A. M. Castle & Co. (CTAM) S-4Registration of securities issued in business combination transactions

“Agents” shall mean, collectively, First Lien Agent and Second Lien Agent, sometimes being referred to herein individually as an “Agent”.

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

“Bank Product Agreement” shall mean any agreement for any service or facility extended to any Grantor or any of its subsidiaries by a First Lien Secured Party including:  (a) credit cards, (b) debit cards, (c) purchase cards, (d) credit card, debit card and purchase card processing services, (e) treasury, cash management or related services (including the Automated Clearing House processing of electronic funds transfers through the direct Federal Reserve Fedline system) and the Large Value Transfer System operated by the Canadian Payments Association for the processing of electronic funds), (f) cash management, including controlled disbursement, accounts or services, (g) return items, netting, overdraft and interstate depositary network services, (h) Hedging Agreements, or (i) any other Cash Management Products and Services (as defined in the First Lien Loan Agreement).

“Bank Product Obligations” shall mean and include all obligations, liabilities, contingent reimbursement obligations, fees, and expenses owing by any Grantor or any of its subsidiaries to a First Lien Secured Party pursuant to or evidenced by the Bank Product Agreements and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all such amounts that any Grantor or any of its subsidiaries is obligated to reimburse to a First Lien Secured Party as a result of such Person purchasing participations or executing indemnities or reimbursement obligations with respect to the products provided to any Grantor or any of its subsidiaries pursuant to the Bank Product Agreements.

“Bankruptcy Code” shall mean the United States Bankruptcy Code, being Title 11 of the United States Code, as the same now exists or may from time to time hereafter be amended, modified, recodified or supplemented.

“Bankruptcy Law” shall mean the (a) Bankruptcy Code, (b) the BIA, (c) the CCAA, (d) the Winding-up and Restructuring Act (Canada), and (e) any similar Federal, state, provincial or foreign law for the relief of debtors.

“BIA” shall mean the Bankruptcy and Insolvency Act (Canada), as now and hereafter in effect, and any successor statute.

“Borrowers” shall mean collectively, the “Borrowers” as defined in the First Lien Loan Agreement as in effect on the date hereof, together with any other Person that may be joined thereto as a Borrower in accordance with the terms of the First Lien Loan Agreement; sometimes being referred to herein individually as a “Borrower”.

“Business Day” shall mean any day other than a Saturday, a Sunday or a day that is a legal holiday under the laws of the State of New York or on which banking institutions in the State of New York or East Brunswick, New Jersey are required or authorized by law or other governmental action to close.

“CCAA” shall mean the Companies’ Creditors Arrangement Act (Canada), as now and hereafter in effect, and any successor statute.

“Collateral” shall mean all of the property and interests in property, real or personal, tangible or intangible, now owned or hereafter acquired by any Grantor in or upon which any First Lien Secured Party or Second Lien Secured Party at any time has a Lien, and including, without limitation, all proceeds of such property and interests in property.

“Company” means A. M. Castle & Co., a corporation organized under the laws of the State of Maryland.

“DIP Financing” shall have the meaning set forth in Section 7.2(a) hereof.

“Discharge of First Lien Debt” shall mean (a) the termination of the commitments of the First Lien Lenders and the financing arrangements provided by First Lien Agent and the other First Lien Lenders to Grantors under the First Lien Documents, (b) except to the extent otherwise provided in Sections 7.1 and 7.2 hereof, the payment in full in cash of the First Lien Debt (other than the First Lien Debt described in clause (c) of this definition) and (c) payment in full in cash of cash collateral, or at First Lien Agent’s option, the delivery to First Lien Agent of a letter of credit payable to First Lien Agent, in either case as required under the terms of the First Lien Loan Agreement, in respect of (i) letters of credit issued under the First Lien Documents (but in no event more than 105% of the aggregate undrawn face amount thereof), (ii) Bank Product Obligations, (iii) continuing obligations of First Lien Agent and First Lien Lenders under control agreements and (iv) any contingent indemnification obligations of any Grantor pursuant to the indemnification provisions in the First Lien Debt Documents for which any First Lien Secured Parties may be entitled to indemnification related to any claim that has been asserted or threatened (in writing) or any demand for payment that has been made at such time.  If after receipt of any payment of, or proceeds of Collateral applied to the payment of, the First Lien Debt, First Lien Agent or any other First Lien Secured Party is required to surrender or return such payment or proceeds to any person pursuant to an order of a court of competent jurisdiction, then the First Lien Debt intended to be satisfied by such payment or proceeds shall be reinstated and continue and this Intercreditor Agreement shall continue in full force and effect as if such payment or proceeds had not been received by such First Lien Agent or other First Lien Secured Party, as the case may be, and no Discharge of First Lien Debt shall be deemed to have occurred.

“Discharge of First Lien Debt Notice” shall have the meaning set forth in Section 10.10(b) hereof.

“Discharge of Second Lien Debt” shall mean (a) the termination of the financing arrangements provided by the Second Lien Holders to Grantors under the Second Lien Documents, and (b) except to the extent otherwise provided in Sections 7.1 and 7.2 hereof, the payment in full in cash of the Second Lien Debt.  If, after receipt of any payment of, or proceeds of Collateral applied to the payment of, the Second Lien Debt, Second Lien Agent or any other Second Lien Secured Party is required to surrender or return such payment or proceeds to any person pursuant to an order of a court of competent jurisdiction, then the Second Lien Debt intended to be satisfied by such payment or proceeds shall be reinstated and continue and this Intercreditor Agreement shall continue in full force and effect as if such payment or proceeds had not been received by such Second Lien Agent or other Second Lien Secured Party, as the case may be, and no Discharge of Second Lien Debt shall be deemed to have occurred.

“Distribution” shall mean, with respect to any indebtedness or obligation, (a) any payment or distribution by any Grantor of cash, securities or other property, by set-off or otherwise, on account of such indebtedness or obligation, or (b) any redemption, purchase or other acquisition of such indebtedness or obligation by any Grantor.

“Exigent Circumstance” shall have the meaning set forth in Section 8.5 hereof.

“First Lien Agent” shall mean PNC Bank, National Association, a national banking association, and its successors and assigns in its capacity as administrative and collateral agent pursuant to the First Lien Documents acting for and on behalf of the other First Lien Secured Parties and any successor or replacement agent.

“First Lien Debt” shall mean all “Obligations” as such term is defined in the First Lien Loan Agreement, including, without limitation, obligations, liabilities and indebtedness of every kind, nature and description owing by any Grantor to any First Lien Secured Party, including principal, interest, charges, fees, premiums, indemnities and expenses, however evidenced, whether as principal, surety, endorser, guarantor or otherwise, arising under any of the First Lien Documents, whether now existing or hereafter arising, whether arising before, during or after the initial or any renewal term of the First Lien Documents or after the commencement of any case with respect to any Grantor under any Bankruptcy Law or any other Insolvency or Liquidation Proceeding (and including, without limitation, any principal, interest, fees, costs, expenses and other amounts, which would accrue and become due but for the commencement of such case, whether or not such amounts are allowed or allowable in whole or in part in such case or similar proceeding), whether direct or indirect, absolute or contingent, joint or several, due or not due, primary or secondary, liquidated or unliquidated, secured or unsecured.

“First Lien Debt Purchase” shall have the meaning set forth in Section 8.2(a) hereof.

“First Lien Documents” shall mean, collectively, the First Lien Loan Agreement and all agreements, documents and instruments at any time executed and/or delivered under any jurisdiction by any Grantor or any other person to, with or in favor of any First Lien Secured Party in connection therewith or related thereto, as all of the foregoing now exist or, subject to any limitations set forth in this Intercreditor Agreement, may hereafter be amended, modified, supplemented, extended, renewed, restated, refinanced, replaced or restructured (in whole or in part and including any agreements with, to or in favor of any other lender or group of lenders that at any time refinances, replaces or succeeds to all or any portion of the First Lien Debt).

“First Lien Event of Default” shall mean any “Event of Default” as defined in the First Lien Loan Agreement.

“First Lien Guarantors” shall mean, collectively, (a) the “Guarantors” as defined in the First Lien Loan Agreement, (b) any other Person that at any time after the date hereof becomes a party to a guarantee in favor of the First Lien Agent or the First Lien Lenders in respect of any of the First Lien Debt, and (c) their respective successors and assigns.

“First Lien Lenders” shall mean, collectively, any person party to the First Lien Documents as a lender (and including any other lender or group of lenders that at any time refinances, replaces or succeeds to all or any portion of the First Lien Debt or is otherwise party to the First Lien Documents as a lender); sometimes being referred to herein individually as a “First Lien Lender”.

“First Lien Loan Agreement” shall mean the Revolving Credit and Security Agreement, dated as of August 31, 2017, by and among Grantors, First Lien Agent and First Lien Lenders, and as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, subject to Section 10.4 hereof.

“First Lien Secured Parties” shall mean, collectively, (a) First Lien Agent, (b) the First Lien Lenders, (c) the issuing bank or banks of letters of credit or similar instruments under the First Lien Loan Agreement, (d) each other person to whom any of the First Lien Debt (including First Lien Debt constituting Bank Product Obligations) is owed and (e) the successors, replacements and assigns of each of the foregoing; sometimes being referred to herein individually as a “First Lien Secured Party”.

“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect from time to time and, as applicable to any Mexican Grantors, the NIFS.

“Grantors” shall mean, collectively, (a) Borrowers, (b) Guarantors, (c) each Subsidiary of Borrowers or Guarantors that is organized or formed under the laws of the United States, any state, territory or commonwealth of the United States or the District of Columbia that shall have created or purported to create a Lien on its assets to secure any First Lien Debt or Second Lien Debt and (d) their respective successors and assigns; sometimes being referred to herein individually as a “Grantor”.

“Guarantors” shall mean, collectively, the First Lien Guarantors and the Second Lien Guarantors; sometimes being referred to herein individually as a “Guarantor”.

“Hedging Agreement” shall mean an agreement between any Grantor or any of its subsidiaries and any financial institution that is a rate swap agreement, basis swap, forward rate agreement, commodity swap, interest rate option, forward foreign exchange agreement, spot foreign exchange agreement, rate cap agreement rate, floor agreement, rate collar agreement, currency swap agreement, cross-currency rate swap agreement, currency option, any other similar agreement (including any option to enter into any of the foregoing or a master agreement for any of the foregoing together with all supplements thereto) for the purpose of protecting against fluctuations in or managing exposure with respect to interest or exchange rates, currency valuations or commodity prices.

“Hedging Obligations” shall mean, with respect to any Person, the obligations of such Person under any Hedging Agreements.

“Indenture” shall mean that certain Indenture, dated as of the date hereof, by and among the Company, the Second Lien Guarantors and the Second Lien Agent, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, subject to Section 10.5 hereof.

“Insolvency or Liquidation Proceeding” shall mean (a) any voluntary or involuntary case or proceeding under any Bankruptcy Law with respect to any Grantor, (b) any other voluntary or involuntary insolvency, reorganization or bankruptcy case or proceeding, or any receivership, interim receivership, liquidation, reorganization or other similar case or proceeding with respect to any Grantor or with respect to any of their respective assets, (c) any proceeding seeking the appointment of any trustee, receiver, interim receiver, receiver and manager, liquidator, custodian or other insolvency official with similar powers with respect to such Grantor or any or all of its assets or properties, (d) any proceedings for liquidation, dissolution or other winding up of the business of such Grantor, or (e) any assignment or trust mortgage for the benefit of creditors or any other marshalling of assets and liabilities of any Grantor.

“Intercreditor Agreement” shall mean this Intercreditor Agreement, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, all in accordance with the terms hereof.

“Lien” shall mean any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, security interest, encumbrance (including, but not limited to, easements, rights of way and the like), lien (statutory or other), charge, security agreement or transfer intended as security, including without limitation, any conditional sale or other title retention agreement, the interest of a lessor under a capital lease or any financing lease having substantially the same economic effect as any of the foregoing.

“Lien Enforcement Action” shall mean (a) any action by any Secured Party to foreclose on or otherwise enforce the Lien of such Person in all or a material portion of the Collateral or exercise any right of repossession, levy, attachment, setoff or liquidation against all or a material portion of the Collateral, (b) any action by any Secured Party to take possession of, sell or otherwise realize (judicially or non-judicially) upon all or a material portion of the Collateral (including, without limitation, by setoff), (c) any action by any Secured Party to facilitate the possession of, sale of or realization upon all or a material portion of the Collateral including the solicitation of bids from third parties to conduct the liquidation of all or any material portion of the Collateral, the engagement or retention of sales brokers, marketing agents, investment bankers, accountants, auctioneers or other third parties for the purpose of valuing, marketing, promoting or selling all or any material portion of the Collateral, (d) the commencement by any Secured Party of any legal proceedings against or with respect to all or a material portion of the Collateral to facilitate the actions described in (a) through (c) above, (e) any action to seek or request relief from or modification of the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of all or a material portion of the Collateral, or any proceeds thereof, or (f) the pursuit of any Asset Sale of all or any material portion of the Collateral by the Grantors after the occurrence and during the continuance of a First Lien Event of Default (and prior to the Discharge of First Lien Debt), which Asset Sale is conducted by such Grantors with the consent of First Lien Agent in connection with good faith efforts by First Lien Agent to collect the First Lien Debt through consummation of such Asset Sale within a commercially reasonable time.  For the purposes hereof, (i) neither the notification of account debtors to make payments to First Lien Lenders or First Lien Agent nor the exercise of control with regards to any deposit or security account pursuant to the First Lien Loan Agreement during a Cash Dominion Period (as defined in the First Lien Loan Agreement) shall constitute a Lien Enforcement Action unless such action is coupled with an action to take possession of all or a material portion of the Collateral or the commencement of any legal proceedings or actions against or with respect to Grantors or all or a material portion of the Collateral, and (ii) a material portion of the Collateral shall mean Collateral having a value in excess of $5,000,000.

“Net Proceeds” means the aggregate cash proceeds received by the Company or any of the Grantors in respect of any Asset Sale (including, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of the direct costs relating to such Asset Sale, including, without limitation, legal, accounting and investment banking fees, and sales commissions, and any relocation expenses incurred as a result of the Asset Sale, taxes paid or payable as a result of the Asset Sale, in each case, after taking into account any available tax credits or deductions and any tax sharing arrangements, and amounts required to be applied to the repayment of indebtedness, other than indebtedness under the First Lien Documents, secured by a Lien on the asset or assets that were the subject of such Asset Sale and any reserve for adjustment in respect of the sale price of such asset or assets established in accordance with GAAP.

“NIFS” shall mean the financial accounting standards (Normas de Información Financiera) issued by the Mexican Board of Financial Accounting Standards (Consejo Mexicano de Normas de Información Financiera, A.C.).

“Permitted Discretion” shall mean a determination made by the relevant Agent in the exercise of commercially reasonable (from the perspective of an asset-based secured lender) business judgment.

“Permitted Second Lien Action” shall mean, with respect to the Second Lien Debt and Second Lien Documents, any of the following by Second Lien Agent:

(a)          initiating, commencing or filing a petition for, or joining with any Person in initiating, commencing or filing a petition for, any Insolvency or Liquidation Proceeding;

(b)          filing a claim, proof of claim or statement of interest with respect to any Second Lien Debt in connection with any Insolvency or Liquidation Proceeding;

(c)          taking any action (not adverse to the priority status of the Liens securing the First Lien Debt, or the rights of First Lien Agent to exercise remedies in respect thereof) in order to create, perfect, preserve or protect (but not enforce) the Liens securing any Second Lien Debt;[reserved];

(d)         filing any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims for any of the Second Lien Debt, including any claims secured by the Collateral, if any, in each case to the extent not inconsistent with the terms of this Intercreditor Agreement;

(e)          filing any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors arising under any Insolvency or Liquidation Proceeding or under any applicable non-Bankruptcy Law, in each case not inconsistent with the terms of this Intercreditor Agreement;

(f)          taking any action to the extent necessary to prevent the running of any applicable statute of limitation or similar restriction on claims, or to assert a compulsory cross-claim or counterclaim against any Grantor, subject to Sections 5.1 and 5.2;

(g)          taking any action to seek and obtain specific performance or injunctive relief to compel a Grantor to comply with (or not violate or breach) an obligation under any of the Second Lien Documents, in each case not inconsistent with the terms of this Intercreditor Agreement and so long as any such exercise is not accompanied by a claim for monetary damages;

(h)         voting on any proposal, plan of arrangement, compromise or reorganization, filing any proof of claim, making other filings and making any arguments and motions that are, in each case, not inconsistent with the terms of this Intercreditor Agreement, with respect to any Second Lien Debt;

(i)          making a cash bid on all or any portion of the Collateral up to the amount of First Lien Debt then outstanding (and providing for the Discharge of First Lien Debt) and making a cash or credit bid for the remainder of the Second Lien Debt in any foreclosure proceeding or action, to the extent permitted by applicable law; or[reserved]; or

(j)          inspecting or appraising the Collateral or requesting information or reports concerning the Collateral pursuant to any of the Second Lien Documents.

“Permitted Second Lien Payments” shall mean (a) Second Lien Interest Payments; provided that no Second Lien Interest Payments may be made in cash (but, for the avoidance of doubt, may be paid in kind by capitalizing such interest payment) at any time (i) before August 31, 2018; (ii) during a Cash Dominion Period (as defined in the First Lien Loan Agreement); and (iii) that the Second Lien Interest Payment Conditions are not met; (b) Second Lien Other Payments, so long as before and after giving effect to such Second Lien Other Payment, the “Payment Conditions” (as defined in the First Lien Loan Agreement, as in effect on the date hereof) are satisfied, as evidenced by (1) a compliance certificate (in substantially the form attached as Exhibit A hereto), delivered to both the First Lien Agent and the Second Lien Agent three Business Days prior to the making of any such payment, and including detailed calculations with respect to the conditions set forth in clause (b) of the definition of “Payment Conditions” in the First Lien Loan Agreement and (2) a compliance certificate (in substantially the form attached as Exhibit A hereto), delivered to First Lien Agent on the date such payment is made, including detailed calculations with respect to the conditions set forth in clause (b) of the definition of “Payment Conditions” in the First Lien Loan Agreement; and (c) any Second Lien Agent Payments.

“Person” or “person” shall mean any individual, sole proprietorship, partnership, corporation (including, without limitation, any corporation which elects subchapter S status under the Internal Revenue Code of 1986, as amended), limited liability company, limited liability partnership, business trust, unincorporated association, joint stock company, trust, joint venture, or other entity or any government or any agency or instrumentality or political subdivision thereof.

“Pledged Collateral” shall have the meaning set forth in Section 6.1 hereof.

“PPSA” shall mean the Personal Property Security Act of any province to which relevant Collateral is subject, and any other applicable federal or provincial statute (including the Civil Code of Quebec) pertaining to the granting, perfecting, priority or ranking of Liens or personal property, and any successor statutes, together with any regulations thereunder, in each case as in effect from time to time.

“Recovery” shall have the meaning set forth in Section 7.8 hereof.

“Reorganization Subordinated Securities” shall mean any debt or equity securities of any Grantor or any other Person that are distributed to any Second Lien Secured Party in respect of the Second Lien Debt pursuant to a confirmed plan of reorganization or adjustment that is effective after the date hereof and that (a) (i) in the case of debt securities, are unsecured and subordinated in right of payment to the First Lien Debt (or any debt securities issued in substitution of all or any portion of the First Lien Debt) to at least the same extent as the Second Lien Debt is subordinated to the First Lien Debt and (ii) in the case of equity securities, are subordinated in right of payment to any equity securities issued in substitution of all or any portion of the First Lien Debt to at least the same extent as the Second Lien Debt, (b) do not have the benefit of any obligation of any Person (whether as issuer, guarantor or otherwise) unless the First Lien Debt has at least the same benefit of the obligation of such Person, and (c) do not have any terms, and are not subject to or entitled to the benefit of any agreement or instrument that has terms, that are more burdensome to the issuer of or other obligor on such debt or equity securities than are the terms of the First Lien Debt, and (d) if secured by Liens on any assets of any Grantor, such Liens are subordinated to the Liens of First Lien Agent to at least the same extent as the Liens of Second Lien Agent on the Collateral are subordinated to the Liens of First Lien Agent on the Collateral.

“Retained First Lien Obligations” shall have the meaning set forth in Section 8.2(a) hereof.

“Second Lien Agent” shall mean Wilmington Savings Fund Society, FSB, in its capacity as indenture trustee and collateral agent under the Second Lien Documents, and also includes any successor, replacement or agent acting on its behalf as Second Lien Agent for the Second Lien Secured Parties under the Second Lien Documents.

“Second Lien Agent Payments” shall mean (i) except during the occurrence and continuance of a Second Lien Agent Payment Trigger Event, any payments of the fees, costs, expenses, and other amounts payable to the Second Lien Agent (for its own account) under the terms of the Second Lien Documents as in effect on the date hereof; and (ii) during the occurrence and continuance of a Second Lien Agent Payment Trigger Event, payments of the fees, costs, expenses, and other amounts payable to the Second Lien Agent (for its own account) under the terms of the Second Lien Documents as in effect on the date hereof, not to exceed $350,000175,000 for the first year following such Second Lien Agent Payment Trigger Event and $250,000125,000 for each year thereafter; provided, that if the actual amount of such fees, costs, expenses, and other amounts is less than the applicable cap for any given year, such unused amounts may be carried forward and used in subsequent years.

“Second Lien Agent Payment Trigger Event” shall mean, with respect to a Second Lien Agent Payment, (i) a First Lien Event of Default has occurred and is continuing, (ii) after giving effect to such Second Lien Agent Payment, Grantors have Liquidity (as defined in the First Lien Loan Agreement) of less than $20,000,000 as of the date of such Second Lien Agent Payment, and (iii) the Second Lien Agent has received written notice from the First Lien Agent that a Second Lien Agent Payment Trigger Event has occurred, which notice has not been withdrawn.

“Second Lien Debt” shall mean all “Obligations” as such term is defined in the Indenture, including, without limitation, obligations, liabilities and indebtedness of every kind, nature and description owing by any Grantor to any Second Lien Secured Party, including principal, interest, charges, fees, premiums, indemnities and expenses, however evidenced, whether as principal, surety, endorser, guarantor or otherwise, arising under any of the Second Lien Documents, whether now existing or hereafter arising, whether arising before, during or after the initial or any renewal term of the Second Lien Documents or after the commencement of any case with respect to any Grantor under any Bankruptcy Law or any other Insolvency or Liquidation Proceeding (and including, without limitation, any principal, interest, fees, costs, expenses and other amounts, which would accrue and become due but for the commencement of such case, whether or not such amounts are allowed or allowable in whole or in part in such case or similar proceeding), whether direct or indirect, absolute or contingent, joint or several, due or not due, primary or secondary, liquidated or unliquidated, secured or unsecured.

“Second Lien Default Notice” shall mean a written notice delivered to Grantors and First Lien Agent by Second Lien Agent, which notice describes the applicable Second Lien Event of Default and states that it constitutes a “Second Lien Default Notice” for purposes of this Intercreditor Agreement.

“Second Lien Documents” shall mean, collectively, the Indenture, the Second Lien Security Agreement and all agreements, documents and instruments at any time executed and/or delivered by any Grantor or any other person to, with or in favor of any Second Lien Secured Party in connection therewith or related thereto, as all of the foregoing now exist or, subject to any restrictions set forth in this Intercreditor Agreement, may hereafter be amended, modified, supplemented, extended, renewed, restated, refinanced, replaced or restructured (in whole or in part and including any agreements with, to or in favor of any other noteholder, lender or group of noteholders or lenders that at any time refinances, replaces or succeeds to all or any portion of the Second Lien Debt).

“Second Lien Event of Default” shall mean any “Event of Default” under the Indenture; provided that to the extent that any cash payment on account of the Second Lien Debt is not permitted to be made hereunder, the Company’s failure to make any such payment in cash shall not result in a default or event of default under the Indenture or any other Second Lien Document.

“Second Lien Guarantors” shall mean, collectively, (a) the “Guarantors”, as such term is defined in the Indenture, (b) any other person that at any time after the date hereof becomes a party to a guarantee in favor of Second Lien Agent or the Second Lien Holders in respect of any of the Second Lien Debt and (c) their respective successors and assigns.

“Second Lien Holders” shall mean, collectively, the “Holders”, as defined in the Indenture (and including any other noteholder, lender or group of noteholders or lenders that at any time refinances, replaces or succeeds to all or any portion of the Second Lien Debt); sometimes being referred to herein individually as a “Second Lien Holder”.

“Second Lien Interest Payments” shall mean regularly scheduled, non-default, quarterly interest payments paid when due and payable under the terms of the Second Lien Documents, as in effect on the date hereof.

“Second Lien Interest Payment Conditions” means (i) no First Lien Event of Default has occurred and is continuing or would be caused as a result of making any such Second Lien Interest Payment, (ii) calculated on a pro forma basis after giving effect to any such payment as a Debt Payment (as defined in the First Lien Loan Agreement), the Grantors shall have a Fixed Charge Coverage Ratio (as defined in the First Lien Loan Agreement) of at least 1.10 to 1.00 for the twelve (12) month period most recently ended, and (iii) after giving effect to any such payment, Grantors shall have (x) Liquidity (as defined in the First Lien Loan Agreement) of not less than $20,000,000 as of the date of such payment and (y) average Liquidity of not less than $20,000,000 for the 10 consecutive calendar day period prior to delivery of the compliance certificate in accordance with clause (1) of this definition, and the 10 consecutive calendar day period prior to making such payment; in each case with respect to clauses (i)-(iii) above, (1) as evidenced by a compliance certificate (in substantially the form attached as Exhibit A hereto), delivered to both the First Lien Agent and the Second Lien Agent three Business Days prior to the making of any such payment, and including detailed calculations with respect to the conditions set forth in clauses (ii) and (iii) above, and (2) as further evidenced by a compliance certificate (in substantially the form attached as Exhibit A hereto), delivered to First Lien Agent on the date such payment is made, and including detailed calculations with respect to the conditions set forth in clauses (ii) and (iii) above.

“Second Lien Other Payments” shall mean any payment on account of the Second Lien Debt other than Second Lien Interest Payments and Second Lien Agent Payments.

“Second Lien Payment Default” shall mean any “Event of Default” as defined in the Second Lien Documents resulting from the failure of the Company or the Second Lien Guarantors to pay, when due, any principal, premium, if any, interest, fees or other monetary obligations under the Second Lien Documents.

“Second Lien Secured Parties” shall mean, collectively, (a) Second Lien Agent, (b) the Second Lien Holders, (c) each other person to whom any of the Second Lien Debt is owed and (d) the successors, replacements and assigns of each of the foregoing; sometimes being referred to herein individually as a “Second Lien Secured Party”.

“Second Lien Security Agreement” shall mean the Pledge and Security Agreement, dated as of the date hereof, by and among Grantors and Second Lien Agent, as collateral agent, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.

“Secured Parties” shall mean, collectively, the First Lien Secured Parties and the Second Lien Secured Parties; sometimes being referred to herein individually as a “Secured Party”.

“Standstill Period” shall have the meaning set forth in Section 4.1(a) hereof.

“Subsidiary” shall mean any “Subsidiary” of any Grantor as defined in the First Lien Loan Agreement.

“Transferring Lenders” shall have the meaning set forth in Section 8.2(b) hereof.

“Triggering Event” shall mean any of the following: (a) an acceleration of the maturity of all or any material portion of the First Lien Debt, (b) the exercise of any Lien Enforcement Action by the First Lien Secured Parties in respect of a material portion of Collateral, (c) if a First Lien Event of Default exists and is continuing, First Lien Lenders elect not to make any additional loans or advances or issue or cause to be issued letters of credit under the First Lien Documents at a time when there is Excess Availability (as defined in the First Lien Documents) to make such loans or advances or issue or cause to be issued letters of credit under the First Lien Documents for a period of more than five (5) consecutive Business Days, (d) the occurrence of a Second Lien Payment Default that remains uncured or unwaived for a period of thirty (30) days after the receipt by the First Lien Agent of a written notice from Second Lien Agent stating that there has been a Second Lien Payment Default, or (e) the commencement of an Insolvency or Liquidation Proceeding by or against any Grantor.

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

(a)         First Lien Agent, on behalf of itself and each First Lien Secured Party, hereby acknowledges that Second Lien Agent, acting for and on behalf of the Second Lien Secured Parties, has been granted Liens upon all of the Collateral pursuant to the Second Lien Documents to secure the Second Lien Debt.  Reserved.

(b)        Second Lien Agent, on behalf of itself and each Second Lien Secured Party, hereby acknowledges that First Lien Agent, acting for and on behalf of the First Lien Secured Parties, has been granted Liens upon all of the Collateral pursuant to the First Lien Documents to secure the First Lien Debt.

(a)          Second Lien Agent, for itself and on behalf of the other Second Lien Secured Parties for whom it is acting as agent, hereby agrees that: (A) any Lien on the Collateral securing the First Lien Debt now or hereafter held by or for the benefit or on behalf of any First Lien Secured Party or any agent or trustee therefor shall be senior in right, priority, operation, effect and in all other respects to any Lien on the Collateral securing the Second Lien Debt now or hereafter held by or for the benefit or on behalf of any Second Lien Secured Party or any agent or trustee therefor; and (B) any Lien (if any) on the Collateral securing any of the Second Lien Debt now or hereafter held by or for the benefit or on behalf of any Second Lien Secured Party or any agent or trustee therefor regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on the Collateral securing any First Lien Debt.

(b)         All Liens on the Collateral securing any First Lien Debt shall be and remain senior in all respects and prior to all Liens on the Collateral securing any Second Lien Debt for all purposes, whether or not such Liens securing any First Lien Debt are subordinated to any Lien securing any other obligation of any Grantor or any other Person.

(a)         The parties hereto agree, subject to the other provisions of this Intercreditor Agreement, upon request by First Lien Agent or Second Lien Agent, as the case may be, to advise the other from time to time of the Collateral for which such party has taken steps to perfect its Liens and to identify the parties obligated under the First Lien Documents or the Second Lien Documents, as the case may be.Reserved.

(b)        Grantors hereby agree, and Second Lien Agent, for itself and on behalf of the Second Lien Secured Parties, hereby agrees and confirms, that any and all Second Lien Documents shall at all times include the following language (or language to similar effect approved by First Lien Agent):

(a)        will not, so long as the Discharge of First Lien Debt has not occurred, enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff or notification of account debtors) with respect to any Collateral (including the enforcement of any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which Second Lien Agent or any other Second Lien Secured Party is a party) or commence or join with any Person (other than First Lien Agent) in commencing, or filing a petition for, any action or proceeding with respect to such rights or remedies (including any such enforcement or exercise in any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding); provided, that, subject at all times to the provisions of Section 5 of this Intercreditor Agreement, the Second Lien Agent may enforce or exercise any or all such rights and remedies, or commence or petition for any such action or proceeding, after a period ending two hundred and ten (210) days after the receipt by First Lien Agent of a Second Lien Default Notice from the Second Lien Agent (the “Standstill Period”); provided, that, as of the expiration of the Standstill Period, the applicable Second Lien Event of Default that was the subject of the Second Lien Default Notice received by the First Lien Agent which commenced the applicable Standstill Period remains uncured, unremedied or unwaived as of the expiration of the Standstill Period; provided, further, however, that, notwithstanding the expiration of the Standstill Period or anything herein to the contrary, in no event shall any Second Lien Agent or any other Second Lien Secured Party enforce or exercise any rights or remedies with respect to any Collateral, or commence or petition for any such action or proceeding (including taking such enforcement or exercise in any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding), if the First Lien Agent or any other First Lien Secured Party shall have commenced, prior to the expiration of the Standstill Period, a Lien  Enforcement Action and shall be pursuing the same in good faith (including, without limitation, any of the following, if undertaken and pursued to consummate the sale of such Collateral within a commercially reasonable time: solicitation of bids from third parties to conduct the liquidation of all or any material portion of the Collateral, the engagement or retention of sales brokers, marketing agents, investment bankers, accountants, auctioneers or other third parties for the purpose of valuing, marketing, promoting or selling all or any material portion of the Collateral, the notification of account debtors to make payments to First Lien Agent or its agents, the initiation of any action to take possession of all or any material portion of the Collateral or the commencement of any legal proceedings or actions against or with respect to all or any material portion of the Collateral);

(b)         will not contest, protest or object to any Lien Enforcement Action brought by First Lien Agent or any other First Lien Secured Party, or any other enforcement or exercise by any First Lien Secured Party of any rights or remedies relating to the Collateral under the First Lien Documents or otherwise, so long as the Liens of Second Lien Agent attach to the proceeds thereof subject to the relative priorities set forth in Section 2.2 and such actions or proceedings are being pursued in good faith;

(c)          will not object to the forbearance by First Lien Agent or the other First Lien Secured Parties from commencing or pursuing any Lien Enforcement Action or any other enforcement or exercise of any rights or remedies with respect to any of the Collateral;

(d)          will not, so long as the Discharge of First Lien Debt has not occurred and except for actions permitted under Section 4.1(a) above, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any right or remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award or any condemnation award (or deed in lieu of condemnation), and any such payment or proceeds received in violation of the foregoing shall be applied in accordance with Section 5.1;

(e)        will not take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Documents, including any sale or other disposition of any Collateral, whether by foreclosure or otherwise and acknowledges and agrees that no covenant, agreement or restriction contained in any Second Lien Document shall be deemed to restrict in any way the rights and remedies of First Lien Agent or the other First Lien Secured Parties with respect to the Collateral as set forth in this Intercreditor Agreement and the First Lien Documents;

(f)          will not object to the manner in which First Lien Agent or any other First Lien Secured Party may seek to enforce or collect the First Lien Debt or the Liens of such First Lien Secured Party, regardless of whether any action or failure to act by or on behalf of First Lien Agent or any other First Lien Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any other rights a junior secured creditor may have under applicable law with respect to the matters described in this clause (f); provided, that, at all times First Lien Agent is acting in good faith; and

(g)         will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Debt or any Lien of First Lien Agent or this Intercreditor Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Intercreditor Agreement.

(a)          If in connection with any sale, lease, license, exchange, transfer or other disposition of any Collateral permitted under the terms of the First Lien Documents (whether or not an event of default or equivalent event thereunder, and as defined therein, has occurred and is continuing) or consented to or approved by First Lien Agent or in connection with the exercise of First Lien Agent’s remedies in respect of the Collateral provided for in Section 4.1 (provided, that, after giving effect to the release, the Net Proceeds of any such sale, lease, license, exchange, transfer or other disposition are applied in accordance with Section 5.1(a)), First Lien Agent, for itself or on behalf of any of the other First Lien Secured Parties, releases any of its Liens on any part of the Collateral, then effective upon the consummation of such sale, lease, license, exchange, transfer or other disposition:

(b)          Until the Discharge of First Lien Debt has occurred, Second Lien Agent, for itself and on behalf of the other Second Lien Secured Parties, hereby irrevocably constitutes and appoints First Lien Agent and any officer or agent of First Lien Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of Second Lien Agent or such holder or in First Lien Agent’s own name, from time to time in First Lien Agent’s discretion, for the limited purpose of carrying out the terms of this Section 4.3, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Section 4.3, including any termination statements, endorsements or other instruments of transfer or release.  The power of attorney granted herein is a power coupled with an interest, shall survive the legal incapacity of Second Lien Agent and extends to the successors of Second Lien Agent.  Nothing contained in this Intercreditor Agreement shall be construed to modify the obligation of First Lien Agent to act in a commercially reasonable manner in the exercise of its rights to sell, lease, license, exchange, transfer or otherwise dispose of any Collateral.

(c)         In the event that any lien or security interest is granted in favor of Second Lien Agent in any of the Collateral, then promptly upon First Lien Agent’s request, Second Lien Agent shall execute and/or deliver to First Lien Agent such termination statements and releases as First Lien Agent shall reasonably request to effect the release of the lien or security interest of Second Lien Agent in such Collateral.  In furtherance of the foregoing, Second Lien Agent hereby irrevocably appoints First Lien Agent as its attorney-in-fact, with full authority in the place and stead of Second Lien Agent and in the name of Second Lien Agent or otherwise, to execute, deliver and/or file any document or instrument which Second Lien Agent may be required to deliver pursuant to this Section 4.3(c).

(a)          So long as the Discharge of First Lien Debt has not occurred, the Collateral or proceeds thereof received in connection with the sale or other disposition of, or collection on, such Collateral upon the exercise of remedies (including without limitation in connection with an Insolvency or Liquidation Proceeding), shall be applied in the following order of priority:

(b)        After the Discharge of the First Lien Debt, so long as the Discharge of the Second Lien Debt has not occurred, the Collateral or any proceeds thereof shall be applied, to the extent required under the Second Lien Documents, to the Second Lien Debt in accordance with the Second Lien Documents. Reserved.

(c)        The foregoing provisions of this Intercreditor Agreement are intended solely to govern the respective Lien priorities as among Second Lien Agent, and First Lien Agent and shall not impose on First Lien Agent or any other First Lien Secured Party any obligations in respect of the disposition of proceeds of foreclosure on any 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.

(a)          So long as the Discharge of First Lien Debt has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, Second Lien Agent agrees, for itself and on behalf of the other Second Lien Secured Parties, that any Collateral or proceeds thereof or payment with respect thereto received by Second Lien Agent or any other Second Lien Secured Party (including any right of set-off) with respect to the Collateral, and including in connection with any insurance policy claim or any condemnation award (or deed in lieu of condemnation), shall be segregated and held in trust and promptly transferred or paid over to First Lien Agent for the benefit of the First Lien Secured Parties in the same form as received, with any necessary endorsements or assignments or as a court of competent jurisdiction may otherwise direct.  First Lien Agent is hereby authorized to make any such endorsements or assignments as agent for Second Lien Agent.  This authorization is coupled with an interest and is irrevocable.  The Second Lien Agent shall have no obligation to segregate, hold in trust, and transfer or pay over any proceeds of Collateral or payments if, with respect to any applicable payment, (i) other than with respect to Second Lien Agent Payments, the Second Lien Agent shall have received the compliance certificate(s) required to be delivered to Second Lien Agent pursuant to clause (b) of the definition of “Permitted Second Lien Payments” or pursuant to the definition of “Second Lien Interest Payment Conditions”, as applicable, and such compliance certificate(s) certify as to the satisfaction of the conditions set forth in such definitions, and (ii) the Second Lien Agent did not otherwise have actual knowledge of the applicable payment being in contravention of this Agreement and had paid out, applied or retained the applicable payment amount in accordance with the Second Lien Documents prior to acquiring such knowledge.

(b)         So long as the Discharge of First Lien Debt has occurred and the Discharge of Second Lien Debt has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, any Collateral or proceeds thereof or any payment with respect thereto, including in connection with any insurance policy claim or any condemnation award (or deed in lieu of condemnation) shall be applied, to the extent required under the Second Lien Documents, to the Second Lien Debt in accordance with the Second Lien Documents.

(a)         Each Agent agrees to hold any Collateral that can be perfected by the possession or control of such Collateral or of any account in which such Collateral is held, and if such Collateral or any such account is in fact in the possession or under the control of such Agent, or of agents or bailees of such Agent (such Collateral being referred to herein as the “Pledged Collateral”) as gratuitous bailee and sub-collateral agent for and on behalf of the other Agent solely for the purpose of perfecting the Lien granted to the other Agent in such Pledged Collateral (including, but not limited to, any securities or any deposit accounts or securities accounts, if any) pursuant to the First Lien Documents or Second Lien Documents, as applicable, subject to the terms and conditions of this Section 6.

(b)         Until the Discharge of First Lien Debt has occurred, First Lien Agent shall be entitled to deal with the Pledged Collateral in accordance with the terms of the First Lien Documents as if the Liens of Second Lien Agent under the Second Lien Documents did not exist.  Until the Discharge of First Lien Debt has occurred, the rights of Second Lien Agent shall at all times be subject to the terms of this Intercreditor Agreement and to First Lien Agent’s rights under the First Lien Documents.  After the date that Second Lien Agent receives a Discharge of First Lien Debt Notice, and until the Discharge of Second Lien Debt has occurred, the Second Lien Agent shall be entitled to deal with the Pledged Collateral in accordance with the terms of the Second Lien Documents.  Reserved.

(c)         Each Agent shall have no obligation whatsoever to any other Agent or any other Secured Party to assure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 6.  The duties or responsibilities of each Agent under this Section 6 shall be limited solely to holding the Pledged Collateral as gratuitous bailee and sub-collateral agent for and on behalf of the other Agent for purposes of perfecting the Lien held by the other Agent.

(d)         Each Agent shall not have by reason of the First Lien Documents, the Second Lien Documents, or this Intercreditor Agreement, or any other document, a fiduciary relationship in respect of the other Agent or any of the other Secured Parties and shall not have any liability to the other Agent or any other Secured Party in connection with its holding the Pledged Collateral, other than for its gross negligence or willful misconduct as determined by a final, non-appealable order of a court of competent jurisdiction.

(a)          such Second Lien Secured Parties will raise no objection to, nor support any other Person objecting to, and will be deemed to have consented to, the use of any Collateral constituting cash collateral under Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or any post-petition or post-filing financing, provided by any First Lien Secured Party (or provided by any other Person and consented to by First Lien Agent) under Section 364 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law or pursuant to an order granted in any Insolvency or Liquidation Proceeding granting a priority debtor-in-possession or interim financing charge (a “DIP Financing”), will not request or accept adequate protection or any other relief in connection with the use of such cash collateral or such DIP Financing except as set forth in Section 7.4 below and, to the extent the Liens securing the First Lien Debt are subordinated to or pari passu with such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) the Liens (if any) granted to such Second Lien Secured Parties to such DIP Financing on the same terms as such Liens are subordinated to the Liens granted to First Lien Agent hereunder (and such subordination will not alter in any manner the terms of this Intercreditor Agreement), to any adequate protection provided to the First Lien Secured Parties and to any “carve out” agreed to by First Lien Agent; provided, that:

(b)          no such Second Lien Secured Party shall, directly or indirectly, provide, or seek to provide, DIP Financing secured by Liens equal or senior in priority to the Liens on the Collateral of First Lien Agent, without the prior written consent of First Lien Agent.

(a)         Second Lien Agent, on behalf of itself and the other Second Lien Secured Parties, agrees that none of them shall object, contest, or support any other Person objecting to or contesting, (i) any request by First Lien Agent or any of the other First Lien Secured Parties for adequate protection or any adequate protection provided to First Lien Agent or other First Lien Secured Parties or (ii) any objection by First Lien Agent or any of the other First Lien Secured Parties to any motion, relief, action or proceeding based on a claim of a lack of adequate protection or (iii) the payment of interest, fees, expenses or other amounts to First Lien Agent or any other First Lien Secured Party under Section 506(b) or 506(c) of the Bankruptcy Code or under any comparable provision of any other Bankruptcy Law.

(b)         Second Lien Agent, on behalf of itself and the other Second Lien Secured Parties, agrees that none of them shall seek or accept adequate protection without the prior written consent of First Lien Agent; except, that, Second Lien Agent, for itself or on behalf of the other Second Lien Secured Parties, shall be permitted to obtain adequate protection in the form of the benefit of additional or replacement Liens on the Collateral (including proceeds thereof arising after the commencement of any Insolvency or Liquidation Proceeding), or additional or replacement collateral to secure the Second Lien Debt, in connection with any DIP Financing or use of cash collateral as provided for in Section 7.2 above, or in connection with any such adequate protection obtained by First Lien Agent and the other First Lien Secured Parties, as long as in each case, First Lien Agent is also granted such additional or replacement Liens or additional or replacement collateral and such Liens of Second Lien Agent or such other Second Lien Secured Party are subordinated to the Liens securing the First Lien Debt to the same extent as the Liens of Second Lien Agent and such other Second Lien Secured Parties on the Collateral are subordinated to the Liens of First Lien Agent and the other First Lien Secured Parties hereunder and to obtain adequate protection in the form of reports, notices, inspection rights and similar forms of adequate protection to the extent granted to First Lien Agent.

(a)         On the date within the Purchase Option Period specified by the Purchasing Parties in the Purchase Option Notice (which shall not be less than five (5) Business Days, nor more than ten (10) Business Days, after the receipt by First Lien Agent of the Purchase Option Notice), the First Lien Secured Parties shall, subject to any required approval of any court or other regulatory or governmental authority then in effect, if any, sell to the Purchasing Parties, and the Purchasing Parties shall purchase from the First Lien Secured Parties, all of the First Lien Debt (the “First Lien Debt Purchase”).  Notwithstanding anything to the contrary contained herein, in connection with any such purchase and sale, the First Lien Secured Parties shall retain all rights under the First Lien Documents to be indemnified or held harmless by Grantors in accordance with the terms thereof (the “Retained First Lien Obligations”).

(b)          In connection with the First Lien Debt Purchase, each First Lien Lender and each Purchasing Party shall execute and deliver an assignment and acceptance agreement pursuant to which, among other things, each First Lien Lender shall assign to each Purchasing Party, such First Lien Lender’s pro rata share of the Commitments and First Lien Debt relating to the First Lien Debt Purchase.  In addition to and not in limitation of the foregoing, (i) contemporaneously with the consummation of the First Lien Debt Purchase, First Lien Agent shall resign as the “Agent” under the First Lien Documents and Second Lien Agent (acting as collateral agent for the Purchasing Parties, subject to Second Lien Agent’s prior written consent to act as “Agent” under the First Lien Documents, which it may withhold in its sole discretion) or such other Person as the Purchasing Parties shall designate, will be designated as the successor “Agent” under the First Lien Documents (the “Purchasing Party Agent”); and (ii) from and after the closing date of the First Lien Debt Purchase, each of the First Lien Lenders who execute and deliver an assignment and acceptance agreement with the Purchasing Parties (the “Transferring Lenders”) shall continue to be, and shall have all rights and remedies of, a “Lender” under the First Lien Documents; except that each such Transferring Lender shall have no further obligation whatsoever to make any loans, advances or other financial accommodations to or for the benefit of any Grantor under any First Lien Documents.  Subject to the other provisions of this Intercreditor Agreement, the Retained First Lien Obligations shall continue to be secured by the Collateral, the Retained First Lien Obligations shall be repaid, subject to Section 8.3(a)(iv) below, in accordance with the terms of the First Lien Loan Agreement and, subject to the terms of this Intercreditor Agreement, each Transferring Lender shall continue to have all rights and remedies of a Lender under the First Lien Loan Agreement and the other First Lien Documents.  First Lien Agent hereby represents and warrants that, as of the date hereof, no approval of any court or other regulatory or governmental authority is required for the First Lien Debt Purchase.  From and after the First Lien Debt Purchase, the Purchasing Party Agent and the other Second Lien Secured Parties for whom such Purchasing Party Agent is acting shall have the sole right to enforce all rights and remedies under the First Lien Documents and shall be permitted, notwithstanding anything to the contrary contained in Section 4.1 hereof, to immediately enforce any and all of its rights and remedies under the First Lien Documents and/or the Second Lien Documents.

(a)         Upon the date of such purchase and sale, the Purchasing Parties shall pay to First Lien Agent for the account of the First Lien Secured Parties, as the purchase price, the full amount of all of the First Lien Debt then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses), without duplication of amounts paid under clause (i), furnish cash collateral to First Lien Agent in such amounts as First Lien Agent determines is reasonably necessary to secure the First Lien Secured Parties in connection with (x) any issued and outstanding letters of credit issued under the First Lien Documents (but not in any event in an amount greater than one hundred five (105%) percent of the aggregate undrawn face amount of such letters of credit) and (y) any Bank Product Obligations, agree to reimburse the First Lien Secured Parties for any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) in connection with any commissions, fees, costs or expenses related to any issued and outstanding letters of credit as described above and any checks or other payments provisionally credited to the First Lien Debt, and/or as to which the First Lien Secured Parties have not yet received final payment, and agree to reimburse the First Lien Secured Parties in respect of indemnification obligations of Grantors under the First Lien Documents as to matters or circumstances known to the First Lien Secured Parties and disclosed in writing to the Purchasing Party Agent (unless such disclosure is not permitted under applicable law) at the time of the purchase and sale which would reasonably be expected to result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the First Lien Secured Parties.

(b)         Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of First Lien Agent as First Lien Agent may designate in writing to the Purchasing Party Agent for such purpose.  Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Purchasing Parties to the bank account designated by First Lien Agent are received in such bank account prior to 12:00 noon, New York City, New York time and interest shall be calculated to and including such Business Day if the amounts so paid by the Purchasing Parties to the bank account designated by First Lien Agent are received in such bank account later than 12:00 noon, New York City, New York time.

(c)          Ninety (90) days after all letters of credit outstanding under the First Lien Documents have been cancelled with the consent of the beneficiary thereof, expired or have been fully drawn, any remaining cash collateral will be returned to the Purchasing Parties that exercised their option to purchase.

(a)         Second Lien Agent, for itself and on behalf of the other Second Lien Secured Parties, acknowledges and agrees that each of First Lien Agent and the other First Lien Secured Parties have made no express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectability or enforceability of any of the First Lien Documents, the ownership of any Collateral or the perfection or priority of any Liens thereon.  Second Lien Agent agrees, for itself and on behalf of the other Second Lien Secured Parties, that the First Lien Secured Parties will be entitled to manage and supervise their respective loans and extensions of credit under the First Lien Documents in accordance with law and as they may otherwise, in their sole discretion, deem appropriate, and the First Lien Secured Parties may manage their loans and extensions of credit without regard to any rights or interests that Second Lien Agent or any of the other Second Lien Secured Parties have in the Collateral or otherwise, except as otherwise provided in this Intercreditor Agreement.  Neither First Lien Agent nor any of the other First Lien Secured Parties shall have any duty to Second Lien Agent or any of the other Second Lien Secured Parties to act or refrain from acting in a manner which allows, or results in, the occurrence or continuance of an event of default or default under any agreements with any Grantor (including the Second Lien Documents), regardless of any knowledge thereof which they may have or be charged with.

(b)         First Lien Agent, for itself and on behalf of the other First Lien Secured Parties, acknowledges and agrees that Second Lien Agent and the other Second Lien Secured Parties have made no express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectability or enforceability of any of the First Lien Documents, the ownership of any Collateral or the perfection or priority of any Liens thereon.  First Lien Agent agrees, for itself and on behalf of the other First Lien Secured Parties, that the Second Lien Secured Parties will be entitled to manage and supervise their respective loans and notes under the Second Lien Documents in accordance with law and as they may otherwise, in their sole discretion, deem appropriate, and the Second Lien Secured Parties may manage their loans and notes without regard to any rights or interests that First Lien Agent or any of the other First Lien Secured Parties have in the Collateral or otherwise, except as otherwise provided in this Intercreditor Agreement.  Second Lien Agent and the other Second Lien Secured Parties shall not have any duty to First Lien Agent or any of the other First Lien Secured Parties to act or refrain from acting in a manner which allows, or results in, the occurrence or continuance of an event of default or default under any agreements with any Grantor (including the First Lien Documents), regardless of any knowledge thereof which they may have or be charged with.

(a)         the execution, delivery and performance of this Intercreditor Agreement by Second Lien Agent (i) is within the powers of Second Lien Agent, (ii) has been duly authorized by the Second Lien Secured Parties and (iii) does not contravene any law, or any provision of any of the Second Lien Documents or any agreement to which Second Lien Agent is a party or by which it is bound;

(b)          Second Lien Agent is duly authorized to enter into, execute, deliver and carry out the terms of this Intercreditor Agreement on behalf of the Second Lien Secured Parties; and

(c)          this Intercreditor Agreement constitutes the legal, valid and binding obligations of Second Lien Agent, enforceable in accordance with its terms and shall be binding on Second Lien Agent and the Second Lien Secured Parties.

(a)          the execution, delivery and performance of this Intercreditor Agreement by First Lien Agent (i) is within the powers of First Lien Agent, (ii) has been duly authorized by First Lien Secured Parties, and (iii) does not contravene any law, any provision of the First Lien Documents or any agreement to which First Lien Agent is a party or by which it is bound;

(b)          the First Lien Agent is duly authorized to enter into, execute, deliver and carry out the terms of this Intercreditor Agreement on behalf of the First Lien Secured Parties; and

(c)          this Intercreditor Agreement constitutes the legal, valid and binding obligations of First Lien Agent, enforceable in accordance with its terms and shall be binding on First Lien Agent and First Lien Secured Parties.

(a)          contravene the provisions of this Intercreditor Agreement,

(b)          increase the interest rate under any Second Lien Documents in a manner that would cause the total cash pay yield on the Second Lien Debt to exceed by more than two percent (2%) the total cash pay yield on the relevant Second Lien Debt as in effect on the date of the Second Lien Documents (excluding increases resulting from the accrual of interest at the default rate),

(c)          change to earlier dates any scheduled dates for payment of principal of or interest on Second Lien Debt,

(d)          change any default or event of default provisions set forth in the Second Lien Documents in a manner adverse to the Grantors or the First Lien Secured Parties,

(e)          modify or add any covenant or event of default under the Second Lien Documents that restricts Grantors from making payments of any First Lien Debt,

(f)          change the prepayment provisions set forth in the Second Lien Documents to increase the amount of any required prepayment, or

(g)          add to theor accept any Collateral for the Second Lien Debt other than as specifically provided by this Intercreditor Agreement.

(a)         Each Agent agrees that it shall take such further action and shall execute and deliver to each other Agent such additional documents and instruments (in recordable form, if requested) as any such Agent may reasonably request to effectuate the terms of and the lien priorities contemplated by this Intercreditor Agreement.

(b)         Upon the Discharge of First Lien Debt, First Lien Agent agrees to provide written notice thereof to Second Lien Agent (“Discharge of First Lien Debt Notice”).  First Lien Agent covenants and agrees to provide such Discharge of First Lien Debt Notice to Second Lien Agent within five (5) Business Days after the Discharge of First Lien Debt, provided that First Lien Agent shall have no liability for failure to do so. Upon the Discharge of Second Lien Debt, Second Lien Agent agrees to provide written notice thereof to First Lien Agent.  Second Lien Agent covenants and agrees to provide such notice to First Lien Agent within five (5) Business Days after the Discharge of Second Lien Debt, provided that Second Lien Agent shall have no liability for failure to do so.

(a)          This Intercreditor Agreement shall be binding upon First Lien Agent, the other First Lien Secured Parties, Second Lien Agent, the other Second Lien Secured Parties, Grantors and their respective permitted successors and assigns.

(b)          In connection with any participation or other transfer or assignment, a First Lien Secured Party or a Second Lien Secured Party (i) may disclose to such assignee, participant or other transferee or assignee all documents and information which such Person now or hereafter may have relating to Grantors or the Collateral and (ii) shall disclose to such participant or other transferee or assignee the existence and terms and conditions of this Intercreditor Agreement.  In the case of an assignment or transfer, the assignee or transferee acquiring the First Lien Debt or the Second Lien Debt, as the case may be, shall execute and deliver to First Lien Agent or Second Lien Agent, as the case may be, a written acknowledgement of receipt of a copy of this Intercreditor Agreement and the written agreement by such Person to be bound by the terms of this Intercreditor Agreement.

(a)          shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing;

(b)          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 Second Lien Documents that Second Lien Agent is required to exercise as directed in writing by the requisite Second Lien Holders in accordance with the Indenture; provided that Second Lien Agent shall not, except as set forth herein, be required to take any action that, in its opinion or the opinion of its counsel, may expose such Second Lien Agent to liability or that is contrary to the Second Lien Documents to which it is a party, applicable law or court or administrative order;

(c)         shall not, except as expressly set forth in this Intercreditor Agreement and in the Second Lien Documents to which it is a party, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Grantor or any of their Subsidiaries or any of their respective affiliates that is communicated to or obtained by the Person serving as Second Lien Agent or any of its affiliates in any capacity;

(d)          shall be deemed not to have knowledge of any Default or Event of Default under any First Lien Documents unless and until written notice describing such Default or Event Default and stating that such notice is a “notice of default” is given to such Second Lien Agent by the First Lien Agent, for and on behalf of itself and the other Second Lien Secured Parties; and

(e)         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 Intercreditor Agreement or any First Lien Document, (ii) the contents of any certificate, report, instrument, letter, notice, 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 or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Intercreditor Agreement, any First Lien Documents or any other agreement, instrument or document, or the validity, attachment, creation, perfection, priority or enforceability of any Lien purported to be created by the First Lien Documents, (v) the value or the sufficiency of any Collateral for First Lien Debt or (vi) the satisfaction of any condition set forth in any First Lien Documents, other than to confirm receipt of items expressly required to be delivered to Second Lien Agent.