Common use of Intercreditor Acknowledgements and Waivers Clause in Contracts

Intercreditor Acknowledgements and Waivers. Section 5.1 Notice of Acceptance and Other Waivers 45 Section 5.2 Modifications to Credit Documents 46 Section 5.3 Reinstatement and Continuation of Agreement 50 Page ARTICLE 6 INSOLVENCY PROCEEDINGS Section 6.1 DIP Financing 51 Section 6.2 Relief From Stay 54 Section 6.3 No Contest; Adequate Protection 54 Section 6.4 Asset Sales 56 Section 6.5 Separate Grants of Security and Separate Classification 57 Section 6.6 No Waivers of Rights of Senior Secured Parties 58 Section 6.7 Enforceability 58 Section 6.8 Other Matters with respect to Junior Shared Collateral 59 Section 6.9 Reorganization Securities 59 Section 6.10 Section 1111(b) of the Bankruptcy Code 59 Section 6.11 ABL Rights Unconditional 60 Section 6.12 Cash Flow Rights Unconditional 60 Section 6.13 Junior Rights Unconditional 61 ARTICLE 7 MISCELLANEOUS Section 7.1 Rights of Subrogation 61 Section 7.2 Application of Payments 62 Section 7.3 Further Assurances 62 Section 7.4 Representations 63 Section 7.5 Amendments 63 Section 7.6 Designation of Junior Secured Indebtedness; Joinder of Junior Agents 64 Section 7.7 Addresses for Notices 65 Section 7.8 No Waiver; Remedies 66 Section 7.9 Continuing Agreement, Transfer of Secured Obligations 66 Section 7.10 Governing Law; Entire Agreement 67 Section 7.11 Counterparts 67 Section 7.12 No Third Party Beneficiaries 67 Section 7.13 Headings 67 Section 7.14 Severability 67 Section 7.15 Attorneys’ Fees 67 Section 7.16 VENUE; JURY TRIAL WAIVER 68 Section 7.17 Intercreditor Agreement 68 Section 7.18 No Warranties or Liability 69 Section 7.19 Conflicts 69 Section 7.20 Information Concerning Financial Condition of the Credit Parties 69 AMENDED AND RESTATED INTERCREDITOR AGREEMENT THIS AMENDED AND RESTATED INTERCREDITOR AGREEMENT (as amended, supplemented, restated, amended and restated or otherwise modified from time to time pursuant to the terms hereof, this “Agreement”) is entered into as of October 29, 2012 among CITICORP USA, INC., in its capacities as administrative agent and collateral agent (together with its successors and assigns in such capacities, the “ABL Agent”) for (i) the lenders party from time to time to any ABL Credit Agreement referred to below (such institutions, together with their respective successors, assigns and transferees, the “ABL Lenders”) and (ii) any ABL Cash Management Bank (as defined below) (such ABL Cash Management Banks, together with the ABL Agent and the ABL Lenders, the “ABL Secured Parties”), CITIBANK, N.A., in its capacities as administrative agent and collateral agent (together with its successors and assigns in such capacities, the “Cash Flow Agent”) for (i) the lenders party from time to time to any Cash Flow Credit Agreement referred to below (such institutions, together with their respective successors, assigns and transferees, the “Cash Flow Lenders”), and (ii) any Cash Flow Hedge Bank (as defined below) and Cash Flow Cash Management Bank (as defined below) (such Cash Flow Hedge Bank and Cash Flow Cash Management Bank, together with the Cash Flow Agent and the Cash Flow Lenders, the “Cash Flow Secured Parties”), and each Junior Agent that from time to time becomes a party hereto pursuant to Section 7.6.

Intercreditor Acknowledgements and Waivers. Section 5.1 Notice of Acceptance and Other Waivers 45 32 Section 5.2 Modifications to Credit Senior Priority Documents 46 Section 5.3 Reinstatement and Continuation of Agreement 50 Junior Priority Documents 33 Page ARTICLE 6 VI INSOLVENCY PROCEEDINGS Section 6.1 DIP Financing 51 37 Section 6.2 Relief From from Stay 54 37 Section 6.3 No Contest; Adequate Protection 54 Contest 38 Section 6.4 Asset Sales 56 38 Section 6.5 Separate Grants of Security and Separate Classification 57 39 Section 6.6 No Waivers of Rights of Senior Secured Parties 58 Enforceability 39 Section 6.7 Enforceability 58 Senior Priority Obligations Unconditional 39 Section 6.8 Other Matters with respect to Junior Shared Collateral 59 Priority Obligations Unconditional 40 Section 6.9 Adequate Protection 40 Section 6.10 Reorganization Securities 59 Section 6.10 Section 1111(b) of the Bankruptcy Code 59 and Other Plan-Related Issues 41 Section 6.11 ABL Rights Unconditional 60 Section 6.12 Cash Flow Rights Unconditional 60 Section 6.13 Junior Rights Unconditional 61 Certain Waivers 41 ARTICLE 7 VII MISCELLANEOUS Section 7.1 Rights of Subrogation 61 42 Section 7.2 Application of Payments 62 Further Assurances 42 Section 7.3 Further Assurances 62 Representations 42 Section 7.4 Representations 63 Amendments 42 Section 7.5 Amendments 63 Section 7.6 Designation of Junior Secured Indebtedness; Joinder of Junior Agents 64 Section 7.7 Addresses for Notices 65 43 Section 7.8 7.6 No Waiver; , Remedies 66 44 Section 7.9 7.7 Continuing Agreement, Transfer of Secured Obligations 66 44 Section 7.10 7.8 Governing Law; Entire Agreement 67 45 Section 7.9 Counterparts 45 Section 7.10 No Third-Party Beneficiaries 45 Section 7.11 Counterparts 67 Designation of Additional Indebtedness; Joinder of Additional Agents 45 Section 7.12 No Third Party Beneficiaries 67 Senior Priority Representative; Notice of Senior Priority Representative Change 46 Section 7.13 Headings 67 Provisions Solely to Define Relative Rights 47 Section 7.14 Severability 67 Headings 47 Section 7.15 Severability 47 Section 7.16 Attorneys’ Fees 67 47 Section 7.16 7.17 VENUE; JURY TRIAL WAIVER 68 47 Section 7.17 7.18 Intercreditor Agreement 68 48 Section 7.18 7.19 No Warranties or Liability 69 Section 7.19 Conflicts 69 48 Section 7.20 Conflicts 48 Section 7.21 Information Concerning Financial Condition of the Credit Parties 69 AMENDED AND RESTATED 48 Section 7.22 Excluded Assets 49 SCHEDULE I Subsidiary Guarantor EXHIBITS: Exhibit A Additional Indebtedness Designation Exhibit B Additional Indebtedness Joinder Exhibit C Joinder of July 2012 First Lien Credit Agreement or [ ]1 [First/Second]2 Lien Credit Agreement INTERCREDITOR AGREEMENT THIS AMENDED AND RESTATED This INTERCREDITOR AGREEMENT (as amended, supplemented, restated, amended and restated waived or otherwise modified from time to time pursuant to the terms hereof, this “Agreement”) is entered into as of October 29[ ], 2012 among CITICORP USA20[ ], INC.by and between [ ], in its capacities as administrative agent and collateral agent (together with its successors and assigns in such capacities, and as further defined herein, the “ABL July 2012 First Lien Agent”) for (i) the lenders July 2012 First Lien Lenders referred to below party from time to time to any ABL the July 2012 First Lien Credit Agreement referred to below (such institutionsbelow, together with their respective successors, assigns and transferees, the “ABL Lenders”) and (ii) any ABL Cash Management Bank (as defined below) (such ABL Cash Management Banks, together with the ABL Agent and the ABL Lenders, the “ABL Secured Parties”), CITIBANK, N.A.[ ], in its capacities [as administrative agent and collateral agent agent] (together with its successors and assigns in such capacities, and as further defined herein, the “Cash Flow [ ]1 [First/Second]2 Lien Agent”) for (i) the lenders [ ]1 [First/Second]2 Lien Lenders referred to below party from time to time to any Cash Flow the [ ]1 [First/Second]2 Lien Credit Agreement referred to below (such institutions, together with their respective successors, assigns and transferees, the “Cash Flow Lenders”), and (ii) any Cash Flow Hedge Bank (below. Capitalized terms used herein without other definition are used as defined below) and Cash Flow Cash Management Bank (as defined below) (such Cash Flow Hedge Bank and Cash Flow Cash Management Bank, together with the Cash Flow Agent and the Cash Flow Lenders, the “Cash Flow Secured Parties”), and each Junior Agent that from time to time becomes a party hereto pursuant to Section 7.6in Article I hereof.

Intercreditor Acknowledgements and Waivers. 31 Section 5.1 5.1. Notice of Acceptance and Other Waivers 45 31 Section 5.2 5.2. Modifications to Credit ABL Documents 46 and Term Documents 32 Section 5.3 5.3. Reinstatement and Continuation of Agreement 50 Page 34 ARTICLE 6 6. INSOLVENCY PROCEEDINGS 35 Section 6.1 6.1. DIP Financing 51 35 Section 6.2 6.2. Relief From Stay 54 36 Section 6.3 6.3. No Contest; Adequate Protection 54 36 Section 6.4 6.4. Asset Sales 56 38 Section 6.5 6.5. Separate Grants of Security and Separate Classification 57 38 Section 6.6 No Waivers of Rights of Senior 6.6. Enforceability 38 Section 6.7. ABL Obligations Unconditional 38 Section 6.8. Term Obligations Unconditional 39 Section 6.9. Reorganization Securities 39 TABLE OF CONTENTS (Cont’d) Page No. ARTICLE 7. PURCHASE OPTION 39 Section 7.1. Term Secured Parties’ Purchase Option 39 Section 7.2. ABL Secured Parties 58 Purchase Option 41 ARTICLE 8. MISCELLANEOUS 42 Section 6.7 Enforceability 58 Section 6.8 Other Matters with respect to Junior Shared Collateral 59 Section 6.9 Reorganization Securities 59 Section 6.10 Section 1111(b) of the Bankruptcy Code 59 Section 6.11 ABL Rights Unconditional 60 Section 6.12 Cash Flow Rights Unconditional 60 Section 6.13 Junior Rights Unconditional 61 ARTICLE 7 MISCELLANEOUS Section 7.1 8.1. Rights of Subrogation 61 42 Section 7.2 Application of Payments 62 Section 7.3 8.2. Further Assurances 62 42 Section 7.4 8.3. Representations 63 42 Section 7.5 8.4. Amendments 63 43 Section 7.6 Designation of Junior Secured Indebtedness; Joinder of Junior Agents 64 Section 7.7 8.5. Addresses for Notices 65 43 Section 7.8 8.6. No Waiver; Remedies 66 44 Section 7.9 8.7. Continuing Agreement, Transfer of Secured Obligations 66 44 Section 7.10 8.8. Governing Law; Entire Agreement 67 44 Section 7.11 8.9. Counterparts 67 44 Section 7.12 8.10. No Third Party Beneficiaries 67 45 Section 7.13 8.11. Headings 67 45 Section 7.14 8.12. Severability 67 45 Section 7.15 Attorneys’ Fees 67 Section 7.16 8.13. VENUE; JURY TRIAL WAIVER 68 45 Section 7.17 8.14. Intercreditor Agreement 68 46 Section 7.18 8.15. No Warranties or Liability 69 46 Section 7.19 8.16. Conflicts 69 46 Section 7.20 8.17. Information Concerning Financial Condition of the Credit Parties 69 AMENDED AND RESTATED 46 INTERCREDITOR AGREEMENT THIS AMENDED AND RESTATED INTERCREDITOR AGREEMENT (as amended, supplemented, restated, amended and restated or otherwise modified from time to time pursuant to the terms hereof, this “Agreement”) is entered into as of October 29June 9, 2012 2014 among CITICORP USA(a) XXXXX FARGO BANK, INC.NATIONAL ASSOCIATION, in its capacities capacity as administrative agent and collateral agent (together with its successors and assigns in such capacitiescapacity, the “ABL Agent”) for (i) the lenders party from time to time to any ABL Credit Agreement referred to below (such institutions, together with their respective successors, assigns and transferees, the “ABL Lenders”) and (ii) any ABL Cash Management Bank (as defined below) (such ABL Cash Management Banks, together with the ABL Agent and the ABL Lenders, the “ABL Secured Parties”), CITIBANK, N.A., in its capacities as administrative agent and collateral agent (together with its successors and assigns in such capacities, the “Cash Flow Agent”) for (i) the lenders party from time to time to any Cash Flow Credit Agreement referred to below (such institutions, together with their respective successors, assigns and transferees, the “Cash Flow Lenders”), and (ii) any Cash Flow Hedge Bank (as defined below) and Cash Flow Cash Management Bank (as defined below) (such Cash Flow Hedge Bank and Cash Flow Cash Management Bank, together with the Cash Flow Agent and the Cash Flow Lenders, the “Cash Flow Secured Parties”), and each Junior Agent that from time to time becomes a party hereto pursuant to Section 7.6.for

Intercreditor Acknowledgements and Waivers. 23 Section 5.1 Notice of Acceptance and Other Waivers 45 23 Section 5.2 Modifications to Credit ABL Documents 46 and First Lien Notes Documents 25 Section 5.3 Reinstatement and Continuation of Agreement 50 Page 26 ARTICLE 6 INSOLVENCY PROCEEDINGS 27 Section 6.1 DIP Financing 51 27 Section 6.2 Relief From Stay 54 29 Section 6.3 No Contest; Adequate Protection 54 Contest 29 Section 6.4 Asset Sales 56 29 Section 6.5 Separate Grants of Security and Separate Classification 57 29 Section 6.6 No Waivers of Rights of Senior Secured Parties 58 Enforceability 30 Section 6.7 Enforceability 58 ABL Obligations Unconditional 30 Section 6.8 Other Matters with respect to Junior Shared Collateral 59 First Lien Notes Obligations Unconditional 31 Section 6.9 Reorganization Securities 59 Adequate Protection 31 Section 6.10 Section 1111(b) Plan of the Bankruptcy Code 59 Section 6.11 ABL Rights Unconditional 60 Section 6.12 Cash Flow Rights Unconditional 60 Section 6.13 Junior Rights Unconditional 61 Reorganization 31 ARTICLE 7 MISCELLANEOUS 32 Section 7.1 Rights of Subrogation 61 32 Section 7.2 Application of Payments 62 Further Assurances 32 Section 7.3 Further Assurances 62 Representations 33 Section 7.4 Representations 63 Amendments 33 Section 7.5 Amendments 63 Section 7.6 Designation of Junior Secured Indebtedness; Joinder of Junior Agents 64 Section 7.7 Addresses for Notices 65 33 Section 7.8 7.6 No Waiver; , Remedies 66 33 Section 7.9 7.7 Continuing Agreement, Transfer of Secured Obligations 66 33 Section 7.8 Governing Law: Entire Agreement 34 Section 7.9 Counterparts 34 Section 7.10 Governing Law; Entire Agreement 67 Section 7.11 Counterparts 67 Section 7.12 No Third Party Beneficiaries 67 34 Section 7.11 Headings 34 Section 7.12 Severability 34 Section 7.13 Headings 67 [Reserved] 34 Section 7.14 Severability 67 Section 7.15 Attorneys’ Fees 67 Section 7.16 VENUE; JURY TRIAL WAIVER 68 34 Section 7.17 7.15 Intercreditor Agreement 68 35 Section 7.18 7.16 No Warranties or Liability 69 35 Section 7.19 7.17 Conflicts 69 35 Section 7.20 7.18 Information Concerning Financial Condition of the Credit Parties 69 AMENDED AND RESTATED 36 Section 7.19 Agent Capacities 36 INTERCREDITOR AGREEMENT THIS AMENDED AND RESTATED INTERCREDITOR AGREEMENT (as amended, supplemented, restated, amended and restated or otherwise modified from time to time pursuant to the terms hereof, this “Agreement”) is entered into as of October 29, 2012 among CITICORP USA, INC., in its capacities as administrative agent and collateral agent (together with its successors and assigns in such capacities, the “ABL Agent”) for (i) the lenders party from time to time to any ABL Credit Agreement referred to below (such institutions, together with their respective successors, assigns and transferees, the “ABL Lenders”) and (ii) any ABL Cash Management Bank (as defined below) (such ABL Cash Management Banks, together with the ABL Agent and the ABL Lenders, the “ABL Secured Parties”), CITIBANK, N.A., in its capacities as administrative agent and collateral agent (together with its successors and assigns in such capacities, the “Cash Flow Agent”) for (i) the lenders party from time to time to any Cash Flow Credit Agreement referred to below (such institutions, together with their respective successors, assigns and transferees, the “Cash Flow Lenders”), and (ii) any Cash Flow Hedge Bank (as defined below) and Cash Flow Cash Management Bank (as defined below) (such Cash Flow Hedge Bank and Cash Flow Cash Management Bank, together with the Cash Flow Agent and the Cash Flow Lenders, the “Cash Flow Secured Parties”), and each Junior Agent that from time to time becomes a party hereto pursuant to Section 7.6.AGREEMENT

Intercreditor Acknowledgements and Waivers. Section 5.1 Notice of Acceptance and Other Waivers 45 31 Section 5.2 Modifications to Credit Senior Priority Documents 46 Section 5.3 Reinstatement and Continuation of Agreement 50 Page Junior Priority Documents 31 ARTICLE 6 VI INSOLVENCY PROCEEDINGS Section 6.1 DIP Financing 51 35 Section 6.2 Relief From from Stay 54 36 Section 6.3 No Contest; Adequate Protection 54 Contest 36 Section 6.4 Asset Sales 56 37 Section 6.5 Separate Grants of Security and Separate Classification 57 37 Section 6.6 No Waivers of Rights of Senior Secured Parties 58 Enforceability 38 Section 6.7 Enforceability 58 Senior Priority Obligations Unconditional 38 Section 6.8 Other Matters with respect to Junior Shared Collateral 59 Priority Obligations Unconditional 38 Section 6.9 Adequate Protection 39 Section 6.10 Reorganization Securities 59 Section 6.10 Section 1111(b) of the Bankruptcy Code 59 and Other Plan-Related Issues. 40 Section 6.11 ABL Rights Unconditional 60 Section 6.12 Cash Flow Rights Unconditional 60 Section 6.13 Junior Rights Unconditional 61 Certain Waivers. 40 ARTICLE 7 VII MISCELLANEOUS Section 7.1 Rights of Subrogation 61 41 Section 7.2 Application of Payments 62 Further Assurances 41 Section 7.3 Further Assurances 62 Representations 41 Section 7.4 Representations 63 Amendments 41 Section 7.5 Amendments 63 Section 7.6 Designation of Junior Secured Indebtedness; Joinder of Junior Agents 64 Section 7.7 Addresses for Notices 65 42 Section 7.8 7.6 No Waiver; , Remedies 66 43 Section 7.9 7.7 Continuing Agreement, Transfer of Secured Obligations 66 43 Section 7.10 7.8 Governing Law; Entire Agreement 67 44 Section 7.9 Counterparts 44 Section 7.10 No Third-Party Beneficiaries 44 Section 7.11 Counterparts 67 Designation of Additional Indebtedness; Joinder of Additional Agents 44 Section 7.12 No Third Party Beneficiaries 67 Senior Priority Representative; Notice ofSenior Priority Representative Changes 46 Section 7.13 Headings 67 46 Section 7.14 Severability 67 46 Section 7.15 Attorneys’ Fees 67 46 Section 7.16 VENUE; JURY TRIAL WAIVER 68 46 Section 7.17 Intercreditor Agreement 68 47 Section 7.18 No Warranties or Liability 69 47 Section 7.19 Conflicts 69 47 Section 7.20 Information Concerning Financial Condition of the Credit Parties 69 AMENDED AND RESTATED 47 SCHEDULE I Subsidiary Guarantor EXHIBITS: Exhibit A Additional Indebtedness Designation Exhibit B Additional Indebtedness Joinder Exhibit C Joinder of April 2012 First Lien Credit Agreement or February 2013 First Lien Credit Agreement INTERCREDITOR AGREEMENT THIS AMENDED AND RESTATED This INTERCREDITOR AGREEMENT (as amended, restated, supplemented, restated, amended and restated waived or otherwise modified from time to time pursuant to the terms hereof, this “Agreement”) is entered into as of October 29[ ], 2012 among CITICORP USA2013, INC.by and between Barclays Bank PLC, in its capacities capacity as administrative agent and collateral agent (together with its successors and assigns in such capacitiescapacity, and as further defined herein, the “ABL April 2012 First Lien Agent”) for (i) the lenders April 2012 First Lien Lenders referred to below party from time to time to any ABL the April 2012 First Lien Credit Agreement referred to below (such institutionsbelow, together with their respective successors, assigns and transferees, the “ABL Lenders”) and (ii) any ABL Cash Management Barclays Bank (as defined below) (such ABL Cash Management Banks, together with the ABL Agent and the ABL Lenders, the “ABL Secured Parties”), CITIBANK, N.A.PLC, in its capacities capacity as administrative agent and collateral agent (together with its successors and assigns in such capacitiescapacity, and as further defined herein, the “Cash Flow February 2013 First Lien Agent”) for (i) the lenders February 2013 First Lien Lenders referred to below party from time to time to any Cash Flow the February 2013 First Lien Credit Agreement referred to below (such institutions, together with their respective successors, assigns and transferees, the “Cash Flow Lenders”), and (ii) any Cash Flow Hedge Bank (below. Capitalized terms used herein without other definition are used as defined below) and Cash Flow Cash Management Bank (as defined below) (such Cash Flow Hedge Bank and Cash Flow Cash Management Bank, together with the Cash Flow Agent and the Cash Flow Lenders, the “Cash Flow Secured Parties”), and each Junior Agent that from time to time becomes a party hereto pursuant to Section 7.6in Article I hereof.