself and the Senior Secured Notes
Claimholders, and the Junior Secured Notes Agent, on behalf of itself and the
Junior Secured Notes Claimholders, each hereby consents to the application,
prior to the receipt by the ABL Agent of an Enforcement Notice issued by the
Senior Secured Notes Agent, and thereafter, except as it relates to
identifiable proceeds of Senior Notes Priority Collateral, of cash or other
Proceeds of Collateral, deposited under Account Agreements in favor of the ABL
Agent to the repayment of ABL Obligations pursuant to the ABL Loan Documents.


 


IV.

PAYMENTS


 


4.1.          Application of Proceeds.


 


(a)           Prior to the Discharge of Prior Lien Obligations, whether
or not any Insolvency or Liquidation Proceeding has been commenced by or
against any Grantor, all ABL Priority Collateral or Proceeds thereof received
in connection with the sale or other Disposition of, or collection on, such ABL
Priority Collateral upon any Enforcement by any Agent or any Claimholder or in
any Insolvency or Liquidation Proceeding, shall be delivered to the Prior Lien
Agent and shall be applied in the following order: first, to repay all
ABL Obligations in such order as is specified in the ABL Loan Documents or as a
court of competent jurisdiction may otherwise direct until the Discharge of ABL
Obligations has occurred, second, to repay all outstanding Senior
Secured Notes Obligations in such order as specified in the Senior Secured
Notes Security Documents or as a court of competent jurisdiction may otherwise
direct until the Discharge of Senior Secured Notes Obligations has occurred and
third, to repay any Junior Secured Notes Obligations in such order as
specified in the Junior Secured Notes Security Documents or as a court of
competent jurisdiction may otherwise direct.


 


(b)           Prior to the Discharge of Prior Lien Obligations, whether
or not any Insolvency or Liquidation Proceeding has been commenced by or
against any Grantor, all Senior Secured Notes Priority Collateral or Proceeds
thereof received in connection with the sale or other Disposition of, or
collection on, such Senior Secured Notes Priority Collateral upon any Enforcement
by any Agent or any Claimholder or in any Insolvency or Liquidation Proceeding,
shall be delivered to the Prior Lien Agent and shall be 


 


26





















 


applied in the following
order: first, to repay all Senior Secured Notes Obligations in such
order as is specified in the Senior Secured Notes Security Documents or as a
court of competent jurisdiction may otherwise direct until the Discharge of
Senior Secured Notes Obligations has occurred, second, to repay all
outstanding ABL Obligations in such order as specified in the ABL Loan
Documents or as a court of competent jurisdiction may otherwise direct until
the Discharge of ABL Obligations has occurred and third, to repay any
Junior Secured Notes Obligations in such order as specified in the Junior
Secured Notes Security Documents or as a court of competent jurisdiction may
otherwise direct.


 


(c)           Unless otherwise agreed to by the ABL Agent and the Senior
Secured Notes Agent, prior to the Discharge of Prior Lien Obligations, whether
or not any Insolvency or Liquidation Proceeding has been commenced by or
against any Grantor, Proceeds received in connection with the sale or other
disposition of any Grantor (whether in one transaction or a series of
transactions) shall be allocated among the Collateral sold based on the
respective net book values of the ABL Priority Collateral and the Senior Secured
Notes Priority Collateral of the Grantor sold in such sale or disposition and
the applicable allocable share of such proceeds shall be delivered to the
applicable Prior Lien Agent.


 


4.2.          Payments Over in Violation of Agreement.  So long as the Discharge of Prior Lien
Obligations has not occurred with respect to any Collateral, whether or not any
Insolvency or Liquidation Proceeding has been commenced by or against any
Grantor, any Collateral (including assets or Proceeds subject to Liens referred
to in the final sentence of Section 2.3) received by any Agent or
any Claimholder in connection with any Enforcement (including set-off) relating
to the Collateral in contravention of this Agreement or in any Insolvency or
Liquidation Proceeding shall be segregated and held in trust and forthwith paid
over to the Prior Lien Agent for the benefit of the Prior Lien Claimholders, in
the same form as received, with any necessary endorsements or as a court of
competent jurisdiction may otherwise direct. 
Each Prior Lien Agent with respect to any Collateral is hereby
authorized by the Subordinated Lien Agents and the Subordinated Lien
Claimholders with respect to such Collateral to make any such endorsements as
agent for any Subordinated Lien Agent or any Subordinated Lien
Claimholder.  This authorization is
coupled with an interest and is irrevocable until the Discharge of Prior Lien
Obligations.


 


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


 


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


 


V.

OTHER AGREEMENTS


 


5.1.          Releases.


 


(a)           (i)            If, in
connection with any exercise of remedies or Enforcement (including as provided
for in Section 3.1(b) or Section 6.8(a)) by the
Prior Lien Agent or any Prior Lien Claimholder with respect to any ABL Priority
Collateral, irrespective of whether an ABL Default, Senior Secured Notes 


 


27





















 


Default or Junior Secured
Notes Default has occurred and its continuing, the Prior Lien Agent, on behalf
of any of the Prior Lien Claimholders, releases any of its Liens on any part of
the ABL Priority Collateral, then the Liens, if any, of the Subordinated Lien
Agents, for the benefit of the Subordinated Lien Claimholders, on the ABL
Priority Collateral sold or disposed of in connection therewith, shall be
automatically, unconditionally and simultaneously released; provided
that, to the extent the Proceeds of such ABL Priority Collateral are not applied
to reduce Prior Lien Obligations, the Subordinated Lien Agents shall retain
Liens on such Proceeds with the respective priorities set forth in Section 2.1.  Each Subordinated Lien Agent, on behalf of
the applicable Subordinated Lien Claimholders, promptly shall execute and deliver
to the Prior Lien Agent such termination statements, releases and other
documents as the Prior Lien Agent may request in writing to effectively confirm
such release.


 


(ii)           If, in connection with any exercise
of remedies or Enforcement (including as provided for in Sections 3.2(b) or
Section 6.8(b)) by the Prior Lien Agent or any Prior Lien
Claimholder with respect to any Senior Secured Notes Priority Collateral,
irrespective of whether a Senior Secured Notes Default, ABL Default or Junior
Secured Notes Default has occurred and its continuing, the Prior Lien Agent, on
behalf of any of the Prior Lien Claimholders, releases any of its Liens on any
part of the Senior Secured Notes Priority Collateral, then the Liens, if any,
of each Subordinated Lien Agent, for the benefit of the Subordinated Lien
Claimholders, on the Senior Secured Notes Priority Collateral sold or disposed
of in connection therewith, shall be automatically, unconditionally and
simultaneously released; provided, further, that, to the extent
the Proceeds of such Senior Secured Notes Priority Collateral are not applied
to reduce Prior Lien Obligations, the Subordinated Lien Agents shall retain
Liens on such Proceeds with the respective priorities set forth in Section 2.1.  Each Subordinated Lien Agent, on behalf of
the applicable Subordinated Lien Claimholders, promptly shall execute and
deliver to the Prior Lien Agent such termination statements, releases and other
documents as the Prior Lien Agent may request in writing to effectively confirm
such release.


 


(iii)          If, in connection with any Disposition
permitted under any Prior Lien Documents (other than in connection with a
Discharge of Prior Lien Obligations), irrespective of whether an ABL Default,
Senior Secured Notes Default or Junior Secured Notes Default has occurred and
is continuing, the Prior Lien Agent, on behalf of the Prior Lien Claimholders,
releases any of its Liens on any part of the ABL Priority Collateral, then the
Liens, if any, of the Subordinated Lien Agents, for the benefit of the
Subordinated Lien Claimholders, on the ABL Priority Collateral sold or disposed
of in connection therewith, shall be automatically, unconditionally and
simultaneously released; provided that, to the extent the Proceeds of
such ABL Priority Collateral are not applied to reduce Prior Lien Obligations,
the Subordinated Lien Agents shall retain Liens on such Proceeds with the
respective priorities set forth in Section 2.1.  Each Subordinated Lien Agent, on behalf of
the applicable Subordinated Lien Claimholders, promptly shall execute and deliver
to the Prior Lien Agent such termination statements, releases and other
documents as the Prior Lien Agent may request in writing to effectively confirm
such release.


 


(iv)          If, in connection with any Disposition
permitted under any Prior Lien Documents (other than in connection with a
Discharge of Prior Lien Obligations), irrespective of whether an ABL Default,
Senior Secured Notes Default or Junior Secured Notes Default has occurred and
is continuing, the Prior Lien Agent, on behalf of the Prior Lien Claimholders,
releases any of its Liens on any part of the Senior Secured Notes Priority
Collateral, then the Liens, if any, of each Subordinated Lien Agent, for the benefit
of the Subordinated Lien Claimholders, on the Senior Secured Notes Priority
Collateral sold or disposed of in connection therewith, shall be automatically,
unconditionally and simultaneously released; provided, further,
that, to the extent the Proceeds of such Senior Secured Notes Priority Collateral
are not applied to reduce Prior Lien Obligations, the Subordinated Lien Agents
shall retain Liens on such Proceeds with the respective priorities set forth in
Section 2.1.  Each
Subordinated Lien Agent, on behalf of the applicable Subordinated Lien
Claimholders, promptly shall execute and deliver to the Prior Lien Agent such 


 


28





















 


termination statements,
releases and other documents as the Prior Lien Agent may request in writing to
effectively confirm such release


 


(b)           Each Subordinated Lien Agent with respect to any
Collateral, on behalf of the applicable Subordinated Lien Claimholders, hereby
irrevocably constitutes and appoints each Prior Lien Agent with respect to such
Collateral and any officer or agent of such Prior Lien Agent, with full power
of substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of such Subordinated Lien Agent or
such Subordinated Lien Claimholder or in the Subordinated Lien Agent’s own
name, from time to time in such Prior Lien Agent’s discretion exercised in good
faith, for the purpose of carrying out the terms of this Section 5.1,
to take any and all appropriate action and to execute any and all documents and
instruments which may be necessary to accomplish the purposes of this Section 5.1,
including any endorsements or other instruments of transfer or release.


 


5.2.          Insurance.


 


(a)           Subject to the terms of, and the rights of the Grantors
under, the Prior Lien Documents, the Prior Lien Agent, on behalf of the Prior
Lien Claimholders, shall have the sole and exclusive right to adjust settlement
for any insurance policy covering the ABL Priority 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 such ABL
Priority Collateral.  All Proceeds of any
such policy and any such award (or any payments with respect to a deed in lieu
of condemnation) if in respect of the ABL Priority Collateral and to the extent
required by the Prior Lien Documents shall be paid to the Prior Lien Agent for
the benefit of the Prior Lien Claimholders pursuant to the terms of the Prior Lien
Documents (including, without limitation, for purposes of cash
collateralization of letters of credit) and thereafter until the Discharge of
Prior Lien Obligations has occurred. If any Subordinated Lien Agent or any
Subordinated Lien Claimholders shall, at any time, receive any Proceeds of any
such insurance policy or any such award or payment with respect to ABL Priority
Collateral in contravention of this Agreement, it shall segregate and hold in
trust and forthwith pay such amount over to the Prior Lien Agent in accordance
with the terms of Section 4.2.


 


(b)           Subject to the terms of, and the rights of the Grantors
under, the Prior Lien Documents, the Prior Lien Agent, on behalf of the Prior
Lien Claimholders, shall have the sole and exclusive right to adjust settlement
for any insurance policy covering the Senior Secured Notes Priority 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 such Senior Secured Notes Priority Collateral.  All Proceeds of any such policy and any such
award (or any payments with respect to a deed in lieu of condemnation) if in
respect of the Senior Secured Notes Priority Collateral and to the extent
required by the Prior Lien Documents shall be paid to the Prior Lien Agent for
the benefit of the Prior Lien Claimholders pursuant to the terms of the Prior
Lien Documents (including, without limitation, for purposes of cash collateralization
of letters of credit) and thereafter until the Discharge of Prior Lien
Obligations has occurred. If any Subordinated Lien Agent or any Subordinated
Lien Claimholders shall, at any time, receive any Proceeds of any such
insurance policy or any such award or payment with respect to Senior Secured
Notes Priority Collateral in contravention of this Agreement, it shall
segregate and hold in trust and forthwith pay such amount over to the Prior
Lien Agent in accordance with the terms of Section 4.2.


 


(c)           To effectuate the foregoing, and to the extent that the
pertinent insurance company agrees to issue such endorsements, the Agents shall
each receive separate lender’s loss payable endorsements naming themselves as
loss payee and additional insured, as their interests may appear, with respect
to policies which insure Collateral hereunder.


 


29

















 


5.3.          Amendments to ABL Loan Documents, Senior Secured Notes
Documents and Junior Secured Notes Documents; Refinancing.


 


(a)           All without affecting the Lien subordination or other
provisions of this Agreement, the (i) ABL Obligations may be Refinanced
without notice to, or the consent of the Senior Secured Notes Agent, the Senior
Secured Notes Claimholders, the Junior Secured Notes Agent or the Junior Secured
Notes Claimholders and without affecting the Lien subordination or other
provisions of this Agreement, (ii) Senior Secured Notes Obligations may be
Refinanced without notice to, or consent of, the ABL Agent, the ABL Claimholders,
the Junior Secured Notes Agent or the Junior Secured Notes Claimholders and (iii) Junior
Secured Notes Obligations may be Refinanced without notice to, or consent of,
the ABL Agent, the ABL Claimholders, the Senior Secured Notes Agent or the
Senior Secured Notes Claimholders, in each case, without affecting the Lien
subordination and other provisions of this Agreement so long as such
Refinancing is on terms and conditions that would not violate the Senior
Secured Notes Documents, the ABL Loan Documents or the Junior Secured Notes
Documents; provided, however, that, in each case, the lenders or
holders of any such Refinancing debt that is purported to be secured by a Lien
on any Collateral bind themselves in writing to the terms of this Agreement; provided
further, however, that, if such Refinancing debt is secured by a
Lien on any Collateral the holders of such Refinancing debt shall be deemed
bound by the terms hereof regardless of whether or not such writing is
provided; provided, further, however, that no such
Refinancing shall be prohibited by the ABL Loan Documents, the Senior Secured
Notes Documents or the Junior Secured Notes Documents; provided, further,
however, that no such Refinancing shall have the effect of prohibiting
the ABL Obligations (or any Refinancing thereof) or Senior Secured Notes
Obligations (or any Refinancing thereof) to the extent permitted under the
Senior Secured Notes Documents as in effect on the date hereof or ABL Loan
Documents as in effect on the date hereof, respectively.  For the avoidance of doubt, the sale or other
transfer of Indebtedness is not restricted by this Agreement but the provisions
of this Agreement shall be binding on all holders of ABL Obligations, Senior
Secured Notes Obligations and Junior Secured Notes Obligations.


 


(b)           The Company shall use commercially reasonable efforts to
notify the parties hereto of any written amendment or modification to the ABL
Loan Documents, the Senior Secured Notes Documents and the Junior Secured Notes
Documents, but the failure to provide such notice shall not create a cause of
action against the party failing to give such notice or create any claim or
right on behalf of any Secured Party.


 


(c)           So long as the Discharge of ABL Obligations has not
occurred, the Senior Secured Notes Agent agrees that each Senior Secured Notes
Security Document shall include the following language (or similar language
acceptable to the ABL Agent):  “Notwithstanding
anything herein to the contrary, the liens and security interests granted to
U.S. Bank National Association, as Senior Secured Notes Agent, pursuant to this
Agreement and the exercise of any right or remedy by U.S. Bank National
Association, as Trustee hereunder, are subject to the provisions of the
Intercreditor Agreement dated as of August 14, 2009 (as amended, restated,
supplemented or otherwise modified from time to time, the “Intercreditor
Agreement”), among Bank of America, N.A., as ABL Agent, U.S. Bank National
Association, as Senior Secured Notes Agent, the Junior Secured Notes Agent from
time to time party thereto and the Grantors (as defined in the Intercreditor
Agreement) from time to time party thereto. 
In the event of any conflict between the terms of the Intercreditor
Agreement and the terms of this Agreement, the terms of the Intercreditor
Agreement shall govern and control.”


 


(d)           So long as the Discharge of Senior Secured Notes
Obligations has not occurred, the ABL Agent agrees that each applicable ABL
Security Document shall include the following language (or similar language
acceptable to the Senior Secured Notes Agent): “Notwithstanding anything herein
to the contrary, the liens and security interests granted to the Collateral
Agent pursuant to this Agreement and the 


 


30





















 


exercise of any right or
remedy by the Collateral Agent hereunder, are subject to the provisions of the
Intercreditor Agreement dated as of August 14, 2009 (as amended, restated,
supplemented or otherwise modified from time to time, the “Intercreditor
Agreement”), among Bank of America, N.A., as ABL Agent, U.S. Bank National
Association, as Senior Secured Notes Agent, the Junior Secured Notes Agent from
time to time party thereto and the Grantors (as defined in the Intercreditor
Agreement) from time to time party thereto. 
In the event of any conflict between the terms of the Intercreditor
Agreement and the terms of this Agreement, the terms of the Intercreditor
Agreement shall govern and control.”


 


(e)           So long as the Discharge of Prior Lien Obligations has not
occurred, the Junior Secured Notes Agent agrees that each applicable Junior
Secured Notes Security Document shall include the following language (or
similar language acceptable to ABL Agent and the Senior Secured Notes
Agent):  “Notwithstanding anything herein
to the contrary, the liens and security interests granted to the Collateral
Agent pursuant to this Agreement and the exercise of any right or remedy by the
Collateral Agent hereunder, are subject to the provisions of the Intercreditor
Agreement dated as of August 14, 2009 (as amended, restated, supplemented
or otherwise modified from time to time, the “Intercreditor Agreement”),
among Bank of America, N.A., as ABL Agent, U.S. Bank National Association, as
Senior Secured Notes Agent, the Junior Secured Notes Agent from time to time
party thereto and the Grantors (as defined in the Intercreditor Agreement) from
time to time party thereto.  In the event
of any conflict between the terms of the Intercreditor Agreement and the terms
of this Agreement, the terms of the Intercreditor Agreement shall govern and
control.”


 


5.4.          Collateral agents for Perfection.


 


(a)           Each Agent agrees to hold that part of the Collateral that
is in its possession or control (or in the possession or control of its agents
or bailees) to the extent that possession or control thereof is taken to
perfect a Lien thereon (such Collateral, which shall include without limitation
Account Agreements and Capital Stock (but shall exclude solely for purposes of
the Junior Secured Notes Obligations any Pledged Collateral which is
specifically excluded from the Junior Secured Notes Collateral pursuant to the
Junior Secured Notes Security Documents), being the “Pledged Collateral”)
as (i) in the case of the ABL Agent, the collateral agent for the ABL
Claimholders under the ABL Loan Documents or, in the case of the Senior Secured
Notes Agent, the collateral agent for the Senior Secured Notes Claimholders
under the Senior Secured Notes Documents or, in the case of the Junior Secured
Notes Collateral Agent, the collateral agent for the Junior Secured Notes
Claimholders and (ii) collateral agent for the benefit of, and on behalf
of, each other Agent (such agreement being intended, among other things, to
satisfy the requirements of Sections 8-301(a)(2), 8-106(d) and 9-313(c) of
the UCC) and any assignee solely for the purpose of perfecting the security
interest granted under the ABL Loan Documents, the Senior Secured Notes
Documents and the Junior Secured Notes Documents, respectively, subject to the
terms and conditions of this Section 5.4.  The Senior Secured Notes Agent, the Senior
Secured Notes Claimholders, the Junior Secured Notes Agent and the Junior
Secured Notes Claimholders hereby appoint the ABL Agent as their collateral
agent for the purposes of perfecting their security interest in all Pledged
Collateral in which the ABL Agent has a perfected security interest under the
UCC.  The ABL Agent, the ABL Claimholders,
the Junior Secured Notes Agent and the Junior Secured Notes Claimholders hereby
appoint the Senior Secured Notes Agent as their collateral agent for the
purposes of perfecting their security interest in all Pledged Collateral in
which the Senior Secured Notes Agent has a perfected security interest under
the UCC.  The ABL Agent, the ABL
Claimholders, the Senior Secured Notes Agent and the Senior Secured Notes
Claimholders hereby appoint the Junior Secured Notes Agent as their collateral
agent for the purposes of perfecting their security interest in all Pledged
Collateral in which the Junior Secured Notes Agent has a perfected security
interest under the UCC.  Each Agent
hereby accepts such appointments pursuant to this Section 5.4(a) and
acknowledges and agrees that it shall act for the benefit of, and on behalf of,
the other Claimholders with respect to any Pledged Collateral and that any
Proceeds received by


 


31
















 


such Agent under any Pledged
Collateral shall be applied in accordance with Article IV.  In furtherance of the foregoing, each Grantor
hereby grants a security interest in the Pledged Collateral to (x) the
Senior Secured Notes Agent for the benefit of, and on behalf of, the ABL
Claimholders and the Junior Secured Notes Claimholders, (y) the ABL Agent
for the benefit of, and on behalf of, the Senior Secured Notes Claimholders and
the Junior Secured Notes Claimholders and (z) the Junior Secured Notes
Agent for the benefit of, and on behalf of, the ABL Claimholders and the Senior
Secured Notes Claimholders.


 


(b)           No Agent shall have any
obligation whatsoever to any other Secured Party as a result of Section 5.4(a) to
ensure that the Pledged Collateral is genuine or owned by any of the Grantors
or to preserve rights or benefits of any Person.  The duties or responsibilities of the
respective Agents under this Section 5.4 shall be limited solely to
holding the Pledged Collateral as collateral agent in accordance with this Section 5.4
and delivering the Pledged Collateral with respect to which it is the Prior
Lien Agent that is in its possession upon a Discharge of Prior Lien Obligations
as provided in paragraph (d) below.


 


(c)           No Agent acting pursuant to
this Section 5.4 shall have by reason of the ABL Loan Documents,
the Senior Secured Notes Documents, the Junior Secured Notes Documents, this
Agreement or any other document a fiduciary relationship in respect of any
other Agent or Secured Party.


 


(d)           Upon the Discharge of Senior
Secured Notes Obligations, the Senior Secured Notes Agent shall deliver the
remaining Pledged Collateral (if any) in its possession together with any
necessary endorsements, first, to the ABL Agent to the extent the
Discharge of ABL Obligations has not occurred, and second, to the Junior
Secured Notes Agent to the extent there are Junior Secured Notes outstanding or
the Discharge of Junior Secured Notes Obligations has not occurred.  Upon the Discharge of ABL Obligations, the
ABL Agent shall deliver the remaining Pledged Collateral (if any) in its
possession together with any necessary endorsements, first, to the
Senior Secured Notes Agent to the extent the Discharge of Senior Secured Notes
Obligations has not occurred, and second, to the Junior Secured Notes
Agent to the extent there are Junior Secured Notes outstanding or the Discharge
of Junior Secured Notes Obligations has not occurred.  Notwithstanding anything to the contrary
contained in this Agreement, any obligation of the Agent, to make any delivery
to the other Agent under this Section 5.4(d) or Section 5.5
is subject to (i) the order of any court of competent jurisdiction, or (ii) any
automatic stay imposed in connection with any Insolvency or Liquidation Proceeding.


 


5.5.          When Discharge of ABL
Obligations and Discharge of Senior Secured Notes Obligations Deemed to Not
Have Occurred.  If at any
time after the Discharge of ABL Obligations or a Discharge of Senior Secured
Notes Obligations, the Company shall enter into any Permitted Refinancing of
any ABL Obligation or Senior Secured Notes Obligations, as applicable, then
such Discharge of ABL Obligations or Discharge of Senior Secured Notes
Obligations shall automatically be deemed not to have occurred for all purposes
of this Agreement (other than with respect to any actions taken as a result of
the occurrence of such first Discharge of ABL Obligations or Discharge of
Senior Secured Notes Obligations in order to effectuate such discharge among (i) the
agent(s) and other claimholders under the facility to be discharged, (ii) the
agents and other claimholders under the new facility, and (iii) the
Grantors), and, from and after the date on which the New Debt Notice is
delivered to each Agent in accordance with the next sentence, the obligations
under such Permitted Refinancing shall automatically be treated as ABL
Obligations or Senior Secured Notes Obligations for all purposes of this
Agreement, as applicable, including for purposes of the Lien priorities and
rights in respect of Collateral set forth herein, and the ABL Agent or the
Senior Secured Notes Agent, as applicable, under such new ABL Loan Documents or
Senior Secured Notes Documents, as applicable, shall be the ABL Agent or the
Senior Secured Notes Agent, as applicable, for all purposes of this
Agreement.  Upon receipt of a notice (the
“New Debt Notice”) stating that the Company has entered into new ABL
Loan Documents or new Senior Secured Notes Documents (which notice shall
include a complete copy of the relevant new documents and provide 


 


32





















 


the identity of the new Agent, such agent,
the “New Agent”), each other Agent, upon written request of the New
Agent, shall promptly (a) enter into such documents and agreements
(including amendments or supplements to this Agreement) as the Company or such
New Agent shall reasonably request in order to provide to the New Agent the
rights contemplated hereby, in each case consistent in all material respects
with the then terms of this Agreement and (b) deliver to the New Agent any
Pledged Collateral in the possession of any Subordinated Lien Agent to the
extent such New Agent is the Prior Lien Agent with respect to such Pledged
Collateral together with any necessary endorsements (or otherwise allow the New
Agent to obtain control of such Pledged Collateral).  In accordance with Section 5.3(a),
the New Agent shall agree in a writing addressed to each other Agent and the
Claimholders, as applicable, to be bound by the terms of this Agreement.


 


VI.

INSOLVENCY OR LIQUIDATION PROCEEDINGS


 


6.1.          Finance and Sale Issues.  Each Subordinated Lien Agent, on behalf of
the applicable Subordinated Lien Claimholders, hereby agrees that, until the
Discharge of Prior Lien Obligations has occurred, if any Grantor shall be
subject to any Insolvency or Liquidation Proceeding and the Prior Lien Agent or
the Prior Lien Claimholders with respect to any of such Subordinated Lien
Claimholders’ Subordinated Lien Collateral shall desire to permit the use of “cash
collateral” (as such term is defined in Section 363(a) of the
Bankruptcy Code) representing Proceeds of such Subordinated Lien Collateral or
to permit any Grantor to obtain financing, whether from the Prior Lien
Claimholders or any other Person under Section 364 of the Bankruptcy Code
or any similar Bankruptcy Law (“DIP Financing”) secured by a Lien on
such Subordinated Lien Collateral, then no Subordinated Lien Claimholder will
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 to, 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 DIP
Financing (including, except as expressly provided below, any claim that the
Subordinated Lien Claimholders are entitled to adequate protection on account
of their interests in such Subordinated Lien Collateral as a condition thereto)
so long as such cash collateral use or DIP Financing meets the following
requirements: (i) each Subordinated Lien Claimholder retains a Lien on its
Subordinated Lien Collateral for any DIP Financing with, except as provided in
the following sentence, the respective priorities provided in Section 2.1,
and (x) with respect to Subordinated Lien Collateral of the ABL
Claimholders or cash collateral in respect thereof, no Lien is granted to
secure such DIP Financing on any ABL Priority Collateral and no such cash
collateral to be used constitutes Proceeds of ABL Priority Collateral unless
the ABL Claimholders have consented thereto in accordance with the ABL Loan
Agreement or (y) with respect to Subordinated Lien Collateral of the
Senior Secured Notes Claimholders or cash collateral in respect thereof, no
Lien is granted to secure such DIP Financing on any Senior Secured Notes
Priority Collateral and no such cash collateral to be used constitutes Proceeds
of Senior Secured Notes Priority Collateral unless the Senior Secured Notes
Claimholders have consented thereto, (ii) to the extent that the Prior
Lien Agent is granted adequate protection in the form of a Lien on Collateral
arising after the commencement of the Insolvency or Liquidation Proceeding, the
Subordinated Lien Claimholders are permitted to seek a Lien on such additional
Collateral with, except as set forth in the following sentence, the relative
priority set forth in Section 2.1 (and no Prior Lien Agent or Prior
Lien Claimholder shall oppose any motion by any Subordinated Lien Claimholder
to receive such a Lien), (iii) the terms of such DIP Financing or use of
cash collateral do not require any Grantor to seek approval for any Plan of
Reorganization that is not a Conforming Plan of Reorganization and (iv) the
terms of such DIP Financing do not require such Subordinated Claimholders to
extend additional credit pursuant to such DIP Financing.  If requested by the Prior Lien Agent, each
Subordinated Lien Agent and Subordinated Lien Claimholders shall be required to
subordinate and will subordinate its Liens in its Subordinated Lien Collateral
to the Liens securing any such DIP Financing (and all obligations relating
thereto, including any “carve-out” granting 


 


33





















 


administrative priority status or Lien
priority to secure repayment of fees and expenses of professionals retained by
any debtor or creditors’ committee and bankruptcy court and U.S. trustee fees);
provided that the Liens on such Subordinated Lien Collateral securing such DIP
Financing rank pari  passu with or senior to the Liens securing
the Prior Lien Obligations.  Each
Subordinated Lien Agent on behalf of itself and the applicable Subordinated
Lien Claimholders, agrees that no such Person shall provide to such Grantor any
DIP Financing (or support any other Person in seeking to provide to any Grantor
any such DIP Financing) to the extent that any Subordinated Lien Claimholder
would, in connection with such financing, be granted a Lien on any of its
Subordinated Lien Collateral unless the Prior Lien Claimholders shall have
consented thereto.


 


6.2.          Relief from the Automatic
Stay.  Until the Discharge of Prior
Lien Obligations, each Subordinated Lien Agent, and the other Subordinated Lien
Claimholders, agree that none of them shall seek (or support any other Person
seeking) relief from the automatic stay or any other stay in any Insolvency or
Liquidation Proceeding in respect of any of their respective Subordinated Lien
Collateral, without the prior written consent of the Prior Lien Agent for such
Collateral (given or not given in its sole and absolute discretion), unless (i) the
Prior Lien Agent already has filed a motion (which remains pending) for such
relief with respect to its interest in such Collateral and (ii) a
corresponding motion, in the reasonable judgment of the applicable Subordinated
Lien Agent, must be filed solely for the purpose of preserving such
Subordinated Lien Agent’s ability to receive residual distributions pursuant to
Section 4.1, although the Subordinated Lien Claimholders shall
otherwise remain subject to the applicable restrictions in Section 3.1
and Section 3.2 following the granting of any such relief from the
automatic stay.


 


6.3.          Adequate Protection.


 


(a)           Prior to the Discharge of
Prior Lien Obligations, each Subordinated Lien Agent, on behalf of itself and
the applicable Subordinated Lien Claimholders, agrees that none of them shall
be entitled to contest and none of them shall contest (or support any other
Person contesting) (but instead shall be deemed to have hereby irrevocably,
absolutely, and unconditionally waived any such right):


 


(i)            any request by the Prior Lien Agent or the other
Prior Lien Claimholders for relief from the automatic stay with respect to the
Subordinated Lien Collateral of such Subordinated Lien Claimholders; or


 


(ii)           any request by the Prior Lien Agent or the other
Prior Lien Claimholders for adequate protection with respect to the
Subordinated Lien Collateral of such Subordinated Lien Claimholders; or


 


(iii)          any objection by the Prior Lien Agent or the other
Prior Lien Claimholders to any motion, relief, action or proceeding based on
the Prior Lien Agent or the other Prior Lien Claimholders claiming a lack of
adequate protection with respect to the Subordinated Lien Collateral of such
Subordinated Lien Claimholders.


 


(b)           Consistent with the
foregoing provisions in this Section 6.3, and except as provided in
Sections 6.1 and 6.7, in any Insolvency or Liquidation
Proceeding, no Subordinated Lien Claimholder shall be entitled (and each
Subordinated Lien 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 its
Subordinated Lien Collateral (except as expressly set forth in Section 6.1
or as may otherwise be consented to in writing by the Prior Lien Agent with
respect to such Collateral in its sole and absolute discretion); provided,
however, subject to Section 6.1, Subordinated 


 


34





















 


Lien Claimholders may seek
and obtain adequate protection in the form of an additional or replacement
Liens on Collateral so long as (i) the Prior Lien Claimholders have been
granted adequate protection in the form of a replacement lien on such
Collateral, and (ii) any such Lien on Subordinated Lien Collateral (and on
any Collateral granted as adequate protection for the Subordinated Lien
Claimholders in respect of their interest in such Subordinated Lien Collateral)
is subordinated to the Liens of the Prior Lien Agent in such Collateral on the
same basis as the other Liens of the Subordinated Lien Agents on Subordinated
Lien Collateral; and


 


(c)           Nothing herein shall limit
the rights of any Prior Lien Agent or the Prior Lien Claimholders to seek
adequate protection with respect to their rights in their Prior Lien Collateral
in any Insolvency or Liquidation 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.


 


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


 


6.5.          Reorganization Securities.  Subject to the ability of the ABL
Claimholders, the Senior Secured Notes Claimholders and the Junior Secured
Notes Claimholders, as applicable, to support or oppose confirmation or
approval of any Conforming Plan of Reorganization or to oppose confirmation or
approval of any Non-Conforming Plan of Reorganization, as provided herein, if,
in any Insolvency or Liquidation Proceeding, debt obligations of the
reorganized debtor secured by Liens upon any property of the reorganized debtor
are distributed pursuant to a Plan of Reorganization, both on account of Prior
Lien Obligations and on account of Subordinated Lien Obligations, then, to the
extent the debt obligations distributed on account of the Prior Lien
Obligations and on account of the Subordinated 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 debt obligations so distributed, to the Liens securing such
debt obligations and the distribution of Proceeds thereof.


 


6.6.          Post-Petition Interest.  No Subordinated Lien Claimholder shall oppose
or seek to challenge any claim by any Prior Lien Agent or any Prior Lien
Claimholder for allowance in any Insolvency or Liquidation Proceeding of Prior
Lien Obligations consisting of post-petition interest, fees or expenses to the
extent of the value of the Lien on such Prior Lien Claimholder’s Prior Lien
Collateral, without regard to the existence of the Subordinated Lien
Obligations with respect to such Collateral.


 


6.7.          Separate Grants of Security
and Separate Classification.  The ABL Agent, on behalf of the ABL
Claimholders, the Senior Secured Notes Agent, on behalf of the Senior Secured
Notes Claimholders and the Junior Secured Notes Agent, on behalf of the Junior
Secured Notes Claimholders, acknowledge and intend that:  the respective grants of Liens pursuant to
the ABL Security Documents, the Senior Secured Notes Documents and the Junior
Secured Notes Security Documents constitute three separate and distinct grants
of Liens, and because of, among other things, their differing rights in the
Collateral (i) the Senior Secured Notes Obligations are fundamentally
different from the ABL Obligations and the Junior Secured Notes Obligations, (ii) the
ABL Obligations are fundamentally different from the 


 


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Senior Secured Notes Obligations and the
Junior Secured Notes Obligations and (iii) the Junior Secured Notes
Obligations are fundamentally different from the ABL Obligations and the Senior
Secured Notes Obligations and, in each case, must be separately classified in
any Plan of Reorganization proposed or confirmed (or approved) in an Insolvency
or Liquidation Proceeding.  To further
effectuate the intent of the parties as provided in the immediately preceding
sentence, if it is held that the claims of (i) the ABL Claimholders and
the Senior Secured Notes Claimholders and/or the Junior Secured Notes
Claimholders, (ii) the Senior Secured Notes Claimholders and the ABL
Claimholders and/or the Junior Secured Notes Claimholders or (iii) the
Junior Secured Notes Claimholders and the ABL Claimholders and/or the Senior
Secured Notes Claimholders, in each case, in respect of the Collateral
constitute claims in the same class (rather than at least three separate classes
of secured claims with the priorities described in Section 2.1),
then the ABL Claimholders, the Senior Secured Notes Claimholders and the Junior
Secured Notes Claimholders hereby acknowledge and agree that all distributions
shall be made as if there were three separate classes of ABL Obligations,
Senior Secured Notes Obligations and Junior Secured Notes Obligations (with the
effect being that, to the extent that the aggregate value of their Prior Lien
Collateral is sufficient (for this purpose ignoring all claims held by the
Subordinated Lien Claimholders thereon), the Prior Lien Claimholders shall be
entitled to receive, in addition to amounts distributed to them in respect of
principal, pre-petition interest and other claims, all amounts owing in respect
of post-petition interest, fees or expenses that is available from their Prior
Lien Collateral, before any distribution is made in respect of the Subordinated
Lien Obligations with respect to such Collateral, with each Subordinated Lien
Claimholder acknowledging and agreeing to turn over to the Prior Lien Agent
with respect to such Collateral amounts otherwise received or receivable by
them to the extent necessary to effectuate the intent of this sentence, even if
such turnover has the effect of reducing the aggregate recoveries of the
Subordinated Lien Obligations.


 


6.8.          Asset Dispositions in an
Insolvency or Liquidation Proceeding.


 


(a)           Without limiting the Prior
Lien Agent’s and the Prior Lien Claimholders’ rights under Section 3.1(b),
neither any Subordinated Lien Agent nor any other Subordinated Lien Claimholder
shall, in any Insolvency or Liquidation Proceeding or otherwise, oppose any
sale or Disposition of any ABL Priority Collateral that is supported by the
Prior Lien Claimholders, and each Subordinated Lien Agent and each other
Subordinated Lien Claimholder will be deemed to have irrevocably, absolutely,
and unconditionally consented under Section 363 of the Bankruptcy Code
(and otherwise) to any sale of any ABL Priority Collateral supported by the
Prior Lien Claimholders and to have released their Liens on such assets; provided
that to the extent the Proceeds of such Collateral are not applied to reduce
Prior Lien Obligations or any DIP Financing secured by a prior Lien on such ABL
Priority Collateral, each Subordinated Lien Agent shall retain a Lien on such
Proceeds with the respective priorities described in Section 2.1.


 


(b)           Without limiting the Prior
Lien Agent’s and the Prior Lien Claimholders’ rights under Section 3.2(b),
neither any Subordinated Lien Agent nor any other Subordinated Lien Claimholder
shall, in any Insolvency Proceeding or otherwise, oppose any sale or
Disposition of any Senior Secured Notes Priority Collateral that is supported
by the Prior Lien Claimholders, and each Subordinated Lien Agent and each other
Subordinated Lien Claimholder will be deemed to have consented under Section 363
of the Bankruptcy Code (and otherwise) to any sale of any Senior Secured Notes
Priority Collateral supported by the Prior Lien Claimholders and to have
released their Liens on such assets; provided that to the extent the
Proceeds of such Collateral are not applied to reduce Prior Lien Obligations or
any DIP Financing secured by a prior Lien on such Senior Secured Notes Priority
Collateral, each Subordinated Lien Agent shall retain a Lien on such Proceeds
with the respective priorities described in Section 2.1.


 


36

















 


(c)           Notwithstanding the
foregoing, this Agreement shall not be construed to in any way limit or impair
the right of the Subordinated Lien Claimholders from exercising a credit bid in
a sale or other Disposition of their Subordinated Lien Collateral under Section 363
of the Bankruptcy Code; provided  that in connection with and immediately
after giving effect to such sale and credit bid there occurs a Discharge of
Prior Lien Obligations.


 


(d)           Until the Discharge of Prior
Lien Obligations, no Subordinated Lien Agent or any other Subordinated Lien
Claimholder shall, in an Insolvency Proceeding or otherwise, assert or enforce
(or support any Person asserting or enforcing) any claim under Section 506(c) of
the Bankruptcy Code pari passu with
the Liens on the Prior Lien Collateral securing the Prior Lien Obligations for
costs or expenses of preserving or disposing of any Prior Lien Collateral.  Furthermore, no Subordinated Lien Agent or
any other Subordinated Lien Claimholder shall, in an Insolvency Proceeding or
otherwise, oppose or otherwise contest (or support any Person opposing or
otherwise contesting) any lawful exercise by the Prior Lien Claimholders of the
right to credit bid at any sale of the Prior Lien Collateral.


 


VII.

RELIANCE; WAIVERS; ETC.


 


7.1.          Reliance.  Other than any reliance on the terms of this
Agreement, the ABL Agent, on behalf the ABL Claimholders, acknowledges that it
and the other ABL Claimholders have, independently and without reliance on the
Senior Secured Notes Agent, or any Senior Secured Notes Claimholder, the Junior
Secured Notes Agent or any Junior Secured Notes Claimholder and based on
documents and information deemed by them appropriate, made their own credit
analysis and decision to enter into ABL 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 ABL Loan Documents or
this Agreement.  The Senior Secured Notes
Agent, on behalf of the Senior Secured Notes Claimholders, acknowledges that it
and the other Senior Secured Notes Claimholders have, independently and without
reliance on the ABL Agent, or any other ABL Claimholder, the Junior Secured
Notes Agent or any Junior Secured Notes Claimholder, and based on documents and
information deemed by them appropriate, made their own credit analysis and
decision to enter into each of the other Senior Secured Notes 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 Secured
Notes Documents or this Agreement.  The
Junior Secured Notes Agent, on behalf of the Junior Secured Notes Claimholders,
acknowledges that it and the other Junior Secured Notes Claimholders have,
independently and without reliance on the ABL Agent, any other ABL Claimholder,
the Senior Secured Notes Agent or any Senior Secured Notes Claimholder, and
based on documents and information deemed by them appropriate, made their own
credit analysis and decision to enter into each of the other Junior Secured
Notes 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 Secured Notes Documents or this Agreement.


 


7.2.          No Warranties or Liability.  The ABL Agent, on behalf of the ABL
Claimholders, acknowledges and agrees that none of the Senior Secured Notes
Agent, the Senior Secured Notes Claimholders, the Junior Secured Notes Agent
and the Junior Secured Notes Claimholders have made any express or implied
representation or warranty, including with respect to the execution, validity,
legality, completeness, collectibility or enforceability of any of the other
Senior Secured Notes Documents or the Junior Secured Notes Documents, the
ownership by any Grantor of any Collateral or the perfection of any Liens
thereon.  Except as otherwise provided in
this Agreement, the Senior Secured Notes Agent, the Senior Secured Notes
Claimholders, the Junior Secured Notes Agent and the Junior Secured Notes
Claimholders will be entitled to manage and supervise their respective loans
and extensions of credit under the Senior Secured Notes Documents and the
Junior Secured Notes Documents, respectively, in 


 


37





















 


accordance with law and as they may
otherwise, in their sole discretion, deem appropriate.  The Senior Secured Notes Agent, on behalf of
the Senior Secured Notes Claimholders, acknowledges and agrees that none of the
ABL Agent, the ABL Claimholders, the Junior Secured Notes Agent and the Junior
Secured Notes Claimholders have made any express or implied representation or
warranty, including with respect to the execution, validity, legality,
completeness, collectibility or enforceability of any of the other ABL Loan
Documents or the Junior Secured Notes Documents, the ownership by any Grantor
of any Collateral or the perfection of any Liens thereon.  Except as otherwise provided in this
Agreement, the ABL Agent, the ABL Claimholders, the Junior Secured Notes Agent
and the Junior Secured Notes Claimholders will be entitled to manage and
supervise their respective loans and extensions of credit under the ABL Loan
Documents and the Junior Secured Notes Documents, respectively, in accordance
with law and as they may otherwise, in their sole discretion, deem appropriate.  The Junior Secured Notes Agent, on behalf of
the Junior Secured Notes Claimholders, acknowledges and agrees that none of the
ABL Agent, the ABL Claimholders, the Senior Secured Notes Agent and the Senior
Secured Notes Claimholders have made any express or implied representation or
warranty, including with respect to the execution, validity, legality,
completeness, collectibility or enforceability of any of the other ABL Loan
Documents or the Senior Secured Notes Documents, the ownership by any Grantor
of any Collateral or the perfection of any Liens thereon.  Except as otherwise provided in this
Agreement, the ABL Agent, the ABL Claimholders, the Senior Secured Notes Agent
and the Senior Secured Notes Claimholders will be entitled to manage and
supervise their respective loans and extensions of credit under the ABL Loan
Documents and the Senior Secured Notes Documents, respectively, in accordance
with law and as they may otherwise, in their sole discretion, deem
appropriate.  Except as expressly
provided herein (i) the Senior Secured Notes Agent and the Senior Secured
Notes Claimholders shall have no duty to the ABL Agent, any of the ABL
Claimholders, the Junior Secured Notes Agent or any of the Junior Secured Notes
Claimholders, (ii) the ABL Agent and the other ABL Claimholders shall have
no duty to the Senior Secured Notes Agent, any of the other Senior Secured
Notes Claimholders, the Junior Secured Notes Agent or any of the other Junior
Secured Notes Claimholders and (iii) the Junior Secured Notes Agent and
the Junior Secured Notes Claimholders shall have no duty to the ABL Agent, any
of the ABL Claimholders, the Senior Secured Notes Agent or any of the Senior
Secured Notes Claimholders, in each case, to act or refrain from acting in a
manner which allows, or results in, the occurrence or continuance of an event
of default or default under any agreements any Grantor (including the ABL Loan
Documents, the Senior Secured Notes Documents and the Junior Secured Notes
Documents), regardless of any knowledge thereof which they may have or be
charged with.


 


7.3.          No Waiver of Lien Priorities.


 


(a)           No right of the Agents or
the other Claimholders to enforce any provision of this Agreement or any ABL
Loan Document, Senior Secured Notes Document or Junior Secured Notes Document shall
at any time in any way be prejudiced or impaired by any act or failure to act
on the part of any Grantor or by any act or failure to act by such Agents or
Claimholders or by any noncompliance by any Person with the terms, provisions
and covenants of this Agreement, any of the ABL Loan Documents, any of the
Senior Secured Notes Documents or any of the Junior Secured Notes Documents,
regardless of any knowledge thereof which the Agents or the ABL Claimholders,
the Senior Secured Notes Claimholders or the Junior Secured Notes Claimholders,
or any of them, may have or be otherwise charged with.


 


(b)           Without in any way limiting
the generality of the foregoing paragraph (but subject to the rights of the
Grantors under the ABL Loan Documents, the Senior Secured Notes Documents and
the Junior Secured Notes Documents and except as otherwise expressly provided
in this Agreement), the Agents and the other Claimholders may, at any time and
from time to time in accordance with the ABL Loan Documents, the Senior Secured
Notes Documents and the Junior Secured Notes Documents and/or applicable law,
without the consent of, or notice to, any other Agent or any other Claimholder
(as applicable), 


 


38





















 


without incurring any liabilities
to such Persons and without impairing or releasing the Lien priorities and
other benefits provided in this Agreement (even if any right of subrogation or
other right or remedy is affected, impaired or extinguished thereby) do any one
or more of the following:


 


(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 Obligations or any Lien or guaranty thereof or
any liability of any Grantor, or any liability incurred directly or indirectly
in respect thereof (including any increase in or extension of the Obligations,
without any restriction as to the tenor or terms of any such increase or
extension) or otherwise amend, renew, exchange, extend, modify or supplement in
any manner any Liens held by the Agents or any rights or remedies under any of
the ABL Loan Documents, the Senior Secured Notes Documents or the Junior
Secured Notes Documents;


 


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


 


(iii)          settle or compromise any Obligation or any other
liability of any Grantor or any security therefore or any liability incurred
directly or indirectly in respect thereof and apply any sums by whomsoever paid
and however realized to any liability in any manner or order that is not
inconsistent with the terms of this Agreement; and


 


(iv)          exercise or delay in or refrain from exercising any
right or remedy against any security or any Grantor or any other Person, elect
any remedy and otherwise deal freely with any Grantor.


 


7.4.          Obligations Unconditional.  All rights, interests, agreements and
obligations of the ABL Claimholders, the Senior Secured Notes Claimholders and
the Junior Secured Notes Claimholders, respectively, hereunder shall remain in
full force and effect irrespective of:


 


(a)           any lack of
validity or enforceability of any ABL Loan Documents, any Senior Secured Notes
Documents or any Junior Secured Notes Documents;


 


(b)           except, in each
case, as otherwise expressly set forth in this Agreement, any change in the
time, manner or place of payment of, or in any other terms of, all or any of
the ABL Obligations, Senior Secured Notes Obligations or Junior Secured Notes
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 ABL Loan Document, Senior Secured Notes Document or any Junior
Secured Notes Document;


 


(c)           except as
otherwise expressly set forth in this Agreement, any exchange, release,
voiding, avoidance or non-perfection 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
ABL Obligations, Senior Secured Notes Obligations or Junior Secured Notes
Obligations or any guaranty thereof;


 


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


 


39

















 


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


 


VIII.

MISCELLANEOUS


 


8.1.          Conflicts.  In the event of any conflict between the
provisions of this Agreement and the provisions of any ABL Loan Document,
Senior Secured Notes Document or Junior Secured Notes Document, the provisions
of this Agreement shall govern and control.


 


8.2.          Effectiveness; Continuing
Nature of this Agreement; Severability.  This Agreement shall become effective when
executed and delivered by the parties hereto (it being understood that this
Agreement shall become effective among the Grantors, the ABL Claimholders and
the Senior Secured Notes Claimholders upon execution and delivery of this
Agreement by the ABL Agent, the Senior Secured Notes Agent and the Grantors
party hereto on the date hereof).  This
is a continuing agreement of Lien subordination (as opposed to an agreement of
debt or claim subordination), and the ABL Claimholders, the Senior Secured
Notes Claimholders and the Junior Secured Notes Claimholders may continue, at
any time and without notice to any other Agent or Claimholder, to extend credit
and other financial accommodations and lend monies to or for the benefit of any
Grantor in reliance hereon.  Each of the
Agents, on behalf of the applicable Claimholders, as applicable, hereby
irrevocably, absolutely, and unconditionally waives any right any Claimholder
may have under applicable law to revoke this Agreement or any of the provisions
of this Agreement.  The terms of this
Agreement shall survive, and shall continue in full force and effect, in any
Insolvency or Liquidation Proceeding.  Consistent
with, but not in limitation of, the preceding sentence, each of the Agents, on
behalf of the applicable Claimholders irrevocably acknowledges that this
Agreement constitutes a “subordination agreement” within the meaning of both
New York law and Section 510(a) of the Bankruptcy Code.  Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall not invalidate the
remaining provisions hereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.  All references
to any Grantor shall include such Grantor as debtor and debtor-in-possession
and any receiver or trustee for any Grantor (as applicable) in any Insolvency
or Liquidation Proceeding.  This
Agreement shall terminate and be of no further force and effect subject to the
rights provided to Prior Lien Claimholders under Section 6.4:


 


(a)           with respect to
the ABL Agent, the ABL Claimholders and the ABL Obligations, the date on which
the Discharge of ABL Obligations has occurred in accordance with the terms of
this Agreement;


 


(b)           with respect to
the Senior Secured Notes Agent, the Senior Secured Notes Claimholders and the
Senior Secured Notes Obligations, the date on which the Discharge of Senior Secured
Notes Obligations has occurred in accordance with the terms of this Agreement;
and


 


(c)           with respect to
the Junior Secured Notes Agent, the Junior Secured Notes Claimholders and the
Junior Secured Notes Obligations, the date on which the Discharge of Junior Secured
Notes Obligations has occurred in accordance with the terms of this Agreement.


 


8.3.          Amendments; Waivers.  Except as provided in the following sentence,
no amendment, modification or waiver of any of the provisions of this Agreement
shall be deemed to be made unless the same shall be in writing signed on behalf
of each party hereto or its authorized agent and each waiver, if any, shall be
a waiver only with respect to the specific instance involved and shall in no
way impair the 


 


40





















 


rights of the parties making such waiver or
the obligations of the other parties to such party in any other respect or at
any other time.  Notwithstanding the
foregoing, (i) no Grantor shall have any right to consent to or approve
any amendment, modification or waiver of any provision of this Agreement except
to the extent its rights are directly affected, (ii) the Junior Secured
Notes Agent, on behalf of the Junior Secured Notes Claimholders, shall become
party hereto, without any further action by any other party hereto, upon
execution and delivery by the Junior Secured Notes Agent and the Company to
each of the ABL Agent and the Senior Secured Notes Agent of a properly
completed Junior Secured Notes Joinder Agreement and (iii) any Additional
Pari Passu Senior Secured Notes Agent, on behalf of itself and the Senior
Secured Notes Claimholders under any Additional Pari Passu Senior Secured Notes
Agreement, may become a party to this Agreement, without any further action by
any other party hereto, upon execution and delivery by the Company and such
Agent of a properly completed Additional Joinder Agreement to each Agent.


 


8.4.          Information Concerning
Financial Condition of the Company and Its Subsidiaries.  Each Agent and Claimholder shall be
responsible for keeping themselves informed of (a) the financial condition
of the Grantors and (b) all other circumstances bearing upon the risk of
nonpayment of the ABL Obligations, the Senior Secured Notes Obligations and the
Junior Secured Notes Obligations.  No
Claimholder shall have any duty to advise any other Claimholder of information
known to it or them regarding such condition or any such circumstances or
otherwise.  In the event any Agent or
other Claimholder undertakes at any time or from time to time to provide any
such information to any of the other Claimholders, it or they shall be under no
obligation, (i) to make, and shall not make, any express or implied
representation or warranty, including with respect to the accuracy,
completeness, truthfulness or validity of any such information so provided, (ii) to
provide any additional information or to provide any such information on any
subsequent occasion, (iii) to undertake any investigation, or (iv) to
disclose any information, which pursuant to accepted or reasonable commercial
finance practices, such party wishes to maintain confidential or is otherwise
required to maintain confidential.


 


8.5.          Subrogation.  With respect to the value of any payments or
distributions in cash, property or other assets that any of the Subordinated
Lien Claimholders actually pay over to the Prior Lien Agent or the Prior Lien
Claimholders under the terms of this Agreement, the Subordinated Lien
Claimholders shall be subrogated to the rights of such Prior Lien Claimholders;
provided, however, that each Subordinated Lien Agent, on behalf
of the Subordinated Lien Claimholders, hereby agrees not to assert or enforce
all such rights of subrogation it may acquire as a result of any payment
hereunder until the Discharge of Prior Lien Obligations has occurred.  The Grantors acknowledge and agree that, to
the extent permitted by applicable law, the value of any payments or
distributions in cash, property or other assets received by the Subordinated
Lien Claimholders that are paid over to the Prior Lien Claimholders pursuant to
this Agreement shall not reduce any of the Subordinated Lien Obligations.  Notwithstanding the foregoing provisions of
this Section 8.5, none of the Subordinated Lien Claimholders shall
have any claim against any of the Prior Lien Claimholders for any impairment of
any subrogation rights herein granted to the Subordinated Lien Claimholders.


 


8.6.          SUBMISSION TO JURISDICTION;
WAIVERS.


 


(a)           ALL JUDICIAL PROCEEDINGS
BROUGHT AGAINST ANY PERSON ARISING OUT OF OR RELATING HERETO MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE,
COUNTY AND CITY OF NEW YORK.  BY
EXECUTING AND DELIVERING THIS AGREEMENT, EACH AGENT, FOR ITSELF AND ON BEHALF
OF THE SENIOR SECURED NOTES CLAIMHOLDERS (IN THE CASE OF THE SENIOR SECURED
NOTES AGENT), THE ABL CLAIMHOLDERS (IN THE CASE OF THE ABL AGENT), AND THE
JUNIOR SECURED NOTES CLAIMHOLDERS (IN THE CASE OF THE JUNIOR SECURED NOTES
AGENT) IRREVOCABLY:


 


41
















 


(1)           AGREES THAT THE ONLY NECESSARY PARTIES TO ANY AND
ALL JUDICIAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE
THE PARTIES HERETO, EXCEPT WHERE IN ANY SUCH JUDICIAL PROCEEDING RELIEF
(INCLUDING INJUNCTIVE RELIEF OR THE RECOVERY OF MONEY) IS BEING SOUGHT DIRECTLY
AGAINST OR FROM A PERSON THAT IS NOT A PARTY AND EXCEPT THAT, IN ANY SUCH
JUDICIAL PROCEEDINGS AMONG ANY SENIOR SECURED NOTES AGENT, ABL AGENT OR JUNIOR
SECURED NOTES AGENT THAT DOES NOT SEEK ANY RELIEF AGAINST OR FROM ANY GRANTOR,
THE GRANTORS SHALL NOT BE NECESSARY PARTIES. 
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND CONSISTENT WITH
THE PROVISIONS OF SECTIONS 8.14 AND 8.17, NONE OF THE ABL
CLAIMHOLDERS (OTHER THAN THE ABL AGENT), THE SENIOR SECURED NOTES CLAIMHOLDERS
(OTHER THAN THE SENIOR SECURED NOTES AGENT) OR THE JUNIOR SECURED NOTES
CLAIMHOLDERS (OTHER THAN THE JUNIOR SECURED NOTES AGENT) SHALL BE NECESSARY OR
OTHERWISE APPROPRIATE PARTIES TO ANY SUCH JUDICIAL PROCEEDINGS, UNLESS IN SUCH
JUDICIAL PROCEEDING SUMS ARE BEING SOUGHT TO BE RECOVERED DIRECTLY FROM SUCH
PERSONS, INCLUDING PURSUANT TO SECTION 4.2 OR THE PROVISIONS OF
THIS AGREEMENT ARE SEEKING TO BE ENFORCED DIRECTLY AGAINST SUCH PERSONS.


 


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


 


(3)           WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;


 


(4)           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 PERSON (AND IN THE CASE OF A PARTY,
AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 8.7); AND


 


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


 


(b)           WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT, ANY OF THE ABL LOAN DOCUMENTS, ANY OF THE
SENIOR SECURED NOTES DOCUMENTS OR ANY OF THE JUNIOR SECURED NOTES
DOCUMENTS.  EACH OF THE PARTIES HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT,
THE ABL LOAN DOCUMENTS, THE SENIOR SECURED NOTES DOCUMENTS AND THE JUNIOR
SECURED NOTES DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.6.


 


42

















 


8.7.          Notices.  All notices permitted or required under this
Agreement need be sent only to the Senior Secured Notes Agent, the ABL Agent
and the Junior Secured Notes Agent, as applicable, in order to be effective and
otherwise binding on any applicable Claimholder.  If any notice is sent for whatever reason to
the other Senior Secured Notes Claimholders, the Junior Secured Notes
Claimholders or the ABL Claimholders, such notice shall also be sent to the
applicable Agent.  Unless otherwise
specifically provided herein, any notice hereunder shall be in writing and may
be personally served, telexed or sent by telefacsimile or United States mail or
courier service and shall be deemed to have been given when delivered in person
or by overnight courier service and signed for against receipt thereof, upon
receipt of telefacsimile or telex during normal business hours, or three
Business Days after depositing it in the United States certified mails (return
receipt requested) with postage prepaid and properly addressed.  For the purposes hereof, the addresses of the
parties hereto shall be as set forth below each party’s name on the signature pages hereto,
or, as to each party, at such other address as may be designated by such party
in a written notice to all of the other parties.


 


8.8.          Further Assurances.  The ABL Agent, on behalf of the ABL
Claimholders, the Senior Secured Notes Agent, on behalf of the Senior Secured
Notes Claimholders, the Junior Secured Notes Agent, on behalf of the Junior
Secured Notes Claimholders, and the Grantors, agree that each of them shall
take such further action and shall execute and deliver such additional
documents and instruments (in recordable form, if requested) as any other Agent
may reasonably request to effectuate the terms of and the Lien priorities
contemplated by this Agreement.  Each of
the Senior Secured Notes Agent, the ABL Agent and the Junior Secured Notes
Agent agrees that if it sends any Enforcement Notice to another Agent, it shall
be sent all of the Agents.


 


8.9.          APPLICABLE LAW.  THIS AGREEMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF (INCLUDING
SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).


 


8.10.        Specific Performance.  Each of the ABL Agent and the Senior Secured
Notes Agent may demand specific performance of this Agreement.  The ABL Agent, on behalf of itself and the
ABL Claimholders, the Senior Secured Notes Agent, on behalf of itself and the
Senior Secured Notes Claimholders, and the Junior Secured Notes Agent, on
behalf of itself and the Junior Secured Notes Claimholders, hereby irrevocably
waive any defense based on the adequacy of a remedy at law and any other
defense which might be asserted to bar the remedy of specific performance in
any action which may be brought by the ABL Agent or the other ABL Claimholders
or the Senior Secured Notes Agent or the other Senior Secured Notes
Claimholders, as applicable.


 


8.11.        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.


 


8.12.        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.


 


43





















 


8.13.        Authorization.  By its signature, each party hereto
represents and warrants to the other parties hereto that the individual signing
this Agreement on its behalf is duly authorized to execute this Agreement.  The Senior Secured Notes Agent hereby
represents that it is authorized to, and by its signature hereon does, bind the
other Senior Secured Notes Claimholders to the terms of this Agreement.  The Junior Secured Notes Agent hereby
represents that it is authorized to, and by its execution and delivery of the
Junior Secured Notes Joinder Agreement does, bind the Junior Secured Notes
Claimholders to the terms of this Agreement. 
The ABL Agent hereby represents that it is authorized to, and by its
signature hereon does, bind the other ABL Claimholders to the terms of this
Agreement.


 


8.14.        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 shall
be binding upon) each of the Agents and the other Claimholders and their
respective successors and assigns.


 


8.15.        Provisions Solely to Define
Relative Rights.  The
provisions of this Agreement are and are intended solely for the purpose of
defining the respective relative rights of the ABL Claimholders, the Senior
Secured Notes Claimholders and the Junior Secured Notes Claimholders.  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 is
intended to or shall impair as between the Grantors and the ABL Agent and the
other ABL Claimholders, as between the Grantors and the Senior Secured Notes
Agent and the other Senior Secured Notes Claimholders, or as between the
Grantors and the Junior Secured Notes Agent and the other Junior Secured Notes
Claimholders, the Obligations of any Grantor, which are absolute and
unconditional, to pay principal, interest, fees and other amounts as provided
in the other ABL Loan Documents, the other Senior Secured Notes Documents or
the Junior Secured Notes Documents, respectively, including as and when the
same shall become due and payable in accordance with their terms.  Nothing in this Agreement shall prevent one
or more classes of Junior Secured Notes Claimholders from entering into
intercreditor agreements with any other class of Junior Secured Notes
Claimholders in order to define the relative rights of such Junior Secured
Notes Claimholders in the Junior Secured Notes Collateral; provided that
(i) any such agreement provides that it is subject to the terms of this
Agreement and (ii) no such agreement shall be binding on any ABL
Claimholder or Senior Secured Notes Claimholder.


 


8.16.        Marshalling of Assets.  Each Subordinated Lien Agent, on behalf of
the applicable Subordinated Lien Claimholders, hereby irrevocably, absolutely,
and unconditionally waives any and all rights or powers any Subordinated Lien
Claimholder may have at any time under applicable law or otherwise to have its
Subordinated Lien Collateral, or any part thereof, marshaled upon any
foreclosure or other enforcement of such Subordinated Lien Agent’s Liens.


 


8.17.        Exclusive Means of
Exercising Rights under this Agreement.  The Senior Secured Notes Claimholders shall
be deemed to have irrevocably appointed the Senior Secured Notes Agent, the ABL
Claimholders shall be deemed to have irrevocably appointed the ABL Agent and by
execution and delivery of the Junior Secured Notes Joinder Agreement, the Junior
Secured Notes Claimholders shall be deemed to have irrevocably appointed the
Junior Secured Notes Agent, as their respective and exclusive agents
hereunder.  Consistent with such
appointment, the Senior Secured Notes Claimholders, the ABL Claimholders and
the Junior Secured Notes Claimholders further shall be deemed to have agreed
that their respective Agents (and not any individual Claimholder or group of
Claimholders) shall have the exclusive right to exercise any rights, powers,
and/or remedies under or in connection with this Agreement (including bringing
any action to interpret or otherwise enforce the provisions of this Agreement)
or the Collateral.  Specifically, but
without limiting the generality of the foregoing, each Senior Secured Notes
Claimholder (other than the Senior Secured Notes Agent), each ABL Claimholder 


 


44





















 


(other than the ABL Agent) and each Junior
Secured Notes Claimholder (other than the Junior Secured Notes Agent), shall
not be entitled to take or file, but instead shall be precluded from taking or
filing (whether in any Insolvency or Liquidation Proceeding or otherwise), any
action, judicial or otherwise, to enforce any right or power or pursue any
remedy under this Agreement (including any declaratory judgment or other action
to interpret or otherwise enforce the provisions of this Agreement), except
solely as provided in the proviso in the preceding sentence.


 


8.18.        Interpretation.  This Agreement is a product of negotiations
among representatives of, and has been reviewed by counsel to, the Senior
Secured Notes Agent, if a Junior Secured Notes Agreement shall be entered into,
the Junior Secured Notes Agent, the ABL Agent and the Grantors and is the
product of those Persons on behalf of themselves and the Senior Secured Notes
Claimholders (in the case of the Senior Secured Notes Agent), the ABL
Claimholders (in the case of the ABL Claimholders) and the Junior Secured Notes
Claimholders (in the case of the Junior Secured Notes Agent).  Accordingly, this Agreement’s provisions
shall not be construed against, or in favor of, any part or other Person merely
by virtue of that party or other Person’s involvement, or lack of involvement,
in the preparation of this Agreement and of any of its specific provisions.


 


8.19.        Capacity of Senior Secured
Notes Agent.  U.S. Bank
National Association is entering into this Agreement in its capacity as “trustee”
and “collateral agent” under the Senior Secured Notes Indenture and the rights,
powers, privileges and protections afforded to the “trustee” and “collateral
agent” under the Senior Secured Notes Indenture shall also apply to U.S. Bank
National Association as the Senior Secured Notes Agent hereunder. The Senior
Secured Notes Claimholders have expressly authorized and instructed the Senior
Secured Notes Agent to execute and deliver this Agreement.


 


[Signature Pages Follow]


 


45
















 


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


 


	
   

  	
  ABL
  Agent:

  
	
   

  	
   

  
	
   

  	
  BANK
  OF AMERICA, N.A.,

  
	
   

  	
  as
  ABL Agent and not in its individual capacity

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Christopher O’Halloran

  
	
   

  	
   

  	
  Name:
  Christopher O’Halloran

  
	
   

  	
   

  	
  Title:
  Vice President

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
   

  
	
   

  	
  Bank
  of America, N.A.

  
	
   

  	
  One
  Federal Street

  
	
   

  	
  MA5-503-07-19

  
	
   

  	
  Boston,
  MA 02110

  
	
   

  	
  Attention:
  Christopher O’Halloran

  
	
   

  	
  Telephone:
  617-346-1183

  
	
   

  	
  Telecopier:
  617-654-1167

  
	
   

  	
  Electronic
  Mail:

  
	
   

  	
  Christopher.o’halloran@bankofamerica.com

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Senior Secured Notes Agent:

  
	
   

  	
   

  
	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION, not in its individual capacity, but solely in its
  capacity as Trustee and Collateral Agent under the Senior Secured Notes Indenture
  and Collateral Agent under the Senior Secured Notes Documents, as Senior
  Secured Notes Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Karen R. Beard

  
	
   

  	
   

  	
  Name:
  Karen R. Beard

  
	
   

  	
   

  	
  Title:
  Vice President

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
  One Federal St.

  
	
   

  	
  Boston, MA 02110

  
	
   

  	
  Attn: Clean
  Harbors, Inc.

  



 

















 


	
  Acknowledged
  and Agreed to by:

  
	
   

  
	
  Company:

  
	
   

  
	
  CLEAN
  HARBORS, INC.

  
	
   

  
	
  By:

  	
  /s/
  James M. Rutledge

  	
   

  
	
   

  	
  Name:
  James M. Rutledge

  
	
   

  	
  Title:
  Executive Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
  Notice
  Address:

  
	
   

  	
   

  
	
   

  	
    42
  Longwater Drive

  
	
   

  	
    P.O. Box
  9149

  
	
   

  	
    Norwell,
  MA 02061

  



 

















 


Company
Subsidiaries:


 


ALTAIR
DISPOSAL SERVICES, LLC


BATON
ROUGE DISPOSAL, LLC


BRIDGEPORT
DISPOSAL, LLC


CH
INTERNATIONAL HOLDINGS, INC.


CLEAN
HARBORS (MEXICO), INC.


CLEAN
HARBORS ANDOVER, LLC


CLEAN
HARBORS ANTIOCH, LLC


CLEAN
HARBORS ARAGONITE, LLC


CLEAN
HARBORS ARIZONA, LLC


CLEAN
HARBORS BATON ROUGE, LLC


CLEAN
HARBORS BDT, LLC


CLEAN
HARBORS BUTTONWILLOW, LLC


CLEAN
HARBORS CHATTANOOGA, LLC


CLEAN
HARBORS CLIVE, LLC


CLEAN
HARBORS COFFEYVILLE, LLC


CLEAN
HARBORS COLFAX, LLC


CLEAN
HARBORS DEER TRAIL, LLC


CLEAN
HARBORS DEVELOPMENT, LLC


CLEAN
HARBORS DISPOSAL SERVICES, INC.


CLEAN
HARBORS EL DORADO, LLC


CLEAN
HARBORS ENVIRONMENTAL SERVICES, INC.


CLEAN
HARBORS FLORIDA, LLC


CLEAN
HARBORS GRASSY MOUNTAIN, LLC


CLEAN
HARBORS KANSAS, LLC


CLEAN HARBORS
KINGSTON FACILITY CORPORATION


CLEAN
HARBORS LAUREL, LLC


CLEAN
HARBORS LONE MOUNTAIN, LLC


CLEAN
HARBORS LONE STAR CORP.


CLEAN
HARBORS LOS ANGELES, LLC


CLEAN
HARBORS OF BALTIMORE, INC.


CLEAN
HARBORS OF BRAINTREE, INC.


CLEAN
HARBORS OF CONNECTICUT, INC.


CLEAN
HARBORS OF NATICK, INC.


CLEAN
HARBORS OF TEXAS, LLC


CLEAN
HARBORS PECATONICA, LLC


CLEAN
HARBORS PPM, LLC


CLEAN
HARBORS RECYCLING SERVICES OF CHICAGO, LLC


(list
continued on next page)


 

















 


CLEAN
HARBORS RECYCLING SERVICES OF OHIO, LLC


CLEAN
HARBORS REIDSVILLE, LLC


CLEAN
HARBORS SAN JOSE, LLC


CLEAN
HARBORS SERVICES, INC.


CLEAN
HARBORS TENNESSEE, LLC


CLEAN
HARBORS WESTMORLAND, LLC


CLEAN
HARBORS WHITE CASTLE, LLC


CLEAN
HARBORS WILMINGTON, LLC


CROWLEY
DISPOSAL, LLC


DISPOSAL
PROPERTIES, LLC


GSX
DISPOSAL, LLC


HARBOR
MANAGEMENT CONSULTANTS, INC.


HILLIARD
DISPOSAL, LLC


MURPHY’S
WASTE OIL SERVICE, INC.


ROEBUCK
DISPOSAL, LLC


SAWYER
DISPOSAL SERVICES, LLC


SERVICE
CHEMICAL, LLC


SPRING
GROVE RESOURCE RECOVERY, INC.


TULSA
DISPOSAL, LLC


 


	
  By:
  

  	
  /s/
  James M. Rutledge

  	
   

  
	
  Name:
  James M. Rutledge

  
	
  Title:
  Executive Vice President

  
	
   

  
	
  PLAQUEMINE
  REMEDIATION SERVICES, LLC

  
	
   

  
	
  By:
  

  	
  /s/
  William Geary

  	
   

  
	
  Name:
  William Geary

  
	
  Title:
  Manager

  
	
   

  
	
  CLEAN
  HARBORS FINANCIAL SERVICES COMPANY

  
	
   

  
	
  By:
  

  	
  /s/
  James M. Rutledge

  	
   

  
	
  Name:
  James M. Rutledge

  
	
  Title:
  Trustee

  



 

















 


CLEAN
HARBORS DEER PARK, L.P.


CLEAN
HARBORS LAPORTE, L.P.


HARBOR
INDUSTRIAL SERVICES TEXAS, L.P.


 


By:
Clean Harbors of Texas, LLC, its General Partner


 


	
   

  	
  By:
  

  	
  /s/
  James M. Rutledge

  	
   

  
	
   

  	
  Name:
  James M. Rutledge

  
	
   

  	
  Title: Executive Vice
  President

  



 


Notice Address:


c/o
Clean Harbors, Inc.


42 Longwater Drive


P.O. Box 9149


Norwell, MA 02061


 

















 


EXHIBIT A TO THE


INTERCREDITOR AGREEMENT


 


[Form of]



JUNIOR SECURED NOTES JOINDER AGREEMENT


 


[Name of Junior Secured Notes Agent]


[Address of Junior Secured Notes Agent]


 


[Date]


 


[Names
of ABL Agent and Senior Secured Notes Agent]


[Addresses
of ABL Agent and Senior Secured Notes Agent]


 


The undersigned, together
with its successors and assigns under the Junior Secured Notes Agreement, is
the Junior Secured Notes Trustee for Persons (the “Junior Secured
Noteholders”) wishing to become Junior Secured Notes Claimholders under and
as defined in the Intercreditor Agreement dated as of August 14, 2009 (as
heretofore amended and/or supplemented, the “Intercreditor Agreement”
(terms used without definition herein have the meanings assigned to such terms
by the Intercreditor Agreement)) among Clean Harbors, Inc., the Grantors
party thereto, the ABL Agent thereunder and the Senior Secured Notes Agent
thereunder.


 


In consideration of the
foregoing, the undersigned hereby:


 


(i)            represents that Junior Secured Noteholders have
authorized the Junior Secured Notes Trustee to become a party to the
Intercreditor Agreement on behalf of such Junior Secured Notes Claimholders and
to act as the Junior Secured Notes Agent thereunder;


 


(ii)           acknowledges that the Junior Secured Notes Agent has
received a copy of the Intercreditor Agreement;


 


(iii)          acknowledges on behalf of itself and the Junior Secured
Noteholders that the Obligations under the Junior Secured Notes Agreement
constitute Junior Secured Notes Obligations for all purposes of the
Intercreditor Agreement; and


 


(iv)          accepts and acknowledges, on behalf of itself and the
Junior Secured Noteholders, the terms of the Intercreditor Agreement applicable
to the Junior Secured Notes Agent and the other Junior Secured Notes
Claimholders and agrees on its own behalf and on behalf of the Junior Secured
Noteholders to be bound by the terms of the Intercreditor Agreement applicable
to holders of Junior Secured Notes Obligations, with all the rights, duties and
obligations of the Junior Secured Notes Claimholders thereunder and bound by
all the provisions thereof as fully as if they had been named as Junior Secured
Notes Claimholders on the effective date of the Intercreditor Agreement and
agrees that its address for receiving notices pursuant to the Intercreditor
Agreement shall be as follows:


 


[Address]


 


THIS JUNIOR SECURED NOTES
JOINDER AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICT OF LAWS PRINCIPLES 


 


A-1

















 


THEREOF (INCLUDING SECTIONS
5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).


 


[                    ] is entering into the
Intercreditor Agreement pursuant to this joinder agreement in its capacity as “trustee”
and “collateral agent” under the Junior Secured Notes Agreement and the rights,
powers, privileges and protections afforded to the “trustee” and “collateral
agent” under the Junior Secured Notes Agreement shall also apply to [                    ] as the Junior Secured
Notes Agent hereunder.


 


A-2

















 


IN WITNESS WHEREOF, the
undersigned has caused this Junior Secured Notes Joinder Agreement to be duly
executed by its authorized officer as of the
        day of 20    .


 


	
   

  	
  [NAME
  OF JUNIOR SECURED NOTES AGENT]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Acknowledged
and Agreed


 


CLEAN
HARBORS, INC.


 


 


	
  By:

  	
   

  	
   

  
	
  Name:

  
	
  Title:

  



 


A-3

















 


EXHIBIT B TO THE


INTERCREDITOR AGREEMENT


 


[Form of]



ADDITIONAL JOINDER AGREEMENT


 


[Name of Additional [Pari Passu]
[Junior][Senior] Secured Notes Agent]


[Address of [Junior][Senior] Secured Notes
Agent]


 


[Date]


 


[Names
of ABL Agent, Senior Secured Notes Agent and Junior Secured Notes Agent]


[Addresses
of ABL Agent, Senior Secured Notes Agent and Junior Secured Notes Agent]


 


The undersigned, together
with its successors and assigns (the “New Secured Agent”) under
[identify [Additional Pari Passu] [Junior][Senior] Secured Notes Agreement]
(the “New Secured Agreement”), is the [Additional Pari Passu]
[Junior][Senior] Secured Notes Agent for Persons (the “New Secured Claimholders”)
wishing to become [Junior][Senior] Secured Notes Claimholders under and as defined
in the Intercreditor Agreement dated as of August 14, 2009 (as amended
and/or supplemented from time to time, the “Intercreditor Agreement”
(terms used without definition herein have the meanings assigned to such terms
by the Intercreditor Agreement)) among Clean Harbors, Inc., the Grantors
party thereto, the ABL Agent thereunder, each Senior Secured Notes Agent
thereunder and each Junior Secured Notes Agent thereunder.


 


In consideration of the
foregoing, the undersigned hereby:


 


(i)            represents that the New Secured Claimholders have
authorized the New Secured Agent to become a party to the Intercreditor
Agreement on behalf of such New Secured Claimholders and to act as the
Additional Pari Passu [Junior][Senior] Secured Notes Agent on behalf of such
New Secured Claimholders under the Indenture;


 


(ii)           acknowledges that the New Secured Agent has received a
copy of the Intercreditor Agreement;


 


(iii)          acknowledges on behalf of itself and the other New Secured
Claimholders that the Obligations under the New Secured Agreement constitute
[Junior][Senior] Secured Notes Obligations for all purposes of the
Intercreditor Agreement; and


 


(iv)          accepts and acknowledges the terms of the Intercreditor
Agreement applicable to the [Additional Pari Passu] [Junior] [Senior] Secured
Notes Agent and the other [Junior][Senior] Secured Notes Claimholders and
agrees on its own behalf and on behalf of the New Secured Claimholders to be
bound by the terms thereof applicable to holders of [Junior][Senior] Secured
Notes Obligations, with all the rights, duties and obligations of the
[Junior][Senior] Secured Notes Claimholders under the Intercreditor Agreement
and to be bound by all the provisions thereof as fully as if they had been
named as [Junior][Senior] Secured Notes Claimholders on the effective date of
the Intercreditor Agreement and agrees that the New Secured Agent’s address for
receiving notices pursuant to the Intercreditor Agreement shall be as follows:


 


[Address]


 


B-1

















 


THIS ADDITIONAL JOINDER
AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT
OF LAWS PRINCIPLES THEREOF (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW
YORK GENERAL OBLIGATIONS LAW).


 


B-2

















 


IN WITNESS WHEREOF, the
undersigned has caused this Additional Joinder Agreement to be duly executed by
its authorized officer as of the
          day of
20    .


 


	
   

  	
  [NAME
  OF NEW SECURED AGENT]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  The
  Company hereby represents and warrants to each Agent on the date hereof that
  the New Secured Agreement meets the requirements set forth in the definition
  of “Additional Pari Passu [Junior] [Senior] Secured Notes Agreement.”

  	
   

  	
   

  	
   

  
				



 


Clean
Harbors, Inc.


 


 


	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  



 


B-3