14a intercreditor agreement

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Execution Version INTERCREDITOR AGREEMENT by and between BANK OF AMERICA, N.A., as Bank Collateral Agent and U.S. BANK NATIONAL ASSOCIATION, as Notes Collateral Agent Dated as of September 27, 2013

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Page 1: 14a Intercreditor Agreement

Execution Version

INTERCREDITOR AGREEMENT

by and between

BANK OF AMERICA, N.A., as Bank Collateral Agent

and

U.S. BANK NATIONAL ASSOCIATION, as Notes Collateral Agent

Dated as of September 27, 2013

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TABLE OF CONTENTS Page

ARTICLE 1 DEFINITIONS

Section 1.1 Definitions................................................................................................................1 Section 1.2 Rules of Construction ............................................................................................14

ARTICLE 2 LIEN PRIORITY

Section 2.1 Priority of Liens .....................................................................................................14 Section 2.2 Waiver of Right to Contest Liens ..........................................................................15 Section 2.3 New Liens ..............................................................................................................15 Section 2.4 Similar Liens ..........................................................................................................16 Section 2.5 Exercise of Remedies; Restrictions on Notes Collateral Agent and the

Notes Secured Parties ........................................................................................16 Section 2.6 Exercise of Remedies; Restrictions on Bank Collateral Agent and the

Bank Secured Parties .........................................................................................20 Section 2.7 Joinder in Judicial Proceedings ..............................................................................25

ARTICLE 3 ACTIONS OF THE PARTIES

Section 3.1 Collateral Access Rights ........................................................................................25 Section 3.2 Notes Collateral Rights/Access to Information .....................................................27 Section 3.3 Exercise of Remedies – Set-Off and Tracing of and Priorities in

Proceeds .............................................................................................................27

ARTICLE 4 APPLICATION OF PROCEEDS

Section 4.1 Application of Proceeds .........................................................................................28 Section 4.2 Specific Performance .............................................................................................29

ARTICLE 5 OTHER AGREEMENTS

Section 5.1 Releases..................................................................................................................30 Section 5.2 Insurance ................................................................................................................31 Section 5.3 Amendments to Bank Documents and Notes Documents; Refinancing ...............32 Section 5.4 Bailees for Perfection .............................................................................................34

ARTICLE 6 INSOLVENCY OR LIQUIDATION PROCEEDINGS

Section 6.1 Finance Issues ........................................................................................................35

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Section 6.2 Relief from the Automatic Stay .............................................................................37 Section 6.3 Adequate Protection ...............................................................................................37 Section 6.4 Avoidance Issues ...................................................................................................39 Section 6.5 Separate Grants of Security and Separate Classification; Plan Voting ..................39 Section 6.6 Asset Dispositions in an Insolvency or Liquidation Proceeding ...........................40 Section 6.7 Certain Waivers; Section 510(a) ............................................................................41 Section 6.8 Reorganization Securities ......................................................................................41 Section 6.9 Post-Petition Interest ..............................................................................................42 Section 6.10 Foreign Insolvency Exception. ..............................................................................43

ARTICLE 7 MISCELLANEOUS

Section 7.1 Subrogation ............................................................................................................43 Section 7.2 Further Assurances.................................................................................................44 Section 7.3 Representations ......................................................................................................44 Section 7.4 Amendments ..........................................................................................................45 Section 7.5 Addresses for Notices ............................................................................................45 Section 7.6 No Waiver, Remedies ............................................................................................45 Section 7.7 Continuing Agreement, Transfer of Secured Obligations .....................................46 Section 7.8 Governing Law; Entire Agreement ........................................................................46 Section 7.9 Counterparts ...........................................................................................................46 Section 7.10 No Third Party Beneficiaries .................................................................................46 Section 7.11 Headings ................................................................................................................46 Section 7.12 Severability ............................................................................................................47 Section 7.13 Attorneys’ Fees ......................................................................................................47 Section 7.14 VENUE; JURY TRIAL WAIVER ........................................................................47 Section 7.15 Intercreditor Agreement .........................................................................................47 Section 7.16 Effectiveness ..........................................................................................................47 Section 7.17 Collateral Agents ...................................................................................................47 Section 7.18 Reliance; No Warranties or Liability .....................................................................48 Section 7.19 Conflicts .................................................................................................................48 Section 7.20 Information Concerning Financial Condition of the Grantors ...............................48 Section 7.21 Obligations Unconditional .....................................................................................49

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INTERCREDITOR AGREEMENT

THIS INTERCREDITOR AGREEMENT (as amended, supplemented, restated or otherwise modified from time to time pursuant to the terms hereof, this “Agreement”) is entered into as of September 27, 2013 between BANK OF AMERICA, N.A. (“BofA”), in its capacity as collateral agent for the Bank Secured Parties (as defined below), and U.S. BANK NATION-

AL ASSOCIATION, in its capacity as collateral agent for the Notes Secured Parties (as defined below).

RECITALS

A. BOART LONGYEAR MANAGEMENT PTY LIMITED (ABN 38 123 283 545), a corporation incorporated under the laws of the Commonwealth of Australia (the “Company”), is party to that certain senior secured revolving credit facility, dated as of July 29, 2011 (as amended, restated, supplemented, waived, Refinanced or otherwise modified from time to time (including without limitation to add new loans thereunder or increase the amount of loans thereunder), the “Credit Agreement”), among the Company, BOART LONGYEAR LIMITED (ABN 49 123 052 728), a corporation incorporated under the laws of the Commonwealth of Aus-tralia (the “Parent”), the other guarantors party thereto, the Lenders party thereto from time to time, BANK OF AMERICA, N.A., as Administrative Agent, and the other parties named there-in.

B. The Company is party to an indenture related to the Notes (as defined be-low), dated as of September 27, 2013 (as amended, restated, supplemented, waived, Refinanced or otherwise modified from time to time, the “Indenture”), among the Company, the Parent, the other guarantors identified therein and U.S. Bank National Association, as Trustee and Collateral Agent.

C. The Company and the other Grantors have consented to this Agreement pursuant to the Consent of Company and Grantors in the form of Exhibit A hereto.

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

ARTICLE 1

DEFINITIONS

Section 1.1 Definitions. Unless the context otherwise requires, all capitalized terms used but not defined herein shall have the meanings set forth in the Credit Agreement or the Indenture, as applicable, in each case as in effect on the date hereof. In addition, as used in this Agreement, the following terms shall have the meanings set forth below:

“Access Period” means for each parcel of Mortgaged Property, the period, after the commencement of an Enforcement Period by the Bank Collateral Agent, which begins on the day on which the Bank Collateral Agent provides the Notes Collateral Agent with the written notice of its election to request access pursuant to Section 3.1(b) and ends on the earliest of (i) the 180th day after the date (the “Initial Access Date”) on which the Bank Collateral Agent, or

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its designee, initially obtains the ability to take physical possession of, remove, or otherwise con-trol physical access to, or actually uses, the Bank Priority Collateral located on such Mortgaged Property following Enforcement by the Bank Collateral Agent plus such number of days, if any, after the Initial Access Date that it is stayed or otherwise prohibited by law or court order from exercising remedies with respect to Bank Priority Collateral located on such Mortgaged Proper-ty, (ii) the date on which all or substantially all of the Bank Priority Collateral located on such Mortgaged Properties is sold, collected or liquidated, and (iii) the termination of such Enforce-ment Period.

“Accounts” means all “accounts” as such term is defined in the UCC.

“Additional Pari Passu Notes Agent” means the Person appointed to act as trus-tee, agent or representative for the holders of Additional Pari Passu Notes Obligations pursuant to any Additional Pari Passu Notes Agreement, it being understood and agreed that no Addition-al Pari Passu Notes Agent (if other than the Notes Collateral Agent) shall hold any Lien on Col-lateral.

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

“Additional Pari Passu Notes Obligations” means Indebtedness of the Grantors issued following the date of this Agreement (together with all Obligations in respect to such In-debtedness) to the extent (a) such Indebtedness is permitted by the terms of the Credit Agree-ment and the Indenture to be secured by Liens on the Collateral ranking pari passu with the Liens securing the Notes Obligations, (b) the Grantors have granted Liens on the Collateral to secure such Indebtedness and the obligations in respect of such Indebtedness, and (c) the Additional Pari Passu Notes Agent, for the holders of such Indebtedness, has executed a joinder agreement to the applicable Notes Security Documents in the form attached thereto (or other form reasona-bly satisfactory to the Notes Collateral Agent) agreeing on behalf of itself and such holders to (i) be bound by the terms of this Agreement applicable to them, (ii) appoint the Notes Collateral Agent to act as their collateral agent and representative hereunder and (iii) agree to be bound by the pari passu intercreditor provisions contained in the Notes Security Documents entered into in connection with the Indenture (which provisions are binding on the Notes Secured Parties only).

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

“Agents” means the Bank Collateral Agent and the Notes Collateral Agent.

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

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“Bank Collateral” means all of the assets and property of any Grantor, whether real, personal or mixed, with respect to which a Lien is granted (or purported to be granted) as security for any Bank Obligations.

“Bank Collateral Agent” means BofA, in its capacity as agent for the Bank Se-cured Parties under the Credit Agreement and the other Bank Documents entered into pursuant to the Credit Agreement, together with its successors and permitted assigns under the Credit Agreement and any other agent or representative of the Bank Secured Parties under the Credit Agreement exercising substantially the same rights and powers; and in each case provided that if such Bank Collateral Agent is not BofA, such Bank Collateral Agent shall have become a party to this Agreement and the other applicable Bank Security Documents.

“Bank Default” means an “Event of Default” (as defined in the Credit Agree-ment).

“Bank DIP Financing” has the meaning assigned to that term in Section 6.1(a).

“Bank Documents” means the credit, guaranty and security documents governing the Bank Obligations, including, without limitation, the Credit Agreement, the Bank Security Documents, the other Loan Documents (as defined in the Credit Agreement), Hedging Agree-ments related to Secured Hedging Obligations and documentation entered into by any Grantor relating to Secured Bank Product Obligations, as each may be amended, restated, supplemented, modified, renewed, extended or Refinanced from time to time in accordance with the provisions of this Agreement.

“Bank Lenders” means the “Lenders” under the Credit Agreement.

“Bank Mortgages” means a collective reference to each mortgage, deed of trust, debenture and other document or instrument under which any Lien on real property owned or leased by any Grantor is granted (or purported to be granted) to secure any Bank Obligations or under which rights or remedies with respect to any such Liens are governed.

“Bank Obligations” means all Obligations outstanding under the Credit Agree-ment and the other Bank Documents, including any Secured Bank Product Obligations and any Secured Hedging Obligations. “Bank Obligations” shall include all interest, fees and other amounts accrued or accruing (or which would, absent commencement of an Insolvency or Liqui-dation Proceeding, accrue, regardless of whether a claim therefor is allowed or allowable in any such Insolvency or Liquidation Proceeding) after commencement of an Insolvency or Liquida-tion Proceeding in accordance with the rate specified in the relevant Bank Document whether or not the claim for such interest, fees and other amounts is allowed as a claim in such Insolvency or Liquidation Proceeding.

“Bank Priority Collateral” means any and all of the following assets and proper-ty of any Grantor all now-owned or hereafter acquired that constitutes:

(a) all Accounts and Payment Intangibles (including tax refunds and related tax payments, but excluding intercompany debt owed to the Grantors and Accounts and Payment Intangibles that constitute identifiable Proceeds of Notes Priority Collateral);

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(b) all (x) Deposit Accounts (other than the Notes Collateral Account, Notes Trust Monies and identifiable Proceeds of Notes Priority Collateral) and money and all cash, checks, other negotiable instruments, funds and other evidences of payments held therein (other than identifiable Proceeds of Notes Priority Collateral), and (y) Securities Accounts and Security Entitlements and securities credited thereto (other than the Notes Collateral Account, Notes Trust Monies and identifiable Proceeds of Notes Priority Col-lateral) and, in each case, all cash, checks and other property held therein or credited thereto (other than identifiable Proceeds of Notes Priority Collateral);

(c) all Inventory and all documents of title for any Inventory;

(d) all Instruments (including, without limitation, promissory notes), Docu-ments and Chattel Paper at any time evidencing any of the property described in clauses (a) through (c) of this definition, except to the extent constituting identifiable Proceeds of Notes Priority Collateral;

(e) to the extent relating to, evidencing or governing any of the items referred to in the preceding clauses (a) through (d) of this definition, all General Intangibles (other than Capital Stock of the Company and all other Capital Stock held by the Company and its Subsidiaries and Intellectual Property) and Commercial Tort Claims;

(f) to the extent relating to any of the items referred to in the preceding claus-es (a) through (d) above, all Supporting Obligations and Letter of Credit Rights;

(g) all books and records relating to the items referred to in the preceding clauses (a) through (f) above (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the items referred to in the preceding clauses (a) through (f)); and

(h) all Proceeds of any of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds relating to Inventory and business interruption insurance, Instruments, Securities, Finan-cial Assets and Deposit Accounts constituting identifiable Proceeds of the foregoing.

“Bank Product Obligations” means all Obligations relating to Bank Products.

“Bank Product Provider” means any Bank Lender or Affiliate of a Bank Lender that provides any Bank Products to any Grantor.

“Bank Products” means “Treasury Management Agreement” as such term is de-fined in the Credit Agreement or any comparable definition.

“Bank Secured Parties” means the Bank Collateral Agent, the Bank Lenders and the holders of any Bank Obligations from time to time.

“Bank Security Agreement” means the Security and Pledge Agreement, dated as of June 28, 2013, by and among the Company the other Grantors party thereto and the Bank Col-

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lateral Agent, as the same may be amended, modified, restated, supplemented or replaced from time to time.

“Bank Security Documents” means the Bank Security Agreement and the other Collateral Documents (as defined in the Credit Agreement) and any other agreement, document or instrument pursuant to which a Lien is granted or purported to be granted securing Bank Obli-gations or under which rights or remedies with respect to such Liens are governed.

“Bank Standstill Period” has the meaning set forth in Section 2.6(a)(i).

“Bank Swiss Collateral” means all assets of the type constituting Bank Priority Collateral, but that belong to any Swiss Guarantor (as defined in the Indenture).

“Bankruptcy Code” means Title 11 of the United States Code (11 U.S.C. §101 et seq.), as amended from time to time, and any successor statute.

“Bankruptcy Law” means the Bankruptcy Code and all other liquidation, con-servatorship, bankruptcy, assignment for benefit of creditors, moratorium, rearrangement, re-ceivership, insolvency, administration, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect affecting the rights of creditors generally.

“Business Day” means a day that is a “Business Day” under both the Indenture and the Credit Agreement.

“Capital Stock” means the interest, whether voting or non-voting, and whether denominated as common stock or preferred stock or ordinary shares or preferred shares, as the case may be, of any (a) shareholder in a corporation; (b) partner in a partnership (whether gen-eral, limited, limited liability or joint venture); (c) member in a limited liability company; or (d) other Person having any other form of equity security or ownership interest, in each case includ-ing all warrants, options beneficial interests, participations or other rights to acquire any of the foregoing.

“Collateral” means any and all of the assets and property of any Grantor, whether real, personal or mixed, which constitute Bank Collateral (other than Bank Swiss Collateral) or Notes Collateral. For the avoidance of doubt, Bank Swiss Collateral shall not constitute Collat-eral under this Agreement.

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

“Company” has the meaning set forth in the recitals to this Agreement.

“Credit Agreement” has the meaning assigned to that term in the recitals to this Agreement.

“Credit Documents” means the Bank Documents and the Notes Documents.

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“Deposit Account” means all “deposit accounts” as such term is defined in Arti-cle 9 of the UCC.

“Discharge of Bank Obligations” means the date on which (1) the Bank Obliga-tions (including principal, interest, and premium, if any, but excluding contingent indemnifica-tion obligations not then due and payable) has been paid in full, in cash (including any interest which would accrue and become due but for the commencement of any Insolvency or Liquida-tion Proceeding, whether or not such amounts are allowed or allowable in whole or in part in such case), other than from proceeds of an incurrence of Bank Obligations, (2) all commitments to extend credit and other financial accommodations thereunder shall have been terminated and the Bank Obligations are no longer secured by the Bank Priority Collateral, and (3) (i) discharge, cash collateralization (at the lower of (A) 105% of the aggregate undrawn face amount and (B) the percentage of the aggregate undrawn face amount required for release of liens under the terms of the applicable documents governing the Bank Obligations) or backstop of all outstand-ing letters of credit constituting Bank Obligations and (ii) cash collateralization in an amount reasonably determined by the applicable Bank Secured Parties with respect to (A) Secured Bank Product Obligations and Secured Hedging Obligations (or, at the option of the Bank Secured Party with respect to such Secured Bank Products Obligations and Secured Hedging Obligations, the termination of the applicable Bank Product or Hedging Agreement and the payment in full in cash of all Bank Obligations due and payable in connection with such termination) and (B) continuing obligations of any Bank Secured Party under control agreements and other con-tingent Bank Obligations for which a claim or demand for payment has been made in writing at such time or in respect of matters or circumstances known to a Bank Secured Party at the time which are reasonably expected to result in any loss, cost, damage or expense (including attor-neys’ fees and legal expenses) to any Bank Secured Party for which such is entitled to indemnifi-cation by any Grantor; provided that the Discharge of Bank Obligations shall not be deemed to have occurred in connection with a refinancing of such Bank Obligations with Indebtedness permitted under the Notes Documents that is secured by such Bank Priority Collateral on a first-priority basis under an agreement that has been designated in writing by the administrative agent under the Credit Agreement so refinancing the Credit Agreement to the Notes Collateral Agent as the “Credit Agreement” in accordance with the terms of this Intercreditor Agreement.

“Discharge of Notes Obligations” means payment in full in cash of all Notes Obligations, termination or expiration of all commitments, if any, to extend credit that would constitute Notes Obligations, satisfaction and discharge of the Indenture and any Additional Pari Passu Notes Agreement or legal or covenant defeasance of the Indenture and any Additional Pari Passu Notes Agreement (other than obligations that expressly survive such satisfaction and dis-charge or legal or covenant defeasance).

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

“Enforcement” means, collectively or individually for one or both of the Bank Collateral Agent and the Notes Collateral Agent, when a Bank Default or Notes Default, as ap-plicable, has occurred and is continuing, to enforce or attempt to enforce any right or power to repossess, relevy, attach, garnish, levy upon, collect the Proceeds of, foreclose or realize in any manner whatsoever its Lien upon, sell, liquidate or otherwise dispose of, or otherwise restrict or

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interfere with the use of, or exercise any remedies with respect to, or conduct any Going Out of Business Sale with respect to, all or a material amount of Collateral, whether by judicial en-forcement of any of the rights and remedies under the Bank Documents, the Notes Documents and/or under any applicable law, by self-help repossession, by non-judicial foreclosure sale, lease, or other disposition, by set-off, by notification to account obligors of any Grantor, by any sale, lease, or other disposition implemented by any Grantor following a Bank Default or a Notes Default, as applicable, in connection with which the Bank Collateral Agent or the Notes Collat-eral Agent, as applicable, has agreed to release its Liens on the subject property, or otherwise, but in all cases excluding, to the extent applicable in the relevant Credit Documents (i) the estab-lishment of borrowing base reserves (or the increase or release thereof), collateral ineligibles, or other conditions for advances, (ii) the changing of advance rates or advance sublimits, (iii) the imposition of a default rate or late fee, (iv) the collection and application of Accounts or other monies deposited from time to time in Deposit Accounts or Securities Accounts, in each case, to the extent constituting Bank Priority Collateral, against the Bank Obligations pursuant to the provisions of the Bank Documents (including, without limitation, the notification of account debtors, depositary institutions or any other Person to deliver proceeds of Bank Priority Collat-eral to the Bank Collateral Agent, the exercise by the Bank Collateral Agent of its control of any Bank Priority Collateral that consists of a Deposit Account or Securities Account that is subject to any “control agreement” to which the Bank Collateral Agent is a party or any “cash dominion event” or mandatory prepayment event under the Bank Documents), (v) the collection and appli-cation of monies deposited from time to time in the Notes Collateral Account, to the extent con-stituting Notes Priority Collateral, against the Notes Obligations pursuant to the provisions of the Notes Documents, (vi) the cessation of lending pursuant to the provisions of the Bank Docu-ments, including upon the occurrence of a default, the existence of an over-advance or the failure to satisfy conditions precedent, (vii) the filing of a proof of claim in any Insolvency or Liquida-tion Proceeding, (viii) the consent by the Bank Collateral Agent to disposition by any Grantor of any of the Bank Priority Collateral, (ix) the consent of the Notes Collateral Agent to disposition by any Grantor of any Notes Priority Collateral, (x) the acceleration of the Notes Obligations or the Bank Obligations and (xi) the exercise by a Bank Secured Party of the right of offset with respect to Secured Bank Product Obligations or Secured Hedging Obligations, in each case against Deposit Accounts, Securities Accounts or other Collateral that constitutes Bank Priority Collateral and pursuant to the provisions of the Bank Documents. For the avoidance of doubt, the exercise by the Bank Collateral Agent of any of its rights or remedies against any Bank Swiss Collateral shall not be an Enforcement.

“Enforcement Notice” means a written notice delivered, at a time when a Bank Default or Notes Default has occurred and is continuing, by either the Bank Collateral Agent or the Notes Collateral Agent, as applicable, to the other announcing that an Enforcement Period has commenced, specifying the relevant event of default.

“Enforcement Period” means the period of time following the receipt by either the Bank Collateral Agent or the Notes Collateral Agent of an Enforcement Notice from the oth-er until the earliest of (a) in the case of an Enforcement Period commenced by the Notes Collat-eral Agent, the Discharge of Notes Obligations, (b) in the case of an Enforcement Period com-menced by the Bank Collateral Agent, the Discharge of Bank Obligations, (c) the Bank Collat-eral Agent or the Notes Collateral Agent (as applicable) agreeing in writing to terminate the En-forcement Period, and (d) the date on which the Bank Default or the Notes Default that was the

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subject of the Enforcement Notice relating to such Enforcement Period has been cured to the sat-isfaction of the Bank Collateral Agent or the Notes Collateral Agent, as applicable, or waived in writing in accordance with the requirements of the applicable Credit Documents.

“Going Out of Business Sale” means, following the occurrence and during the continuance of any Bank Default, any sale or liquidation of the Bank Priority Collateral at the request of the Bank Collateral Agent; provided that the net cash proceeds received therefrom shall be applied to repay the Bank Obligations and the commitments under the Credit Agreement shall be permanently reduced by an amount equal to the amount of such net cash proceeds and such sale or liquidation shall be conducted in a commercially reasonable manner.

“Grantors” means the Company, Parent and each Subsidiary that is party to a Bank Security Document or a Notes Security Document.

“Hedging Agreement” means “Swap Contract” as such term is defined in the Credit Agreement or any comparable definition.

“Hedging Obligations” means all liabilities owed under any Hedging Agreement.

“Indebtedness” has the meaning of (x) Finance Debt (as defined in the Credit Agreement) and (y) Indebtedness (as defined in the Indenture), in each case, as in effect on the date hereof.

“Indenture” has the meaning assigned to that term in the recitals to this Agree-ment.

“Insolvency or Liquidation Proceeding” means:

(a) any voluntary or involuntary case or proceeding under the Bankruptcy Code or any other Bankruptcy Law with respect to any Grantor;

(b) any other voluntary or involuntary insolvency, administration, reorganiza-tion or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding with respect to any Grantor or with respect to a material portion of their respective assets, in each case, except as permitted under the Credit Agreement, the Indenture and any Additional Pari Passu Notes Agreement;

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

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

(e) any case or proceeding seeking arrangement, adjustment, protection, relief or composition of any debt or other property of any Grantor;

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(f) any case or proceeding seeking the entry of an order of relief or the ap-pointment of a custodian, receiver, trustee or other similar proceeding with respect to any Grantor or any property or Indebtedness of any Grantor; or

(g) any general assignment for the benefit of creditors or any other marshal-ling of assets and liabilities of any Grantor.

“Instruments” means all present and future “instruments” as such term is defined in Article 9 of the UCC.

“Intellectual Property” means, all of the following in any jurisdiction throughout the world: (a) patents, patent applications, industrial designs, industrial design applications, and inventions, including all renewals, extensions, combinations, divisions, or reissues thereof (“Pa-

tents”); (b) trademarks, service marks, trade names, trade dress, logos, internet domain names and other business identifiers, together with the goodwill symbolized by any of the foregoing, and all applications, registrations, renewals and extensions thereof (“Trademarks”); (c) copy-rights and all works of authorship including all registrations, applications, renewals, extensions and reversions thereof (“Copyrights”); (d) all computer software, source code, executable code, data, databases and documentation thereof; (e) all trade secret rights in information, including trade secret rights in any formula, pattern, compilation, program, device, method, technique, or process, that (1) derives independent economic value, actual or potential, from not being general-ly known to, and not being readily ascertainable by proper means by, other Persons who can ob-tain economic value from its disclosure or use, and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; (f) all other intellectual property or proprietary rights in any discoveries, concepts, ideas, research and development, know-how, formulae, pat-terns, inventions, compilations, compositions, manufacturing and production processes and tech-niques, program, device, method, technique, technical data, procedures, designs, recordings, graphs, drawings, reports, analyses, specifications, databases, and other proprietary or confiden-tial information, including customer lists, supplier lists, pricing and cost information, business and marketing plans and proposals and advertising and promotional materials; and (g) all rights to sue at law or in equity for any infringement or other impairment or violation thereof and all products and proceeds of the foregoing.

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

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

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

“Lien” means with respect to any asset, (a) any mortgage, deed of trust, lien (stat-utory or otherwise), pledge, hypothecation, encumbrance, hypothec, charge or security interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agree-ment, capital lease or title retention agreement (or any financing lease having substantially the

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same economic effect as any of the foregoing) relating to such asset and (c) in the case of securi-ties, any purchase option, call or similar right of a third party with respect to such securities. For the purpose of this Agreement, each Grantor shall be deemed to be the owner of any Property which it has acquired or holds subject to a conditional sale agreement or other arrangement pur-suant to which title to the Property has been retained by or vested in some other Person for secu-rity purposes.

“Lien Priority” means with respect to any Lien of the Bank Collateral Agent, the Bank Secured Parties, the Notes Collateral Agent or the Notes Secured Parties on the Collateral, the order of priority of such Lien as specified in Section 2.1.

“Mortgaged Property” means any real property which shall now or hereafter be subject to a Notes Mortgage and/or a Bank Mortgage. For the avoidance of doubt, Bank Swiss Collateral shall not constitute Mortgaged Property under this Agreement.

“Non-Conforming Plan of Reorganization” means any Plan of Reorganization whose provisions are inconsistent with the provisions of this Agreement, including any Plan of Reorganization that purports to re-order (whether by subordination, invalidation, or otherwise) or otherwise disregard, in whole or part, the provisions of Article 2 (including the Lien priorities of Section 2.1), the provisions of Article 4, or the provisions of Article 6.

“Noteholders” means the “Holders” as defined in the Indenture and any holders of Additional Pari Passu Notes Obligations.

“Notes” means (a) the initial $300.0 million in aggregate principal amount of 10.00% Senior Secured Notes due 2018 issued by the Company pursuant to the Indenture and (b) any additional notes issued under the Indenture by the Company, to the extent permitted by the Indenture and the Credit Agreement.

“Notes Collateral” means any and all assets and property of any Grantor, wheth-er real, personal or mixed, with respect to which a Lien is granted (or purported to be granted) as security for any Notes Obligations.

“Notes Collateral Account” means any deposit account or securities account re-quired to be established pursuant to the Notes Documents for purposes of exclusively holding identifiable Proceeds of Notes Priority Collateral pending application as required under the Notes Documents (it being understood that Bank Priority Collateral deposited in the Notes Collateral Account shall continue to be Bank Priority Collateral).

“Notes Collateral Agent” means U.S. Bank National Association, in its capacity as collateral agent for the Notes Secured Parties under the Indenture and the other Notes Docu-ments, together with its successors and permitted assigns under the Indenture and any other agent or representative of the Notes Secured Parties under the Indenture exercising substantially the same rights and powers; and in each case provided that if such Notes Collateral Agent is not U.S. Bank National Association, such Notes Collateral Agent shall have become a party to this Agreement and the other applicable Notes Security Documents.

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

“Notes DIP Financing” has the meaning assigned to that term in Section 6.1(b).

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

“Notes Mortgages” means a collective reference to each mortgage, deed of trust, debenture and any other document or instrument under which any Lien on real property owned or leased by any Grantor is granted (or purported to be granted) to secure any Notes Obligations or under which rights or remedies with respect to any such Liens are governed.

“Notes Obligations” means all Obligations outstanding under the Notes, the In-denture and the other Notes Documents, and all Additional Pari Passu Notes Obligations. “Notes Obligations” shall include all interest, fees and other amounts accrued or accruing (or which would, absent commencement of an Insolvency or Liquidation Proceeding, accrue regardless of whether a claim therefor is allowed or allowable in any such Insolvency or Liquidation Proceed-ing) after commencement of an Insolvency or Liquidation Proceeding in accordance with the rate specified in the relevant Notes Document or Additional Pari Passu Notes Agreement, whether or not the claim for such interest, fees and other amounts is allowed as a claim in such Insolvency or Liquidation Proceeding.

“Notes Priority Collateral” means all Real Estate Assets, Intellectual Property, Equipment, Capital Stock held by the Parent, the Company and its Subsidiaries and all other Col-lateral other than Bank Priority Collateral.

“Notes Secured Parties” means (i) so long as the Notes are outstanding, the Trustee and the holders of the Notes (including any additional Notes subsequently issued under and in compliance with the terms of the Indenture), (ii) the Notes Collateral Agent and (iii) the holders from time to time of any other Notes Obligations.

“Notes Security Agreement” means the U.S. Security and Pledge Agreement, dated as of September 27, 2013, by and among the Company, the other Grantors and the Notes Collateral Agent, as the same may be amended, modified, restated, supplemented or replaced from time to time in accordance with its terms.

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

“Notes Standstill Period” has the meaning set forth in Section 2.5(a)(i).

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“Notes Trust Monies” means Notes Priority Collateral required pursuant to the Notes Documents to be deposited into the Notes Collateral Account.

“Obligations” means all present and future loans, advances, liabilities, obliga-tions, covenants, duties, and debts from time to time owing by any Grantor to any agent or trus-tee (including either Agent), the Bank Secured Parties, the Notes Secured Parties or any of them or their respective Affiliates, arising from or in connection with the Bank Documents or the Notes Documents, whether for principal, interest or payments for early termination, whether or not evidenced by any note, or other instrument or document, whether arising from an extension of credit, opening of a letter of credit, acceptance, loan, guaranty, indemnification or otherwise, whether direct or indirect, absolute or contingent, due or to become due, primary or secondary, as principal or guarantor, and including all principal, interest, charges, expenses, fees, attorneys’ fees, filing fees and any other sums chargeable to the Grantors, including, without limitation, the “Obligations”, as defined in the Credit Agreement, and the “Obligations”, as defined in the In-denture, under the Notes and any Additional Pari Passu Notes Agreement.

“Party” means the Bank Collateral Agent or the Notes Collateral Agent, and “Parties” means collectively the Bank Collateral Agent and the Notes Collateral Agent.

“Payment Intangibles” means all “payment intangibles” as such term is defined in Article 9 of the UCC.

“Person” means an individual, partnership, corporation, limited liability compa-ny, joint stock company, land trust, business trust, or unincorporated organization, or a govern-ment or agency or political subdivision thereof.

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

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

“Proceeds” means (a) all “proceeds,” as defined in Article 9 of the UCC, with re-spect to the Collateral, and (b) whatever is recoverable or recovered when any Collateral is sold, exchanged, collected or disposed of, whether voluntarily or involuntarily.

“Property” means any interest in any kind of property or asset, whether real, per-sonal or mixed, or tangible or intangible.

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

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

“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,

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agents, borrowers and/or guarantors, including any increase in the principal amount of the loans and commitments provided thereunder, and including in each case, but not limited to, after the original instrument giving rise to such indebtedness has been terminated. “Refinanced” and “Refinancing” have correlative meanings.

“Secured Bank Product Obligations” means Bank Product Obligations owed to any Bank Product Provider that is a Secured Provider (as defined in the Credit Agreement or any comparable definition).

“Secured Hedge Agreement” means any agreement governing Secured Hedging Obligations.

“Secured Hedging Obligations” means Hedging Obligations owed to any coun-terparty that is a Secured Provider (as defined in the Credit Agreement or any comparable defini-tion).

“Secured Party” means the Bank Secured Parties or the Notes Secured Parties, and “Secured Parties” means collectively the Bank Secured Parties and the Notes Secured Par-ties.

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

“Specified Bank Collateral” has the meaning assigned to that term in Section 2.4.

“Subsidiary” has the meaning given such term by the Credit Agreement and the Indenture, each as in effect on the date hereof.

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

“Trustee” means U.S. Bank National Association, in its capacity as trustee under the Indenture and as collateral agent on behalf of the Notes Secured Parties, and its permitted successors.

“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as the same may, from time to time, be in effect in the State of New York; provided that to the extent that the Uniform Commercial Code is used to define any term in any security document and such term is defined differently in differing Articles of the Uniform Commercial Code, the definition of such term contained in Article 9 shall govern; provided, further, that in the event that, by reason of mandatory provisions of law, any or all of the perfection, publication or priori-ty of, or remedies with respect to, Liens of any Party are governed by the Uniform Commercial Code or foreign personal property security laws as enacted and in effect in a jurisdiction other than the State of New York, the term “Uniform Commercial Code” or “UCC” will mean the Uni-form Commercial Code or such foreign personal property security laws as enacted and in effect

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in such other jurisdiction solely for purposes of the provisions thereof relating to such perfection, publication, priority or remedies and for purposes of definitions related to such provisions.

Section 1.2 Rules of Construction. Unless the context of this Agreement clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the term “including” is not limiting and shall be deemed to be followed by the phrase “without limitation,” and the term “or” has, except where otherwise indicated, the inclu-sive meaning represented by the phrase “and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. Article, section, subsection, clause, schedule and exhibit references herein are to this Agreement unless otherwise specified. Any reference in this Agreement to any agreement, instrument, or document shall include all alterations, amendments, changes, restatements, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements thereto and thereof, as applicable (subject to any restrictions on such altera-tions, amendments, changes, restatements, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements set forth herein). Any reference herein to any Person shall be construed to include such Person’s successors and assigns. Any reference herein to the repayment in full of an obligation shall mean the payment in full in cash of such obligation, or in such other manner as may be approved in writing by the requisite holders or representatives in respect of such obligation, or in such other manner as may be approved by the requisite holders or representatives in respect of such obligation.

ARTICLE 2

LIEN PRIORITY

Section 2.1 Priority of Liens.

(a) Notwithstanding (i) the date, time, method, manner, or order of grant, at-tachment, or perfection of any Liens granted to the Bank Collateral Agent or the Bank Secured Parties in respect of all or any portion of the Collateral or of any Liens granted to the Notes Col-lateral Agent or any Notes Secured Parties in respect of all or any portion of the Collateral, and regardless of how any such Lien was acquired (whether by grant, statute, operation of law, sub-rogation or otherwise), (ii) the order or time of filing or recordation of any document or instru-ment for perfecting the Liens in favor of the Bank Collateral Agent or the Notes Collateral Agent (or the Bank Secured Parties or the Notes Secured Parties) on any Collateral, (iii) any provision of the Uniform Commercial Code, the Bankruptcy Code, any other Bankruptcy Law or any other applicable law, or of any of the Bank Documents or any of the Notes Documents, (iv) whether the Bank Collateral Agent or the Notes Collateral Agent, in each case, either directly or through agents, holds possession of, or has control over, all or any part of the Collateral, or (v) any defect or deficiencies in, or failure to perfect, or any avoidance, invalidation or subordination by any third party or court of competent jurisdiction, of the Liens securing the Bank Obligations or Notes Obligations or any other circumstance whatsoever, the Bank Collateral Agent, on behalf of itself and the Bank Secured Parties, and the Notes Collateral Agent, on behalf of itself the Notes Secured Parties, hereby agree that:

(i) any Lien in respect of all or any portion of the Bank Priority Collateral, whether now or hereafter held by or on behalf of the Bank Collateral Agent or any Bank

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Secured Party that secures all or any portion of the Bank Obligations, shall in all respects be senior and prior to all Liens granted to the Notes Collateral Agent or the Notes Se-cured Parties on the Bank Priority Collateral; and

(ii) any Lien in respect of all or any portion of the Notes Priority Collateral, whether now or hereafter held by or on behalf of the Notes Collateral Agent or any Notes Secured Party that secures all or any portion of the Notes Obligations, shall in all respects be senior and prior to all Liens granted to the Bank Collateral Agent or any Bank Secured Party on the Notes Priority Collateral.

Section 2.2 Waiver of Right to Contest Liens. Each of the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, and the Bank Collateral Agent, on be-half of itself and the Bank Secured Parties, consents to the granting of Liens in favor of the other to secure the Bank Obligations and the Notes Obligations, as applicable, and agrees that no Se-cured Party will be entitled to, and it will not (and shall be deemed to have irrevocably, absolute-ly, and unconditionally waived any right to), contest (directly or indirectly) or support (directly or indirectly) any other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding): (a) the attachment, perfection, priority, validity or enforceability of any Lien in the Collateral held by or on behalf of any of the Bank Secured Parties to secure the payment of the Bank Obligations or any of the Notes Secured Parties to secure the payment of the Notes Obligations, (b) the priority, validity or enforceability of the Bank Obligations or the Notes Obligations, including the allowability or priority of the Notes Obligations or the Bank Obligations, as applicable, in any Insolvency or Liquidation Proceeding, or (c) the validity or enforceability of the provisions of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of the Bank Collateral Agent, on behalf of itself and the Bank Secured Parties, or the Notes Collateral Agent, on behalf of itself and the Notes Se-cured Parties, to enforce this Agreement, including the provisions of this Agreement relating to the priority of the Liens securing the Obligations as provided in Sections 2.1, 2.5, 2.6 and 6.1.

Section 2.3 New Liens. So long as neither the Discharge of Bank Obligations nor the Discharge of Notes Obligations has occurred, whether or not any Insolvency or Liquida-tion Proceeding has been commenced by or against the Company or any other Grantor, the par-ties hereto agree, subject to Article 6, that the Company shall not, and shall not permit any other Grantor to:

(a) grant or permit any additional Liens on any asset or property to secure any Notes Obligations unless it has granted or concurrently grants a Lien on such asset or property to secure the Bank Obligations; or

(b) grant or permit any additional Liens on any asset or property (other than Bank Swiss Collateral) to secure any Bank Obligations unless it has granted or concur-rently grants a Lien on such asset or property to secure the Notes Obligations.

To the extent any additional Liens are granted on any asset or property (except as contemplated by Section 2.4) pursuant to this Section 2.3, the priority of such additional Liens shall be deter-mined in accordance with Section 2.1. In addition, to the extent that the foregoing provisions are not complied with for any reason, without limiting any other rights or remedies available here-

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under, the Bank Collateral Agent, on behalf of the Bank Secured Parties, and the Notes Collat-eral Agent, on behalf of Notes Secured Parties, agree that any amounts received by or distributed to any of them pursuant to or as a result of Liens granted in contravention of this Section 2.3 shall be subject to Section 4.1(c). For the avoidance of doubt, the Swiss Guarantors may grant Liens on their assets or property to secure the Bank Obligations in accordance with the terms of the Bank Documents but shall not be required to grant Liens on such asset or property to secure the Notes Obligations.

Section 2.4 Similar Liens. The parties hereto agree that it is their intention that the Bank Collateral (other than, for the avoidance of doubt, any Bank Swiss Collateral) and the Notes Collateral be identical except as otherwise provided herein. In furtherance of the fore-going and of Section 7.2, the parties hereto agree, subject to the other provisions of this Agree-ment, upon request by the Bank Collateral Agent or the Notes Collateral Agent, to cooperate in good faith (and to direct their counsel to cooperate in good faith) from time to time in order to determine the specific items included in the Bank Collateral (other than, for the avoidance of doubt, any Bank Swiss Collateral) and the Notes Collateral and the steps taken to perfect their respective Liens thereon and the identity of the respective parties obligated under the Bank Doc-uments and the Notes Documents. Notwithstanding anything herein to the contrary, it is under-stood and agreed that the provisions of this Section 2.4 shall not apply to any cash collateral that cash collateralizes any letters of credit or letter of credit guaranties outstanding under the Bank Documents (any such cash collateral, the “Specified Bank Collateral”) to the extent that such Specified Bank Collateral is held by Bank of America, N.A. (or by any other LC Issuer under the Credit Agreement).

Section 2.5 Exercise of Remedies; Restrictions on Notes Collateral Agent

and the Notes Secured Parties.

(a) Until the Discharge of Bank Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, subject to the limited extent provided in Article 6 (including, for the avoidance of doubt, Section 6.10), the Notes Collateral Agent and the other Notes Secured Parties:

(i) will not exercise or seek to exercise (but instead shall be deemed to have hereby irrevocably, absolutely and unconditionally waived for the duration of the Notes Standstill Period), any rights, powers, or remedies with respect to any Bank Priority Col-lateral (including (A) any right of set-off or any right under any lockbox agreement or any control agreement with respect to Deposit Accounts or Securities Accounts), landlord waiver or bailee’s letter or similar agreement or arrangement to which the Notes Collat-eral Agent or any Notes Secured Party is a party, (B) any right to undertake self-help re-possession or non-judicial disposition of any Bank Priority Collateral (including any par-tial or complete strict foreclosure), and/or (C) any right to institute, prosecute, or other-wise maintain any action or proceeding with respect to such rights, powers or remedies (including any action of foreclosure)); provided, however, that the Notes Collateral Agent may exercise any or all of such rights, powers, or remedies after a period of at least 180 days has elapsed since the later of: (i) the date on which the Notes Collateral Agent de-clared the existence of a Notes Default, accelerated (to the extent such amount was not al-ready due and owing) the payment of the principal amount of all Notes Obligations, and

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demanded payment thereof and (ii) the date on which the Bank Collateral Agent received the Enforcement Notice from the Notes Collateral Agent relating to such action; provid-ed, further, however, that neither the Notes Collateral Agent nor any other Notes Secured Party shall exercise any rights or remedies with respect to the Bank Priority Collateral if, notwithstanding the expiration of such 180-day period, the Bank Collateral Agent or the other Bank Secured Parties (x) shall have commenced, whether before or after the expira-tion of such 180-day period, and be diligently pursuing the exercise of their rights, pow-ers, or remedies with respect to all or any material portion of such Collateral (prompt written notice of such exercise to be given to the Notes Collateral Agent, provided that the failure to give such notice shall not affect the Bank Collateral Agent’s or any other Bank Secured Party’s rights hereunder), or (y) shall have been stayed by operation of law or any court order from pursuing any such exercise of remedies (during which time the 180-day period shall be tolled) (the period during which the Notes Collateral Agent and the other Notes Secured Parties may not pursuant to this Section 2.5(a)(i) exercise any rights, powers, or remedies with respect to the Bank Priority Collateral, the “Notes

Standstill Period”); provided that in the event that at any time after the Notes Collateral Agent has sent an Enforcement Notice to the Bank Collateral Agent to commence the Notes Standstill Period, the Notes Default that was the basis for such notice is cured or waived or otherwise ceases to exist and no other Notes Defaults under the Notes Docu-ments have occurred and are then continuing, then the Enforcement Notice shall automat-ically and without further action of the parties be deemed rescinded and no Notes Stand-still Period shall be deemed to have been commenced;

(ii) will not, directly or indirectly, contest, protest or object to or knowingly hinder any judicial or non-judicial foreclosure proceeding or action (including any partial or complete strict foreclosure) brought by the Bank Collateral Agent or any other Bank Secured Party relating to the Bank Priority Collateral or any other exercise by the Bank Collateral Agent or any other Bank Secured Party of any other rights, powers and reme-dies relating to the Bank Priority Collateral, including any sale, lease, exchange, transfer, or other disposition of the Bank Priority Collateral, whether under the Bank Documents, applicable law, or otherwise;

(iii) subject to their rights under the proviso to clause (a)(i) above (and under clause (vi) of Section 2.5(c)), will not object to the forbearance by the Bank Collateral Agent or the Bank Secured Parties from bringing or pursuing any Enforcement with re-spect to the Bank Priority Collateral;

(iv) except as may be permitted in Section 2.5(c), Section 3.1(a) or Section 3.3, irrevocably, absolutely, and unconditionally waive any and all rights the Notes Col-lateral Agent or the Notes Secured Parties may have as a junior lien creditor or otherwise to object (and seek or be awarded any relief of any nature whatsoever based on any such objection) to the manner in which the Bank Collateral Agent or the Bank Secured Parties (A) enforce or collect (or attempt to collect) the Bank Obligations or (B) realize or seek to realize upon or otherwise enforce the Liens in and to the Bank Priority Collateral se-curing the Bank Obligations, regardless of whether any action or failure to act by or on behalf of the Bank Collateral Agent or Bank Secured Parties is adverse to the interest of the Notes Collateral Agent or the Notes Secured Parties;

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(v) will not assert, to the fullest extent permitted by applicable law, any right to demand marshaling, appraisal, valuation or other similar right with respect to the Bank Priority Collateral in connection with any foreclosure or other disposition thereof; and

(vi) subject to Section 2.5(a) and (c) and Section 3.3, acknowledge and agree that no covenant, agreement or restriction contained in the Notes Security Documents or any other Notes Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the Bank Collateral Agent or the Bank Secured Parties with respect to the Bank Priority Collateral as set forth in this Agreement and the Bank Documents;

provided, however, that, in the case of (i), (ii), (iii), (iv) and (v) above, the Liens granted to se-cure the Notes Obligations of the Notes Secured Parties shall attach to any Proceeds resulting from actions taken by the Bank Collateral Agent or any Bank Secured Party with respect to the Bank Priority Collateral in accordance with this Agreement (including the priorities described in Section 2) after application of such Proceeds to the extent necessary to meet the requirements of a Discharge of Bank Obligations.

(b) Until the Discharge of Bank Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, the Bank Collateral Agent and the other Bank Secured Parties shall have the right to enforce rights, exer-cise remedies (including set-off and the right to credit bid their debt) and, in connection there-with (including voluntary Dispositions of Bank Priority Collateral by the respective Grantors at the request of the Bank Collateral Agent during the continuance of a Bank Default; provided that the net cash proceeds received therefrom shall be applied to repay the Bank Obligations and the commitments under the Credit Agreement shall be permanently reduced by an amount equal to the amount of such net cash proceeds and such sale or liquidation shall be conducted in a com-mercially reasonable manner) make determinations regarding the release, disposition, or re-strictions with respect to the Bank Priority Collateral (including, without limitation, exercising remedies under account control agreements and lockbox agreements) without any consultation with, notice to, or the consent of the Notes Collateral Agent or any Notes Secured Party; provid-ed, however, that the Lien securing the Notes Obligations shall remain on the Proceeds (other than those properly applied to the Bank Obligations in accordance with Section 4.1(b)) of such Bank Priority Collateral released or disposed of subject to the relative priorities described in Sec-tion 2.1. In exercising rights, powers, and remedies with respect to the Bank Priority Collateral, the Bank Collateral Agent and the Bank Secured Parties may enforce the provisions of the Bank Documents and exercise rights, powers, and/or remedies thereunder and/or under applicable law or otherwise, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent or receiver appointed by them to sell or otherwise dispose of the Bank Priority Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under the Bankruptcy Laws of any applicable jurisdiction.

(c) Notwithstanding anything to the contrary contained herein, the Notes Col-lateral Agent and any Notes Secured Party may:

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

(ii) take any action (not inconsistent with the terms of this Agreement and not adverse to the priority status of the Liens of the Bank Secured Parties on the Bank Priori-ty Collateral, or the rights of the Bank Collateral Agent or any of the Bank Secured Par-ties to exercise rights, powers, and/or remedies in respect thereof, including those under Article 6) in order to create, perfect, preserve or protect (but, subject to Section 3.1(a), not enforce) its Lien on any of the Bank Priority Collateral;

(iii) file any necessary or appropriate responsive or defensive pleadings in op-position to any motion, claim, adversary proceeding or other pleading made by any per-son objecting to or otherwise seeking the disallowance of the claims or Liens of the Notes Secured Parties, including any claims secured by the Bank Priority Collateral, if any, in each case in accordance with the terms of this Agreement;

(iv) file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under either any In-solvency or Liquidation Proceeding or applicable non-Bankruptcy Law, in each case not inconsistent with the terms of this Agreement or applicable law (including the Bankrupt-cy Laws of any applicable jurisdiction) and any pleadings, objections, motions or agree-ments which assert rights or interests available to secured creditors solely with respect to the Notes Priority Collateral;

(v) vote on any Plan of Reorganization, file any proof of claim, make other filings and make any arguments and motions (including in support of or opposition to, as applicable, the confirmation or approval of any Plan of Reorganization) that are, in each case, in accordance with the terms of this Agreement. Without limiting the generality of the foregoing or of the other provisions of this Agreement, any vote to accept, and any other act to support the confirmation or approval of, any Non-Conforming Plan of Reor-ganization shall be inconsistent with and accordingly, a violation of the terms of this Agreement, and the Bank Collateral Agent shall be entitled to have any such vote to ac-cept a Non-Conforming Plan of Reorganization changed and any such support of any Non-Conforming Plan of Reorganization withdrawn;

(vi) exercise any of the rights, powers and/or remedies with respect to any of the Bank Priority Collateral to the extent permitted by Sections 2.5(a)(i) and 3.1(a); pro-vided that prior to taking any action to enforce or exercise any or all such rights, powers or remedies after the end of the Notes Standstill Period, the Notes Collateral Agent shall give the Bank Collateral Agent not more than twenty (20) Business Days’ and not less than five (5) Business Days’ prior written notice of the intention of the Notes Collateral Agent or any other Notes Secured Party to exercise its rights and remedies, which notice may be sent prior to the end of the Notes Standstill Period; provided, however, that a fail-ure to give such notice shall not affect the Notes Collateral Agent’s or any other Notes Secured Party’s rights under this Agreement; and

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(vii) take any action described in clauses (iii), (v), (ix) and (x) of the definition of “Enforcement.”

The Notes Collateral Agent, on behalf of the Notes Secured Parties, agrees that no Notes Secured Party will take or receive any Bank Priority Collateral (including Proceeds) in connection with the exercise of any right or remedy (including set-off) with respect to Bank Priority Collateral in its capacity as a creditor in violation of this Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of Bank Obligations has occurred, except as expressly provided in Sections 2.5(a)(i), 2.5(c), 3.3 and Article 6 the sole right of the Notes Collateral Agent and the Notes Secured Parties with respect to the Bank Priority Collateral is to hold a Lien on such Collateral pursuant to the Notes Security Documents for the period and to the extent granted therein and to receive a share of the Proceeds thereof, if any, in accordance with Sec-tion 4.1(b).

(d) Except as otherwise specifically set forth in Sections 2.5(a), 3.2 and 3.3 and Article 6, the Notes Collateral Agent and the Notes Secured Parties may exercise rights and remedies as unsecured creditors against any Grantor and may exercise rights and remedies with respect to the Notes Priority Collateral, in each case, in accordance with the terms of the Notes Documents and applicable law; provided, however, that in the event that the Notes Collateral Agent or any Notes Secured Party becomes a judgment Lien creditor in respect of Bank Priority Collateral as a result of its enforcement of its rights as an unsecured creditor with respect to the Notes Obligations, such judgment Lien shall be subject to the terms of this Agreement for all purposes (including in relation to the Bank Obligations) as the other Liens securing the Notes Obligations are subject to this Agreement.

(e) Nothing in this Agreement shall prohibit the receipt by the Notes Collat-eral Agent or any other Notes Secured Parties of the required payments of interest, principal and other amounts owed in respect of the Notes Obligations so long as such receipt is not the direct or indirect result of the exercise by the Notes Collateral Agent or any Notes Secured Parties of rights or remedies as a secured creditor (including set-off) with respect to Bank Priority Collat-eral or enforcement in contravention of this Agreement of any Lien held by any of them. Noth-ing in this Agreement impairs or otherwise adversely affects any rights or remedies the Notes Collateral Agent or the Notes Secured Parties may have against the Grantors under the Notes Documents.

Section 2.6 Exercise of Remedies; Restrictions on Bank Collateral Agent

and the Bank Secured Parties.

(a) Until the Discharge of Notes Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, subject to the limited extent provided in Article 6 (including, for the avoidance of doubt, Section 6.10), the Bank Collateral Agent and the other Bank Secured Parties:

(i) will not exercise or seek to exercise (but instead shall be deemed to have hereby irrevocably, absolutely and unconditionally waived for the duration of the Bank Standstill Period) any rights, powers, or remedies with respect to any Notes Priority Col-lateral (including (A) any right of set-off or any right under any lockbox agreement or

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any control agreement with respect to the Notes Collateral Account or Notes Trust Mon-ies), landlord waiver or bailee’s letter or similar agreement or arrangement to which the Bank Collateral Agent or any Bank Secured Party is a party, (B) any right to undertake self-help repossession or nonjudicial disposition of any Notes Priority Collateral (includ-ing any partial or complete strict foreclosure), and/or (C) any right to institute, prosecute or otherwise maintain any action or proceeding with respect to such rights, powers, or remedies (including any action of foreclosure)); provided, however, that the Bank Collat-eral Agent may exercise any or all of such rights, powers, or remedies after a period of at least 180 days has elapsed since the later of: (i) the date on which the Bank Collateral Agent declared the existence of a Bank Default, accelerated (to the extent such amount was not already due and owing) the payment of the principal amount of all Bank Obliga-tions, and demanded payment thereof and (ii) the date on which the Notes Collateral Agent received the Enforcement Notice from the Bank Collateral Agent relating to such action; provided, further, however, that neither the Bank Collateral Agent nor any other Bank Secured Parties shall exercise any rights or remedies with respect to the Notes Pri-ority Collateral if, notwithstanding the expiration of such 180-day period, the Notes Col-lateral Agent or the Notes Secured Parties (x) shall have commenced, whether before or after the expiration of such 180-day period, and be diligently pursuing the exercise of their rights, powers or remedies with respect to all or any material portion of such Collat-eral (prompt notice of such exercise to be given to the Bank Collateral Agent, provided, that the failure to give such notice shall not affect the Notes Collateral Agent’s or any other Notes Secured Party’s rights hereunder) or (y) shall have been stayed by operation of law or by any court order from pursuing any such exercise of remedies (during which time the 180-day period shall be tolled) (the period during which the Bank Collateral Agent and the other Bank Secured Parties may not pursuant to this Section 2.6(a)(i) exer-cise any rights or remedies with respect to the Notes Priority Collateral, the “Bank

Standstill Period”); provided, however, that the Bank Collateral Agent, independent in all respects of the preceding provisos, may exercise the rights provided for in Section 3.1 (with respect to any Access Period) and Section 3.2; provided, further that in the event that at any time after the Bank Collateral Agent has sent an Enforcement Notice to the Notes Collateral Agent to commence the Bank Standstill Period, the Bank Default that was the basis for such notice is cured or waived or otherwise ceases to exist and no other Bank Defaults under the Bank Documents have occurred and are then continuing, then the Enforcement Notice shall automatically and without further action of the parties be deemed rescinded and no Bank Standstill Period shall be deemed to have been com-menced;

(ii) will not, directly or indirectly, contest, protest or object to or knowingly hinder any judicial or non-judicial foreclosure proceeding or action (including any partial or complete strict foreclosure) brought by the Notes Collateral Agent or any other Notes Secured Party relating to the Notes Priority Collateral or any other exercise by the Notes Collateral Agent or any other Notes Secured Party of any rights, powers and remedies re-lating to the Notes Priority Collateral, including any sale, lease, exchange, transfer, or other disposition of the Notes Priority Collateral, whether under the Notes Documents, applicable law, or otherwise, subject to the Notes Collateral Agent’s and the other Notes Secured Parties’ obligations under Sections 3.1 and 3.2;

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(iii) subject to their rights under the proviso to clause (a)(i) above (and under clause (vi) of Section 2.6(c)), will not object to the forbearance by the Notes Collateral Agent or the Notes Secured Parties from bringing or pursuing any Enforcement with re-spect to the Notes Priority Collateral;

(iv) except as may be permitted by Section 2.6(c), 3.1, 3.2, or 3.3, irrevocably, absolutely and unconditionally waive any and all rights the Bank Collateral Agent and Bank Secured Parties may have as a junior lien creditor or otherwise to object (and seek or be awarded any relief of any nature whatsoever based on any such objection) to the manner in which the Notes Collateral Agent or the Notes Secured Parties (A) enforce or collect (or attempt to collect) the Notes Obligations or (B) realize or seek to realize upon or otherwise enforce the Liens in and to the Notes Priority Collateral securing the Notes Obligations, regardless of whether any action or failure to act by or on behalf of the Notes Collateral Agent or Notes Secured Parties is adverse to the interest of the Bank Collateral Agent or the Bank Secured Parties;

(v) will not assert, to the fullest extent permitted by applicable law, any right to demand marshaling, appraisal, valuation or other similar right with respect to the Notes Priority Collateral in connection with any foreclosure or other disposition thereof; and

(vi) subject to Sections 2.6(a) and (c) and Sections 3.1, 3.2, and 3.3, acknowledge and agree that no covenant, agreement or restriction contained in the Bank Security Documents or any other Bank Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the Notes Collateral Agent or the Notes Secured Parties with respect to the Notes Priority Collateral as set forth in this Agreement and the Notes Documents;

provided, however, that in the case of (i), (ii), (iii), (iv) and (v) above, the Liens granted to secure the Bank Obligations of the Bank Secured Parties shall attach to any Proceeds resulting from ac-tions taken by the Notes Collateral Agent or any Notes Secured Party with respect to the Notes Priority Collateral in accordance with this Agreement (including the priorities described in Sec-tion 2) after application of such Proceeds to the extent necessary to meet the requirements of a Discharge of Notes Obligations.

(b) Until the Discharge of Notes Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, the Notes Collateral Agent and the Notes Secured Parties shall have the right to enforce rights, exercise remedies (including set-off and the right to credit bid their debt) and make, in connection there-with (including voluntary Dispositions of Notes Priority Collateral by the respective Grantors at the request of the Notes Collateral Agent during the continuance of a Notes Default; provided that the net cash proceeds received therefrom shall be applied to repay the Notes Obligations and such sale or liquidation shall be conducted in a commercially reasonable manner) determinations regarding the release, disposition, or restrictions with respect to the Notes Priority Collateral without any consultation with, notice to, or the consent of the Bank Collateral Agent or any Bank Secured Party subject to the Notes Collateral Agent’s and the Notes Secured Parties’ obligations under Sections 3.1 and 3.2; provided, however, that the Lien securing the Bank Obligations shall remain on the Proceeds (other than those properly applied to the Notes Obligations in accordance

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with Section 4.1(b)) of such Notes Priority Collateral released or disposed of subject to the rela-tive priorities described in Section 2.1. In exercising rights, powers and remedies with respect to the Notes Priority Collateral, the Notes Collateral Agent and the Notes Secured Parties may en-force the provisions of the Notes Documents and exercise rights, powers and/or remedies there-under and/or under applicable law or otherwise, all in such order and in such manner as they may determine in the exercise of their sole discretion subject to the Notes Collateral Agent’s and the Notes Secured Parties’ obligations under Sections 3.1 and 3.2. Such exercise and enforcement shall include the rights of an agent or receiver appointed by them to sell or otherwise dispose of the Notes Priority Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under the Bankruptcy Laws of any applicable jurisdiction.

(c) Notwithstanding anything to the contrary contained herein, the Bank Col-lateral Agent and any Bank Secured Party may:

(i) file a claim, proof of claim, or statement of interest with respect to the Bank Obligations; provided that an Insolvency or Liquidation Proceeding has been com-menced by or against any Grantor;

(ii) take any action (not inconsistent with the terms of this Agreement and not adverse to the priority status of the Liens of the Notes Secured Parties on the Notes Prior-ity Collateral, or the rights of the Notes Collateral Agent or any of the Notes Secured Par-ties to exercise rights, powers and/or remedies in respect thereof, including those under Article 6) in order to create, perfect, preserve or protect (but, subject to the provisions of Sections 3.1 and 3.2, not enforce) its Lien on any of the Notes Priority Collateral;

(iii) file any necessary or appropriate responsive or defensive pleadings in op-position to any motion, claim, adversary proceeding or other pleading made by any per-son objecting to or otherwise seeking the disallowance of the claims or Liens of the Bank Secured Parties, including any claims secured by the Notes Priority Collateral, if any, in each case in accordance with the terms of this Agreement;

(iv) file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under either any In-solvency or Liquidation Proceeding or applicable non-Bankruptcy Law, in each case not inconsistent with the terms of this Agreement or applicable law (including the Bankrupt-cy Laws of any applicable jurisdiction) and any pleadings, objections, motions or agree-ments which assert rights or interests available to secured creditors solely with respect to the Bank Priority Collateral;

(v) vote on any Plan of Reorganization, file any proof of claim, make other filings and make any arguments and motions (including in support of or opposition to, as applicable, the confirmation or approval of any Plan of Reorganization) that are, in each case, in accordance with the terms of this Agreement. Without limiting the generality of the foregoing or of the other provisions of this Agreement, any vote to accept, and any other act to support the confirmation or approval of, any Non-Conforming Plan of Reor-ganization shall be inconsistent with and, accordingly, a violation of the terms of this

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Agreement, and the Notes Collateral Agent shall be entitled to have any such vote to ac-cept a Non-Conforming Plan of Reorganization changed and any such support of any Non-Conforming Plan of Reorganization withdrawn;

(vi) exercise any of its rights, powers, and/or remedies with respect to any of the Notes Priority Collateral to the extent permitted by Sections 2.6(a)(i), 3.1, and 3.2; provided that prior to taking any action to enforce or exercise any or all such rights, pow-ers or remedies after the end of the Bank Standstill Period, the Bank Collateral Agent shall give the Notes Collateral Agent not more than twenty (20) Business Days’ and not less than five (5) Business Days’ prior written notice of the intention of the Bank Collat-eral Agent or any other Bank Secured Party to exercise its rights and remedies, which no-tice may be sent prior to the end of the Bank Standstill Period; provided, however, that a failure to give such notice shall not affect the Bank Collateral Agent’s or any other Bank Secured Party’s rights under this Agreement; and

(vii) take any action described in clauses (i) through (iv), (vi), (viii), (x) and (xi) of the definition of “Enforcement.”

The Bank Collateral Agent, on behalf of the Bank Secured Parties, agrees that no Bank Secured Party will take or receive any Notes Priority Collateral (including Proceeds) in connection with the exercise of any right or remedy (including set-off) with respect to any Notes Priority Collat-eral in its capacity as a creditor in violation of this Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of Notes Obligations has occurred, except as ex-pressly provided in Sections 2.6(a)(i), 2.6(c) 3.1, 3.2, 3.3 and Article 6, the sole right of the Bank Collateral Agent and the Bank Secured Parties with respect to the Notes Priority Collateral is to hold a Lien on such Collateral pursuant to the Bank Security Documents for the period and to the extent granted therein and to receive a share of the Proceeds thereof, if any, in accordance with Section 4.1(b).

(d) Except as otherwise specifically set forth in Sections 2.6(a) and 3.3 and Article 6, the Bank Collateral Agent and the Bank Secured Parties may exercise rights and reme-dies as unsecured creditors against any Grantor and may exercise rights and remedies with re-spect to the Bank Priority Collateral, in each case, in accordance with the terms of the Bank Documents and applicable law; provided, however, that in the event that any the Bank Collateral Agent or Bank Secured Party becomes a judgment Lien creditor in respect of Notes Priority Col-lateral as a result of its enforcement of its rights as an unsecured creditor with respect to the Bank Obligations, such judgment Lien shall be subject to the terms of this Agreement for all purposes (including in relation to the Notes Obligations) as the other Liens securing the Bank Obligations are subject to this Agreement.

(e) Nothing in this Agreement shall prohibit the receipt by the Bank Collateral Agent or any Bank Secured Parties of the required payments of interest, principal and other amounts owed in respect of the Bank Obligations so long as such receipt is not the direct or indi-rect result of the exercise by the Bank Collateral Agent or any Bank Secured Parties of rights or remedies as a secured creditor (including set-off) with respect to Notes Priority Collateral or en-forcement in contravention of this Agreement of any Lien held by any of them. Nothing in this

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Agreement impairs or otherwise adversely affects any rights or remedies the Bank Collateral Agent or the Bank Secured Parties may have against the Grantors under the Bank Documents.

Section 2.7 Joinder in Judicial Proceedings. Subject to the provisions of Sections 2.5 and 2.6, either Agent may join in any judicial proceedings commenced by the other Agent to enforce Liens on the Collateral, provided that neither Agent, nor the Bank Secured Par-ties or the Notes Secured Parties, as applicable, shall interfere with the Enforcement actions of the other with respect to Collateral in which such party has the priority Lien in accordance with Sections 2.1 and 2.2.

ARTICLE 3

ACTIONS OF THE PARTIES

Section 3.1 Collateral Access Rights.

(a) If the Notes Collateral Agent, or any agent or representative of the Notes Collateral Agent, or any receiver, shall, after any Notes Default, obtain possession or physical control of any of the Mortgaged Properties, the Notes Collateral Agent shall promptly notify the Bank Collateral Agent in writing of that fact, and the Bank Collateral Agent shall, within fifteen (15) Business Days thereafter, notify the Notes Collateral Agent in writing as to whether the Bank Collateral Agent desires to exercise access rights under this Agreement. In addition, if the Bank Collateral Agent, or any agent or representative for the Bank Collateral Agent, or any re-ceiver, shall obtain possession or physical control of any of the Mortgaged Properties or any of the tangible Notes Priority Collateral located on any premises other than a Mortgaged Properties or control over any intangible Notes Priority Collateral, following the delivery to the Notes Col-lateral Agent of an Enforcement Notice, then the Bank Collateral Agent shall promptly notify the Notes Collateral Agent in writing of that fact, and the Bank Collateral Agent shall, within fifteen (15) Business Days thereafter, notify the Notes Collateral Agent in writing as to whether the Bank Collateral Agent desires to exercise access rights under this Agreement. Upon delivery of such notice by the Bank Collateral Agent to the Notes Collateral Agent, the parties shall confer in good faith to coordinate with respect to the Bank Collateral Agent’s exercise of such access rights. Consistent with the definition of “Access Period,” access rights will apply to differing parcels of Mortgaged Properties at differing times, in which case, a differing Access Period will apply to each such property.

(b) During any pertinent Access Period, the Bank Collateral Agent and its agents, representatives and designees shall, subject to the rights of any landlords under any leased Mortgaged Properties, have an irrevocable, non-exclusive right to have access to, and a rent-free right to use, the applicable parcel of Mortgaged Properties that constitutes Notes Priori-ty Collateral and to use any Notes Priority Collateral located thereon for the purpose of (i) ar-ranging for and effecting the sale or disposition of Bank Priority Collateral located on such par-cel, including the manufacture, production, completion, packaging and other preparation of such Bank Priority Collateral for sale or disposition, (ii) selling (by public auction, private sale or a “store closing”, Going Out of Business Sale or similar sale, whether in bulk, in lots or to custom-ers in the ordinary course of business or otherwise and which sale may include augmented Inven-tory of the same type sold in any Grantor’s business), (iii) storing or otherwise dealing with the Bank Priority Collateral, in each case without notice to, the involvement of or interference by the

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Notes Collateral Agent or any Notes Secured Party or liability to the Notes Collateral Agent or any Notes Secured Party; provided that if the Bank Collateral Agent conducts a public auction or private sale of the Bank Priority Collateral at any of the Mortgaged Properties that constitutes Notes Priority Collateral, the Bank Collateral Agent shall provide the Notes Collateral Agent with reasonable notice and use reasonable efforts to hold such auction or sale in a manner which would not unduly disrupt the Notes Collateral Agent’s or any other Notes Secured Party’s use of such Mortgaged Properties. During any such Access Period, the Bank Collateral Agent and its representatives (and persons employed on their behalf), may continue to operate, service, main-tain, process, manufacture, package and sell the Bank Priority Collateral, as well as to engage in bulk sales of Bank Priority Collateral. The Bank Collateral Agent shall take proper and reasona-ble care under the circumstances of any Notes Priority Collateral that is used by the Bank Collat-eral Agent during the Access Period and repair and replace any damage (ordinary wear-and-tear excepted) caused by the Bank Collateral Agent or its agents, representatives or designees and the Bank Collateral Agent shall comply with all applicable laws in all material respects in connec-tion with its use or occupancy of the Notes Priority Collateral. The Bank Collateral Agent and the Bank Secured Parties shall reimburse the Notes Collateral Agent and the Notes Secured Par-ties for any injury or damage to Persons or property (ordinary wear-and-tear excepted) directly caused by the acts or omissions of Persons under its control; provided, however, that the Bank Collateral Agent and the Bank Secured Parties will not be liable for any diminution in the value of the Mortgaged Properties caused by the absence of the Bank Priority Collateral therefrom. In no event shall the Bank Secured Parties or the Bank Collateral Agent have any liability to the Notes Secured Parties and/or to the Notes Collateral Agent hereunder as a result of any condition (including any environmental condition, claim or liability) on or with respect to the Notes Priori-ty Collateral existing prior to the date of the exercise by the Bank Collateral Agent) of its rights under this Agreement. The Bank Collateral Agent and the Notes Collateral Agent shall cooper-ate and use reasonable efforts to ensure that their activities during the Access Period as described above do not interfere materially with the activities of the other as described above, including the right of Notes Collateral Agent to show the Notes Priority Collateral to prospective purchasers and to ready the Notes Priority Collateral for sale.

(c) Consistent with the definition of the term “Access Period,” if any order or injunction is issued or stay is granted or is otherwise effective by operation of law that prohibits the Bank Collateral Agent from exercising any of its rights hereunder, then the Access Period granted to the Bank Collateral Agent under this Section 3.1 shall be stayed during the period of such prohibition and shall continue thereafter for the number of days remaining in the applicable Access Period. The Notes Collateral Agent shall not foreclose or otherwise sell or dispose of any of the Notes Priority Collateral during the Access Period unless the buyer agrees in writing to acquire the Notes Priority Collateral subject to the terms of this Section 3.1 and Section 3.2 of this Agreement and agrees therein to comply with the terms of this Section 3.1. The rights of Bank Collateral Agent and the Bank Secured Parties under this Section 3.1 and Section 3.2 dur-ing the Access Period shall continue notwithstanding such foreclosure, sale or other disposition by the Notes Collateral Agent and the Notes Collateral Agent agrees that any such foreclosure, sale or other disposition shall be expressly subject to such rights.

(d) The Bank Collateral Agent and the Bank Secured Parties shall have the right to bring an action to enforce their rights under this Section 3.1 and Section 3.2, including,

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without limitation, an action seeking possession of the applicable Collateral and/or specific per-formance of this Section 3.1 and Section 3.2.

Section 3.2 Notes Collateral Rights/Access to Information. For the purpos-es of enabling the Bank Collateral Agent to exercise rights and remedies under this Agreement during the Enforcement Period, the Notes Collateral Agent and each Grantor hereby grants (to the full extent of their respective rights and interests) to the Bank Collateral Agent and its agents, representatives and designees an irrevocable, non-exclusive, royalty-free, rent-free license and lease (which will be binding on any successor or assignee of any Notes Priority Collateral) to use all of the Notes Priority Collateral (including, without limitation, all Intellectual Property) to col-lect all Accounts included in Bank Priority Collateral, to copy, use, or preserve any and all in-formation relating to any of the Bank Priority Collateral, and to complete the manufacture, pack-aging, advertising for sale and sale of (i) work-in-process, (ii) raw materials and (iii) complete Inventory; provided, however, the royalty-free, rent-free license and lease with respect to the ap-plicable Notes Priority Collateral (other than Intellectual Property), shall immediately expire up-on the end of the Access Period applicable to such Notes Priority Collateral located on any Mortgaged Properties; provided, further, that such expiration shall be without prejudice to the sale or other disposition of the Bank Priority Collateral in accordance with applicable law.

Section 3.3 Exercise of Remedies – Set-Off and Tracing of and Priorities

in Proceeds. The Notes Collateral Agent, on behalf of the Notes Secured Parties, acknowledges and agrees that, to the extent the Notes Collateral Agent or any Notes Secured Party exercises its rights of set-off against any Bank Priority Collateral, the amount of such set-off shall be held and distributed pursuant to Section 4.1(b). The Bank Collateral Agent, on behalf of the Bank Se-cured Parties, acknowledges and agrees that, to the extent the Bank Collateral Agent or any Bank Secured Party exercises its rights of set-off against any Notes Priority Collateral, the amount of such set-off shall be held and distributed pursuant to Section 4.1(b). The Bank Collateral Agent, for itself and on behalf of the Bank Secured Parties, and the Notes Collateral Agent, for itself and on behalf of the Notes Secured Parties, further agree that prior to an issuance of an Enforcement Notice or the commencement of any Insolvency or Liquidation Proceeding, any Proceeds of Col-lateral, whether or not deposited in an account subject to an account control agreement, which are used by any Grantor to acquire other property which is Collateral shall not (solely as between the Agents, the Bank Secured Parties and the Notes Secured Parties) be treated as Proceeds of Collateral for purposes of determining the relative priorities in the Collateral which was so ac-quired. In addition, unless and until the Discharge of Bank Obligations occurs, subject to Sec-tion 4.1(c), the Notes Collateral Agent and the Notes Secured Parties each hereby (i) consents to the application, prior to the receipt by the Bank Collateral Agent of an Enforcement Notice is-sued by the Notes Collateral Agent, of cash or other Proceeds of Collateral, deposited in ac-counts subject to an account control agreement that constitute Bank Priority Collateral (other than the Notes Collateral Account) to the repayment of Bank Obligations pursuant to the Bank Documents, (ii) agrees that such cash or other Proceeds shall be treated as Bank Priority Collat-eral and, (iii) unless the Bank Collateral Agent has actual knowledge to the contrary or unless such funds are identifiable Proceeds of Notes Priority Collateral, any claim that payments made to the Bank Collateral Agent through the Deposit Accounts and Securities Accounts that are sub-ject to such account control agreements are Proceeds of or otherwise constitute Notes Priority Collateral is waived by the Notes Collateral Agent and the Notes Secured Parties; provided that after the receipt by the Bank Collateral Agent of an Enforcement Notice issued by the Notes Col-

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lateral Agent or the commencement of any Insolvency or Liquidation Proceeding, all identifiable proceeds of Notes Priority Collateral shall be treated as Notes Priority Collateral. Notwithstand-ing the foregoing, any proceeds of Inventory constituting Bank Priority Collateral that has af-fixed to it any trademarks forming part of the Notes Priority Collateral Agent shall not be treated as Proceeds of Notes Priority Collateral for purposes of determining the relative priorities in the Collateral.

In the event that directly or indirectly some or all of the Bank Priority Collateral and some or all of the Notes Priority Collateral are disposed of in a single transaction or series of related transactions in which the aggregate sales price is not allocated between Bank Priority Collateral and Notes Priority Collateral being sold (including in connection with or as a result of the sale of the Capital Stock of a Company Subsidiary which shall be treated as a sale of assets), then solely for purposes of this Agreement, the portion of the aggregate sales price determined to be proceeds of the Bank Priority Collateral on the one hand, and Notes Priority Collateral on the other hand, shall be allocated based upon, in the case of (i) any Bank Priority Collateral consist-ing of Inventory, at the book value as assessed on the date of such disposition, (but in all cases not less than the lower of the cost or market value for such Inventory), (ii) any Bank Priority Collateral consisting of accounts receivable, at face value as assessed on the date of such disposi-tion and (iii) all other Bank Priority Collateral and Notes Priority Collateral at fair market value of such Bank Priority Collateral and Notes Priority Collateral sold, as determined in good faith by the Company in its reasonable judgment or, if the aggregate amount of such other Bank Prior-ity Collateral and Notes Priority Collateral sold is greater than $10.0 million, an independent ap-praiser.

ARTICLE 4

APPLICATION OF PROCEEDS

Section 4.1 Application of Proceeds.

(a) Revolving Nature of Bank Obligations. The Notes Collateral Agent, on behalf of the Notes Secured Parties, acknowledges and agrees that the Credit Agreement includes a revolving commitment and that the amount of the Bank Obligations that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed.

(b) Application of Proceeds of Collateral.

(i) So long as the Discharge of Bank Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, all Bank Priority Collateral or Proceeds thereof received in connection with the sale or other dis-position of, or collection on, such Bank Priority Collateral as a result of the exercise of remedies (including for this purpose any voluntary disposition of Bank Priority Collateral by the Grantors, as approved by the Bank Collateral Agent after a Bank Default) or other Enforcement by either Agent or any Bank Secured Parties or Notes Secured Parties, shall be delivered to the Bank Col-lateral Agent and shall be applied or further distributed by the Bank Collateral Agent to or on account of the Bank Obligations in such order, if any, as specified in the relevant Bank Docu-ments or as a court of competent jurisdiction may otherwise direct. Upon the Discharge of Bank Obligations, the Bank Collateral Agent shall deliver to the Notes Collateral Agent any Bank Pri-

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ority Collateral and Proceeds of Bank Priority Collateral received or delivered to it pursuant to the preceding sentence, in the same form as received, with any necessary endorsements, to be applied by the Notes Collateral Agent to the Notes Obligations in such order as specified in the Notes Security Documents or as a court of competent jurisdiction may otherwise direct.

(ii) So long as the Discharge of Notes Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, all Notes Priority Collateral or Proceeds thereof received in connection with the sale or other disposition of, or collection on, such Notes Priority Collateral as a result of the exercise of reme-dies (including for this purpose any voluntary disposition of Notes Priority Collateral by the Grantors, as approved by the Notes Collateral Agent after a Notes Default) or other Enforcement by either Agent or any Notes Secured Parties or Bank Secured Parties, shall be delivered to the Notes Collateral Agent and shall be applied by the Notes Collateral Agent to the Notes Obliga-tions in such order as specified in the relevant Notes Documents or as a court of competent juris-diction may otherwise direct. Upon the Discharge of Notes Obligations, the Notes Collateral Agent shall deliver to the Bank Collateral Agent any Notes Priority Collateral and Proceeds of Notes Priority Collateral received or delivered to it pursuant to the preceding sentence, in the same form as received, with any necessary endorsements to be applied by the Bank Collateral Agent to the Bank Obligations in such order as specified in the Bank Security Documents or as a court of competent jurisdiction may otherwise direct.

(c) Payments Over. So long as neither the Discharge of Bank Obligations nor the Discharge of Notes Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, any Collateral (including assets or Proceeds subject to Liens referred to in the final sentence of Section 2.3) received by either Agent or any Notes Secured Parties or Bank Secured Parties in connection with the exercise of any right, power, or remedy (including set-off) relating to the Collateral in contravention of this Agreement shall be segregated and held in trust and forthwith paid over to the appropriate Agent for the benefit of the Notes Secured Parties or the Bank Secured Parties, as applicable, in the same form as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct. Each Agent is hereby authorized by the other Agent to make any such en-dorsements as agent for the other Agent or any Notes Secured Parties or Bank Secured Parties, as applicable. This authorization is coupled with an interest and is irrevocable until the Discharge of Bank Obligations and Discharge of Notes Obligations.

(d) Application of Payments. Subject to the other terms of this Agreement, all payments received by (a) the Bank Collateral Agent or the Bank Secured Parties may be applied, reversed and reapplied, in whole or in part, to the Bank Obligations to the extent provided for in the Bank Documents and (b) the Notes Collateral Agent or the Notes Secured Parties may be ap-plied, reversed and reapplied, in whole or in part, to the Notes Obligations to the extent provided for in the Notes Documents.

Section 4.2 Specific Performance. Each of the Bank Collateral Agent and the Notes Collateral Agent is hereby authorized to demand specific performance of this Agree-ment, whether or not the Company or any Grantor shall have complied with any of the provi-sions of any of the Credit Documents, at any time when the other Party shall have failed to com-ply with any of the provisions of this Agreement applicable to it. Each of the Bank Collateral

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Agent, for and on behalf of itself and the Bank Secured Parties, and the Notes Collateral Agent, for and on behalf of itself and the Notes Secured Parties, hereby irrevocably waives any defense based on the adequacy of a remedy at law that might be asserted as a bar to such remedy of spe-cific performance.

ARTICLE 5

OTHER AGREEMENTS

Section 5.1 Releases.

(a) (i) If, in connection with (A) any exercise of remedies or Enforcement (in-cluding as provided for in Section 2.5(b) or Section 6.6(a) and including for this purpose any voluntary disposition of Bank Priority Collateral by the Grantors, as requested by the Bank Col-lateral Agent during the continuance of a Bank Default; provided that the net cash proceeds re-ceived therefrom shall be applied to repay the Bank Obligations and the commitments under the Credit Agreement shall be permanently reduced by an amount equal to the amount of such net cash proceeds and such sale or liquidation shall be conducted in a commercially reasonable man-ner), or (B) any sale, transfer or other disposition of all or any portion of the Bank Priority Col-lateral, so long as such sale, transfer or other disposition is then permitted by the Bank Docu-ments (or is otherwise consented to by the requisite Bank Lenders) and is then permitted by the Notes Documents (or is otherwise consented to by the requisite Noteholders), irrespective of whether a Bank Default has occurred and is continuing, the Bank Collateral Agent, on behalf of any of the Bank Secured Parties, releases any of its Liens on any part of the Bank Priority Col-lateral (or if such Liens are automatically released pursuant to the Bank Documents upon such sale, transfer or other disposition), then the Liens, if any, of the Notes Collateral Agent, for the benefit of the Notes Secured Parties, on the Bank Priority Collateral sold or disposed of in con-nection therewith, shall be automatically, unconditionally and simultaneously released; provided that, to the extent the Proceeds of such Bank Priority Collateral are not applied to reduce Bank Obligations in accordance with Section 4.1, the Notes Collateral Agent shall retain a Lien on such Proceeds in accordance with the terms of this Agreement. The Notes Collateral Agent, on behalf of the Notes Secured Parties, promptly shall, at the sole cost and expense of the Grantors, execute and deliver to the Bank Collateral Agent or such Grantor such termination statements, releases, discharges and other documents as the Bank Collateral Agent or such Grantor may rea-sonably request in writing to effectively confirm such release.

(ii) If, in connection with (A) any exercise of remedies or Enforcement (in-cluding as provided for in Section 2.6(b) or Section 6.6(b) and including for this purpose any voluntary disposition of Notes Priority Collateral by the Grantors, as requested by the Notes Col-lateral Agent during the continuance of a Notes Default; provided that the net cash proceeds re-ceived therefrom shall be applied to permanently repay the Notes Obligations by an amount equal to the amount of such net cash proceeds and such sale or liquidation shall be conducted in a commercially reasonable manner), or (B) any sale, transfer or other disposition of all or any portion of the Notes Priority Collateral, so long as such sale, transfer or other disposition is then permitted by the Notes Documents (or is otherwise consented to by the requisite Noteholders) and is then permitted by the Bank Documents (or is otherwise consented to by the requisite Bank Lenders), irrespective of whether a Notes Default has occurred and is continuing, the Notes Col-lateral Agent, on behalf of any of the Notes Secured Parties, releases any of its Liens on any part

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of the Notes Priority Collateral (or if such Liens are automatically released pursuant to the Notes Documents upon such sale, transfer or other disposition), then the Liens, if any, of the Bank Col-lateral Agent, for the benefit of the Bank Secured Parties, on the Notes Priority Collateral sold or disposed of in connection therewith, shall be automatically, unconditionally and simultaneously released; provided that the provisions of Section 3.1 and 3.2 shall continue, to the extent such Sections are applicable at the time of such sale, transfer or other disposition; provided, further that, to the extent the Proceeds of such Notes Priority Collateral are not applied to reduce Notes Obligations in accordance with Section 4.1, the Bank Collateral Agent shall retain a Lien on such Proceeds in accordance with the terms of this Agreement. The Bank Collateral Agent, on behalf of the Bank Secured Parties, promptly shall, at the sole cost and expense of the Grantors, execute and deliver to the Notes Collateral Agent or such Grantor such termination statements, releases, discharges and other documents as the Notes Collateral Agent or such Grantor may reasonably request in writing to effectively confirm such release.

(b) Until the Discharge of Bank Obligations and Discharge of Notes Obliga-tions shall occur, the Bank Collateral Agent, on behalf of the Bank Secured Parties, and the Notes Collateral Agent, on behalf of the Notes Secured Parties, as applicable, hereby irrevocably constitutes and appoints the other Agent and any officer or agent of the other Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and au-thority in the place and stead of the other Agent or such holder or in the Agent’s own name, from time to time in such Agent’s discretion exercised in good faith, for the purpose of carrying out the terms of this Section 5.1, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary to accomplish the purposes of this Sec-tion 5.1, including any endorsements or other instruments of transfer or release.

(c) Until the Discharge of Bank Obligations and Discharge of Notes Obliga-tions shall occur, to the extent that the Agents or the Bank Secured Parties or the Notes Secured Parties (i) have released any Lien on Collateral and such Lien is later reinstated or (ii) obtain any new Liens from any Grantor, then, in accordance with Section 2.3, the Grantors shall grant a Lien on any such Collateral, subject to the Lien priority provisions of this Agreement, to the oth-er Agent, for the benefit of the Bank Secured Parties or Notes Secured Parties, as applicable.

Section 5.2 Insurance.

(a) Unless and until the Discharge of Bank Obligations has occurred and sub-ject to the terms of and the rights of the Grantors under, the Bank Documents, the Bank Collat-eral Agent, on behalf of the Bank Secured Parties, shall have the sole and exclusive right to ad-just settlement for any insurance policy covering the Bank Priority Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding (or any deed in lieu of condemnation) affecting such Bank Priority Collateral. Until the Discharge of Bank Obligations has occurred, (i) all Proceeds of any such policy and any such award (or any payments with respect to a deed in lieu of condemnation) if in respect of the Bank Priority Col-lateral and to the extent required by the Bank Documents shall be paid to the Bank Collateral Agent for the benefit of the Bank Secured Parties pursuant to the terms of the Bank Documents (including, without limitation, for purposes of cash collateralization of letters of credit) and thereafter, if the Discharge of Bank Obligations has occurred, and subject to the rights of the Grantors under the Notes Security Documents, to the Notes Collateral Agent for the benefit of

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the Notes Secured Parties to the extent required under the Notes Security Documents and then, to the extent the Discharge of Notes Obligations has occurred, to the owner of the subject property or such other Person as may be entitled thereto or as a court of competent jurisdiction may oth-erwise direct, and (ii) if the Notes Collateral Agent or any Notes Secured Parties shall, at any time, receive any Proceeds of any such insurance policy or any such award or payment with re-spect to Bank Priority Collateral in contravention of this Agreement, it shall segregate and hold in trust and forthwith pay such Proceeds over to the Bank Collateral Agent in accordance with the terms of Section 4.1(b).

(b) Unless and until the Discharge of Notes Obligations has occurred, subject to the terms of, and the rights of the Grantors under, the Notes Documents, the Notes Collateral Agent, on behalf of the Notes Secured Parties, shall have the sole and exclusive right to adjust settlement for any insurance policy covering the Notes Priority Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding (or any deed in lieu of condemnation) affecting such Notes Priority Collateral. Until the Discharge of Notes Obligations has occurred, (i) all Proceeds of any such policy and any such award (or any payments with respect to a deed in lieu of condemnation) if in respect of the Notes Priority Col-lateral and to the extent required by the Notes Documents shall be paid to the Notes Collateral Agent for the benefit of the Notes Secured Parties pursuant to the terms of the Notes Documents and thereafter, if the Discharge of Notes Obligations has occurred, and subject to the rights of the Grantors under the Bank Documents, to the Bank Collateral Agent for the benefit of the Bank Secured Parties to the extent required under the Bank Security Documents and then, to the extent the Discharge of Bank Obligations has occurred, to the owner of the subject property, such other Person as may be entitled thereto or as a court of competent jurisdiction may otherwise direct, and (ii) if the Bank Collateral Agent or any Bank Secured Parties shall, at any time, receive any Proceeds of any such insurance policy or any such award or payment with respect to Notes Prior-ity Collateral in contravention of this Agreement, it shall segregate and hold in trust and forth-with pay such Proceeds over to the Notes Collateral Agent in accordance with the terms of Sec-tion 4.1(b).

(c) To effectuate the foregoing, and to the extent that the pertinent insurance company agrees to issue such endorsements, the Agents shall each receive separate lender’s loss payable endorsements naming themselves as loss payee and additional insured, as their interests may appear, with respect to any policies which insure Collateral hereunder. To the extent that an insured loss covers or constitutes both Bank Priority Collateral and Notes Priority Collateral, then the Bank Collateral Agent and the Notes Collateral Agent will work jointly and in good faith to collect, adjust or settle (subject to the rights of the Grantors under the Credit Documents) under the relevant insurance policy.

Section 5.3 Amendments to Bank Documents and Notes Documents; Re-

financing.

(a) Subject to Sections 5.3(c) and 5.3(d), the Bank Documents and Notes Documents may be amended, supplemented or otherwise modified in accordance with their terms, all without affecting the Lien subordination or other provisions of this Agreement.

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(b) (i) The Bank Obligations and the Notes Obligations 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 the Credit Documents) of, the Bank Secured Parties or the Notes Secured Parties, all without affecting the Lien priorities pro-vided for or other provisions in this Agreement; provided, however, that the holders of any such Refinancing Indebtedness (or an authorized agent or trustee on their behalf (the “New Agent”) bind themselves in writing to the terms of this Agreement pursuant to such documents or agree-ments (including amendments or supplements to this Agreement) as the Bank Collateral Agent or Notes Collateral Agent, as the case may be, shall reasonably request and in form and sub-stance reasonably acceptable to the Bank Collateral Agent or Notes Collateral Agent, as the case may be (it being understood and agreed that the execution and delivery by the New Agent of a joinder substantially in the form of Exhibit B to the remaining Agent shall be acceptable to the remaining Agent).

(ii) In addition, if at any time in connection with the Discharge of Bank Obli-gations, the Company enters into any Refinancing of the Credit Agreement secured by the Bank Priority Collateral on a first-priority basis that is permitted by the Notes Documents, then such Discharge of Bank Obligations shall automatically be deemed not to have occurred for all pur-poses of this Agreement and the Credit Agreement and the obligations under such Refinancing shall automatically be treated as Bank Obligations for all purposes of this Agreement, including for purposes of the Lien priorities and rights in respect of Bank Priority Collateral set forth there-in.

(iii) In connection with any Refinancing contemplated by the foregoing claus-es (i) and (ii), this Agreement may be amended at the request and sole expense of the Company, and without the consent of the Bank Collateral Agent, the Notes Collateral Agent or any other Secured Party, (A) to add parties (or any New Agent therefor) providing any such Refinancing Indebtedness in compliance with the Credit Documents, (B) to establish that Liens on any Notes Priority Collateral securing such Refinancing Indebtedness shall have the same priority (or junior priority) as the Liens on any Notes Priority Collateral securing the Indebtedness being refinanced and (C) to establish that the Liens on any Bank Priority Collateral securing such Refinancing In-debtedness shall have the same priority (or junior priority) as the Liens on any Bank Priority Col-lateral Securing the Indebtedness being Refinanced, all on the terms provided for in this Agree-ment immediately prior to such Refinancing.

(c) The Bank Secured Parties will not be entitled to agree (and will not agree) to any amendment to or modification of the Bank Documents, whether in a Refinancing or oth-erwise, that is inconsistent with the terms of this Agreement.

(d) The Notes Collateral Agent and the Notes Secured Parties will not be enti-tled to agree (and will not agree) to any amendment to or modification of the Notes Documents, whether in a Refinancing or otherwise, that is inconsistent with the terms of this Agreement.

(e) So long as the Discharge of Bank Obligations has not occurred, the Notes Collateral Agent agrees that each applicable Notes Security Document that grants a Lien on any material Collateral shall include the following language (or similar language acceptable to the Bank Collateral Agent): “Notwithstanding anything herein to the contrary, the liens and security

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interests granted to U.S. Bank National Association, as Collateral Agent, pursuant to this Agreement and the exercise of any right or remedy by U.S. Bank National Association, as Col-lateral Agent hereunder, are subject to the provisions of the Intercreditor Agreement dated as of September 27, 2013 (as amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), among Bank of America, N.A., as the Bank Collateral Agent, U.S. Bank National Association, as Trustee and as Notes Collateral Agent, and acknowl-edged and consented to by the Grantors (as defined in the Intercreditor Agreement) from time to time party thereto. In the event of any conflict between the terms of the Intercreditor Agreement and the terms of this Agreement, the terms of the Intercreditor Agreement shall govern and con-trol.”

(f) So long as the Discharge of Notes Obligations has not occurred, the Bank Collateral Agent agrees that each applicable Bank Security Document executed on or after the date hereof that grants a Lien on any material Collateral shall include the following language (or similar language acceptable to the Notes Collateral Agent): “Notwithstanding anything herein to the contrary, the liens and security interests granted to Bank of America, N.A., as Agent pursuant to this Agreement and the exercise of any right or remedy by the Agent hereunder, are subject to the provisions of the Intercreditor Agreement dated as of September 27, 2013 (as amended, re-stated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), among the Agent, as Bank Collateral Agent, U.S. Bank National Association, as Trustee and as Notes Collateral Agent, and acknowledged and consented to by the Grantors (as defined in the Intercreditor Agreement) from time to time party thereto. In the event of any conflict between the terms of the Intercreditor Agreement and the terms of this Agreement, the terms of the Inter-creditor Agreement shall govern and control.”

Section 5.4 Bailees for Perfection.

(a) Each Agent agrees to hold that part of the Collateral that is in its posses-sion or control (or in the possession or control of its agents or bailees) to the extent that posses-sion or control thereof is taken to perfect a Lien thereon (such Collateral, which shall include, without limitation, Deposit Accounts, Securities Accounts and Capital Stock, being the “Pledged

Collateral”) as (i) in the case of the Bank Collateral Agent, the collateral agent for the Bank Se-cured Parties under the Bank Documents or, in the case of the Notes Collateral Agent, the collat-eral agent for the Notes Secured Parties under the Notes Documents and (ii) gratuitous bailee and agent for the benefit and on behalf of the other Agent (such bailment and agency being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2), 9-104(a) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security in-terest granted under the Bank Documents and the Notes Documents, respectively, subject to the terms and conditions of this Section 5.4. The Notes Collateral Agent and the Notes Secured Par-ties hereby appoint the Bank Collateral Agent as their agent for the purposes of perfecting their security interest in all Deposit Accounts and Securities Accounts (in each case, other than the Notes Collateral Account) of the Company and the Subsidiaries. The Bank Collateral Agent hereby accepts such appointment and acknowledges and agrees that it shall act for the benefit of the Notes Collateral Agent and the other Notes Secured Parties under each control agreement and that any Proceeds received by the Bank Collateral Agent under any control agreement shall be applied in accordance with Article 4. In furtherance of the foregoing, each Grantor hereby grants

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a security interest in the Pledged Collateral to the Bank Collateral Agent for the benefit of the Notes Secured Parties.

(b) Neither Agent shall have any obligation whatsoever to the other Agent, to any other Bank Secured Parties, or to any other Notes Secured Parties to ensure 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 5.4. The duties or responsibilities of the re-spective Agents under this Section 5.4 shall be limited solely to holding the Pledged Collateral as bailee in accordance with this Section 5.4 and delivering the Pledged Collateral or Proceeds thereof upon a Discharge of Bank Obligations or Discharge of Notes Obligations, as applicable, as provided in paragraph (d) below.

(c) Neither Agent acting pursuant to this Section 5.4 shall have by reason of the Bank Documents, the Notes Documents, this Agreement or any other document a fiduciary relationship in respect of the other Agent, any other Bank Secured Parties or any other Notes Se-cured Parties.

(d) Upon the Discharge of Bank Obligations or the Discharge of Notes Obli-gations, as applicable, the Agent under the Credit Agreement or Notes Documents, as applicable, that have been discharged shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements, first, to the other Agent to the extent the other Obligations remain outstanding, and second, to the applicable Grantor to the extent the Discharge of Bank Obliga-tions and the Discharge of Notes Obligations have occurred (in each case, so as to allow such Person to obtain possession or control of such Pledged Collateral) or as otherwise required by law. Each Agent further agrees to take all other action reasonably requested by the other Agent, at the sole cost and expense of the Grantors, in connection with the other Agent obtaining a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct. Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Agent, which has been discharged, to make any delivery to the other Agent under this Section 5.4(d) is subject to (i) the order of any court of competent jurisdiction, or (ii) any automatic stay imposed in connection with any Insolvency or Liquidation Proceeding.

ARTICLE 6

INSOLVENCY OR LIQUIDATION PROCEEDINGS

Section 6.1 Finance Issues.

(a) If the Bank Collateral Agent consents to financing (“Bank DIP Financ-

ing”) to be provided by one or more Bank Lenders or any other person (the “DIP Lenders”) un-der Section 364 of the Bankruptcy Code or any comparable provision of other applicable Bank-ruptcy Law which is to be secured by any Bank Priority Collateral or the use of cash collateral (“Cash Collateral”) representing proceeds of Bank Priority Collateral under Section 363 of the Bankruptcy Code or any comparable provision of other applicable Bankruptcy Law, the Trustee agrees on behalf of the Notes Secured Parties, that it and the Notes Secured Parties will raise no objection to and will be deemed to have consented to, any such Bank DIP Financing or to the Liens on the Bank Priority Collateral securing the same (“Bank DIP Financing Liens”) or to any use of Cash Collateral that constitutes Bank Priority Collateral so long as:

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(i) either (x) all Bank DIP Financing Liens are senior to, or rank pari passu with, the Liens of the Bank Obligations in such Bank Priority Collateral (in which case, the Notes Collateral Agent will agree for the Notes Secured Parties, to subordinate the Liens of the Notes Secured Parties in such Bank Priority Collateral to the Liens of the Bank Obligations in such Bank Priority Collateral and the Bank DIP Financing Liens) or (y) the Liens of the Notes Collateral Agent are not subordinated to such Bank DIP Fi-nancing Liens;

(ii) the Notes Secured Parties retain liens on the Bank Priority Collateral, in-cluding proceeds thereof arising after the commencement of such proceeding, with the same priority as existed prior to the commencement of the case under the Insolvency or Liquidation Proceeding, subject to any super-priority ranking of liens in favor of the DIP Lenders as provided above and any “carve out” for administrative expenses agreed to by the Bank Collateral Agent, and shall also retain liens on all the Notes Collateral with the same priority as existed prior to the commencement of the case under the Bankruptcy Code; and

(iii) no Notes Secured Party is required (without its consent) to lend or incur any monetary obligation in connection with such Bank DIP Financing.

(b) If the Notes Collateral Agent consents to financing (“Notes DIP Financ-

ing”) to be provided by one or more Noteholder or any other person (the “DIP Noteholders”) under Section 364 of the Bankruptcy Code or any comparable provision of other applicable Bankruptcy Law which is to be secured by any Notes Collateral or the use of cash collateral (“Cash Collateral”) representing proceeds of Notes Collateral under Section 363 of the Bank-ruptcy Code or any comparable provision of other applicable Bankruptcy Law, the Bank Collat-eral Agent agrees on behalf of the Bank Secured Parties, that it and the Bank Secured Parties will raise no objection to and will be deemed to have consented to, any such Notes DIP Financ-ing or to the Liens on the Notes Collateral securing the same (“Notes DIP Financing Liens”) or to any use of Cash Collateral that constitutes Notes Collateral so long as:

(i) either (x) all Notes DIP Financing Liens are senior to, or rank pari passu with, the Liens of the Notes Obligations in such Notes Collateral (in which case, the Bank Collateral Agent will agree for the Notes Secured Parties, to subordinate the Liens of the Bank Secured Parties in such Notes Collateral to the Liens of the Notes Obliga-tions in such Notes Collateral and the Notes DIP Financing Liens) or (y) the Liens of the Bank Collateral Agent are not subordinated to such Notes DIP Financing Liens;

(ii) the Bank Secured Parties retain liens on the Notes Collateral, including proceeds thereof arising after the commencement of such proceeding, with the same pri-ority as existed prior to the commencement of the case under the Insolvency or Liquida-tion Proceeding, subject to any super-priority ranking of liens in favor of the DIP Note-holders as provided above and any “carve out” for administrative expenses agreed to by the Notes Collateral Agent, and shall also retain liens on all the Bank Priority Collateral with the same priority as existed prior to the commencement of the case under the Bank-ruptcy Code; and

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(iii) no Bank Secured Party is required (without its consent) to lend or incur any monetary obligation in connection with such Notes DIP Financing.

(c) (x) the Notes Collateral Agent on behalf of itself and the Notes Secured Parties agrees that no such person shall provide to the Company or any other Grantor any Notes DIP Financing secured by Liens on Notes Collateral to the extent that the Notes Collateral Agent or any Notes Secured Party would, in connection with such financing, be granted a Lien on the Bank Priority Collateral senior to or pari passu with the Liens of the Bank Collateral Agent se-curing the Bank Obligations and (y) the Bank Collateral Agent on behalf of itself and the Bank Secured Parties, agrees that no such persons shall provide to the Company or any other Grantor any Bank DIP Financing to the extent that the Bank Collateral Agent or any Bank Secured Party would, in connection with such financing, be granted a Lien on the Notes Collateral senior to or pari passu with the Liens of the Notes Collateral Agent securing the Notes Obligations.

Section 6.2 Relief from the Automatic Stay.

(a) The Notes Collateral Agent, on behalf of the other Notes Secured Parties, agrees that none of them shall (1) object to or otherwise contest (or support any other Person contesting), any motion for relief from the automatic stay or from any injunction against foreclo-sure or enforcement in respect of the Bank Priority Collateral made by the Bank Secured Parties or (2) until the Discharge of Bank Obligations, seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Bank Priority Collateral, without the prior written consent of the Bank Collateral Agent.

(b) The Bank Collateral Agent, on behalf of the other Bank Secured Parties, agrees that none of them shall (1) object to or otherwise contest (or support any other Person contesting), any motion for relief from the automatic stay or from any injunction against foreclo-sure or enforcement in respect of the Notes Collateral made by the Notes Secured Parties or (2) until the Discharge of Notes Obligations, seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Notes Collateral, without the prior written consent of the Notes Collateral Agent.

Section 6.3 Adequate Protection.

(a) The Notes Collateral Agent, on behalf of itself and the Notes Secured Par-ties, agrees that none of them shall: object to, or otherwise contest (or support any Person con-testing), (a) any request by the Bank Secured Parties for adequate protection on account of the Bank Priority Collateral or (b) any objection by the Bank Secured Parties to any motion, relief, action or proceeding based on the Bank Collateral Agent’s or such holder of Bank Obligations claiming a lack of adequate protection with respect to the Bank Priority Collateral;

(b) The Bank Collateral Agent, on behalf of itself and the Bank Secured Par-ties, agrees that none of them shall: object to, or otherwise contest (or support any Person con-testing), (a) any request by the Notes Secured Parties for adequate protection on account of the Notes Collateral or (b) any objection by the Notes Secured Parties to any motion, relief, action or proceeding based on the Notes Collateral Agent’s or such holder of Notes Obligations claiming a lack of adequate protection with respect to the Notes Collateral;

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(c) Consistent with the foregoing provisions in this Section 6.3 in any Insol-vency or Liquidation Proceeding:

(i) no Notes Secured Party shall file or prosecute any motion for adequate protection (or any comparable request for relief) based upon their respective security in-terests in the Bank Priority Collateral, except that:

(x) any of them may freely seek and obtain relief granting a junior Lien co-extensive in all respects with, but subordinated to, all Liens on Bank Pri-ority Collateral granted in the Insolvency or Liquidation Proceeding to, or for the benefit of, the holders of Bank Obligations (and the Bank Secured Parties will not object to the granting of such junior Lien) and/or a junior superpriority claim; and

(y) any of them may freely seek and obtain any relief upon a motion for adequate protection (or any comparable relief) of their interests in the Bank Collateral, without any condition or restriction whatsoever, at any time after the Discharge of Bank Obligations; and

(ii) no Bank Secured Party shall file or prosecute any motion for adequate pro-tection (or any comparable request for relief) based upon their respective security inter-ests in the Notes Priority Collateral, except that:

(x) any of them may freely seek and obtain relief granting a junior Lien co-extensive in all respects with, but subordinated to, all Liens on Notes Col-lateral granted in the Insolvency or Liquidation Proceeding to, or for the benefit of, the holders of Notes Obligations (and the Notes Secured Parties will not object to the granting of such junior Lien) and/or a junior superpriority claim; and

(y) any of them may freely seek and obtain any relief upon a motion for adequate protection (or any comparable relief), of their interests in the Notes Collateral without any condition or restriction whatsoever, at any time after the Discharge of Notes Obligations.

(d) (i) No Notes Secured Party will file or prosecute in any Insolvency or Liq-uidation Proceeding any motion for adequate protection (or any comparable request for relief) based upon their respective security interests in the Notes Collateral to the extent such adequate protection consists of additional or replacement Liens on Bank Collateral unless the Bank Se-cured Parties are also granted additional or replacement liens on such Bank Priority Collateral, and such Liens in favor of holders of the Bank Secured Parties are senior to the additional or re-placement Liens granted to the Notes Secured Parties and (ii) no Bank Secured Party will file or prosecute in any Insolvency or Liquidation Proceeding any motion for adequate protection (or any comparable request for relief) based upon their respective security interests in the Bank Pri-ority Collateral to the extent such adequate protection consists of additional or replacement Liens on Notes Collateral unless the Notes Secured Parties are also granted additional or replacement liens on such Notes Collateral, and such Liens in favor of holders of the Notes Secured Parties are senior to the additional or replacement Liens granted to the Bank Secured Parties.

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(e) Except as otherwise expressly set forth in this Section or in Section 6.1 or in connection with the exercise of remedies with respect to the Collateral, nothing herein shall limit the rights of (i) the Notes Collateral Agent or the Notes Secured Parties from seeking ade-quate protection with respect to their rights in the Notes Priority Collateral in any Insolvency or Liquidation Proceeding (including adequate protection in the form of a cash payment, periodic cash payments or otherwise, other than from Proceeds of Bank Priority Collateral) or (ii) the Bank Collateral Agent or the Bank Secured Parties from seeking adequate protection with re-spect to their rights in the Bank Priority Collateral in any Insolvency or Liquidation Proceeding (including adequate protection in the form of a cash payment, periodic cash payments or other-wise, other than from Proceeds of Notes Priority Collateral).

Section 6.4 Avoidance Issues.

If any Bank Secured Party or Notes Secured Party is required in any Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay to the estate of the applicable Grantor (or any trustee, receiver or similar person therefor), because the payment of such amount was declared to be fraudulent or preferential in any respect or for any other reason, any amount, a “Recovery,” whether received as proceeds of security, enforcement of any right of setoff or otherwise, then as among the parties to this Agreement, the Bank Obligations or the Notes Obli-gations, as applicable, shall be deemed to be reinstated to the extent of such Recovery and to be outstanding as if such payment had not occurred and such holder of Bank Obligations or the Notes Obligations, as applicable, shall be entitled to a reinstatement of Bank Obligations or the Notes Obligations, as applicable, with respect to all such recovered amounts and shall have all rights under this Agreement. If this Agreement was terminated (in whole or in part) prior to such Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties thereto. Any Bank Priority Collateral received by a Notes Secured Party or any Notes Collateral received by a Bank Secured Party after the Discharge of Bank Obligations or the Discharge of Notes, as applicable, but prior to the time of such Recovery shall be deemed to have been re-ceived prior to the Discharge of Bank Obligations or Discharge of Notes Obligations, as applica-ble, and subject to the provisions of Section 4.1.

Section 6.5 Separate Grants of Security and Separate Classification; Plan

Voting.

(a) The Notes Collateral Agent, on behalf of the Notes Secured Parties, and the Bank Collateral Agent on behalf of the Bank Secured Parties, acknowledge and intend that: the grants of Liens pursuant to the Bank Security Documents and the Notes Security Documents constitute two separate and distinct grants of Liens, and because of, among other things, their differing rights in the Collateral, the Notes Obligations are fundamentally different from the Bank Obligations and must be separately classified in any Plan of Reorganization proposed or confirmed (or approved) in an Insolvency or Liquidation Proceeding. To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held that the claims of the Bank Secured Parties and the Notes Secured Parties in respect of the Collateral constitute claims in the same class (rather than separate classes of secured claims), then the Bank Secured Parties and the Notes Secured Parties hereby acknowledge and agree that all distribu-tions in respect or from the Proceeds of Bank Priority Collateral shall be made as if there were

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separate classes of Bank Obligations and Notes Obligations against the Grantors (with the effect being that, to the extent that the aggregate value of the Bank Priority Collateral or Notes Priority Collateral, as applicable, is sufficient (for this purpose ignoring all claims held by the other Se-cured Parties for whom such Collateral is non-priority in accordance with Section 2.1 and Sec-tion 2.2), the Bank Secured Parties or the Notes Secured Parties, respectively, shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest and other claims, all amounts owing in respect of post-petition interest, fees or expenses that is available from the applicable priority Collateral of such Secured Party (regardless of whether any such claims may or may not be allowed or allowable in whole or in part as against the Grantor in the respective Insolvency or Liquidation Proceeding pursuant to Section 506(b) of the Bankrupt-cy Code or otherwise), before any distribution is made from such pool of priority Collateral in respect of the claims held by the other Secured Parties for whom such Collateral is non-priority, with such other Secured Parties hereby acknowledging and agreeing to turn over to the respec-tive other Secured Parties amounts otherwise received or receivable by them from such pool of priority Collateral to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the aggregate recoveries received thereby.

(b) Without limiting the generality of any provisions of this Agreement, any vote to accept, and any other act to support the confirmation or approval of any Non-Conforming Plan of Reorganization shall be inconsistent with and, accordingly, a violation of the terms of this Agreement, and the Bank Collateral Agent or Notes Collateral Agent, as applicable, shall be entitled to have any such vote to accept a Non-Conforming Plan of Reorganization dismissed and any such support of any Non-Conforming Plan of Reorganization withdrawn.

Section 6.6 Asset Dispositions in an Insolvency or Liquidation Proceeding.

(a) The Notes Collateral Agent, on behalf of itself and the Notes Secured Par-ties, agrees that none of them shall (i) object to or oppose a sale or other disposition of any Bank Priority Collateral (or any portion thereof) under Section 363 of the Bankruptcy Code or any other provision of the Bankruptcy Code or other applicable Bankruptcy Law if the Bank Collat-eral Agent or requisite Bank Secured Parties shall have consented to such sale or disposition of such Bank Priority Collateral and the proceeds of such sale or disposition are applied in accord-ance with this Agreement or (ii) oppose or otherwise contest (or support any other Person con-testing) any lawful exercise by the Bank Secured Parties of the right to credit bid at any sale of Bank Priority Collateral. Notwithstanding the foregoing, this Agreement shall not be construed to prohibit the Notes Secured Parties from exercising a credit bid in a sale or other disposition of Bank Priority Collateral under Section 363 of the Bankruptcy Code or any comparable provision of other applicable Bankruptcy Law; provided that in connection with and immediately after giv-ing effect to any such sale pursuant to such credit bid there occurs a Discharge of Bank Obliga-tions.

(b) The Bank Collateral Agent, on behalf of itself and the Bank Secured Par-ties, agrees that none of them shall (i) object to or oppose a sale or other disposition of any Notes Collateral (or any portion thereof) under Section 363 of the Bankruptcy Code or any other provi-sion of the Bankruptcy Code or other applicable Bankruptcy Law if the Notes Collateral Agent or requisite Notes Secured Parties shall have consented to such sale or disposition of such Notes Collateral and the proceeds of such sale or disposition are applied in accordance with this

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Agreement or (ii) oppose or otherwise contest (or support any other Person contesting) any law-ful exercise by the Notes Secured Parties of the right to credit bid at any sale of Notes Collateral. Notwithstanding the foregoing, this Agreement shall not be construed to prohibit the Bank Se-cured Parties from exercising a credit bid in a sale or other disposition of Notes Collateral under Section 363 of the Bankruptcy Code or any comparable provision of other applicable Bankruptcy Law; provided that in connection with and immediately after giving effect to any such sale pur-suant to such credit bid there occurs a Discharge of Notes Obligations.

Section 6.7 Certain Waivers; Section 510(a).

(a) Until the Discharge of Bank Obligations, the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agrees that none of them shall assert or enforce (or support any Person asserting or enforcing) any claim under Section 506(c) of the Bankruptcy Code or any comparable provision of other applicable Bankruptcy Law pari passu with or senior to the Liens on the Bank Priority Collateral securing the Bank Obligations for costs or expenses of preserving or disposing any Bank Priority Collateral. Until the Discharge of Notes Obliga-tions, the Bank Collateral Agent, on behalf of itself and the Bank Secured Parties, agrees that none of them shall assert or enforce (or support any Person asserting or enforcing) any claim un-der Section 506(c) of the Bankruptcy Code or any comparable provision of other applicable Bankruptcy Law pari passu with or senior to the Liens on the Notes Collateral securing the Notes Obligations for costs or expenses of preserving or disposing any Notes Collateral.

(b) Each Agent, for itself and on behalf of the Secured Parties, agrees to not to object to (or support any other Person objecting) and hereby waives any claim it may hereafter have against any Secured Parties arising out of the election under Section 1111(b)(2) of the Bankruptcy Code by any Bank Secured Party (to any claims of such Bank Secured Party in re-spect of the Bank Priority Collateral) or Notes Secured Party (to any claims of such Notes Se-cured Party in respect of the Notes Priority Collateral) in or from such Insolvency of Liquidation Proceeding.

(c) The Notes Collateral Agent agrees on behalf of the Notes Secured Parties and the Bank Collateral Agent agrees on behalf of the Bank Secured Parties that this Agreement constitutes a “subordination agreement” under Section 510 of the Bankruptcy Code or any com-parable provision of other applicable Bankruptcy Law.

Section 6.8 Reorganization Securities. If, in any Insolvency or Liquidation Proceeding, debt obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor are distributed pursuant to a Plan of Reorganization, both on account of Bank Obligations and on account of Notes Obligations, then, to the extent the debt obligations distrib-uted on account of the Bank Obligations and on account of the Notes Obligations are secured by Liens upon the same property, the provisions of this Agreement will survive the distribution of such debt obligations pursuant to such plan and will apply with like effect to the debt obligations so distributed, to the Liens securing such debt obligations and the distribution of Proceeds there-of.

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Section 6.9 Post-Petition Interest.

(a) Neither the Notes Collateral Agent nor any Notes Secured Party shall op-pose or seek to challenge:

(i) any claim by the Bank Collateral Agent or any Bank Secured Party for al-lowance in any Insolvency or Liquidation Proceeding of Bank Obligations consisting of post-petition interest, fees or expenses to the extent of the value of the Lien on the Bank Priority Collateral securing any Bank Secured Party’s claim, without regard to the exist-ence of the Lien of the Notes Collateral Agent on behalf of the Notes Secured Parties on the Collateral;

(ii) the payment of such fees or expenses allowed in accordance with Sec-tion 6.9(a)(i); or

(iii) the payment of such interest and fees allowed in accordance with Sec-tion 6.9(a)(i) solely from Proceeds of Bank Priority Collateral;

provided that nothing contained in this Section 6.9(a) prohibits the Notes Collateral Agent on behalf of the Notes Secured Parties from seeking adequate protection (to the extent it has not al-ready done so under other provisions of this Agreement) with respect to their rights in the Notes Priority Collateral in any Insolvency or Liquidation Proceeding if such Notes Priority Collateral is the source of payment of post-petition expenses payable to the Bank Collateral Agent or any Bank Secured Party.

(b) Neither the Bank Collateral Agent nor any other Bank Secured Party shall oppose or seek to challenge:

(i) any claim by the Notes Collateral Agent or any Notes Secured Party for allowance in any Insolvency or Liquidation Proceeding of Notes Obligations consisting of post-petition interest, fees or expenses to the extent of the value of the Lien on the Notes Priority Collateral securing any Notes Secured Party’s claim, without regard to the existence of the Lien of the Bank Collateral Agent on behalf of the Bank Secured Parties on the Collateral;

(ii) the payment of such fees or expenses allowed in accordance with Sec-tion 6.9(b)(i); or

(iii) the payment of such interest and fees allowed in accordance with Sec-tion 6.9(b)(i) solely from Proceeds of Notes Priority Collateral;

provided that nothing contained in this Section 6.9(b) prohibits the Bank Collateral Agent on be-half of the Bank Secured Parties from seeking adequate protection (to the extent it has not al-ready done so under other provisions of this Agreement) with respect to their rights in the Bank Priority Collateral in any Insolvency or Liquidation Proceeding if such Bank Priority Collateral is the source of payment of post-petition expenses payable to the Notes Collateral Agent or any Notes Secured Party.

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Section 6.10 Foreign Insolvency Exception..

(a) Each Agent, for itself and its related Secured Parties, agrees that the provi-sions of this Article 6 are intended to benefit the Notes Secured Parties with respect to the Notes Priority Collateral and the Bank Secured Parties with respect to the Bank Priority Collateral un-der the laws of any jurisdiction outside the United States in which an Insolvency or Liquidation Proceeding may occur to the same extent as if such Insolvency or Liquidation Proceeding was governed by the laws of the United States.

(b) Notwithstanding anything in this Agreement to the contrary, in the event that applicable Bankruptcy Law in a jurisdiction other than the United States requires a creditor to enforce its security against the whole or substantially the whole of the property of a Grantor within a prescribed period, as a condition to being able to exercise any rights against the property of a Grantor, then (i) the Bank Collateral Agent shall not be prohibited from concurrently exer-cising rights against all Collateral within the prescribed period, including Notes Priority Collat-eral, so long as, to the extent it is not inconsistent with the requirements of the applicable Bank-ruptcy Law, (w) prior to the commencement of any enforcement of rights or any exercise of remedies with respect to any Notes Priority Collateral, the Bank Collateral Agent shall provide prior written notice thereof to the Notes Collateral Agent, such notice to be provided as far in advance of such commencement as reasonably practicable, and shall regularly inform the Notes Collateral Agent of developments in connection with such enforcement or exercise, (x) the Bank Collateral Agent prioritizes remedies against Bank Priority Collateral before remedies against Notes Priority Collateral to the extent practicable, (y) the Bank Collateral Agent attempts in good faith to follow the instructions or directions of the Notes Collateral Agent with respect to any Notes Priority Collateral, and (z) the Notes Collateral Agent receives any proceeds from such Note Priority Collateral in accordance with Article IV hereof; and (ii) the Notes Collateral Agent shall not be prohibited from concurrently exercising rights against all Collateral, within the pre-scribed period including Bank Priority Collateral, so long as, to the extent it is not inconsistent with the requirements of the applicable Bankruptcy Law, (w) prior to the commencement of any enforcement of rights or any exercise of remedies with respect to any Bank Priority Collateral, the Notes Collateral Agent shall provide prior written notice thereof to the Bank Collateral Agent, such notice to be provided as far in advance of such commencement as reasonably practi-cable, and shall regularly inform the Bank Collateral Agent of developments in connection with such enforcement or exercise, (x) the Notes Collateral Agent prioritizes remedies against Notes Priority Collateral before remedies against Bank Priority Collateral to the extent practicable, (y) the Notes Collateral Agent attempts in good faith to follow the instructions or directions of the Bank Collateral Agent with respect to any Bank Priority Collateral, and (z) the Bank Collateral Agent receives any proceeds from such Bank Priority Collateral in accordance with Article 4 hereof.

ARTICLE 7

MISCELLANEOUS

Section 7.1 Subrogation.

(a) With respect to the value of any payments or distributions in cash, proper-ty or other assets that any of the Notes Secured Parties actually pays over to the Bank Collateral

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Agent or the Bank Secured Parties under the terms of this Agreement, the Notes Secured Parties shall be subrogated to the rights of the Bank Secured Parties; provided, however, that the Notes Collateral Agent, on behalf of the Notes Secured Parties, hereby agrees not to assert or enforce all such rights of subrogation it may acquire as a result of any payment hereunder until the Dis-charge of Bank Obligations has occurred. The Grantors acknowledge and agree that, to the ex-tent permitted by applicable law, the value of any payments or distributions in cash, property or other assets received by the Notes Secured Parties that are paid over to the Bank Secured Parties pursuant to this Agreement shall not reduce any of the Notes Obligations. Notwithstanding the foregoing provisions of this Section 7.1(a), none of the Notes Secured Parties shall have any claim against any of the Bank Secured Parties for any impairment of any subrogation rights here-in granted to the Notes Secured Parties.

(b) With respect to the value of any payments or distributions in cash, proper-ty or other assets that any of the Bank Secured Parties actually pays over to the Notes Secured Parties under the terms of this Agreement, the Bank Secured Parties shall be subrogated to the rights of the Notes Secured Parties; provided, however, that the Bank Collateral Agent, on behalf of the Bank Secured Parties, hereby agrees not to assert or enforce all such rights of subrogation it may acquire as a result of any payment hereunder until the Discharge of Notes Obligations has occurred. The Grantors acknowledge and agree that, to the extent permitted by applicable law, the value of any payments or distributions in cash, property or other assets received by the Bank Secured Parties that are paid over to the Notes Secured Parties pursuant to this Agreement shall not reduce any of the Bank Obligations. Notwithstanding the foregoing provisions of this Sec-tion 7.1(b), none of the Bank Secured Parties shall have any claim against any of the Notes Se-cured Parties for any impairment of any subrogation rights herein granted to the Bank Secured Parties.

Section 7.2 Further Assurances. The Parties will, at their own expense and at any time and from time to time, promptly execute and deliver all further instruments and doc-uments, and take all further action, that may be necessary or desirable, or that any Party may rea-sonably request, in order to protect any right or interest granted or purported to be granted hereby or to enable the Bank Collateral Agent or the Notes Collateral Agent to exercise and enforce its rights and remedies hereunder; provided, however, that no Party shall be required to pay over any payment or distribution, execute any instruments or documents, or take any other action re-ferred to in this Section 7.2, to the extent that such action would contravene any law, order or other legal requirement or any of the terms or provisions of this Agreement, and in the event of a controversy or dispute, such Party may interplead any payment or distribution in any court of competent jurisdiction, without further responsibility in respect of such payment or distribution under this Section 7.2.

Section 7.3 Representations. The Notes Collateral Agent represents and warrants (for itself and solely in its capacity as Notes Collateral Agent) to the Bank Collateral Agent that it has the requisite power and authority under the Notes Documents to enter into, exe-cute, deliver, and carry out the terms of this Agreement on behalf of itself and the Notes Secured Parties and that this Agreement shall be binding obligations of the Notes Collateral Agent and the Notes Secured Parties, enforceable against the Notes Collateral Agent and Notes Secured Parties in accordance with its terms. The Bank Collateral Agent represents and warrants to the Notes Collateral Agent that it has the requisite power and authority under the Bank Documents

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to enter into, execute, deliver, and carry out the terms of this Agreement on behalf of itself and the Bank Secured Parties and that this Agreement shall be binding obligations of the Bank Col-lateral Agent and the Bank Secured Parties, enforceable against the Bank Collateral Agent and the Bank Secured Parties in accordance with its terms.

Section 7.4 Amendments. No amendment or waiver of any provision of this Agreement nor consent to any departure by any Party hereto shall be effective unless it is in a written agreement executed by the Notes Collateral Agent and the Bank Collateral Agent, and consented to in writing by the Company, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that the Company shall not have any right to consent to or approve any amendment, modification or waiver of any provision of this Agreement except to the extent that such amendment, modification or waiver (i) adversely affects or impairs any Grantor’s rights hereunder, under the Bank Documents or under the Notes Documents or (ii) imposes any additional obligation or liability upon any Grantor. Notwithstanding anything in this Section 7.4 to the contrary, this Agreement may be amended from time to time at the written request of the Company delivered to each Agent, at the Compa-ny’s expense, and without the consent of the Bank Collateral Agent, any Bank Secured Party, the Notes Collateral Agent or any Notes Secured Party to (i) provide for a replacement Bank Collat-eral Agent in accordance with the Bank Documents, provide for a replacement Notes Collateral Agent in accordance with the applicable Notes Documents (including for the avoidance of doubt to provide for a replacement Notes Collateral Agent assuming such role in connection with any Refinancing of the Notes Documents permitted hereunder) and/or secure additional extensions of credit or add other parties holding Bank Obligations or Notes Obligations to the extent such In-debtedness does not expressly violate the Credit Agreement or the Indenture and (ii) in the case of such additional Notes Obligations, (a) establish that the Lien on the Collateral securing such Notes Obligations shall be junior and subordinate in all respects to all Liens on the Collateral se-curing any Bank Obligations (at least to the same extent as (taken together as a whole) the Liens on Collateral in favor of the Notes Obligations are junior and subordinate to the Liens on Collat-eral in favor of the Bank Obligations pursuant to this Agreement immediately prior to the incur-rence of such additional Notes Obligations) and (b) provide to the holders of such Notes Obliga-tions (or any agent or trustee thereof) the comparable rights and benefits (including any im-proved rights and benefits that have been consented to by the Bank Collateral Agent) as are pro-vided to the Notes Secured Parties under this Agreement.

Section 7.5 Addresses for Notices. All notices to the Bank Secured Parties and the Notes Secured Parties permitted or required under this Agreement may be sent to the ap-plicable Agent for such Secured Party, respectively, as provided on the signature page hereto or in any joinder hereto or in any written notice of a change of such address delivered by an Agent to the other Agent. Unless otherwise specifically provided herein, any notice or other communi-cation herein required or permitted to be given shall be in writing and may be personally served, telecopied, electronically mailed or sent by courier service or U.S. mail and shall be deemed to have been given when delivered in person or by courier service, upon receipt of a telecopy or electronic mail or upon receipt via U.S. mail (registered or certified, with postage prepaid and properly addressed).

Section 7.6 No Waiver, Remedies. No failure on the part of any Party to ex-ercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall

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any single or partial exercise of any right hereunder preclude any other or further exercise there-of or the exercise of any other right. The remedies herein provided are cumulative and not ex-clusive of any remedies provided by law.

Section 7.7 Continuing Agreement, Transfer of Secured Obligations. This Agreement is a continuing agreement and shall (a) subject to Section 5.3, remain in full force and effect until the Discharge of Bank Obligations or Discharge of Notes Obligations shall have oc-curred, (b) be binding upon the Parties and their successors and assigns, and (c) inure to the ben-efit of and be enforceable by the Parties and their respective successors, transferees and assigns. Nothing herein is intended, or shall be construed to give, any other Person any right, remedy or claim under, to or in respect of this Agreement or any Collateral. All references to any Grantor shall include any Grantor as debtor-in-possession and any receiver or trustee for such Grantor in any Insolvency or Liquidation Proceeding. Without limiting the generality of the foregoing clause (c), the Bank Collateral Agent, any Bank Secured Party, the Notes Collateral Agent and any Notes Secured Party may assign or otherwise transfer all or any portion of the Bank Obliga-tions or the Notes Obligations, as applicable, to any other Person (other than the Company, any Grantor or any Affiliate of the Company or any Grantor and any Subsidiary of the Company or any Grantor), and such other Person shall thereupon become vested with all the rights and obli-gations in respect thereof granted to the Bank Collateral Agent, the Notes Collateral Agent, any Bank Secured Party, or any applicable Notes Secured Party, as the case may be, herein or other-wise. The Bank Secured Parties and the Notes Secured Parties may continue, at any time and without notice to the other parties hereto, to extend credit and other financial accommodations, lend monies and provide Indebtedness to, or for the benefit of, any Grantor on the faith hereof.

Section 7.8 Governing Law; Entire Agreement. The validity, performance, and enforcement of this Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. This Agreement constitutes the entire agreement and understand-ing among the Parties with respect to the subject matter hereof and supersedes any prior agree-ments, written or oral, with respect thereto.

Section 7.9 Counterparts. This Agreement may be executed in any number of counterparts, including by means of facsimile or “pdf” file thereof, and it is not necessary that the signatures of all Parties be contained on any one counterpart hereof, each counterpart will be deemed to be an original, and all together shall constitute one and the same document.

Section 7.10 No Third Party Beneficiaries. Except for the Company to the extent provided in Section 7.4, this Agreement is solely for the benefit of the Bank Collateral Agent, the Bank Secured Parties, the Notes Collateral Agent and the Notes Secured Parties. No other Person (including except to the extent provided in Section 7.4, the Company, any Grantor or any Affiliate or Subsidiary of the Company or any Grantor) shall be deemed to be a third party beneficiary of this Agreement.

Section 7.11 Headings. The headings of the articles and sections of this Agreement are inserted for purposes of convenience only and shall not be construed to affect the meaning or construction of any of the provisions hereof.

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Section 7.12 Severability. If any of the provisions in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement and shall not invalidate the Lien Priority or the application of Proceeds and other priorities set forth in this Agreement.

Section 7.13 Attorneys’ Fees. The Parties agree that if any dispute, arbitra-tion, litigation, or other proceeding is brought with respect to the enforcement of this Agreement or any provision hereof, the prevailing party in such dispute, arbitration, litigation, or other pro-ceeding shall be entitled to recover its reasonable attorneys’ fees and all other costs and expenses incurred in the enforcement of this Agreement, irrespective of whether suit is brought.

Section 7.14 VENUE; JURY TRIAL WAIVER. (a) The parties hereto con-sent to the jurisdiction of any state or federal court located in New York, New York, and consent that all service of process may be made by registered mail directed to such party as provided in Section 7.5 for such party. Service so made shall be deemed to be completed three days after the same shall be posted as aforesaid. The parties hereto waive any objection to any action instituted hereunder in any such court based on forum non conveniens, and any objection to the venue of any action instituted hereunder in any such court. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITI-GATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, VERBAL OR WRITTEN STATEMENT OR ACTION OF ANY PARTY HERETO IN CONNECTION WITH THE SUBJECT MATTER HEREOF.

(b) EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 7.5. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.

Section 7.15 Intercreditor Agreement. This Agreement is the Intercreditor Agreement referred to in the Bank Documents and the Notes Documents. Nothing in this Agreement shall be deemed to subordinate the obligations due to (i) any Bank Secured Party to the obligations due to any Notes Secured Party or (ii) any Notes Secured Party to the obligations due to any Bank Secured Party (in each case, whether before or after the occurrence of an Insol-vency or Liquidation Proceeding), it being the intent of the Parties that this Agreement shall ef-fectuate a subordination of Liens but not a subordination of Indebtedness.

Section 7.16 Effectiveness. This Agreement shall become effective when exe-cuted and delivered by the parties hereto. This Agreement shall be effective both before and af-ter the commencement of any Insolvency or Liquidation Proceeding.

Section 7.17 Collateral Agents. It is understood and agreed that (a) BofA is entering into this Agreement in its capacity as collateral agent under the Credit Agreement, and the provisions of Section 12 of the Credit Agreement applicable to the agent thereunder shall al-so apply to the Bank Collateral Agent hereunder, and (b) U.S. Bank National Association is en-tering into this Agreement in its capacity as collateral agent under the Indenture, and the provi-

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sions of Article 7 of the Indenture applicable to the Trustee and collateral agent thereunder shall also apply to the Notes Collateral Agent hereunder.

Section 7.18 Reliance; No Warranties or Liability.

(a) Other than any reliance on the terms of this Agreement, the Bank Collat-eral Agent, on behalf of itself and the Bank Secured Parties under its Bank Documents, acknowl-edges that it and such Bank Secured Parties have, independently and without reliance on the Notes Collateral Agent or any Notes Secured Parties, and based on documents and information deemed by them appropriate, made their own credit analysis and decision to enter into such Bank Documents and be bound by the terms of this Agreement and they will continue to make their own credit decision in taking or not taking any action under the Bank Documents or this Agree-ment. Other than any reliance on the terms of this Agreement, the Notes Collateral Agent, on behalf of the Notes Secured Parties, acknowledges that the Notes Secured Parties have, inde-pendently and without reliance on the Bank Collateral Agent or any Bank Secured Party, and based on documents and information deemed by them appropriate, made their own credit analy-sis and decision to enter into each of the Notes Documents and be bound by the terms of this Agreement and they will continue to make their own credit decision in taking or not taking any action under the Notes Documents or this Agreement.

(b) Each of the Bank Collateral Agent and the Notes Collateral Agent acknowledges and agrees that none of the other has made any representation or warranty with respect to the execution, validity, legality, completeness, collectability or enforceability of any other Bank Document or Notes Document, as the case may be.

Section 7.19 Conflicts. In the event of any conflict between the provisions of this Agreement and the provisions of any Credit Document, the provisions of this Agreement shall govern.

Section 7.20 Information Concerning Financial Condition of the Grantors. Each of the Notes Collateral Agent and the Bank Collateral Agent hereby assumes responsibility for keeping itself informed of the financial condition of the Grantors and all other circumstances bearing upon the risk of nonpayment of the Bank Obligations or the Notes Obligations. The Bank Collateral Agent and the Notes Collateral Agent each 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 either the Bank Collateral Agent or the Notes Collateral Agent, in its 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 in-formation to any 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 other information, and (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 in-formation hereby agrees to hold the other 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 in-formation.

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Section 7.21 Obligations Unconditional. All rights, interests, agreements and obligations of the Bank Collateral Agent and the Bank Secured Parties and the Notes Collateral Agent and the Notes Secured Parties, respectively, hereunder shall remain in full force and effect irrespective of:

(a) any lack of validity or enforceability of any Bank Documents or any Notes Documents;

(b) except as otherwise expressly set forth in this Agreement, any change in the time, manner or place of payment of, or in any other terms of, all or any of the Bank Obligations or the Notes Obligations, or any amendment or waiver or other modification, including any increase in the amount thereof, whether by course of conduct or otherwise, of the terms of any Bank Document or any Notes Document;

(c) except as otherwise expressly set forth in this Agreement, 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 Bank Obligations or the Notes Obligations or any guaranty thereof;

(d) the commencement of any Insolvency or Liquidation Proceeding in re-spect of any Grantor; or

(e) any other circumstances which otherwise might constitute a defense avail-able to, or a discharge of, any Grantor in respect of the Bank Collateral Agent, the Bank Obligations, any Bank Secured Party, the Notes Collateral Agent, the Notes Obligations or any Notes Secured Party in respect of this Agreement.

[Signature pages follow]

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Exhibit A-1

Exhibit A

CONSENT OF COMPANY AND GRANTORS

Dated: September 27, 2013

Reference is made to the Intercreditor Agreement dated as of the date hereof be-tween Bank of America, N.A., as Bank Collateral Agent, and U.S. Bank National Association, as Notes Collateral Agent, as the same may be amended, restated, supplemented, waived, or other-wise 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 Agree-ment.

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 applicable to it, agrees to abide by the requirements expressly applicable to it under the foregoing Intercreditor Agreement and agrees that, except as otherwise provided therein, no Bank Secured Party or Notes Secured Party shall have any liability to any Grantor for acting in accordance with the provisions of the foregoing Intercreditor Agreement provided that such party has not acted in vi-olation of the Bank Security Documents, Notes Security Documents or applicable Credit Docu-ments. Each Grantor understands that the foregoing Intercreditor Agreement is for the sole bene-fit of the Bank Secured Parties and the Notes 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 ac-tion and shall execute and deliver such additional documents and instruments (in recordable form, if requested) as the Bank Collateral Agent or the Notes Collateral Agent (or any of their respective agents or representatives) may reasonably 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 Credit Agreement.

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Exhibit A-2

IN WITNESS WHEREOF, this Consent is hereby executed by each of the Gran-

tors as of the date first written above.

BOART LONGYEAR MANAGEMENT PTY LIMITED

Executed in accordance with section 127 of the Corporations Act 2001 by BOART LONGYEAR

MANAGEMENT PTY LIMITED

By: Name: Frank Jamieson Clement Title: Director

By: Name: Fabrizio Rasetti Title: Director/Secretary

BOART LONGYEAR LIMITED

Executed in accordance with section 127 of the Corporations Act 2001 by BOART LONGYEAR LIM-

ITED

By: Name: Richard T. O’Brien Title: Director

By: Name: Fabrizio Rasetti Title: Director/Secretary

[signatures continue on next page]

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Exhibit A-1

Executed in accordance with Section 127 of the Corporations Act 2001 by

BOART LONGYEAR AUSTRALIA PTY LIMITED VOTRAINT NO. 1609 PTY LIMITED

By: Name: Frank Jamieson Clement Title: Director

By: Name: Fabrizio Rasetti Title: Director/Secretary

BOART LONGYEAR MANUFACTURING CANADA LTD. LONGYEAR CANADA, ULC BOART LONGYEAR COMPANY BOART LONGYEAR MANUFACTURING USA INC. LONGYEAR HOLDINGS, INC. LONGYEAR TM, INC.

By: Name: Frank Jamieson Clement Title: Treasurer

BOART LONGYEAR CANADA by its partners:

BOART LONGYEAR ALBERTA LIMITED

By: Name: Frank Jamieson Clement Title: Treasurer LONGYEAR CANADA, ULC

By: Name: Frank Jamieson Clement Title: Treasurer

[signatures continue on next page]

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Exhibit A-1

BOART LONGYEAR S.A.C.

By: Name: Fabrizio R. Rasetti Title: Managing Officer

BOART LONGYEAR CHILE LIMITADA, Signed for Boart Longyear Chile Limitada by its sole partners

LONGYEAR CANADA, ULC

By: Name: Frank Jamieson Clement Title: Treasurer

Executed in accordance with Section 127 of the Corporations Act 2001 by VOTRAINT NO. 1609 PTY

LIMITED

By: Name: Frank Jamieson Clement Title: Director

By: Name: Fabrizio Rasetti Title: Director/Secretary

[signatures continue on next page]

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Exhibit A-1

BOART LONGYEAR COMERCIALIZADORA LIMITADA, Signed for Boart Longyear Comercializadora Limitada by its sole partners

LONGYEAR CANADA, ULC

By: Name: Frank Jamieson Clement Title: Treasurer

BOART LONGYEAR COMPANY

By: Name: Frank Jamieson Clement Title: Treasurer

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Exhibit B-1

Exhibit B

JOINDER AGREEMENT

The undersigned, [ ], as _______ (in such capacity, together with its successors and assigns in such capacity, the “[ ] Agent”), under that certain [credit agree-ment/indenture/other agreement], dated as of [ ], 20[ ], among BOART LONG-YEAR MANAGEMENT PTY LIMITED (the “Company”), the subsidiaries of the Company party thereto from time to time and the [ ] Agent, hereby (a) agrees to become party as [Bank Collateral Agent/Notes Collateral Agent] for the holders of [describe new obligations] under the Intercreditor Agreement dated as of September 27, 2013 (the “Intercreditor Agree-

ment”) among the Company, the other Grantors from time to time party thereto, BANK OF AMERICA, N.A., as Bank Collateral Agent, and U.S. Bank National Association, as Notes Col-lateral Agent, as amended, supplemented, amended and restated or otherwise modified and in effect from time to time, for all purposes thereof on the terms set forth therein and (b) agrees to be bound by the terms of the Intercreditor Agreement as fully as if the undersigned had executed and delivered the Intercreditor Agreement as of the date thereof.

The provisions of Sections 7.8 and 7.14 of the Intercreditor Agreement will apply with like effect to this Joinder Agreement.

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Exhibit B-2

IN WITNESS WHEREOF, the parties hereto have caused this Joinder to be exe-

cuted by their respective officers or representatives as of the date first written above.

[ ], as [Agent]

By: ______________________________ Name: Title:

Address for notices:

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Schedule I-1

Schedule I to the Joinder Agreement to the Intercreditor Agreement

Grantors

[ ]