AND, IN ADDITION, WILL EXECUTE AND DELIVER AN AGREEMENT CONTAINING
TERMS SUBSTANTIALLY IDENTICAL TO THOSE CONTAINED HEREIN IN FAVOR OF ANY THIRD
PERSON WHO SUCCEEDS TO OR REFINANCES, REPLACES OR SUBSTITUTES FOR ANY OR ALL OF
THE REVOLVING LOAN DEBT OR THE TERM LOAN DEBT, AS THE CASE MAY BE, WHETHER SUCH
SUCCESSOR OR REPLACEMENT FINANCING OCCURS BY TRANSFER, ASSIGNMENT, "TAKEOUT" OR
ANY OTHER MEANS OR VEHICLE.
3.4
INSOLVENCY.
THIS INTERCREDITOR AGREEMENT SHALL BE APPLICABLE BOTH
BEFORE AND AFTER THE FILING OF ANY PETITION BY OR AGAINST ANY BORROWER OR ANY
OBLIGOR UNDER THE UNITED STATES BANKRUPTCY CODE AND ALL CONVERTED OR SUCCEEDING
CASES IN RESPECT THEREOF, AND ALL REFERENCES HEREIN TO ANY BORROWER OR ANY
OBLIGOR SHALL BE DEEMED TO APPLY TO A TRUSTEE FOR ANY BORROWER OR ANY OBLIGOR
AND ANY BORROWER OR ANY OBLIGOR AS DEBTOR-IN-POSSESSION.
THE RELATIVE RIGHTS OF
THE REVOLVING LOAN LENDERS AND THE TERM LOAN LENDERS TO REPAYMENT OF THE
REVOLVING LOAN DEBT AND THE TERM LOAN DEBT, RESPECTIVELY, AND IN OR TO ANY
DISTRIBUTIONS FROM OR IN RESPECT OF ANY BORROWER OR ANY OBLIGOR OR ANY
COLLATERAL OR PROCEEDS OF ANY COLLATERAL, SHALL CONTINUE AFTER THE FILING
THEREOF ON THE SAME BASIS AS PRIOR TO THE DATE OF THE PETITION, SUBJECT TO ANY
COURT ORDER APPROVING THE FINANCING OF, OR USE OF CASH COLLATERAL BY, ANY
BORROWER OR ANY OBLIGOR AS DEBTOR-IN-POSSESSION.
3.5
BANKRUPTCY FINANCING.
IF (A) ANY BORROWER OR ANY OBLIGOR SHALL
BECOME SUBJECT TO A PROCEEDING UNDER THE UNITED STATES BANKRUPTCY CODE AND
(B) THE REVOLVING LOAN AGENT DESIRES TO PERMIT THE USE OF CASH COLLATERAL OR TO
PROVIDE FINANCING TO SUCH BORROWER OR SUCH OBLIGOR UNDER EITHER SECTION 363 OR
364 OF THE UNITED STATES BANKRUPTCY CODE, EACH TERM LOAN LENDER AGREES THAT:
(I) ADEQUATE NOTICE TO THE TERM LOAN LENDERS SHALL HAVE BEEN PROVIDED FOR SUCH
USE OF CASH COLLATERAL OR SUCH FINANCING IF THE TERM LOAN AGENT RECEIVES NOTICE
FIVE
16
BUSINESS DAYS PRIOR TO THE ENTRY OF THE ORDER APPROVING SUCH USE OF CASH
COLLATERAL OR SUCH FINANCING; AND (II) NO OBJECTION WILL BE RAISED BY THE TERM
LOAN AGENT OR ANY TERM LOAN LENDER TO ANY SUCH FINANCING ON THE GROUND OF A
FAILURE TO PROVIDE "ADEQUATE PROTECTION" FOR THE LIENS OF THE TERM LOAN AGENT,
FOR THE BENEFIT OF ITSELF OR ANY TERM LOAN LENDERS, ON THE COLLATERAL OR ANY
OTHER GROUNDS WITH RESPECT TO THE COLLATERAL, PROVIDED, THAT, THE TERM LOAN
AGENT, FOR THE BENEFIT OF THE TERM LOAN LENDERS, RETAINS A LIEN ON THE
POST-PETITION COLLATERAL WITH THE SAME PRIORITY AS ITS LIEN ON THE COLLATERAL
THAT EXISTED PRIOR TO THE COMMENCEMENT OF THE PROCEEDING UNDER THE UNITED STATES
BANKRUPTCY CODE.
NOTHING IN THIS SECTION 3.5 SHALL BE DEEMED TO PROHIBIT ANY
TERM LOAN LENDER FROM PROVIDING FINANCING TO ANY BORROWER OR ANY OBLIGOR IN ANY
PROCEEDING UNDER THE UNITED STATES BANKRUPTCY CODE SO LONG AS ANY LIEN ON THE
COLLATERAL IN FAVOR OF ANY TERM LOAN LENDER WITH RESPECT TO SUCH