RISK OF NONPAYMENT OF THE
ABL OBLIGATIONS OR THE TERM OBLIGATIONS.
THE TERM AGENT AND THE ABL AGENT
HEREBY AGREE THAT NO PARTY SHALL HAVE ANY DUTY TO ADVISE ANY OTHER PARTY OF
INFORMATION KNOWN TO IT REGARDING SUCH CONDITION OR ANY SUCH CIRCUMSTANCES.
IN
THE EVENT THE TERM AGENT OR THE ABL AGENT, IN THEIR SOLE DISCRETION, UNDERTAKES
AT ANY TIME OR FROM TIME TO TIME TO PROVIDE ANY INFORMATION TO ANY OTHER PARTY
TO THIS AGREEMENT, (A) IT SHALL BE UNDER NO OBLIGATION (I) TO PROVIDE ANY SUCH
INFORMATION TO SUCH OTHER PARTY OR ANY OTHER PARTY ON ANY SUBSEQUENT OCCASION,
(II) TO UNDERTAKE ANY INVESTIGATION NOT A PART OF ITS REGULAR BUSINESS ROUTINE,
OR (III) TO DISCLOSE ANY
43
OTHER INFORMATION, (B) IT MAKES NO REPRESENTATION AS TO THE ACCURACY OR
COMPLETENESS OF ANY SUCH INFORMATION AND SHALL NOT BE LIABLE FOR ANY INFORMATION
CONTAINED THEREIN, AND (C) THE PARTY RECEIVING SUCH INFORMATION HEREBY AGREES TO
HOLD THE PROVIDING PARTY HARMLESS FROM ANY ACTION THE RECEIVING PARTY MAY TAKE
OR CONCLUSION THE RECEIVING PARTY MAY REACH OR DRAW FROM ANY SUCH INFORMATION,
AS WELL AS FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES,
AND EXPENSES TO WHICH SUCH RECEIVING PARTY MAY BECOME SUBJECT ARISING OUT OF OR
IN CONNECTION WITH THE USE OF SUCH INFORMATION.
(B)
THE OBLIGORS AGREE THAT ANY INFORMATION PROVIDED TO THE ABL AGENT,
THE TERM AGENT, ANY ABL SECURED PARTY OR ANY TERM SECURED PARTY MAY BE SHARED BY
SUCH PERSON WITH ANY ABL SECURED PARTY, ANY TERM SECURED PARTY, THE ABL AGENT OR
THE TERM AGENT NOTWITHSTANDING A REQUEST OR DEMAND BY SUCH OBLIGORS THAT SUCH
INFORMATION BE KEPT CONFIDENTIAL; PROVIDED THAT SUCH INFORMATION SHALL OTHERWISE
BE SUBJECT TO THE RESPECTIVE CONFIDENTIALITY PROVISIONS IN THE ABL CREDIT
AGREEMENT AND THE TERM CREDIT AGREEMENT, AS APPLICABLE
[SIGNATURE PAGES FOLLOW]
44
IN WITNESS WHEREOF, the ABL Agent, for and on behalf of itself and the ABL
Lenders, and the Term Agent, for and on behalf of itself and the Term Lenders,
have caused this Agreement to be duly executed and delivered as of the date
first above written.
BANK OF AMERICA, N.A., in its capacity as ABL Agent
By:
/s/ ANDREW CERUSSI
Name:
Andrew Cerussi
Title:
SVP
Z INVESTMENT HOLDINGS, LLC, in its capacity as the Term Agent
By:
/s/ PETER MORROW
Name:
Peter Morrow
Title:
Manager
Signature Page to Intercreditor Agreement
ACKNOWLEDGMENT
Each ABL Obligor and Term Obligor hereby acknowledges that it has received a
copy of this Agreement and consents thereto, agrees to recognize all rights
granted thereby to the ABL Agent and the Term Agent, and will not do any act or
perform any obligation which is not in accordance with the agreements set forth
in this Agreement. Each ABL Obligor and Term Obligor further acknowledges and
agrees that it is not an intended beneficiary or third party beneficiary under
this Agreement and (i) as between the ABL Secured Parties and the ABL Obligors,
the ABL