Exhibit 4.2
COLLATERAL AGENCY
AGREEMENT
among
GLOBAL CROSSING LIMITED,
the other Grantors party
hereto,
WILMINGTON TRUST FSB,
as Collateral Agent for the Secured
Debtholders
WILMINGTON TRUST FSB
as Trustee for the Senior Secured Notes
Debtholders,
and
each Additional Secured Debt Agent
from time to time party hereto
dated as of September 22,
2009
COLLATERAL AGENCY AGREEMENT, dated
as of September 22, 2009 (as amended, restated, supplemented
and/or otherwise modified from time to time, this “
Agreement ”), among GLOBAL CROSSING LIMITED, an exempt
company with limited liability formed under the laws of Bermuda
(the “ Company ”), the other Grantors (as
defined below) from time to time party hereto, WILMINGTON TRUST FSB
(“ Wilmington ”), as collateral agent for the
Secured Debtholders (as defined below) (in such capacity and
together with its successors in such capacity, the “
Collateral Agent ”), Wilmington, as Trustee for the
Senior Secured Notes Debtholders (as each such term is defined
below), and each Additional Secured Debt Agent (as defined below)
from time to time party hereto.
In consideration of the mutual
agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties from time to time party hereto hereby
agree as follows:
ARTICLE I
Definitions
SECTION 1.01 Certain Defined
Terms . Capitalized terms used but not otherwise defined herein
shall have the meanings assigned to such terms in the Senior
Secured Notes Indenture (as defined below) as in effect on the date
hereof or, if defined in the New York UCC (as defined below), the
meanings specified therein. As used in this Agreement, the
following terms have the meanings specified below:
“ Act of the Secured
Debtholders ” means, as to any matter, a direction in
writing delivered to the Collateral Agent by or with the written
consent of:
(i) the number of the applicable
Secured Debtholders required to consent to such matter under any
express provision of the Secured Debt Documents of any Series
requiring that all Secured Debtholders thereunder or Secured
Debtholders holding a percentage of the Secured Debt thereunder
greater than the Required Secured Debtholders consent to such
matter; and
(ii) in all other cases, the
Required Secured Debtholders
in each case accompanied by written
confirmation from each applicable Agent in accordance with
Section 3.01 as to the amount of outstanding Secured Debt held
by each consenting Secured Debtholder (and, other than in
connection with any amendment to any Collateral Document relating
to any exercise of remedies, the aggregate unfunded commitments to
extend credit which, when funded, would constitute Secured Debt
registered by the Agent as outstanding and/or, if applicable
unfunded, in the name of any consenting Secured Debtholder who is a
holder of such Secured Debt under the applicable Secured Debt
Documents) and the Secured Debtholders holding a percentage of the
Secured Debt under such Secured Debt Documents required to consent
to such action.
“ Actionable Default
” means an Event of Default under any Secured Debt Document,
in each case after any applicable notice requirement has been
satisfied and any applicable cure period has expired.
“ Additional Secured
Debt ” means all Pari Passu Obligations owing to any
Additional Secured Debtholder pursuant to the terms of any
Additional Secured Debt Document (including, without limitation,
any interest accruing subsequent to the commencement of a
Insolvency or Liquidation Proceeding at the rate provided for in
the respective Additional Secured Debt Document, whether or not
such interest is an allowed claim under any such proceeding or
under applicable state, federal or foreign law); provided
that such Pari Passu Obligations (i) are permitted to be
incurred by the Company or the Guarantors under the Senior Secured
Notes Indenture and each other Additional Secured Debt Document,
(ii) are permitted under the Senior Secured Notes Indenture
and each other Additional Secured Debt Document to be secured
equally and ratably with the Notes and any other Additional Secured
Debt, (iii) by their express terms are to be secured equally
and ratably by the Collateral and (iv) are secured solely by
Liens created pursuant to the Collateral Documents.
“ Additional Secured Debt
Agent ” means the duly appointed trustee, agent or other
representative acting on behalf of any Series of Additional Secured
Debtholders, as named for such Series in the applicable Joinder
Agreement.
“ Additional Secured Debt
Documents ” means, with respect to any Series of
Additional Secured Debt (i) the notes, indentures, credit
agreements, guarantees and other agreements evidencing or governing
such Indebtedness and (ii) the Collateral Documents securing
such Additional Secured Debt.
“ Additional Secured
Debtholders ” means the holders of any Additional Secured
Debt and any Agent with respect thereto.
“ Agent ” means,
at any time, (i) in the case of any Senior Secured Notes Debt
or the Senior Secured Notes Debtholders, the Trustee and
(ii) in the case of any other Series of Additional Secured
Debt or Additional Secured Debtholders that become subject to this
Agreement after the date hereof, the Additional Secured Debt Agent
for such Series.
“ Agreement ” has
the meaning assigned to such term in the introductory paragraph of
this Agreement.
“ Bankruptcy Code
” means Title 11 of the United States Code, as amended from
time to time.
“ Bankruptcy Law
” means the Bankruptcy Code and any similar Federal, state or
foreign law for the relief of debtors.
“ Collateral ”
means all assets and properties subject to Liens created pursuant
to the Collateral Documents and granted to the Collateral
Agent.
“ Collateral Agent
” has the meaning assigned to such term in the introductory
paragraph of this Agreement.
“ Collateral Documents
” means the Senior Secured Notes Collateral Documents and
each other agreement entered into in favor of the Collateral Agent
for the purpose of securing any Series of Secured Debt.
“ Company ” has
the meaning assigned to such term in the introductory paragraph of
this Agreement.
“ Corresponding Debt
” has the meaning assigned to such term in
Section 5.18.
“ Discharge ”
means, with respect to any Series of Secured Debt, the occurrence
of all of the following in respect of such Series:
(i) termination or expiration
of all commitments to extend credit that would constitute Secured
Debt of such Series;
(ii) payment in full in cash of
the principal of, and interest and premium, if any, on such Series
of Secured Debt (other than any undrawn letters of
credit);
(iii) discharge or cash
collateralization (at the lower of (A) 105% of the aggregate
undrawn amount and (B) the percentage of the aggregate undrawn
amount required for release of liens under the terms of the
applicable Secured Debt Document) of all outstanding letters of
credit constituting such Series of Secured Debt; and
(iv) payment in full in cash of
all other Obligations that are outstanding and unpaid in respect of
such Series of Secured Debt at the time such Secured Debt is paid
in full in cash (other than any obligations for taxes, costs,
indemnifications, reimbursements, damages and other liabilities in
respect of which no claim or demand for payment has been made at
such time).
“ Event of Default
” means an “Event of Default” (or similarly
defined term) as defined in any Secured Debt Document.
“ Germany Security
” has the meaning assigned to such term in
Section 5.18.
“ Grantors ”
means the Company and each other Subsidiary of the Company which
has granted a security interest pursuant to any Collateral Document
to secure any Series of Secured Debt (including any such Person
which becomes a party to this Agreement as contemplated by
Section 5.15). The Grantors existing on the date hereof are
set forth in Annex I hereto.
“ Insolvency or Liquidation
Proceeding ” means:
(i) any case commenced by or against
the Company or any other Grantor under any Bankruptcy Law, any
other proceeding for the reorganization, recapitalization or
adjustment or marshalling of the assets or liabilities of the
Company or any other Grantor, any receivership or assignment for
the benefit of creditors relating to the Company or any other
Grantor or any similar case or proceeding relative to the Company
or any other Grantor or its creditors, as such, in each case
whether or not voluntary;
(ii) any liquidation, dissolution,
marshalling of assets or liabilities or other winding up of or
relating to the Company or any other Grantor, in each case whether
or not voluntary and whether or not involving bankruptcy or
insolvency (and, in each case, other than in a transaction
expressly permitted by the terms of each Additional Secured Debt
Document and the Senior Secured Notes Indenture); or
(iii) any other proceeding of any
type or nature in which substantially all claims of creditors of
the Company or any other Grantor are determined and any payment or
distribution is or may be made on account of such
claims.
“ Joinder Agreement
” means a supplement to this Agreement in the form of Annex
II hereof required to be delivered by an Agent to the Collateral
Agent pursuant to Section 5.13 hereof in order to establish an
additional Series of Additional Secured Debt and become Additional
Secured Debtholders hereunder.
“ Lien ” means
any mortgage, pledge, security interest, hypothecation, assignment,
lien (statutory or other) or similar encumbrance (including any
agreement to give any of the foregoing), any conditional sale or
other title retention agreement or any lease in the nature
thereof.
“ New York UCC ”
means the Uniform Commercial Code as from time to time in effect in
the State of New York.
“ Obligations ”
means any principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the
documentation governing any Indebtedness.
“ Parallel Debt ”
has the meaning assigned to such term in
Section 5.18.
“ Pari Passu
Obligations ” has the meaning assigned to such term in
the Senior Secured Notes Indenture.
“ Person ” means
any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated
organization, limited liability company or government or other
entity.
“ Possessory Collateral
” means any Collateral if possession thereof perfects a Lien
thereon under the Uniform Commercial Code or similar statute
governing notice of security interests of any jurisdiction.
Possessory Collateral includes, without limitation, any
Certificated Securities, Promissory Notes, Instruments, and Chattel
Paper.
“ 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, agents, borrowers and/or guarantors,
and including in each case, but not limited to, after
the
original instrument giving rise to such
indebtedness has been terminated and including, in each case,
through any credit agreement, indenture or other agreement. “
Refinanced ” and “ Refinancing ”
have correlative meanings.
“ Required Secured
Debtholders ” means, at any time, the Secured Debtholders
entitled to vote under their respective Secured Debt Documents
representing more than 50% of the aggregate outstanding amount of
the Secured Debt (excluding, for purposes of Sections 2.02, and
2.03 hereof, Secured Debt arising in connection with any Hedging
Obligations) then outstanding (together with, in the case of any
Additional Secured Debt (other than in connection with any exercise
of remedies) the aggregate unfunded commitments to extend credit
which, when funded, would constitute Secured Debt), voting as a
single class. For purposes of this definition, Secured Debt
(including, if applicable, any such unfunded commitments in respect
thereof) registered in the name of, or beneficially owned by, the
Company or any Affiliate of the Company shall be deemed not to be
outstanding.
“ Secured Debt ”
means, collectively, (i) the Senior Secured Notes Debt and
(ii) each Series of Additional Secured Debt.
“ Secured Debt
Documents ” means, collectively, (i) the Senior
Secured Notes Documents and (ii) the Additional Secured Debt
Documents for each Series of Additional Secured Debt.
“ Secured Debtholders
” means (i) the Senior Secured Notes Debtholders and
(ii) the Additional Secured Debtholders with respect to each
Series of Additional Secured Debt.
“ Senior Class Debt
” has the meaning assigned to such term in
Section 5.13.
“ Senior Class Debt
Parties ” has the meaning assigned to such term in
Section 5.13.
“ Senior Class Debt
Representative ” has the meaning assigned to such term in
Section 5.13.
“ Senior Lien ”
means the Liens on the Collateral in favor of the Secured
Debtholders under the Collateral Documents.
“ Senior Secured Notes
” shall mean (i) the 12% senior secured notes due 2015
issued by the Company pursuant to the Senior Secured Notes
Indenture and (ii) any additional notes issued under the
Senior Secured Notes Indenture by the Company, to the extent
permitted by the Senior Secured Notes Indenture.
“ Senior Secured Notes
Collateral Documents ” means the “Collateral
Documents” as defined in the Senior Secured Notes
Indenture.
“ Senior Secured Notes
Debt ” shall mean (i) the due and punctual payment
of (i) the unpaid principal amount of, and premium, if any,
and interest (including interest accruing during the pendency of
any Insolvency or Liquidation Proceeding, regardless of whether
allowed or allowable in such Insolvency or Liquidation Proceeding)
on, the Senior Secured Notes, when and as due, whether at maturity,
by acceleration, upon one or more dates set for prepayment
or
otherwise and (ii) all other Obligations of
the Company owing to any of the Senior Secured Notes Debtholders
under the Senior Secured Notes Documents, including fees, costs,
expenses and indemnities, whether primary, secondary, direct,
contingent, fixed or otherwise (including monetary obligations
incurred during the pendency of any Insolvency or Liquidation
Proceeding, regardless of whether allowed or allowable in such
Insolvency or Liquidation Proceeding), (b) the due and
punctual performance of all other obligations of the Company owing
to the Senior Secured Notes Debtholders under or pursuant to the
Senior Secured Notes Documents, and (c) the due and punctual
payment and performance of all Obligations of each Guarantor owing
to the Senior Secured Notes Debtholders pursuant to the Senior
Secured Notes Documents, in each case whether outstanding on the
date hereof or incurred or arising from time to time after the date
of this Agreement.
“ Senior Secured Notes
Debtholders ” means the Holders of the Senior Secured
Notes and the Trustee.
“ Senior Secured Notes
Documents ” means the Senior Secured Notes Indenture, the
Senior Secured Notes, the Senior Secured Notes Collateral Documents
and each of the other agreements, documents and instruments
providing for or evidencing any Senior Secured Notes Debt, and any
other document or instrument executed or delivered at any time in
connection with any Senior Secured Notes Debt under the Senior
Secured Notes Indenture and the other Senior Secured Notes
Documents, in each case to the extent such are effective at the
relevant time and as each may be amended, restated, supplemented,
modified, replaced and/or Refinanced from time to time.
“ Senior Secured Notes
Indenture ” means that certain Indenture, dated as of the
date hereof (as it may be amended, restated, supplemented,
modified, replaced and/or Refinanced from time to time, by and
among the Company, as issuer, Wilmington Trust FSB, as Trustee
(together with its permitted successors in such capacity, the
“ Trustee ”), and the Guarantors party thereto,
pursuant to which the Company shall issue 12% Senior Secured Notes
due 2015, all as contemplated therein.
“ Series ” means
(a) with respect to the Secured Debtholders, each of
(i) the Senior Secured Notes Debtholders (in their capacities
as such) and (ii) the Additional Secured Debtholders that
become subject to this Agreement after the date hereof that are
represented by a common Agent (in its capacity as such for such
Additional Secured Debtholders) and (b) with respect to any
Secured Debt, each of (i) the Senior Secured Notes Debt and
(ii) the Additional Secured Debt incurred pursuant to any
Additional Secured Debt Document, which pursuant to any Joinder
Agreement, are to be represented hereunder by a common Agent (in
its capacity as such for such Additional Secured Debt).
“ Trustee ” shall
have the meaning assigned to such term in the definition of
“Senior Secured Notes Indenture.”
“ Wilmington ”
has the meaning assigned to such term in the introductory paragraph
of this Agreement.
SECTION 1.02 Terms Generally
. The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words
“include”, “includes” and
“including” shall be deemed to be followed by the
phrase “without limitation”. The word
“will” shall be construed to have the same meaning and
effect as the word “shall”. Unless the context requires
otherwise or otherwise expressly stated, (i) any definition of
or reference to any agreement, instrument, other document, statute
or regulation herein shall be construed as referring to such
agreement, instrument, other document, statute or regulation as
from time to time amended, supplemented or otherwise modified,
(ii) any reference herein to any Person shall be construed to
include such Person’s successors and assigns, but shall not
be deemed to include the subsidiaries of such Person unless express
reference is made to such subsidiaries, (iii) the words
“herein”, “hereof” and
“hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any
particular provision hereof, (iv) all references herein to
Articles, Sections and Annexes shall be construed to refer to
Articles, Sections and Annexes of this Agreement, (v) unless
otherwise expressly qualified herein, the words “asset”
and “property” shall be construed to have the same
meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities,
accounts and contract rights and (vi) the term
“or” is not exclusive.
ARTICLE II
Priorities and Agreements with
Respect to Collateral
SECTION 2.01 Priority of
Claims . (a)After the occurrence of an Actionable Default, all
proceeds of Collateral shall be applied in the following order of
application:
(i) FIRST, to pay
administrative expenses (including all reasonable fees and
disbursements of attorneys, accountants, auditors, consultants,
appraisers and other professionals) and reasonable compensation of
the Collateral Agent, the Trustee and any Additional Secured Debt
Agent for services rendered, including in connection with the
administration of Collateral;
(ii) SECOND, to the applicable
Agent for each Series of Secured Debt on a ratable basis for
application in accordance with the terms of the applicable Secured
Debt Documents to all amounts then due and payable thereunder until
paid in full in cash;
(iii) THIRD, to the extent of
any remaining proceeds after application pursuant to clauses
(i) and (ii) above, if any one or more Series of Secured
Debt or portion thereof is not then due and payable, to be held
ratably as Collateral for application to the applicable Agent for
each such Series of Secured Debt (for application to such Series of
Secured Debt as it becomes due and payable in accordance with the
applicable Secured Debt Documents until paid in full in cash);
and
(iv) FOURTH, to the extent of
any remaining proceeds after application pursuant to clauses (i),
(ii) and (iii), above, to the applicable Grantor or its
successors or assigns, or as a court of competent jurisdiction may
direct.
(b) It is acknowledged that the
Secured Debt of any Series may, subject to the limitations set
forth in the then extant Secured Debt Documents, be increased,
extended, renewed, replaced, restated, supplemented, restructured,
repaid, refunded, Refinanced or otherwise amended or modified from
time to time, all without affecting the priorities set forth in
Section 2.01(a) or the provisions of this Agreement defining
the rights of the Secured Debtholders of any Series.
(c) Notwithstanding the date, time,
method, manner or order of grant, attachment or perfection of any
Liens securing any Series of Secured Debt granted on the Collateral
and notwithstanding any provision of the Uniform Commercial Code of
any jurisdiction or any other applicable law or the Secured Debt
Documents or any defect or deficiencies in the Liens securing the
Secured Debt of any Series or any other circumstance whatsoever,
each Secured Debtholder hereby agrees that the Liens securing each
Series of Secured Debt on any Collateral shall be of equal
priority.
(d) For purposes of this
Section 2.01, “proceeds” of Collateral includes
any and all cash, securities and other property realized from
collection, foreclosure or enforcement, in accordance with the
terms hereof and of the Collateral Documents, of the Collateral
Agent’s Lien upon the Collateral (including distributions of
Collateral in satisfaction of any Secured Debt under the Secured
Debt Documents) or distributed in any Insolvency or Liquidation
Proceeding in respect of any claim upon any Secured Debt under the
Secured Debt Documents that is allowed or enforceable therein as a
claim secured by Collateral pursuant to the Collateral
Documents.
SECTION 2.02 Notice of Default;
Actions with Respect to Collateral; Prohibition on Contesting
Liens . (a) Promptly, but not later than five Business
Days, after any Agent obtaining knowledge of the occurrence of any
Event of Default or Actionable Default, such Agent shall notify
each other Agent and the Collateral Agent thereof in writing. If
the Collateral Agent at any time receives a notice of an Actionable
Default, the Collateral Agent may await direction by the Required
Secured Debtholders and shall act, or decline to act, as directed
by the Required Secured Debtholders, in the exercise and
enforcement of the Collateral Agent’s interests, rights,
powers and remedies in respect of the Collateral or under the
Collateral Documents or applicable law. Unless it has been directed
to the contrary by the Required Secured Debtholders, the Collateral
Agent in any event may (but shall not be obligated to) take or
refrain from taking such action with respect to such Actionable
Default as it may deem advisable and in the best interest of the
Secured Debtholders.
(b) With respect to any Collateral,
(i) only the Collateral Agent shall act or refrain from acting
with respect to the Collateral, (ii) following the occurrence
and during the continuance of an Actionable Default, the Collateral
Agent shall only follow any instructions with respect to the
Collateral from the Required Secured Debtholders and (iii) no
Agent or other Secured Debtholder shall or shall instruct the
Collateral Agent to, commence any judicial or nonjudicial
foreclosure proceedings with respect to, seek to have a trustee,
receiver, liquidator or similar official appointed for or over,
attempt any action to take possession of, exercise any right,
remedy or power with respect to, or otherwise take any action to
enforce its security interest in or realize upon, or take any other
action available to it in respect of, any Collateral, whether under
any Collateral Document, applicable law or otherwise, it being
agreed that only the Collateral Agent, acting on the instructions
of the Required Secured Debtholders and in accordance
with
the applicable Collateral Documents following
the occurrence of an Actionable Default (unless each Agent has
notified the Collateral Agent in writing that such Actionable
Default is no longer continuing or has been waived in accordance
with the terms of the Secured Debt Documents) shall be entitled to
take any such actions or exercise any such remedies with respect to
Collateral. No Secured Debtholder will contest, protest or object
to any foreclosure proceeding or action brought by the Collateral
Agent or any other exercise by the Collateral Agent of any rights
and remedies relating to the Collateral, or to cause the Collateral
Agent to do so.
(c) Each of the Agents agrees that
it will not accept any Lien on any property of any Grantor for the
benefit of any Series of Secured Debt (other than funds deposited
for the discharge or defeasance of the Senior Secured Notes
Indenture, to the extent permitted by the applicable Secured Debt
Documents) other than pursuant to the Collateral Documents to which
it is a party, and by executing this Agreement (or a Joinder
Agreement), each Agent and the Series of Secured Debtholders for
which it is acting hereunder agree to be bound by the provisions of
this Agreement and the other Collateral Documents applicable to
it.
SECTION 2.03 No Interference;
Payment Over . (a) Each Secured Debtholder agrees that
(i) it will not challenge or question in any proceeding the
validity or enforceability of any Secured Debt of any Series or of
the priorities, rights or duties established by or other provisions
of this Agreement; (ii) it will not take or cause to be taken
any action the purpose or intent of which is, or could be, to
interfere, hinder or delay, in any manner, whether by judicial
proceedings or otherwise, any sale, transfer or other disposition
of the Collateral by the Collateral Agent effected in accordance
with the terms of this Agreement, (iii) except as provided in
Section 2.02, it shall have no right to (A) direct the
Collateral Agent or any other Secured Debtholder to exercise any
right, remedy or power with respect to any Collateral (including
pursuant to any intercreditor agreement) or (B) consent to the
exercise by the Collateral Agent or any other Secured Debtholder of
any right, remedy or power with respect to any Collateral,
(iv) it will not institute any suit or assert in any suit,
bankruptcy, insolvency or other proceeding any claim against the
Collateral Agent or any other Secured Debtholder (in each case, in
connection with any actions taken or omitted to be taken in
accordance with the terms of this Agreement) seeking damages from
or other relief by way of specific performance, instructions or
otherwise with respect to any Collateral, (v) none of the
Collateral Agent or any other Secured Debtholder shall be liable
for any action taken or omitted to be taken by the Collateral Agent
or such other Secured Debtholder with respect to any Collateral in
accordance with the provisions of this Agreement, (vi) it will
not seek, and hereby waives any right, to have any Collateral or
any part thereof marshaled upon any foreclosure or other
disposition of such Collateral and (vii) it will not attempt,
directly or indirectly, whether by judicial proceedings or
otherwise, to challenge the enforceability of any provision of this
Agreement; provided that nothing in this Agreement shall be
construed to prevent or impair the rights of any of the Collateral
Agent or any other Secured Debtholder to enforce this
Agreement.
(b) Each Secured Debtholder hereby
agrees that if it shall obtain possession of any Collateral or
shall realize any proceeds or payment in respect of any such
Collateral, pursuant to any Collateral Document or by the exercise
of any rights available to it under applicable law or in any
Insolvency or Liquidation Proceeding or through any other exercise
of remedies (including pursuant to any intercreditor agreement), at
any time prior to the Discharge of each Series of the Secured Debt,
then it shall hold such Collateral, proceeds or payment in trust
for the other Secured Debtholders and promptly transfer such
Collateral, proceeds or payment, as the case may be, to the
Collateral Agent, to be distributed in accordance with the
provisions of Section 2.01.
SECTION 2.04 Release of Liens;
Amendments to Collateral Documents . (a) If, at any time the
Collateral Agent forecloses upon or otherwise exercises remedies
against any Collateral resulting in a sale or disposition thereof,
then (whether or not any Insolvency or Liquidation Proceeding is
pending at the time) the Liens in favor of the Collateral Agent for
the benefit of each Series of Secured Debtholders upon such
Collateral will automatically be released and discharged;
provided that any proceeds of any Collateral realized
therefrom shall be applied pursuant to
Section 2.01.
(b) If at any time the Collateral
Agent receives a certificate of an officer of the Company stating
that the Collateral Agent is required by the Senior Secured Notes
Documents and each Additional Secured Debt Document, or pursuant to
an Act of the Secured Debtholders, to release any property of any
Grantor described in such certificate from any Lien granted by any
Collateral Document specified in such certificate and that no Event
of Default is continuing on the date of such certificate or will
result from the release of such Lien, accompanied by the proposed
instrument releasing such Lien and a written opinion from legal
counsel reasonably acceptable to the Collateral Agent (which
opinion may include exceptions and qualifications consistent with
customary practice in the applicable jurisdiction in which the Lien
must be released for written third-party legal opinions relating to
the subject matter of the opinion) to the effect that the release
of such Lien as to such property is required by the Senior Secured
Notes Documents and each Additional Secured Debt Document or
pursuant to an Act of the Secured Debtholders and that such
proposed instrument is effective solely to release such Lien as to
such property, without requiring the Collateral Agent to make any
representation or warranty in respect thereof, without releasing or
satisfying any Secured Debt secured by such Lien, and without
imposing any liability upon the Collateral Agent or any other
person, then, the Collateral Agent will, within five business days
thereafter, execute (and if necessary acknowledge in recordable
form) such proposed instrument and deliver it to the Company or
such Grantor in order to release such Lien. In connection with the
execution of any such instrument, the Collateral Agent will be
authorized to authorize, execute, deliver and/or file (all at the
sole cost and expense of the Grantors) amendments to UCC financing
statements, deeds, mortgages, registrations, charges or other
public records of the security interest (and to execute powers of
attorney to effectuate the foregoing in any jurisdiction) to
evidence the release of such Lien.
(c) Each Secured Debtholder agrees
that the Collateral Agent, if so directed by an Act of the Secured
Debtholders, may enter into any amendment or supplement to any
Collateral Document (including, without limitation, to release any
Liens securing any Series of Secured Debt); provided that no
amendment or supplement to this Agreement or any other Collateral
Document that reduces, impairs or adversely affects the right of
any Secured Debtholder to share equally and ratably in the proceeds
of any Collateral will become effective without the consent of such
Secured Debtholder.
(d) Notwithstanding anything to the
contrary contained herein, the Collateral Agent may enter into such
amendments to the Collateral Documents as may be required
(i) to give effect to the provisions of Sections 4.24 or 4.30
of the Senior Secured Notes Indenture or (ii) under the laws
of the jurisdiction governing such Collateral Documents in order to
cause Additional Secured Debt of any Series to be secured pursuant
to such Collateral Documents, in
either case so long as the Collateral Agent
receives a certificate of an officer of the Company stating the
relevant amendment is permitted pursuant to this paragraph
(d) and under each of the Secured Debt Documents.
(e) Each Agent agrees to execute and
deliver (at the sole cost and expense of the Grantors) all such
authorizations and other instruments as shall reasonably be
requested by the Collateral Agent or the Company to evidence and
confirm any release of Collateral or amendment to any Collateral
Document provided for in this Section.
SECTION 2.05 [ Reserved
].
SECTION 2.06 Reinstatement .
In the event that any Series of Secured Debt shall be paid in full
and such payment or any part thereof shall subsequently, for
whatever reason (including an order or judgment for disgorgement of
a preference under the Bankruptcy Code, or any similar law, or the
settlement of any claim in respect thereof), be required to be
returned or repaid, the terms and conditions of this Article II
shall be fully applicable thereto until all Secured Debt of such
Series shall again have been paid in full in cash.
SECTION 2.07 [ Reserved
].
SECTION 2.08 Refinancings .
The Secured Debt of any Series 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 any Secured Debt Document) of any
Secured Debtholder of any other Series, all without affecting the
priorities provided for herein or the other provisions hereof;
provided that the Agent of the holders of any such
Refinancing indebtedness shall have executed a Joinder Agreement on
behalf of the holders of such Refinancing indebtedness.
SECTION 2.09 Possessory
Collateral Agent as Gratuitous Bailee for Perfection .
(a) Pending delivery to the Collateral Agent, each other Agent
agrees to hold any Collateral constituting Possessory Collateral,
from time to time in its possession, as gratuitous bailee for the
benefit of each other Secured Debtholder and any assignee, solely
for the purpose of perfecting the security interest granted in such
Possessory Collateral, if any, pursuant to the applicable
Collateral Documents, in each case, subject to the terms and
conditions of this Section 2.09.
(b) The duties or responsibilities
of the Collateral Agent and each other Agent under this
Section 2.09 shall be limited solely to holding any Collateral
constituting Possessory Collateral as gratuitous bailee for the
benefit of each other Secured Debtholder for purposes of perfecting
the Lien held by such Secured Debtholders therein.
ARTICLE III
Existence and Amounts of Liens
and Obligations
SECTION 3.01 Determinations with
Respect to Amounts of Liens and Obligations . Whenever the
Collateral Agent or any Agent shall be required, in connection with
the exercise of its rights or the performance of its obligations
hereunder, to determine the existence or amount of any Secured Debt
of any Series, or the Collateral subject to any Lien
securing the Secured Debt of any Series, it may
request that such information be furnished to it in writing by each
other Agent and shall be entitled to make such determination or not
make any determination on the basis of the information so
furnished; provided , however , that if an Agent
shall fail or refuse reasonably promptly to provide the requested
information, the requesting Collateral Agent or Agent shall be
entitled to make any such determination by such method as it may,
in the exercise of its good faith judgment, determine, including by
reliance upon a certificate of the Company. The Collateral Agent
and each Agent may rely conclusively, and shall be fully protected
in so relying, on any determination made by it in accordance with
the provisions of the preceding sentence (or as otherwise directed
by a court of competent jurisdiction) and shall have no liability
to any Grantor, any Secured Debtholder or any other person as a
result of such determination.
ARTICLE IV
The Collateral
Agent
SECTION 4.01 Appointment and
Authority . (a) Each of the Secured Debtholders hereby
irrevocably appoints Wilmington to act on its behalf as the
Collateral Agent hereunder and under each of the other Collateral
Documents and authorizes the Collateral Agent to take such actions
on its behalf and to exercise such powers as are delegated to the
Collateral Agent by the terms hereof or thereof, including for
purposes of acquiring, holding and enforcing any and all Liens on
Collateral granted by any Grantor to secure any of the Secured
Debt, together with such powers and discretion as are reasonably
incidental thereto. In this connection, the Collateral Agent and
any co-agents, sub-agents and attorneys-in-fact appointed by the
Collateral Agent pursuant to Section 4.05 for purposes of
holding or enforcing any Lien on the Collateral (or any portion
thereof) granted under any of the Collateral Documents, or for
exercising any rights and remedies thereunder at the direction of
the Required Secured Debtholders, shall be entitled to the
benefits, without duplication, of all provisions of this Article IV
and the equivalent provision of any Secured Debt Document (as
though such co-agents, sub-agents and attorneys-in-fact were the
“Collateral Agent” named therein) as if set forth in
full herein with respect thereto.
(b) Each Secured Debtholder
acknowledges and agrees that the Collateral Agent shall be
entitled, for the benefit of the Secured Debtholders, to sell,
transfer or otherwise dispose of or deal with any Collateral as
provided herein and in the Collateral Documents. Without limiting
the foregoing, each Secured Debtholder agrees that, in exercising
any remedies as a secured creditor in accordance with the terms
hereof, neither the Collateral Agent nor any Secured Debtholder
shall have any duty or obligation first to marshal or realize upon
any type of Collateral (or any other Collateral securing any of the
Secured Debt), or to sell, dispose of or otherwise liquidate all or
any portion of such Collateral (or any other Collateral securing
any Secured Debt), in any manner that would maximize the return to
any other Secured Debtholder, notwithstanding that the order and
timing of any such realization, sale, disposition or liquidation
may affect the amount of proceeds actually received by such other
Secured Debtholders from such realization, sale, disposition or
liquidation. Each of the Secured Debtholders waives any claim it
may now or hereafter have against the Collateral Agent or any other
Secured Debtholder of any Series of Secured Debt, in each case
acting in accordance with the terms of this Agreement, arising out
of (i) any actions which the Collateral Agent or any such
Secured Debtholder takes or omits to take (including, actions with
respect to the creation, perfection or
continuation of Liens on any Collateral, actions
with respect to the foreclosure upon, sale, release or depreciation
of, or failure to realize upon, any of the Collateral and actions
with respect to the collection of any claim for all or any part of
the Secured Debt from any account debtor, guarantor or any other
party) in accordance with the applicable Collateral Documents or
any other agreement related thereto or to the collection of the
Secured Debt or the valuation, use, protection or release of any
security for the Secured Debt, (ii) any election by any
holders of Secured Debt, in any proceeding instituted under the
Bankruptcy Code, of the application of Section 1111(b) of the
Bankruptcy Code or (iii) any borrowing by, or grant of a security
interest or administrative expense priority under Section 364
of the Bankruptcy Code or any equivalent provision of any other
Bankruptcy Law by, the Company or any of its Subsidiaries, as
debtor-in-possession. Notwithstanding any other provision of this
Agreement, the Collateral Agent shall not accept any Collateral in
full or partial satisfaction of any Secured Debt pursuant to
Section 9-620 of the Uniform Commercial Code or any similar
law of any applicable jurisdiction, without the consent of each
Agent representing holders of Secured Debt for whom such Collateral
constitutes Collateral.
(c) Each Agent acknowledges and
agrees that upon execution and delivery of a Joinder Agreement
substantially in the form of Annex II by an additional Senior Class
Debt Representative, the Collateral Agent and the Company in
accordance with Section 5.13, the Collateral Agent will
continue to act in its capacity as Collateral Agent in respect of
the then existing Agents and such Additional Secured Debt
Agent.
SECTION 4.02 Rights as a Secured
Debtholder . (a) The Person serving as the Collateral
Agent hereunder shall have the same rights and powers in its
capacity as a Secured Debtholder under any Series of Secured Debt
that it holds as any other Secured Debtholder of such Series and
may exercise the same as though it were not the Collateral Agent
and the term “Secured Debtholder” or “Secured
Debtholders” or (as applicable) “Senior Secured Notes
Debtholders”, “Additional Secured Debtholder” and
“Additional Secured Debtholders” shall, unless
otherwise expressly indicated or unless the context otherwise
requires, include the Person serving as the Collateral Agent
hereunder in its individual capacity. Such Person and its
Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and
generally engage in any kind of business with the Company or any
Subsidiary or other Affiliate thereof as if such Person were not
the Collateral Agent hereunder and without any duty to account
therefor to any other Secured Debtholder.
SECTION 4.03 Exculpatory
Provisions . The Collateral Agent shall not have any duties or
obligations except those expressly set forth herein and in the
other Collateral Documents. Without limiting the generality of the
foregoing, the Collateral Agent:
(i) shall not be subject to any
fiduciary or other implied duties of any kind or nature to any
Person, regardless of whether an Event of Default has occurred and
is continuing;
(ii) shall not have any duty to
take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated
hereby or by the other Collateral Documents that the Collateral
Agent is required to exercise as directed in writing by the
Required Secured Debtholders; provided that the Collateral
Agent shall not be required to take any action that, in its opinion
or the opinion of its counsel, may expose the Collateral Agent to
liability or that is contrary to any Collateral Document or
applicable law;
(iii) shall not, except as expressly
set forth herein and in the other Collateral Documents, have any
duty to disclose, and shall
