exv4w2





Exhibit 4.2




 





INTERCREDITOR AGREEMENT




dated as of




July 27, 2009




among




WACHOVIA BANK, NATIONAL ASSOCIATION,

as Collateral Agent,




WACHOVIA BANK, NATIONAL ASSOCIATION,

as Authorized Representative under the Credit Agreement,




and




U.S. BANK NATIONAL ASSOCIATION,

as the Authorized Representative under the Indenture




 





 









 





     INTERCREDITOR AGREEMENT (as amended or supplemented from time to time, this
“Agreement”) dated as of July 27, 2009, among WACHOVIA BANK, NATIONAL ASSOCIATION, as
collateral agent for the First Lien Secured Parties (as defined below) (in such capacity and
together with its successors in such capacity, the “Collateral Agent”), WACHOVIA BANK,
NATIONAL ASSOCIATION, as Authorized Representative for the Credit Agreement Secured Parties (in
such capacity and together with its successors in such capacity pursuant to any Credit Agreement,
the “Administrative Agent”), and U.S. BANK NATIONAL ASSOCIATION, as Authorized
Representative for the Notes Secured Parties (in such capacity and together with its successors in
such capacity, the “Trustee”).



     In consideration of the mutual agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Collateral Agent,
the Administrative Agent (for itself and on behalf of the Credit Agreement Secured Parties) and the
Trustee (for itself and on behalf of the Notes Secured Parties) agree as follows:



ARTICLE I




DEFINITIONS




     Section 1.01 Construction; Certain Defined Terms.



     (a) The definitions of terms herein 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,
(i) any definition of or reference to any agreement, instrument, other document, statute or
regulation herein shall be construed as referring to such agreement, instrument, other document,
statute or regulation as from time to time amended, supplemented or otherwise modified, (ii) any
reference herein to any Person shall be construed to include such Person’s successors and assigns,
but shall not be deemed to include the subsidiaries of such Person unless express reference is made
to such subsidiaries, (iii) 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, (iv) all references herein to Articles, Sections and Annexes shall be construed
to refer to Articles, Sections and Annexes of this Agreement, (v) unless otherwise expressly
qualified herein, the words “asset” and “property” shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights and (vi) the term “or” is not exclusive.



     (b) It is the intention of the First Lien Secured Parties of each Series that the holders of
First Lien Obligations of such Series (and not the First Lien Secured Parties of any other Series)
bear the risk of any determination by a court of competent jurisdiction that (i) any of the First
Lien Obligations of such Series are unenforceable under applicable law or are subordinated to any
other obligations (other than another Series of First Lien Obligations), (ii) any of the First Lien
Obligations of such Series do not have an enforceable security interest in any of the Collateral
securing any other Series of First Lien Obligations and/or (iii) any intervening security interest
exists securing any other obligations (other than another Series of First Lien Obligations) on a
basis ranking prior to the security interest of such Series of First Lien Obligations but junior to
the security interest of any other Series of First Lien Obligations (any such condition, an
“Impairment” of such Series). In the event of any Impairment with respect to any Series of
First Lien Obligations, the results of such Impairment shall be borne solely by the holders of such
Series of First Lien Obligations, and the rights of the holders of such Series of First Lien
Obligations (including, without limitation, the right to receive distributions in respect of such
Series of First Lien Obligations



 









 







pursuant to Section 2.01) set forth herein shall be modified to the extent necessary so that
the effects of such Impairment are borne solely by the holders of the Series of such First Lien
Obligations subject to such Impairment. Additionally, in the event the First Lien Obligations of
any Series are modified pursuant to applicable law (including, without limitation, pursuant to
Section 1129 of the Bankruptcy Code), any reference to such First Lien Obligations or the First
Lien Documents governing such First Lien Obligations shall refer to such obligations or such
documents as so modified.



     (c) Capitalized terms used and not otherwise defined herein shall have the meanings set forth
in the Credit Agreement. As used in this Agreement, the following terms have the meanings
specified below:



     “Administrative Agent” shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.



     “Agreement” shall have the meaning assigned to such term in the introductory paragraph
of this Agreement.



     “Authorized Representative” means (i) in the case of any Credit Agreement Obligations
or the Credit Agreement Secured Parties, the Administrative Agent (solely in its capacity as such
or any other Person in the same or similar capacity in connection with a Refinancing of such Debt)
and (ii) in the case of the Notes Obligations or the Notes Secured Parties, the Trustee (solely in
its capacity as such or any other Person in the same or similar capacity in connection with a
Refinancing of such Debt).



     “Bankruptcy Case” shall have the meaning assigned to such term in Section 2.05(b).



     “Bankruptcy Code” shall mean Title 11 of the United States Code, as amended.



     “Bankruptcy Law” shall mean the Bankruptcy Code and any similar Federal, state or
foreign law for the relief of debtors.



     “Bankruptcy Proceeding” shall have the meaning assigned to such term in
Section 5.13(c).



     “Collateral” means all assets and properties subject to Liens created pursuant to any
First Lien Security Document or the Pledge and Assignment to secure one or more Series of First
Lien Obligations.



     “Collateral Agent” shall have the meaning assigned to such term in the introductory
paragraph hereof.



     “Common Control Date” means the first date upon which (i) the outstanding principal
amount of the Notes (such principal amount for purposes of this definition shall not include any
prepayment penalties or premiums, make-whole amounts, liquidated damages, change of control
payments or similar amounts or payments) is greater than (ii) the outstanding principal amount of
the Loans and LOC Obligations plus the aggregate unused Commitments of the Lenders.



     “Credit Agreement” means that certain Credit Agreement, dated as of March 14, 2006
among the Initial Borrower, the guarantors party thereto, the lending institutions from time to
time parties thereto, the Administrative Agent and the other parties thereto, as amended, restated,
supplemented or otherwise modified, Refinanced or replaced from time to time.



     “Credit Agreement Obligations” means the Credit Party Obligations and any obligations
arising in connection with any Refinancing thereof (including, to the extent constituting secured
obligations in



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connection with any such Refinancing and whether or not constituting Credit Party Obligations
as of the date hereof, obligations arising under hedging agreements and treasury management
services).



     “Credit Agreement Secured Parties” means the “Lenders” as defined in the Credit
Agreement and the Administrative Agent.



     “DIP Financing” shall have the meaning assigned to such term in Section 2.05(b).



     “DIP Financing Liens” shall have the meaning assigned to such term in Section 2.05(b).



     “DIP Lenders” shall have the meaning assigned to such term in Section 2.05(b).



     “Directing Holder” shall have the meaning assigned to such term in Section 4.09(c).



     “Discharge” means, with respect to any Shared Collateral and any Series of First Lien
Obligations, the date on which such Series of First Lien Obligations is no longer secured by such
Shared Collateral. The term “Discharged” shall have a corresponding meaning.



     “Enforcement Action” means (i) initiating or participating in any suit, action,
proceeding or other activity against any Credit Party to enforce payment, collect the whole or any
part of any First Lien Obligation under, or otherwise to compel compliance (including, without
limitation, through setoff, judicial or other enforcement or in any other manner) with the terms,
provisions, conditions of, and obligations under, any of the First Lien Documents, (ii) to
foreclose, execute or levy on, collect on, take possession of or control of, or sell or otherwise
realize upon (judicially or non-judicially) or to lease, license or otherwise dispose of (whether
publicly or privately), any Collateral or otherwise to exercise or enforce remedial rights with
respect to Collateral under any of the First Lien Documents, as applicable (including, without
limitation, by way of setoff, noticing of any public or private sale or other disposition pursuant
to the Uniform Commercial Code or other applicable law, notification of account debtors,
notification of depositary banks under deposit account control agreements or exercise of rights
under landlord consents, if applicable), (iii) to otherwise enforce any security interest or other
right or remedy, as a secured creditor or otherwise, pertaining to the Collateral at law, in equity
or pursuant to any First Lien Document, as applicable (including, without limitation, the
commencement of any applicable legal proceedings or other actions against or with respect to all or
any portion of the Collateral to facilitate the actions described in the immediately preceding
clauses (i) and (ii), and exercising voting rights in respect of any equity interests comprising
Collateral) or (iv) engaging in any activity consistent with the foregoing with any Credit Party on
consensual basis.



     “Event of Default” shall have the meaning set forth in the Security Agreement.



     “First Lien Documents” means the Credit Agreement, the Indenture, the First Lien
Security Documents and the Pledge and Assignment.



     “First Lien Obligations” means, collectively, (i) the Credit Agreement Obligations and
(ii) the Notes Obligations.



     “First Lien Secured Parties” means, subject to Section 2.08 (i) the Credit Agreement
Secured Parties, (ii) the Notes Secured Parties (including, without limitation, each Directing
Holder) and (iii)  any other Person that becomes subject to the terms hereof pursuant to
Section 2.08.



     “First Lien Security Documents” means the Security Agreement, the Pledge Agreement and
each other agreement or instrument entered into in favor of the Collateral Agent for purposes of
securing any



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Series of First Lien Obligations (including any such agreement or instrument entered into in
connection with a Refinancing).



     “Grantors” means the Initial Borrower and each Subsidiary of the Initial Borrower
which has granted a security interest pursuant to any First Lien Security Document to secure any
Series of First Lien Obligations.



     “Holders” means any registered holder from time to time of Notes including any
additional Notes issued under the Indenture.



     “Impairment” shall have the meaning assigned to such term in Section 1.01(b).



     “Indenture” means that certain Indenture dated as of July 27, 2009, among the Initial
Borrower, the Guarantor identified therein and U.S. Bank National Association, as trustee and
collateral agent, as amended, restated, supplemented or otherwise modified, Refinanced or replaced
from time to time.



     “Indenture Event of Default” means an “Event of Default” as defined in the Indenture.



     “Initial Borrower” means CapitalSource Inc., a Delaware corporation.



     “Insolvency or Liquidation Proceeding” means:




     (1) any case commenced by or against the Initial Borrower or any other Grantor under
any Bankruptcy Law, any other proceeding for the reorganization, recapitalization or
adjustment or marshalling of the assets or liabilities of the Initial Borrower or any other
Grantor, any receivership or assignment for the benefit of creditors relating to the Initial
Borrower or any other Grantor or any similar case or proceeding relative to the Initial
Borrower or any other Grantor or its creditors, as such, in each case whether or not
voluntary;




     (2) any liquidation, dissolution, marshalling of assets or liabilities or other winding
up of or relating to the Initial Borrower or any other Grantor, in each case whether or not
voluntary and whether or not involving bankruptcy or insolvency; or




     (3) any other proceeding of any type or nature in which substantially all claims of
creditors of the Initial Borrower or any other Grantor are determined and any payment or
distribution is or may be made on account of such claims.



     “Intercompany Collateral” means all assets and property subject to Liens made or
granted by a Credit Party to secure obligations owing under or with respect to Intercompany Debt,
including without limitation any SN Intercompany Note Collateral.



     “Intercompany Debt” means any loan, advance or note owing or issued by any Credit
Party pursuant to an SN Intercompany Note.



     “Intercompany Obligations” shall have the meaning assigned to such term in
Section 5.13(a).



     “Intervening Creditor” shall have the meaning assigned to such term in
Section 2.01(a).



     “Joinder Agreement” means an agreement in form and substance satisfactory to the
Collateral Agent (acting reasonably) delivered by an Authorized Representative to the Collateral
Agent pursuant to which such Authorized Representative agrees to be bound by the provisions of this
Agreement.



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     “Lien” shall mean any mortgage, pledge, security interest, hypothecation, assignment,
lien (statutory or other) or similar encumbrance (including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement or any lease in the nature
thereof).



     “Loans” shall have the meaning set forth in the Credit Agreement.



     “New York UCC” shall mean the Uniform Commercial Code as from time to time in effect
in the State of New York.



     “Notes” means any note issued under the Indenture, including the 12.75% First Priority
Senior Secured Notes due 2014.



     “Notes Enforcement Date” means the date which is 90 days after the occurrence of both
(1) the occurrence of an Indenture Event of Default and (2) the receipt by the Collateral Agent of
a written notice from the Trustee certifying that (i) an Indenture Event of Default has occurred
and is continuing (together with a copy of the notice received by the Trustee from the Holders
declaring such Indenture Event of Default) and (ii) the Notes Obligations are currently due and
payable in full (whether as a result of acceleration thereof or otherwise) in accordance with the
terms of the Indenture; provided that the Notes Enforcement Date shall be stayed and shall not
occur and shall be deemed not to have occurred (A) for so long as the Collateral Agent has
commenced and is diligently pursuing any Enforcement Action with respect to the Shared Collateral
or (B) for so long as any Grantor which has granted a security interest in the Shared Collateral is
then a debtor under or otherwise subject to any Insolvency or Liquidation Proceeding.



     “Notes Obligations” means debts, liabilities and obligations for monetary amounts
owing by any Credit Party to the Holders and the Trustee, whenever arising, or any of their
assigns, as the case may be, whether due or to become due, matured or unmatured, liquidated or
unliquidated, contingent or non-contingent, and all covenants and duties regarding such amounts, of
any kind or nature, present or future, arising under or in respect of any of the Indenture, the
Notes or any other First Lien Document, whether or not evidenced by any separate note, agreement or
other instrument and any obligations arising in connection with any Refinancing thereof. The term
Notes Obligations includes, without limitation, all interest (including interest that accrues after
the commencement against any Credit Party of any action under the Bankruptcy Code), prepayment
penalties or premiums, make whole amounts, liquidated damages, fees, expenses, costs, indemnities,
or other sums (including reasonable attorney costs) chargeable to a Credit Party under the
Indenture, the Notes or any of the other First Lien Documents.



     “Notes Secured Parties” means the holders of any Notes Obligations and the Trustee.



     “Pledge Agreement” means the Amended Pledge Agreement, dated as of July 27, 2009, by
and among the Grantors party thereto and the Collateral Agent, as the same may be further amended,
restated, modified or replaced from time to time.



     “Pledge and Assignment” means the Pledge and Collateral Assignment Agreement dated as
of July 27, 2009 between the Initial Borrower and the Trustee, as amended, restated, supplemented
or otherwise modified, refinanced or replaced from time to time.



     “Possessory Collateral” means any Shared Collateral in the possession of the
Collateral Agent (or its agents or bailees), to the extent that possession thereof perfects a Lien
thereon under the Uniform Commercial Code of any jurisdiction. Possessory Collateral includes,
without limitation, any Certificated Securities, Promissory Notes, Instruments, and Chattel Paper,
in each case, delivered to or in the possession of the Collateral Agent (or its agents or bailees)
under the terms of the First Lien Security



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Documents. All capitalized terms used in this definition and not defined elsewhere in this
Agreement have the meanings assigned to them in the New York UCC.



     “Proceeds” shall have the meaning assigned to such term in Section 2.01(a) hereof.



     “Refinance” means, in respect of any indebtedness, to refinance, extend, renew,
defease, amend, increase, modify, supplement, restructure, refund, replace or repay, or to issue
other indebtedness or enter alternative financing arrangements, in exchange or replacement for such
indebtedness (in whole or in part), including by adding or replacing lenders, creditors, agents,
borrowers and/or guarantors, and including in each case, but not limited to, after the original
instrument giving rise to such indebtedness has been terminated and including, in each case,
through any credit agreement, indenture or other agreement. “Refinanced” and
“Refinancing” have correlative meanings.



     “Required Creditors” means (i) at any time prior to the Common Control Date, the
Required Lenders (as defined in the Credit Agreement) or such other group of lenders (or, if
applicable, the Authorized Representative thereof acting with any necessary approval) as may from
time to time be required under the Credit Agreement to approve the action in question; provided
that, if the Notes Enforcement Date has occurred, then “Required Creditors” shall mean Holders owed
or holding at least a majority in interest of the aggregate principal amount of Notes Obligations
unless (A) the Collateral Agent does not commence or does not diligently pursue any Enforcement
Action with respect to the Shared Collateral, or (B) no Indenture Event of Default is continuing
and (ii) on and after the Common Control Date, Holders and Lenders owed or holding at least a
majority in interest of the aggregate principal amount of First Lien Obligations then outstanding.
For purposes of clause (ii) above, (x) the principal amount of First Lien Obligations consisting of
the Notes Obligations shall not include any prepayment penalties or premiums, make-whole amounts,
liquidated damages, change of control payments or similar payments or amounts and (y) the principal
amount of First Lien Obligations consisting of Credit Party Obligations (and any Refinancing
thereof) shall include the sum of all outstanding Loans and LOC Obligations plus the aggregate
unused Commitments of the Lenders.



     “Secured Credit Document” means (i) the Credit Agreement, (ii) the Credit Documents
(as defined in the Credit Agreement), (iii) the Indenture, (iv) the Notes and the Guarantees (as
defined in the Indenture) endorsed thereon and (v) any agreement or instrument entered into in
connection with a Refinancing of any First Lien Obligations.



     “Security Agreement” means the Amended Security Agreement, dated as of July 27, 2009,
by and among the Grantors party thereto and the Collateral Agent, as the same may be further
amended, restated, modified or replaced from time to time.



     “Senior Payment Date” shall have the meaning assigned to such term in Section 5.13(b).



     “Series” means (a) with respect to the First Lien Secured Parties, each of (i) the
Credit Agreement Secured Parties (in their capacities as such) and (ii) the Notes Secured Parties
(in their capacity as such) and (b) with respect to any First Lien Obligations, each of (i) the
Credit Agreement Obligations and (ii) the Notes Obligations.



     “Shared Collateral” means, at any time, (i) Collateral in which the holders of two or
more Series of First Lien Obligations (or their respective Authorized Representatives) hold a valid
and perfected security interest at such time and (ii) the SN Intercompany Note Collateral.



     “SN Intercompany Note” has the meaning set forth in the Security Agreement.



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     “SN Intercompany Note Collateral” means all assets and property subject to Liens made
or granted by an SN Note Obligor to secure obligations owing under or with respect to the SN
Intercompany Notes.



     “SN Note Obligor” has the meaning set forth in the Security Agreement.



     “Trustee” shall have the meaning assigned to such term in the introductory paragraph
of this Agreement.



ARTICLE II




PRIORITIES AND AGREEMENTS WITH RESPECT TO SHARED COLLATERAL




     Section 2.01 Priority of Claims.



     (a) Anything contained herein or in any of the Secured Credit Documents to the contrary
notwithstanding (but subject to Section 1.01(b)), if an Event of Default has occurred and is
continuing, the proceeds of any sale, collection or other liquidation of the Shared Collateral by
any First Lien Secured Party or received by the Collateral Agent or any First Lien Secured Party
and proceeds of any distribution of Shared Collateral in any Bankruptcy Case of any Grantor
(subject, in the case of any such distribution, to the sentence immediately following) (all
proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any
such distribution being collectively referred to as “Proceeds”), shall be applied
(i) FIRST, to the payment of all amounts owing to the Collateral Agent (in its capacity as such)
pursuant to the terms of any Secured Credit Document or this Agreement (including without
limitation Section 4.09) and (ii) SECOND, subject to Section 1.01(b), to the payment in full of the
First Lien Obligations of each Series on a pro rata basis in accordance with the terms of the
applicable Secured Credit Documents. Notwithstanding the foregoing, with respect to any Shared
Collateral for which a third party (other than a First Lien Secured Party) has a lien or security
interest that is junior in priority to the security interest of any Series of First Lien
Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute)
to the security interest of any other Series of First Lien Obligations (such third party an
“Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated
to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral
or Proceeds to be distributed in respect of the Series of First Lien Obligations with respect to
which such Impairment exists.



     (b) It is acknowledged that the First Lien Obligations of any Series may, subject to the
limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed,
replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended
or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or
the provisions of this Agreement defining the relative rights of the First Lien Secured Parties of
any Series (subject to compliance by any applicable Person with Section 2.08).



     (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection
of any Liens securing any Series of First Lien Obligations granted on the Shared Collateral and
notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other
applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing
the First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case,
subject to Section 1.01(b)), each First Lien Secured Party hereby agrees that the Liens securing
each Series of First Lien Obligations on any Shared Collateral shall be of equal priority.



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     Section 2.02 Actions With Respect to Shared Collateral; Prohibition on Contesting
Liens.



     (a) With respect to any Shared Collateral, (i) only the Collateral Agent shall act or refrain
from acting with respect to the Shared Collateral (including with respect to any intercreditor
agreement with respect to any Shared Collateral), and then only on the instructions of the Required
Creditors, (ii) the Collateral Agent shall not follow any instructions with respect to such Shared
Collateral (including with respect to any intercreditor agreement with respect to any Shared
Collateral) from any Authorized Representative (or any other First Lien Secured Party other than
the Required Creditors) and (iii) no Authorized Representative or other First Lien Secured Party
(other than the Required Creditors) shall or shall instruct the Collateral Agent to, commence any
judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver,
liquidator or similar official appointed for or over, attempt any action to take possession of,
exercise any right, remedy or power with respect to, or otherwise take any action to enforce its
security interest in or realize upon, or take any other action available to it in respect of, any
Shared Collateral (including with respect to any intercreditor agreement with respect to any Shared
Collateral), whether under any First Lien Security Document, applicable law or otherwise, it being
agreed that only the Collateral Agent, acting on the instructions of the Required Creditors and in
accordance with the applicable First Lien Security Documents, shall be entitled to take any such
actions or exercise any such remedies with respect to Shared Collateral. Notwithstanding the equal
priority of the Liens, the Collateral Agent (acting on the instructions of the Required Creditors)
may deal with the Shared Collateral as if such Required Creditors had a senior Lien on such
Collateral. No First Lien Secured Party will contest, protest or object to any foreclosure
proceeding or action brought by the Collateral Agent or any other exercise by the Collateral Agent
of any rights and remedies relating to the Shared Collateral (in each case acting on the
instructions of the Required Creditors), or to cause the Collateral Agent to do so.



     (b) Each of the Authorized Representatives agrees that it will not accept any Lien on any
asset or property for the benefit of any Series of First Lien Obligations other than pursuant to
the First Lien Security Documents (and, in the case of the Notes Secured Parties, the Pledge and
Assignment, but only so long as the SN Intercompany Note Collateral constitutes Shared Collateral),
and by executing this Agreement, each Authorized Representative and the Series of First Lien
Secured Parties for which it is acting hereunder agree to be bound by the provisions of this
Agreement and the other First Lien Security Documents applicable to it.



     (c) Each of the First Lien Secured Parties agrees that it will not (and hereby waives any
right to) contest or support any other Person in contesting, in any proceeding (including any
Insolvency or Liquidation Proceeding), the perfection, priority, validity or enforceability of a
Lien held by or on behalf of any of the First Lien Secured Parties in all or any part of the
Collateral, or the provisions of this Agreement; provided that nothing in this Agreement shall be
construed to prevent or impair the rights of any of the Collateral Agent or any Authorized
Representative to enforce this Agreement.



     Section 2.03 No Interference; Payment Over.



     (a) Each First Lien Secured Party agrees that (i) it will not challenge or question in any
proceeding the validity or enforceability of any First Lien Obligations of any Series or any First
Lien Security Document or the Pledge and Assignment or the validity, attachment, perfection or
priority of any Lien under any First Lien Security Document or the Pledge and Assignment or the
validity or enforceability of the priorities, rights or duties established by or other provisions
of this Agreement; (ii) it will not take or cause to be taken any action the purpose or intent of
which is, or could be, to interfere, hinder or delay, in any manner, whether by judicial
proceedings or otherwise, any sale, transfer or other disposition of the Shared Collateral by the
Collateral Agent, (iii) except as provided in Section 2.02, it shall have no right to (A) direct
the Collateral Agent or any other First Lien Secured Party to exercise any



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



     (b) Each First Lien Secured Party hereby agrees that if it shall obtain possession of any
Shared Collateral or shall realize any proceeds or payment in respect of any such Shared
Collateral, pursuant to any First Lien Security Document or the Pledge and Assignment or by the
exercise of any rights available to it under applicable law or in any Insolvency or Liquidation
Proceeding or through any other exercise of remedies (including pursuant to any intercreditor
agreement), at any time prior to the Discharge of each of the First Lien Obligations, then it shall
hold such Shared Collateral, proceeds or payment in trust for the other First Lien Secured Parties
and promptly transfer such Shared Collateral, proceeds or payment, as the case may be, to the
Collateral Agent, to be distributed in accordance with the provisions of Section 2.01 hereof.



     Section 2.04 Automatic Release of Liens; Amendments to First Lien Security Documents.



     (a) If, at any time the Collateral Agent forecloses upon or otherwise exercises remedies
against any Shared Collateral, then (whether or not any Insolvency or Liquidation Proceeding is
pending at the time) the Liens upon such Shared Collateral will automatically be released and
discharged concurrently with the consummation of the sale or other transfer of value of such Shared
Collateral; provided that any proceeds of any Shared Collateral realized therefrom shall be applied
pursuant to Section 2.01 hereof.



     (b) Each First Lien Secured Party agrees that the Collateral Agent may enter into any
amendment (and, upon request by the Collateral Agent, each Authorized Representative shall sign a
consent to such amendment) to any First Lien Security Document, so long as such amendment is
effected in accordance with such First Lien Security Document and the Collateral Agent receives a
certificate of the Initial Borrower stating that such amendment is permitted by the terms of each
then extant Secured Credit Document. Additionally, each First Lien Secured Party agrees that the
Collateral Agent may enter into any amendment (and, upon request by the Collateral Agent, each
Authorized Representative shall sign a consent to such amendment) to any First Lien Security
Document solely as such First Lien Security Document relates to a particular Series of First Lien
Obligations so long as (x) such amendment is in accordance with the Secured Credit Document
pursuant to which such Series of First Lien Obligations was incurred and (y) such amendment does
not adversely affect the First Lien Secured Parties of any other Series.



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



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     Section 2.05 Certain Agreements With Respect to Bankruptcy or Insolvency Proceedings.



     (a) This Agreement shall continue in full force and effect notwithstanding the commencement of
any proceeding under the Bankruptcy Code or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law by or against the Initial Borrower or any of its
subsidiaries.



     (b) If any Grantor shall become subject to a case (a “Bankruptcy Case”) under the
Bankruptcy Code and shall, as debtor(s)-in-possession, move for approval of financing (“DIP
Financing”) to be provided by one or more lenders (the “DIP Lenders”) under Section 364
of the Bankruptcy Code or the use of cash collateral under Section 363 of the Bankruptcy Code, each
First Lien Secured Party agrees that it will raise no objection to any such financing or to the
Liens on the Shared Collateral securing the same (“DIP Financing Liens”) or to any use of
cash collateral that constitutes Shared Collateral, unless the Required Creditors, or an Authorized
Representative acting on behalf of the Required Creditors, shall then oppose or object to such DIP
Financing or such DIP Financing Liens or use of cash collateral (and (i) to the extent that such
DIP Financing Liens are senior to the Liens on any such Shared Collateral, each other First Lien
Secured Party will subordinate its Liens with respect to such Shared Collateral on the same terms
as the Liens of the Required Creditors (other than any Liens of any First Lien Secured Parties
constituting DIP Financing Liens) are subordinated thereto, and (ii) to the extent that such DIP
Financing Liens rank pari passu with the Liens on any such Shared Collateral granted to secure the
First Lien Obligations of the Required Creditors, each other First Lien Secured Party will confirm
the priorities with respect to such Shared Collateral as set forth herein), in each case so long as
(A) the First Lien Secured Parties of each Series retain the benefit of their Liens on all such
Shared Collateral pledged to the DIP Lenders, including proceeds thereof arising after the
commencement of such proceeding, with the same priority vis-a-vis all the other First Lien Secured
Parties (other than any Liens of the First Lien Secured Parties constituting DIP Financing Liens)
as existed prior to the commencement of the Bankruptcy Case, (B) the First Lien Secured Parties of
each Series are granted Liens on any additional collateral pledged to any First Lien Secured
Parties as adequate protection or otherwise in connection with such DIP Financing or use of cash
collateral, with the same priority vis-a-vis the First Lien Secured Parties as set forth in this
Agreement, (C) if any amount of such DIP Financing or cash collateral is applied to repay any of
the First Lien Obligations, such amount is applied pursuant to Section 2.01 of this Agreement, and
(D) if any First Lien Secured Parties are granted adequate protection, including in the form of
periodic payments, in connection with such DIP Financing or use of cash collateral, the proceeds of
such adequate protection is applied pursuant to Section 2.01 of this Agreement; provided that the
First Lien Secured Parties of each Series shall have a right to object to the grant of a Lien to
secure the DIP Financing over any Collateral subject to Liens in favor of the First Lien Secured
Parties of such Series or its Authorized Representative that shall not constitute Shared
Collateral; and provided, further, that the First Lien Secured Parties receiving adequate
protection shall not object to any other First Lien Secured Party receiving adequate protection
comparable to any adequate protection granted to such First Lien Secured Parties in connection with
a DIP Financing or use of cash collateral.



     Section 2.06 Reinstatement. In the event that any of the First Lien Obligations shall
be paid in full and such payment or any part thereof shall subsequently, for whatever reason
(including an order or judgment for disgorgement of a preference under Title 11 of the United
Stated Code, or any similar law, or the settlement of any claim in respect thereof), be required to
be returned or repaid, the terms and conditions of this Article II shall be fully applicable
thereto until all such First Lien Obligations shall again have been paid in full in cash.



     Section 2.07 Insurance. As between the First Lien Secured Parties, the Collateral
Agent, acting at the direction of the Required Creditors, shall have the right, to the extent set
forth in the then extant Secured Credit Documents, to adjust or settle any insurance policy or
claim covering or



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constituting Shared Collateral in the event of any loss thereunder and to approve any award
granted in any condemnation or similar proceeding affecting the Shared Collateral.



     Section 2.08 Refinancings. The First Lien Obligations of any Series may be
Refinanced, in whole or in part, in each case, without notice to, or the consent (except to the
extent a consent is otherwise required to permit the refinancing transaction under any Secured
Credit Document) of any First Lien Secured Party of any other Series, all without affecting the
priorities provided for herein or the other provisions hereof; provided that the Authorized
Representative of the holders of any such Refinancing indebtedness shall have executed a Joinder
Agreement on behalf of the holders of such Refinancing indebtedness. Following any such
Refinancing and execution of a Joinder Agreement in accordance with this section, each lender, note
holder, administrative agent, collateral agent, trustee, custodian, issuing bank or other similar
creditor or agent party to the Series (or portion thereof) Refinanced shall be deemed to be a First
Lien Secured Party for all purposes hereof.



     Section 2.09 Possessory Collateral Agent as Gratuitous Bailee for Perfection.



     (a) The Collateral Agent agrees to hold any Shared Collateral constituting Possessory
Collateral that is part of the Collateral in its possession or control (or in the possession or
control of its agents or bailees) as gratuitous bailee for the benefit of each other First Lien
Secured Party and any assignee solely for the purpose of perfecting the security interest granted
in such Possessory Collateral, if any, pursuant to the applicable First Lien Security Documents, in
each case, subject to the terms and conditions of this Section 2.09. Pending delivery to the
Collateral Agent, each other Authorized Representative agrees to hold any Shared Collateral
constituting Possessory Collateral, from time to time in its possession, as gratuitous bailee for
the benefit of each other First Lien Secured Party and any assignee, solely for the purpose of
perfecting the security interest granted in such Possessory Collateral, if any, pursuant to the
applicable First Lien Security Documents, in each case, subject to the terms and conditions of this
Section 2.09.



     (b) The duties or responsibilities of the Collateral Agent and each other Authorized
Representative under this Section 2.09 shall be limited solely to holding any Shared Collateral
constituting Possessory Collateral as gratuitous bailee for the benefit of each other First Lien
Secured Party for purposes of perfecting the Lien held by such First Lien Secured Parties therein.



     Section 2.10 Procedures Following the Occurrence of an Event of Default.



     (a) Each Authorized Representative hereby agrees to give prompt notice (and in any event
within five Business Days) to the Collateral Agent upon any declaration of an Event of Default
(i) with respect to the Trustee, by the Holders in accordance with the terms of the Indenture and
the Notes, and (ii) with respect to the Administrative Agent, by the Required Lenders in accordance
with the terms of the Credit Agreement.



     (b) At any time after the Collateral Agent has received notice from any Authorized
Representative of the declaration of an Event of Default under or in respect of any Secured Credit
Document, the Collateral Agent shall serve a notice (a “Notice of Default”) within five
Business Days of receiving the notice specified in clause (a) of this Section 2.10 on each
Authorized Representative which (i) describes the relevant Event of Default, and (ii) request
instructions from the Required Creditors as to what Enforcement Action (if any) should be taken in
respect of such Event of Default.



     (c) Following receipt of any Notice of Default, if the Required Creditors decide to take any
Enforcement Action, the Required Creditors shall, acting through the applicable Authorized
Representative, provide a written notice to the Collateral Agent of such decision.



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     Section 2.11 Rights as Unsecured Creditors; Judgment Liens, Etc.



     Notwithstanding anything to the contrary in this Agreement but without limitation of
Section 2.03(b), each First Lien Secured Party and each Authorized Representative may exercise
rights and remedies as an unsecured creditor against any Grantor or any Subsidiary of a Grantor
with respect to the relevant First Lien Obligations in accordance with the terms of the Credit
Agreement or the Indenture and the Notes, as applicable (including, in the case of the Trustee,
rights and remedies relating to an unsecured claiming arising under the SN Intercompany Notes (but
not rights and remedies with respect to any SN Intercompany Note Collateral) at any time when the
SN Intercompany Notes have been validly pledged or assigned to the Trustee), and in accordance with
applicable law, in each case to the extent not inconsistent with the provisions of this Agreement.
Nothing in this Agreement shall prohibit the receipt by a First Lien Secured Party or Authorized
Representative of required payments of interest, principal or other amounts so long as such receipt
is not the direct or indirect result of (a) the exercise of rights or remedies as a secured
creditor in respect of Shared Collateral (including rights of setoff) or (b) enforcement in
contravention of this Agreement of any Lien. In the event a First Lien Secured Party or Authorized
Representative becomes a judgment lien creditor or other secured creditor, in each case, in respect
of Shared Collateral as a result of enforcement of rights as an unsecured creditor, such judgment
or other lien shall automatically and immediately be deemed to be a Lien in respect of Shared
Collateral for all purposes of this Agreement.



ARTICLE III




EXISTENCE AND AMOUNTS OF LIENS AND OBLIGATIONS




     Whenever the Collateral Agent or any Authorized Representative shall be required, in
connection with the exercise of its rights or the performance of its obligations hereunder, to
determine the existence or amount of any First Lien Obligations of any Series, or the Shared
Collateral subject to any Lien securing the First Lien Obligations of any Series, it may request
that such information be furnished to it in writing by each other Authorized Representative and
shall be entitled to make such determination on the basis of the information so furnished;
provided, however, that if an Authorized Representative shall fail or refuse reasonably promptly to
provide the requested information, the requesting Collateral Agent or Authorized Representative
shall be entitled to make any such determination by such method as it may, in the exercise of its
good faith judgment, determine, including by reliance upon a certificate of the Initial Borrower.
The Collateral Agent and each Authorized Representative may rely conclusively, and shall be fully
protected in so relying, on any determination made by it in accordance with the provisions of the
preceding sentence (or as otherwise directed by a court of competent jurisdiction) and shall have
no liability to any Grantor, any First Lien Secured Party or any other person as a result of such
determination.



ARTICLE IV




THE COLLATERAL AGENT




     Section 4.01 Appointment and Authority.



     (a) Each of the First Lien Secured Parties hereby irrevocably appoints Wachovia Bank, National
Association, to act on its behalf as the Collateral Agent hereunder and under each of the First
Lien Security Documents and authorizes the Collateral Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Collateral Agent by the terms hereof or thereof,
including for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted
by any Grantor to secure any of the First Lien Obligations, together with such powers and
discretion as are reasonably



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incidental thereto. In this connection, the Collateral Agent and any co-agents, sub-agents
and attorneys-in-fact appointed by the Collateral Agent pursuant to Section 4.05 for purposes of
holding or enforcing any Lien on the Collateral (or any portion thereof) granted under any of the
First Lien Security Documents, or for exercising any rights and remedies thereunder at the
direction of the Required Creditors, shall be entitled to the benefits of all provisions of this
Article IV, Article VIII of the Credit Agreement (as though such co-agents, sub-agents and
attorneys-in-fact were the “Collateral Agent” or “Administrative Agent” under the First Lien
Security Documents) as if set forth in full herein mutatis mutandis with respect thereto or any
comparable provisions in any document in connection with a Refinancing.



     (b) Each First Lien Secured Party acknowledges and agrees that the Collateral Agent shall be
entitled, for the benefit of the First Lien Secured Parties, to sell, transfer or otherwise dispose
of or deal with any Shared Collateral as provided herein and in the First Lien Security Documents,
without regard to any rights to which the holders of the Shared Collateral would otherwise be
entitled as a result of such Shared Collateral. Without limiting the foregoing, each First Lien
Secured Party agrees that none of the Collateral Agent, any Authorized Representative or any other
First Lien Secured Party shall have any duty or obligation first to marshal or realize upon any
type of Shared Collateral, or to sell, dispose of or otherwise liquidate all or any portion of such
Shared Collateral, in any manner that would maximize the return to the First Lien Secured Parties,
notwithstanding that the order and timing of any such realization, sale, disposition or liquidation
may affect the amount of proceeds actually received by the First Lien Secured Parties from such
realization, sale, disposition or liquidation. Each of the First Lien Secured Parties waives any
claim it may now or hereafter have against the Collateral Agent or the Authorized Representative of
any Series of First Lien Obligations or any other First Lien Secured Party of any Series arising
out of (i) any actions which the Collateral Agent, any Authorized Representative or any First Lien
Secured Party takes or omits to take (including, actions with respect to the creation, perfection
or continuation of Liens on any Collateral, actions with respect to the foreclosure upon, sale,
release or depreciation of, or failure to realize upon, any of the Collateral and actions with
respect to the collection of any claim for all or any part of the First Lien Obligations from any
account debtor, guarantor or any other party) in accordance with this Agreement, the First Lien
Security Documents, the Pledge and Assignment or any other agreement related thereto or to the
collection of the First Lien Obligations or the valuation, use, protection or release of any
security for the First Lien Obligations, (ii) any election by the Required Creditors or any
Authorized Representative acting on behalf of the Required Creditors or any holders of First Lien
Obligations, in any proceeding instituted under the Bankruptcy Code, of the application of
Section 1111(b) of the Bankruptcy Code or (iii) subject to Section 2.05, any borrowing by, or grant
of a security interest or administrative expense priority under Section 364 of the Bankruptcy Code
by, the Initial Borrower or any of its subsidiaries, as debtor-in-possession. Notwithstanding any
other provision of this Agreement, the Collateral Agent shall not accept any Shared Collateral in
full or partial satisfaction of any First Lien Obligations pursuant to Section 9-620 of the Uniform
Commercial Code of any jurisdiction, without the consent of each Authorized Representative
representing holders of First Lien Obligations for whom such Collateral constitutes Shared
Collateral.



     Section 4.02 Rights as a First Lien Secured Party. The Person serving as the
Collateral Agent hereunder shall have the same rights and powers in its capacity as a First Lien
Secured Party under any Series of First Lien Obligations that it holds as any other First Lien
Secured Party of such Series and may exercise the same as though it were not the Collateral Agent
and the term “First Lien Secured Party” or “First Lien Secured Parties” or (as applicable) “Credit
Agreement Secured Party”, “Credit Agreement Secured Parties”, “Notes Secured Party” or “Notes
Secured Parties” shall, unless otherwise expressly indicated or unless the context otherwise
requires, include the Person serving as the Collateral Agent hereunder in its individual capacity.
Such Person and its Affiliates may accept deposits from, lend money to, act as the financial
advisor or in any other advisory capacity for and generally engage in any kind of business with the
Initial Borrower or any Subsidiary or other Affiliate thereof as if such Person were not



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the Collateral Agent hereunder and without any duty to account therefor to any other First
Lien Secured Party.



     Section 4.03 Exculpatory Provisions.



     (a) The Collateral Agent shall not have any duties or obligations except those expressly set
forth herein and in the other First Lien Security Documents. Without limiting the generality of
the foregoing, the Collateral Agent and its directors, officers, members, managers, partners,
employees and agents:




     (i) shall not be subject to any fiduciary or other implied duties (nor be considered in
a fiduciary relationship with any First Lien Secured Party), regardless of whether an Event
of Default has occurred and is continuing;




     (ii) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby
or by the other First Lien Security Documents that the Collateral Agent is required to
exercise as directed in writing by the Required Creditors; provided that the Collateral
Agent shall not be required to take any action that, in its opinion or the opinion of its
counsel, may expose the Collateral Agent to liability or that is contrary to any First Lien
Security Document or applicable law;




     (iii) shall not, except as expressly set forth herein and in the other First Lien
Security Documents, have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Initial Borrower or any of its Affiliates that is
communicated to or obtained by the Person serving as the Collateral Agent or any of its
Affiliates in any capacity;




     (iv) shall not be liable (whether directly or indirectly, in contract or tort or
otherwise) for any action taken or not taken by it (i) with the consent or at the request of
the Required Creditors or (ii) in the absence of its own gross negligence or willful
misconduct as determined by a court of competent jurisdiction in a final non-appealable
judgment, (iii) in reliance on a certificate of an authorized officer of the Initial
Borrower stating that such action is permitted by the terms of this Agreement or (iv) for
any special, indirect, consequential or punitive damages. The Collateral Agent shall be
deemed not to have knowledge of any Event of Default under any Series of First Lien
Obligations unless and until notice describing such Event Default is given to the Collateral
Agent by the Authorized Representative of such First Lien Obligations or the Initial
Borrower; and




     (v) shall not be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with this Agreement or any
other First Lien Security Document, (ii) the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions
set forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness, due execution or genuineness of this Agreement, any other
First Lien Security Document or any other agreement, instrument or document, or the
creation, perfection or priority of any Lien purported to be created by the First Lien
Security Documents, (v) the value or the sufficiency of any Collateral for any Series of
First Lien Obligations, or (vi) the satisfaction of any condition set forth in any Secured
Credit Document, other than to confirm receipt of items expressly required to be delivered
to the Collateral Agent.



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     (b) Each of the parties hereto acknowledges that the Collateral Agent may act as
Administrative Agent under the Credit Agreement and agrees that the Collateral Agent shall not be
disqualified from acting as Administrative Agent (even if acting in such a role would cause a
conflict).



     Section 4.04 Reliance by Collateral Agent. The Collateral Agent shall be entitled to
rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) believed by it to be genuine and to
have been signed, sent or otherwise authenticated by the proper Person. The Collateral Agent also
may rely upon any statement made to it orally or by telephone and believed by it to have been made
by the proper Person, and shall not incur any liability for relying thereon. The Collateral Agent
may consult with legal counsel (who may be counsel for the Initial Borrower), independent
accountants and other experts selected by it (at the sole cost and expense of the Credit Parties),
and shall not be liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.



     Section 4.05 Delegation of Duties. The Collateral Agent may perform any and all of
its duties and exercise its rights and powers hereunder or under any other First Lien Security
Document by or through any one or more sub-agents appointed by the Collateral Agent. The
Collateral Agent and any such sub-agent may perform any and all of its duties and exercise its
rights and powers by or through their respective Affiliates. The exculpatory provisions of this
Article shall apply to any such sub-agent and to the Affiliates of the Collateral Agent and any
such sub-agent.



     Section 4.06 Resignation of Collateral Agent. The Collateral Agent may at any time
give notice of its resignation as Collateral Agent under this Agreement and the other First Lien
Security Documents to each Authorized Representative and the Initial Borrower. Upon receipt of any
such notice of resignation, the Required Creditors shall have the right, with the consent of the
Initial Borrower (not to be unreasonably withheld or delayed) if no Event of Default is then
continuing, to appoint a successor, which shall be a bank with an office in the United States, or
an Affiliate of any such bank with an office in the United States. If no such successor shall have
been so appointed by the Required Creditors and shall have accepted such appointment within 30 days
after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral
Agent may, on behalf of the First Lien Secured Parties, appoint a successor Collateral Agent
meeting the qualifications set forth above; provided that if the Collateral Agent shall notify the
Initial Borrower and each Authorized Representative that no qualifying Person has accepted such
appointment, then such resignation shall nonetheless become effective in accordance with such
notice and (a) the retiring Collateral Agent shall be discharged from its duties and obligations
hereunder and under the other First Lien Security Documents (except that in the case of any
collateral security held by the Collateral Agent on behalf of the First Lien Secured Parties under
any of the First Lien Security Documents, the retiring Collateral Agent shall continue to hold such
collateral security solely for purposes of maintaining the perfection of the security interests of
the First Lien Secured Parties therein until such time as a successor Collateral Agent is appointed
but with no obligation to take any further action at the request of the Required Creditors or any
other First Lien Secured Parties) and (b) all payments, communications and determinations provided
to be made by, to or through the Collateral Agent shall instead be made by or to each Authorized
Representative directly, until such time as the Required Creditors appoint a successor Collateral
Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as
Collateral Agent hereunder and under the First Lien Security Documents, such successor shall
succeed to and become vested with all of the rights, powers, privileges and duties of the retiring
(or retired) Collateral Agent, and the retiring Collateral Agent shall be discharged from all of
its duties and obligations hereunder or under the other First Lien Security Documents (if not
already discharged therefrom as provided above in this Section) other than the obligation to
deliver all Possessory Collateral in its possession to the successor Collateral Agent and to take
such other reasonable action as may be reasonably requested to assign and transfer any existing



- 15 -









 







agreements or instruments relating to the Collateral (to the extent expressly permitted by
such agreement or instrument or to the extent otherwise agreed to by all parties thereto and the
Collateral Agent receives an indemnity in connection therewith in form and substance reasonably
satisfactory to the Collateral Agent), including deposit account control agreements and securities
account control agreements. After the retiring Collateral Agent’s resignation hereunder and under
the other Loan Documents, the provisions of this Article and Article VIII of the Credit Agreement
or comparable provisions in any other agreement in connection with a Refinancing shall continue in
effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective
Related Parties in respect of any actions taken or omitted to be taken by any of them while the
retiring Collateral Agent was acting as Collateral Agent. Upon any notice of resignation of the
Collateral Agent hereunder and under the other First Lien Security Documents, the Initial Borrower
agrees to use commercially reasonable efforts to transfer (and maintain the validity and priority
of) the Liens in favor of the retiring Collateral Agent under the First Lien Security Documents to
the successor Collateral Agent.



     Section 4.07 Non-Reliance on Collateral Agent and other First Lien Secured Parties.
Each First Lien Secured Party acknowledges that it has, independently and without reliance upon the
Collateral Agent, any Authorized Representative or any other First Lien Secured Party or any of
their Affiliates and based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement and the other Secured Credit
Documents. Each First Lien Secured Party also acknowledges that it will, independently and without
reliance upon the Collateral Agent, any Authorized Representative or any other First Lien Secured
Party or any of their Affiliates and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not taking action under
or based upon this Agreement, any other Secured Credit Document or any related agreement or any
document furnished hereunder or thereunder.



     Section 4.08 Collateral and Guaranty Matters. Each of the First Lien Secured Parties
irrevocably authorizes the Collateral Agent, at its option and in its discretion,



     (a) to release any Lien on any property granted to or held by the Collateral Agent under any
First Lien Security Document in accordance with Section 2.04 or upon receipt of a written request
from the Initial Borrower stating that the releases of such Lien is permitted by the terms of each
then extant Secured Credit Document;



     (b) to release any Grantor from its obligations under the First Lien Security Documents upon
receipt of a written request from the Initial Borrower stating that such release is permitted by
the terms of each then extant Secured Credit Document.



     Section 4.09 Indemnification.



     (a) Each Grantor (other than the SN Note Obligors with respect to the Note Obligations, but
without limiting the obligation of any SN Note Obligor to provide the indemnity and pay costs and
expenses as required hereby with respect to the SN Intercompany Notes Obligations) agrees to
indemnify the Collateral Agent, in its capacity as such, and its Affiliates, from and against any
and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time (including without
limitation following the Discharge of the First Lien Obligations or the termination of this
Agreement) be imposed on, incurred by or asserted against the Collateral Agent in any way relating
to or arising out of this Agreement, any of the First Lien Security Documents or the Pledge and
Assignment or any action taken or omitted by the Collateral Agent under or in connection with any
of the foregoing; provided that no Grantor shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements to the extent resulting from the gross negligence or willful misconduct of the



- 16 -









 







Collateral Agent, as determined by a court of competent jurisdiction in a final,
non-appealable order. The agreements in this Section 4.09(a) shall survive the termination of this
Agreement and the repayment of the First Lien Obligations.



     (b) Each Lender and each Directing Holder agrees to indemnify the Collateral Agent, in its
capacity as such, and its Affiliates (to the extent not reimbursed by the Grantors and without
limiting the obligation of the Grantors to do so), ratably according to the outstanding amount of
the First Lien Obligations owing to the Lenders and the Directing Holders on the date on which
indemnification is sought under this Section 4.09(b), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including without limitation following
the Discharge of the First Lien Obligations or the termination of this Agreement) be imposed on,
incurred by or asserted against the Collateral Agent in any way relating to or arising out of this
Agreement, any of the First Lien Security Documents or the Pledge and Assignment or any action
taken or omitted by the Collateral Agent under or in connection with any of the foregoing; provided
that no Lender or Directing Holder shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements to the extent resulting from the gross negligence or willful misconduct of the
Collateral Agent, as determined by a court of competent jurisdiction in a final, non-appealable
order. The agreements in this Section 4.09(b) shall survive the termination of this Agreement and
the repayment of the First Lien Obligations.



     (c) A Holder may constitute a portion of the Required Creditors for purposes of pursuing a
remedy (or directing the Collateral Agent) with respect to this Agreement or any First Lien
Security Document (whether such Holder pursues such remedy (or gives such direction) directly, to
the extent permitted, or indirectly by instructing the Trustee) only if such Holder first offers to
the Collateral Agent and, if requested by the Collateral Agent, agrees to be a “Directing Holder”
for the purposes of Section 4.09(b). A Holder so agreeing shall be a “Directing Holder”
for purposes of Section 4.09(b) and the other provisions of this Agreement.



     (d) The Collateral Agent may refuse to follow any direction that conflicts with law or this
Agreement that the Collateral Agent determines may be prejudicial to the rights of other First Lien
Secured Parties or that may involve the Collateral Agent in personal liability.



ARTICLE V




MISCELLANEOUS




     Section 5.01 Notices. All notices and other communications provided for herein shall
be in writing and shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:



     (a) if to the Collateral Agent or the Administrative Agent, to it at:


Wachovia Bank, National Association

201 South College Street

NC 0680/CP8

Charlotte, North Carolina 28288-0608

Attention: Syndication Agency Services

Tel No.: (704) 374-2698

Fax No.: (704) 383-0288




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     (b) if to the Trustee, to it at:


U.S. Bank National Association

EP-MN-WS3C

60 Livingston Avenue

St. Paul Minnesota 55107-1419

Attention: Corporate Trust Services

Tel No.: (651) 495-3909

Fax No.: (651) 495-8097



Any party hereto may change its address or telecopy number for notices and other communications
hereunder by notice to the other parties hereto. All notices and other communications given to any
party hereto in accordance with the provisions of this Agreement shall be deemed to have been given
on the date of receipt (if a Business Day) and on the next Business Day thereafter (in all other
cases) if delivered by hand or overnight courier service or sent by telecopy or on the date five
Business Days after dispatch by certified or registered mail if mailed, in each case delivered,
sent or mailed (properly addressed) to such party as provided in this Section 5.01 or in accordance
with the latest unrevoked direction from such party given in accordance with this Section 5.01. As
agreed to in writing among the Collateral Agent and each Authorized Representative from time to
time, notices and other communications may also be delivered by e-mail to the e-mail address of a
representative of the applicable person provided from time to time by such person.




     Section 5.02 Waivers; Amendment.



     (a) No failure or delay on the part of any party hereto in exercising any right or power
hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such
right or power, or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other right or power. The
rights and remedies of the parties hereto are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of this Agreement or consent
to any departure by any party therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given. The Collateral Agent shall provide
to the Initial Borrower a copy of any amendment, modification or waiver of this Agreement which
does not need to be signed by the Initial Borrower. No notice or demand on any party hereto in any
case shall entitle such party to any other or further notice or demand in similar or other
circumstances.



     (b) Neither this Agreement nor any provision hereof may be terminated, waived, amended or
modified (other than an amendment adding an Authorized Representative pursuant to any Joinder
Agreement) except pursuant to an agreement or agreements in writing entered into by (i) each
Authorized Representative and the Collateral Agent and (ii) in the case of any amendment,
modification or waiver of Section 4.06, 4.09(a), 5.02(b)(ii), 5.03(b), 5.11, 5.13 or 5.14 (or any
defined term used in any such section, to the extent used in such section) that is adverse to the
interests of the Credit Parties, the Initial Borrower.



     (c) Notwithstanding the foregoing, without the consent of any First Lien Secured Party,
(i) any Authorized Representative may become a party hereto by execution and delivery of Joinder
Agreement to the extent contemplated by Section 2.08 and, upon such execution and delivery, such
Authorized Representative shall be subject to the terms hereof and the terms of the other First
Lien Security Documents applicable thereto and (ii) the Collateral Agent may (but shall not be
obligated to), in connection with a Refinancing of then extant First Lien Obligations and an
Authorized Representative



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becoming a party hereto pursuant to a Joinder Agreement, amend, supplement or otherwise modify
this Agreement solely to the extent necessary to make technical or administrative changes, or to
correct typographical errors, to the definitions of “Administrative Agent,” “Authorized
Representative,” “Credit Agreement,” “Credit Agreement Obligation,” “Credit Agreement Secured
Parties,” “Event of Default,” “Holders,” “Indenture,” “Indenture Event of Default,” “Loans,”
“Notes,” “Notes Obligations,” “Notes Secured Parties,” and/or “Trustee,” in each case to the extent
necessary to cause the Debt arising from such Refinancing to be subject to this Agreement on
substantially identical terms as then extant First Lien Secured Obligations.



     Section 5.03 Parties in Interest.



     (a) This Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns, as well as the other First Lien Secured Parties, all of
whom are intended to be bound by, and to be third party beneficiaries of, this Agreement.



     (b) The Administrative Agent and the Lenders acknowledge and agree solely amongst themselves
that after giving effect to the amendment of the Original Security Agreement (as defined in the
Security Agreement) and the Original Pledge Agreement (as defined in the Pledge Agreement) and the
execution of this Agreement on the date hereof, any discretionary authority vested in the
Administrative Agent under the Original Security Agreement or the Original Pledge Agreement is
vested in the Collateral Agent under the First Lien Security Documents; provided, that at any time
prior to the Credit Agreement Termination Date (as defined in the Pledge Agreement), the
Administrative Agent as Authorized Representative for the Required Lenders shall have the sole
authority to direct such discretion.



     Section 5.04 Survival of Agreement. All covenants, agreements, representations and
warranties made by any party in this Agreement shall be considered to have been relied upon by the
other parties hereto and shall survive the execution and delivery of this Agreement.



     Section 5.05 Counterparts. This Agreement may be executed in counterparts, each of
which shall constitute an original but all of which when taken together shall constitute a single
contract. Delivery of an executed signature page to this Agreement by facsimile transmission shall
be as effective as delivery of a manually signed counterpart of this Agreement.



     Section 5.06 Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. The
parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.



     Section 5.07 Governing Law; Jurisdiction; Consent to Service of Process.



     (a) This Agreement shall be construed in accordance with and governed by the law of the State
of New York.



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     Section 5.08 Submission To Jurisdiction Waivers. The Collateral Agent and each
Authorized Representative, on behalf of itself and the First Lien Secured Parties of the Series for
whom it is acting, irrevocably and unconditionally:



     (a) submits for itself and its property in any legal action or proceeding relating to this
Agreement, or for recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York, the courts of the United
States of America for the Southern District of New York, and appellate courts from any thereof;



     (b) consents that any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;



     (c) agrees that service of process in any such action or proceeding may be effected by mailing
a copy thereof by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to such Person (or its Authorized Representative) at the address referred to in 5.01;



     (d) agrees that nothing herein shall affect the right of any other party hereto (or any First
Lien Secured Party) to effect service of process in any other manner permitted by law or shall
limit the right of any party hereto (or any First Lien Secured Party) to sue in any other
jurisdiction; and



     (e) waives, to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section 5.08 any special, exemplary,
punitive or consequential damages.



     Section 5.09 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
AND FOR ANY COUNTERCLAIM THEREIN.



     Section 5.10 Headings. Article, Section and Annex headings used herein are for
convenience of reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, this Agreement.



     Section 5.11 Conflicts. In the event of any conflict or inconsistency between the
provisions of this Agreement and the provisions of any of the other Secured Credit Documents or
First Lien Security Documents or the Pledge and Assignment, the provisions of this Agreement shall
control; provided that no amendment or modification of this Agreement shall amend or modify the
provisions of any of the other Secured Credit Documents or First Lien Security Documents or the
Pledge and Assignment.



     Section 5.12 Provisions Solely to Define Relative Rights. The provisions of this
Agreement are and are intended solely for the purpose of defining the relative rights of the First
Lien Secured Parties in relation to one another. None of the Initial Borrower, any other Grantor
or any other creditor thereof shall have any rights or obligations hereunder and none of the
Initial Borrower or any other Grantor may rely on the terms hereof except, in each case, to the
extent of rights and obligations set forth in Sections 4.06, 4.09(a), 5.02(b)(ii), 5.03(b), 5.11,
5.13 and 5.14. Nothing in this Agreement is intended to or shall impair the obligations of any
Grantor, which are absolute and unconditional, to pay the First Lien Obligations as and when the
same shall become due and payable in accordance with their terms.



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     Section 5.13 Subordination of Intercompany Debt.  



     (a) Notwithstanding anything to the contrary contained in any agreement or instrument creating
or evidencing Intercompany Debt, but subject to Section 5.15, each Credit Party covenants and
agrees that (i) all obligations (including obligations to pay principal, interest, fees or
expenses) of such Credit Party to pay any amount under any Intercompany Debt (all such obligations
and interest thereon, if any, including, without limitation, interest accruing after the filing of
any petition in bankruptcy, or the commencement of any insolvency or litigation proceeding,
relating to such Credit Party, whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding, are collectively referred to herein as the “Intercompany
Obligations”) and (ii) its right to receive any amounts in connection with any Intercompany
Obligations owed by any Credit Party shall be junior and subordinate in right of payment to all the
First Lien Obligations.



     (b) No direct or indirect payment by set-off, redemption, purchase or in any other manner on
account of or pursuant to any Intercompany Debt shall be made by any Credit Party or received by
any Credit Party and no such Person shall exercise any remedies in respect thereof, nor shall any
distribution of assets of any Credit Party be applied to the payment, purchase or other
acquisition, retirement or satisfaction of any of the Intercompany Obligations until the First Lien
Obligations have been indefeasibly paid in full in cash and all commitments to make loans or other
extensions of credit under the Credit Agreement have been terminated (the “Senior Payment
Date”); provided that (i) so long as no Event of Default has occurred and is continuing or
would arise as a result of such payment, the Credit Parties may make payments under Intercompany
Debt to the extent permitted under the First Lien Documents.



     (c) In the event of any dissolution, winding up, liquidation, reorganization or other similar
proceedings relative to any Credit Party, its property or its operations, whether in bankruptcy,
insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any
other marshalling of the assets of any Credit Party or otherwise (“Bankruptcy Proceeding”),
then all First Lien Obligations shall first be indefeasibly paid in full in cash before any Credit
Party shall be entitled to receive any payment or distribution of any kind with respect to any
Intercompany Obligation, whether in cash, securities or other property. In any such proceedings,
any such payment or distribution to which any Credit Party would be entitled if the Intercompany
Obligations were not subordinated to the First Lien Obligations shall be paid by the trustee or
agent or other Person making such payment or distribution, or by such Credit Party if received by
it, directly to the Collateral Agent to the extent necessary to make payment in full of all the
First Lien Obligations remaining unpaid as provided in Section 2.01(a) hereof.



     (d) In the event that any Credit Party shall receive any payment or distribution of any kind
with respect to any Intercompany Obligation, whether in cash, securities or other property, that
such Person, pursuant to the terms of this Agreement, is not entitled to retain, such Person shall
hold any amount so received in trust for the Collateral Agent and shall forthwith turn over such
payment or distribution to the Collateral Agent in the form received to be applied to the First
Lien Obligations in accordance with this Agreement.



     (e) Without impairing or releasing the obligations hereunder of the Credit Parties to the
Collateral Agent, each Authorized Representative and each First Lien Secured Party, the Collateral
Agent, any Authorized Representative and any First Lien Secured Parties may, at any time and from
time to time, without the consent of or notice to any Credit Party: (i) extend, renew, increase,
modify or amend the terms of the First Lien Obligations; (ii) sell, exchange, release or otherwise
deal with any property, if any, pledged or mortgaged securing the First Lien Obligations;
(iii) release any Credit Party, guarantor or any other Person liable in any manner for the First
Lien Obligations; (iv) exercise or refrain from exercising any rights against any Credit Party or
any other Person; (v) apply any sums by whomever paid or



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however realized to the First Lien Obligations; or (vi) take any other action that otherwise
might be deemed to impair the rights of the holders of the Intercompany Obligations, in each case
without incurring responsibility to any Credit Party (but without prejudice to any other agreement
(including any Secured Credit Document) between the relevant parties).



     (f) All rights and interests of the Collateral Agent, any Authorized Representative and any
First Lien Secured Party under this Section 5.13, and all agreements and obligations of each Credit
Party under this Section 5.13, shall be absolute and irrevocable notwithstanding: (i) any lack of
validity or enforceability of any First Lien Document; (ii) any lack of perfection of any Lien held
by the Collateral Agent, (iii) any change in the time, manner or place of payment of, or in any
other terms of, all or any of the First Lien Obligations, or any amendment or waiver or other
modification, including any increase in the amount thereof, whether by course of conduct or
otherwise, of the terms of any First Lien Document, (iv) any exchange of any security interest in
any Collateral or any other collateral, or any amendment, waiver or other modification, whether in
writing or by course of conduct or otherwise, of all or any of the First Lien Obligations or any
guarantee thereof, (v) the commencement of any Insolvency or Liquidation Proceeding in respect of
any Credit Party or (vi) any other circumstances which otherwise might constitute a defense
available to, or a discharge of, any Credit Party in respect of any of the First Lien Obligations
or this Agreement.



     (g) Each Credit Party (i) agrees not to (A) assert against the Collateral Agent, any
Authorized Representative or any First Lien Secured Party any rights which a guarantor or surety
could exercise until the Senior Payment Date, (B) accelerate any Intercompany Obligations, or
(C) exercise any right or remedy otherwise available to it with respect to Intercompany Obligations
and (ii) waives (A) any and all notice of the creation, modification, renewal, extension or accrual
of any of the First Lien Obligations and notice of or proof of reliance by any First Lien Secured
Party upon this Section 5.13 and (B) prior to the Senior Payment Date, any right of subrogation,
contribution, reimbursement or indemnity which it may have against any Credit Party arising
directly or indirectly out of this Section 5.13.



     Section 5.14 Silent Lien of Intercompany Debt. Notwithstanding anything to the
contrary contained in any agreement or instrument creating or evidencing Intercompany Debt, but
subject to Section 5.15, any Lien in favor of any Credit Party on account of any Intercompany
Obligations shall be subject to the following provisions:



     (a) Notwithstanding the order or time of attachment, or the order, time or manner of
perfection, or the order or time of filing or recordation of any document or instrument, or other
method of perfecting a security interest in favor of a First Lien Secured Party or Credit Party in
any Intercompany Collateral, the Liens upon the Intercompany Collateral of the First Lien Secured
Parties have and shall have priority over the Liens upon the Intercompany Collateral of any Credit
Party and such Liens of any Credit Party are and shall be, in all respects, subject and subordinate
to the Liens of the First Lien Secured Parties therein to the full extent of the First Lien
Obligations. An Event of Default automatically shall be deemed to have occurred if any Credit
Party has a Lien on any asset of any Credit Party and the First Lien Secured Parties do not have a
senior Lien on the same asset.



     (b) The lien priorities provided in this Section 5.14 shall not be altered or otherwise
affected by any (i) amendment, modification, supplement, extension, renewal, restatement or
refinancing of either the First Lien Obligations or the Intercompany Debt, (ii) action or inaction
which any First Lien Secured Party may take or fail to take in respect of any Intercompany
Collateral, (iii) contrary provision of the Uniform Commercial Code or any other applicable law,
(iv) defect or deficiencies in the Liens securing the First Lien Obligations, or (v) other
circumstance whatsoever.



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     (c) The foregoing provisions of this Section 5.14 are intended solely to govern the respective
lien priorities as between the Credit Parties and the First Lien Secured Parties and shall not
impose on the First Lien Secured Parties any obligations in respect of the disposition of proceeds
of foreclosure on any Intercompany Collateral which would conflict with prior perfected claims
therein in favor of any other Person or any order or decree of any court or other governmental
authority or any applicable law. Each Credit Party agrees that it will not contest the validity,
perfection, priority or enforceability of the Liens upon the Intercompany Collateral of the First
Lien Secured Parties and that as among the First Lien Secured Parties and Credit Parties, the terms
of this Section 5.14 shall govern even if part or all of the First Lien Obligations or the Liens
securing payment and performance thereof are not perfected or are avoided, disallowed, set aside or
otherwise invalidated in any judicial proceeding or otherwise.



     (d) Subject to the other provisions of this Agreement, each First Lien Secured Party shall
have the exclusive right to manage, perform and enforce the terms of the First Lien Documents with
respect to the Intercompany Collateral, to exercise and enforce all privileges and rights
thereunder according to its discretion and the exercise of its business judgment, including,
without limitation, the exclusive right to take or retake control or possession of such
Intercompany Collateral and to hold, prepare for sale, process, sell, lease, dispose of, or
liquidate such Intercompany Collateral. Credit Parties shall not have any right to direct a First
Lien Secured Party to exercise any right, remedy or power with respect to the Intercompany
Collateral and each Credit Party consents to the exercise by a First Lien Secured Party of any such
right, remedy or power. Credit Parties shall not institute any suit or assert in any suit,
bankruptcy, insolvency or other proceeding any claim against a First Lien Secured Party seeking
damages from or other relief by way of specific performance, instructions or otherwise, with
respect to, and no First Lien Secured Party shall be liable for, any action taken or omitted to be
taken by a First Lien Secured Party with respect to the Intercompany Collateral.



     (e) Only the First Lien Secured Parties shall have the right to restrict or permit, or approve
or disapprove, the sale, transfer or other disposition of Intercompany Collateral (except as
otherwise provided in this Agreement or the First Lien Documents). Each Credit Party shall (i) be
deemed to have automatically and without further action released and terminated any Liens it may
have on any Intercompany Collateral to the extent such Intercompany Collateral is sold or otherwise
disposed of by the Collateral Agent, (ii) be deemed to have authorized the Collateral Agent to file
UCC amendments and terminations covering the Intercompany Collateral so sold or otherwise disposed
of to evidence such release and termination, (iii) promptly upon the request of the Collateral
Agent, execute and deliver such other release documents and confirmations of the authorization to
file UCC amendments and terminations provided for herein, in each case as the Collateral Agent may
require in connection with such sale or other disposition by the Collateral Agent to evidence and
effectuate such termination and release, and (iv) be deemed to have consented under the
documentation with respect to the Intercompany Debt to such sale or other disposition. In the
event that for any reason an Credit Party shall fail to immediately execute and deliver to
Collateral Agent any such release documents, the Collateral Agent is hereby irrevocably authorized
to execute and deliver such release documents on behalf of each Credit Party as its
attorney-in-fact.



     (f) Notwithstanding any rights or remedies available to a First Lien Secured Party or Credit
Party under any agreement, applicable law or otherwise, each Credit Party shall not, directly or
indirectly, assert or exercise any right or remedy as against any of the Intercompany Collateral,
including, without limitation, seeking to foreclose or realize upon (judicially or non-judicially)
any Intercompany Collateral or asserting any claims or interests therein (including, without
limitation, by setoff or notification of account debtors).



     (g) Notwithstanding any rights or remedies available to Credit Party under any agreement,
applicable law or otherwise, no Credit Party shall, directly or indirectly, (i) seek to collect
from any Credit



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Party any of the Intercompany Debt, (ii) exercise any of its rights or remedies upon a default
or event of default under any document with respect to the Intercompany Debt or otherwise
(including, without limitation, accelerating the maturity of any Intercompany Debt) or
(iii) commence or join in any action or proceeding against any Credit Party or its properties
(including, without limitation, any Insolvency or Liquidation Proceeding).



     Section 5.15 Actions by Trustee and Holders. Notwithstanding any contrary provision
in Section 5.13 or 5.14, at any time when the SN Intercompany Notes have been assigned or pledged
to the Trustee and/or are being enforced or foreclosed upon by the Trustee or any successor or
assign (including any purchaser), the provisions of Sections 5.13 and 5.14 shall have no force or
effect with respect to:



     (a) any asset, property, action, claim, right or remedy, including without limitation any
right to enforce, right to receive payments and the existence or priority of any Lien (collectively
“Right”), directly arising or existing under or in respect of the First Lien Documents or
the Pledge and Assignment for the benefit of the Trustee or any Holder;



     (b) any Right indirectly arising or existing under or in respect of the First Lien Documents
or the Pledge and Assignment for the benefit of the Trustee or any Holder, including without
limitation any Right arising pursuant to or with respect to the SN Intercompany Notes and any Right
subject to a Lien in favor of the Collateral Agent or the Trustee; and



     (c) the existence or priority of any Lien arising or existing for the benefit of the Trustee
or any Holder, whether derivative of or deemed to be derivative of any Lien arising or existing for
the benefit of the Initial Borrower and otherwise subject to Section 5.13 or 5.14,



it being the intention of the parties that Sections 5.13 and 5.14 shall have effect only with
respect to Rights of each Credit Party acting on its own behalf and shall not have effect with
respect to (i) any direct or indirect Right of the Trustee or any Holder or (ii) any Right of the
Company acting on behalf of or at the behest of the Trustee or any Holder following the exercise by
the Trustee or any Holder of any Right.



     Section 5.16 Integration. This Agreement together with the other Secured Credit
Documents and the First Lien Security Documents and the Pledge and Assignment represents the
agreement of each of the Grantors and the First Lien Secured Parties with respect to the subject
matter hereof and there are no promises, undertakings, representations or warranties by any
Grantor, the Collateral Agent, any or any other First Lien Secured Party relative to the subject
matter hereof not expressly set forth or referred to herein or in the other Secured Credit
Documents or the First Lien Security Documents and the Pledge and Assignment.



     Section 5.17 Trustee. This Agreement is a “Security Document” (as defined in the
Indenture) entered into by the Trustee in connection with the acceptance or administration of its
duties under the Indenture. The terms, conditions, limitations, benefits and protections
applicable to the Trustee as set forth in the Indenture, including without limitation Article 7
thereof, shall govern the authority, duties, rights and obligations of the Trustee under this
Agreement as if fully set forth herein.



[Remainder of this page intentionally left blank]




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     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.



	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION

as Administrative Agent and Collateral Agent

 	 
	 	By:  	/S/ RAJ SHAH
 	 
	 	 	Name:  	Raj Shah 	 
	 	 	Title:  	Managing Director 	 
	 
	 	U.S. BANK NATIONAL ASSOCIATION,

as Trustee

 	 
	 	By:  	/S/ RAYMOND S. HAVERSTOCK
 	 
	 	 	Name:  	Raymond S. Haverstock 	 
	 	 	Title:  	Vice President 	 
	 




 









 





CONSENT OF GRANTORS




Dated: July 27, 2009




     Reference is made to the Intercreditor Agreement dated as of the date hereof between Wachovia
Bank, National Association, as Administrative Agent and Collateral Agent and U.S. Bank National
Association, as Trustee, as the same may be amended, restated, supplemented, waived, or otherwise
modified from time to time (the “Intercreditor Agreement”). Capitalized terms used but not
defined herein shall have the meanings assigned to such terms in the Intercreditor Agreement.



     Each of the undersigned Grantors has read the foregoing Intercreditor Agreement and consents
thereto. Each of the undersigned Grantors agrees not to take any action that would be contrary to
the express provisions of the foregoing Intercreditor Agreement, agrees to abide by the
requirements expressly applicable to it under the foregoing Intercreditor Agreement, agrees to be
bound by all the terms and conditions set forth in Article V of the Intercreditor Agreement
(provided that no Grantor shall be entitled to the benefits afforded by Section 5.15) and agrees
that, except as otherwise provided therein, neither the Collateral Agent nor any First Lien Secured
Party shall have any liability to any Grantor for acting in accordance with the provisions of the
foregoing Intercreditor Agreement. Each Grantor understands that the foregoing Intercreditor
Agreement is for the sole benefit of the First Lien Secured Parties and their respective successors
and assigns, and that such Grantor is not an intended beneficiary or third party beneficiary
thereof except to the extent otherwise expressly provided therein.



     Without limitation to the foregoing, each Grantor agrees to take such further action and to
execute and deliver such additional documents and instruments (in recordable form, if requested) as
the Collateral Agent may request to effectuate the terms of and the lien priorities contemplated by
the Intercreditor Agreement.



     This Consent shall be governed and construed in accordance with the laws of the State of New
York. Notices delivered to any Grantor pursuant to this Consent shall be delivered in accordance
with the notice provisions set forth in the Intercreditor Agreement.



 









 





     IN WITNESS HEREOF, this Consent is hereby executed by each of the Grantors as of the date
first written above.



	 	 	 	 	 
	 	CAPITALSOURCE INC.

 	 
	 	By:  	/S/ JEFFREY A. LIPSON
 	 
	 	 	Name:  	Jeffrey A. Lipson 	 
	 	 	Title:  	Senior Vice President & Treasurer
 	 
	 
	 	Each of the GUARANTORS

listed on Schedule I hereto

 	 
	 	By:  	/S/ JEFFREY A. LIPSON
 	 
	 	 	Name:  	Jeffrey A. Lipson 	 
	 	 	Title:  	Senior Vice President & Treasurer
 	 
	 




 









 








SCHEDULE I




Guarantors




CAPITALSOURCE TRS LLC

CAPITALSOURCE FINANCE LLC

CSE MORTGAGE LLC

CAPITALSOURCE CF LLC

CAPITALSOURCE SF TRS LLC

CAPITALSOURCE FINANCE II LLC

CAPITALSOURCE INTERNATIONAL INC.

CSE CHR HOLDCO LLC

CSE CHR HOLDINGS LLC

CS FUNDING IX DEPOSITOR LLC