Exhibit 4.8
EXECUTION COPY
AMENDED AND RESTATED INTERCREDITOR AGREEMENT
THIS
AMENDED AND RESTATED INTERCREDITOR AGREEMENT (as amended,
modified,
supplemented, renewed, restated or replaced in writing from time to
time, the
"Agreement") is made as of February 7, 2006, by and among Quest
Resource
Corporation, a Nevada corporation and Quest Cherokee, LLC, a
Delaware limited
liability company (the "Borrowers"), STP Cherokee, Inc., Quest Oil
& Gas
Corporation, Quest Energy Service, Inc., Ponderosa Gas Pipeline
Company, Inc.,
Producers Service, Incorporated, J-W Gas Gathering, LLC, Bluestem
Pipeline, LLC
and Quest Cherokee Oilfield Service, LLC, (the "Guarantors"),
Guggenheim
Corporate Funding, LLC, a Delaware limited liability company, in
its capacity as
administrative agent, (in such capacity, the "Senior Administrative
Agent") for
itself and for each of the lenders (the "Senior Secured Term
Lenders") with
respect to senior secured term loans (the "Senior Secured Term
Loans") and each
of the lenders (the "Senior Secured Revolving Lenders" and, with
the Senior
Secured Term Lenders, the "Senior Secured Lenders") with respect to
the senior
secured revolving loans (the "Senior Secured Revolving Loans")
under the Senior
Secured Credit Agreement, as defined below (collectively, the
"Senior Secured
Creditor"), Guggenheim Corporate Funding LLC, a Delaware limited
liability
company as administrative agent (in such capacity, the "Second
Lien
Administrative Agent"), for itself and for each of the lenders (the
"Second Lien
Lenders") that is or becomes a party to the Second Lien Credit
Agreement, as
defined below (collectively, the "Second Lien Creditor") and
Guggenheim
Corporate Funding, LLC, a Delaware limited liability company, as
collateral
agent (in such capacity, the "Collateral Agent" and collectively
with the Senior
Administrative Agent and the Second Lien Administrative Agent, the
"Agents") for
the Senior Secured Creditor, the Second Lien Creditor and the
counterparties
with respect to Swap Agreements entered into by either Borrower or
any of their
Subsidiaries ("Swap Counterparties"). The Senior Secured Revolving
Lenders, the
Senior Secured Term Lenders and the Second Lien Lenders are
hereafter referred
to as the "Lenders." BP Corporation North America Inc. is also a
party to this
Agreement, solely for purposes of Section 3 hereof. Capitalized
terms not
defined in this Agreement have the meanings given them in the
Senior Secured
Credit Agreement. This Agreement amends and restates in its
entirety that
certain Intercreditor Agreement dated as of November 14, 2005 (the
"Original
Agreement") by and among the Borrowers, the Guarantors and the
Agents.
RECITALS
WHEREAS,
Senior Secured Creditor has made and is continuing to make
credit
accommodations available to Borrowers pursuant to the terms and
provisions of
the Senior Secured Credit Agreement (as defined below);
WHEREAS,
Second Lien Creditor has made credit accommodations available
to
Borrowers pursuant to the terms and provisions of a Second Lien
Credit Agreement
(as defined below);
WHEREAS,
as a condition for executing and entering into the Senior
Secured
Credit Agreement, the Senior Secured Creditor required that the
Second Lien
Creditor's liens against the Borrowers and the Guarantors be
subordinated in
favor of Senior Secured Creditor's liens under the Senior Secured
Credit
Agreement and that the Second Lien Creditor make the arrangements
set forth
herein with respect to right to payment and claims against the
Borrowers and the
Guarantors;
<PAGE>
WHEREAS,
the parties hereto entered into the Original Agreement in order
to accommodate the Senior Secured Creditor's conditions and obtain
the direct
and indirect benefits to the Borrowers and the Second Lien Creditor
resulting
from the Borrowers' and Senior Secured Creditor's execution of the
Senior
Secured Credit Agreement and other Senior Secured Loan Documents;
and
WHEREAS,
in order to facilitate and administer the respective rights of
the Lenders with respect to the Collateral, Senior Administrative
Agent, on
behalf of the Senior Secured Lenders, and Second Lien
Administrative Agent on
behalf of the Second Lien Lenders, entered into the Original
Agreement and
appointed Guggenheim Corporate Funding, LLC, as Collateral Agent
under the
Security Documents to hold the Liens in trust for the benefit of
the Senior
Secured Creditor, the Second Lien Creditor and the Swap
Counterparties, subject
to the terms and conditions hereof.
WHEREAS,
the Senior Secured Revolving Lenders, the Senior Secured Term
Lenders, the Swap Counterparties and the Second Lien Lenders desire
to modify
and amend certain provisions set forth in the Original Agreement
regarding their
respective rights and the rights of the Swap Counterparties in the
Collateral
and the application of proceeds thereof;
WHEREAS,
the parties hereto agree that the Original Agreement is hereby
amended and restated in its entirety and is of no further force and
effect.
AGREEMENT
NOW,
THEREFORE, in consideration of the above recitals and the
provisions
set forth herein, and other good and valuable consideration, the
receipt and
sufficiency of which are hereby acknowledged, the parties hereto,
intending to
be legally bound, agree as follows:
Section 1.
Definitions. For purposes of this Agreement, (a) terms defined
in the introductory paragraphs and recitals to this Agreement have
the meanings
set forth therein and (b) the following terms used herein shall
have the
following meanings:
"Acceleration Notice" means a written notice from or on behalf
of
the Senior
Secured Indebtedness Representative to the Second Lien Lenders
or the
Second Lien Administrative Agent or other representative
designated
pursuant
to Section 17 hereof that a Senior Secured Indebtedness
Acceleration shall have occurred and is continuing.
"Blockage Period" means, with respect to any Senior Secured
Indebtedness Acceleration, the period from and including the date
of
receipt by
the Second Lien Lenders or the Second Lien Administrative Agent
or other
representative designated pursuant to Section 17 hereof of an
Acceleration Notice relating thereto until the first to occur of
(a) the
date upon
which the Senior Secured Indebtedness has been paid in full in
cash, all commitments
of any holder of Senior Secured Indebtedness to make
loans or
extensions of credit have terminated, and all letters of credit
issued by
Senior Secured Creditor or any Affiliate thereof have expired,
terminated
or been fully collateralized in cash, (b) the date on which the
Senior
Secured Indebtedness Default which provides the basis for such
Acceleration Notice has been waived in writing by the applicable
holder or
holders of
the Senior Secured Indebtedness or an agent or representative
on their
behalf, or has been cured, or has ceased to exist, or (c) the
date upon
which the Second Lien Lenders or the Second Lien Administrative
Agent or
other representative designated pursuant to Section 17 hereof
shall have
received notice in writing of the termination of such Blockage
Period.
2
<PAGE>
"Collateral" shall mean any and all property which now
constitutes
or
hereafter will constitute collateral or other security for payment
of
the Senior
Secured Indebtedness pursuant to the Senior Secured Loan
Documents,
all amounts payable under the Swap Agreements and/or Second
Lien
Indebtedness pursuant to the Second Lien Loan Documents.
"Collateral Agent - Related Persons" means Collateral Agent,
together
with its Affiliates, and the officers, directors, employees,
agents and
attorneys-in-fact of such Persons and Affiliates.
"Enforcement
Action" means, with respect to any Second Lien
Indebtedness: any enforcement of any right or remedy including
any
enforcement or foreclosure of Liens granted by the Borrowers or any
of the
Guarantors
to secure any or all of such Second Lien Indebtedness, any
enforcement or foreclosure of Liens on any capital stock or other
equity
interests
in either of the Borrowers or any of the Guarantors which may
be
granted by
either of the Borrowers or any of the Guarantors or any holder
of equity
in either of the Borrowers to secure any or all of such Second
Lien
Indebtedness, or any other efforts to collect proceeds from either
of
the
Borrowers' or any of the Guarantors' assets or properties
(including
proceeds
of production) to satisfy the Second Lien Indebtedness,
including,
without limitation, the commencement, or the joining with any
other
creditor of either of the Borrowers or any Guarantor in the
commencement of any Insolvency Proceeding against either of the
Borrowers
or any of
the Guarantors; provided, that none of the following shall
constitute
an Enforcement Action: (a) acceleration of any of the Second
Lien
Indebtedness following acceleration of any of the Senior
Indebtedness
(provided
that such acceleration of Senior Indebtedness has not
previously
been
rescinded) or (b) actions by the Second Lien Creditor to obtain
possession
of or receive Reorganization Securities.
"Enforcement Notice" means a written notice which states that a
default or
an event of default under any provision of the Second Lien
Indebtedness has occurred and that Second Lien Creditor desires to
take
enforcement action as a consequence thereof.
"Guarantors" shall mean each of the current Subsidiaries and
any
future
Subsidiary of the Borrowers and any other Person which at any
time
guarantees
the Senior Secured Indebtedness and the Second Lien
Indebtedness whether now or in the future.
"Indemnified Liabilities" means any and all liabilities,
obligations, losses, damages, penalties, claims, demands,
actions,
judgments,
suits, costs, expenses and disbursements (including reasonable
attorney's costs
and expenses) of any kind or nature whatsoever which may
at any
time be imposed on, incurred by or asserted against any
Collateral
Agent-Related Person in any way relating to or arising out of or
in
connection
with (a) the execution, delivery, enforcement, performance or
administration of this Agreement or the Security Documents, (b) the
use or
proposed
use of the proceeds of any Collateral, or (c) any actual or
prospective claim, litigation, investigation or proceeding relating
to any
of the
foregoing, whether based on contract, tort or any other theory
(including
any investigation of, preparation for, or defense of any
pending or
threatened claim, investigation, litigation or proceeding).
3
<PAGE>
"Insolvency Proceeding" shall mean (a) any voluntary or
involuntary
case,
action, or proceeding before any Governmental Authority having
jurisdiction over the applicable Person or its assets relating
to
bankruptcy, reorganization, insolvency, liquidation,
receivership,
dissolution, winding-up, or relief of debtors, or (b) any
general
assignment
for the benefit of creditors, composition, marshaling of assets
for
creditors, or other similar arrangement in respect of its
creditors
generally
or any substantial portion of its creditors; in each case
whether
undertaken under U.S. Federal, state, or foreign law.
"Lien" shall mean any interest in Property securing an
obligation
owed to,
or a claim by, a Person other than the owner of the Property,
whether
such interest is based on the common law, statute or contract,
and
whether
such obligation or claim is fixed or contingent, and including
but
not
limited to (i) the lien or security interest arising from a
mortgage,
encumbrance, pledge, security agreement, conditional sale or trust
receipt
or a
lease, consignment or bailment for security purposes or (ii)
production
payments and the like payable out of Oil and Gas Properties.
The term
"Lien" shall include reservations, exceptions, encroachments,
easements,
rights of way, covenants, conditions, restrictions, leases and
other
title exceptions and encumbrances affecting Property. For the
purposes
of this Agreement, the Borrowers or any Guarantor shall be
deemed
to be the
owner of any Property which it has acquired or holds subject to
a
conditional sale agreement, or leases under a financing lease or
other
arrangement pursuant to which title to the Property has been
retained by
or vested
in some other Person in a transaction intended to create a
financing.
"Lien Enforcement Action" shall mean any action, whether legal,
equitable,
judicial, non-judicial, or otherwise, to enforce any Lien now
or in the
future securing all or any indebtedness or other obligations,
including,
without limitation, exercise of any assignments of production
or the
right to receive proceeds thereof, division orders or letters
in
lieu of
division orders, any offset, repossession, foreclosure, public
sale,
private sale, or retention of all or any part of an asset for
any
indebtedness or other obligations.
"Loan Parties" shall mean, individually and collectively,
Borrowers,
Guarantors
and any other Person (other than the Senior Secured Creditor,
Swap
Counterparties and the Second Lien Creditor) which is at any time
a
party to
any Senior Secured Loan Documents or Second Lien Loan Documents
or
individually, a "Loan Party".
"Non-Payment Default" means the occurrence of any event under
any
Senior
Secured Loan Document, not constituting a Payment Default,
which
gives the
holder(s) of such Senior Secured Indebtedness, or an agent or
representative acting on behalf of such holder(s), the right to
cause the
maturity
of such Senior Secured Indebtedness to be accelerated
immediately
without
any further notice (except such notice as may be required to
effect
such acceleration) or the expiration of any applicable grace
period.
4
<PAGE>
"Non-Payment Default Notice" means a written notice from or on
behalf of
the Senior Secured Indebtedness Representative that a
Non-Payment Default has occurred and is continuing which identifies
such
Non-Payment Default and specifically designates such notice as
a
"Non-Payment Default Notice."
"Notice of Default" means a Non-Payment Default Notice and/or a
Payment
Default Notice.
"Payment Default" means a default by the Borrowers or any
Guarantor
in the
payment of any amount owing with respect to the Senior Secured
Indebtedness, whether with respect to principal, interest, premium,
letter
of credit
reimbursement obligations, commitment fees or letter of credit
fees or
otherwise when the same becomes due and payable, whether at
maturity
or at a date fixed for payment of an installment or prepayment
or
by
declaration or acceleration or otherwise.
"Payment Default Notice" means a written notice from or on behalf
of
the Senior
Secured Indebtedness Representative that a Payment Default with
respect to
Senior Secured Indebtedness has occurred and is continuing, and
specifically designates such notice as a "Payment Default
Notice".
"Person" means any natural person, corporation, limited
liability
company,
trust, joint venture, association, company, partnership, or
other
entity.
"Proportionate Share" means at any time with respect to any
Lender,
the amount
equal to (a) the amount of the following owed to such Lender
and/or
such Lender's Affiliates, divided by (b) without duplication
the
sum of:
(i) the principal amount of Senior Secured Indebtedness then
outstanding, including the L/C Exposure, plus (ii) the unused
portion of
the
Commitments of the Senior Secured Lenders, plus (iii) the
principal
amount of
the Second Lien Indebtedness then outstanding.
"Proceeds" shall have the meaning assigned to it under the UCC,
and,
in any
event, shall include, but not be limited to (a) any and all
proceeds
of any insurance, indemnity, warranty, letter of credit or
guaranty
or collateral security payable to any grantor from time to time
with
respect to any of the Collateral, (b) any and all payments (in
any
form
whatsoever) made or due and payable to the owner of the
Collateral
from time
to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the
Collateral
by any
governmental body, authority, bureau or agency (or any Person
acting
under color of governmental authority) and (c) any and all
other
amounts
from time to time paid or payable under or in connection with
any
of the
Collateral.
"Reorganization Securities" means debt or equity securities that
are
issued
pursuant to an Insolvency Proceeding the payment of which is
subordinate and junior at least to the extent provided in this
Agreement
to the payment of the
Senior Secured Indebtedness outstanding at the time
of the
issuance thereof (including any refinancing of Senior Secured
Indebtedness pursuant to an Insolvency Proceeding) and to the
payment of
all debt
or equity securities issued in exchange for such Senior Secured
Indebtedness in such Insolvency Proceeding (whether such
subordination is
effected
by the terms of such securities, an order or decree issued in
such
Insolvency Proceeding, by agreement of the Second Lien Lenders
or
otherwise); provided, in either case, that such securities are
authorized
by an
order or decree made by a court of competent jurisdiction in
such
Insolvency
Proceeding.
5
<PAGE>
"Required Lenders" means (i) Lenders holding, in the aggregate,
Proportionate Shares exceeding 50% and (ii) the Senior
Administrative
Agent.
"Required Second Lien Lenders" means (i) Lenders holding, in
the
aggregate,
outstanding Second Lien Indebtedness representing more than 50%
of all
outstanding Second Lien Indebtedness and (ii) the Second Lien
Administrative Agent.
"Required Senior Secured Revolving Lenders" means (i) Lenders
holding
commitments to make Senior Secured Revolving Loans that, in the
aggregate,
exceed 50% of the sum of all commitments to make Senior Secured
Revolving
Loans (or if such commitments have been terminated, Lenders
holding
Senior Secured Revolving Loans that, in the aggregate, exceed
50%
of the sum
of all outstanding Senior Secured Revolving Loans) and (ii) the
Senior
Administrative Agent.
"Required Senior Secured Term Loan Lenders" means (i) Lenders
holding
outstanding Senior Secured Term Loans plus unused Commitments
to
make
Senior Secured Term Loans that, in the aggregate, exceed 50% of
the
sum of all
commitments to make Senior Secured Term Loans and (ii) the
Senior
Administrative Agent.
"Second Lien Credit Agreement" means that certain Second Lien
Term
Loan
Agreement dated as of November 14, 2005 among the Borrowers,
Guggenheim
Corporate Funding, LLC, as administrative agent and the
financial
institutions listed therein from time to time as Second Lien
Lenders;
as from time to time renewed, extended, amended, supplemented,
or
restated,
and any agreements representing the refinancing, replacement,
or
substitution in whole or in part of the loans made or incurred
under such
Second
Lien Credit Agreement.
"Second Lien Creditor" means, individually and collectively,
Second
Lien
Creditor and all other present or future holders of all or part
of
the Second
Lien Indebtedness, and their respective successors and assigns.
"Second Lien Indebtedness" shall mean and include all
indebtedness,
obligations and liabilities of any Loan Party under the Second Lien
Loan
Documents,
including, without limitation, all principal and interest
(including
post-petition interest accrued subsequent to, and interest that
would have
accrued but for, the filing of any petition under any
bankruptcy, insolvency or similar law), and other amounts payable
under
the Second
Lien Loan Documents.
6
<PAGE>
"Second Lien Indebtedness Default" means the occurrence of any
event
under any
Second Lien Loan Document which gives the Second Lien Creditor,
or an
agent or representative acting on behalf thereof, the right
under
the terms
of the Second Lien Credit Agreement to cause the maturity of
the
Second
Lien Indebtedness to be accelerated immediately without any
further
notice (except
such notice as may be required to effect such acceleration)
or the
expiration of any applicable grace period.
"Second Lien Lenders" means all Persons which now or hereafter
constitute
a "Lender" under the Second Lien Credit Agreement and their
respective
successors and assigns, and all Person refinancing any Second
Lien
Indebtedness and their respective successors and assigns.
"Second Lien Loan Documents" means, collectively, (a) the
Second
Lien
Credit Agreement, (b) the Second Lien Notes, if requested, and
any
other
note, bond or other instrument evidencing Second Lien
Indebtedness,
(c) all
mortgages, security agreements, pledge agreements or financing
statements
evidencing, creating or perfecting any Lien to secure the
Second
Lien Credit Agreement and the Second Lien Notes, if requested,
in
any way,
(d) all guarantees thereof, (e) all other documents,
instruments
or
agreements relating to the Second Lien Credit Agreement or the
Second
Lien Notes
now or hereafter executed or delivered by any Loan Party,
including
without limitation each of the other the "Second Lien Loan
Documents", and (f) all renewals, extensions, amendments,
modifications or
restatements of the foregoing.
"Second Lien Notes" means each promissory note requested by a
Second
Lien
Lender and issued under the Second Lien Credit Agreement
evidencing
the term
loans made pursuant to the term thereof, as from time to time
renewed,
extended, amended, supplemented, or restated, and any
agreements
representing the refinancing, replacement, or substitution in whole
or in
part
thereof.
"Secured Parties" means the Senior Administrative Agent, the
Second
Lien
Administrative Agent, each Swap Counterparty, each of the
Senior
Secured
Lenders and each of the Second Lien Lenders.
"Security Documents" means all security agreements, pledge
agreements, deeds of trust, mortgages, financing statements,
continuation
statements, extension agreements and other agreements or
instruments now,
heretofore, or hereafter delivered by any Loan Party to secure the
Senior
Secured
Indebtedness, amounts payable under the Swap Agreements and/or
the
Second
Lien Indebtedness.
"Senior Secured Credit Agreement" means that certain Amended
and
Restated
Senior Credit Agreement dated as of even date herewith among
the
Borrowers,
Guggenheim Corporate Funding, LLC, as administrative agent and
the
financial institutions listed therein from time to time as
Senior
Secured
Lenders, as from time to time renewed, extended, amended,
supplemented, or restated, and any agreements representing the
refinancing, replacement, or substitution in whole or in part of
the loans
and letter
of credit liabilities made or incurred under such Senior
Secured
Credit Agreement.
7
<PAGE>
"Senior Secured Creditor" means, individually and collectively,
Senior
Secured Creditor and all other present or future holders of all
or
part of
the Senior Secured Indebtedness, and their respective
successors
and
assigns.
"Senior Secured Indebtedness" means and includes (a) all
principal
indebtedness for loans now outstanding or hereafter incurred, the
undrawn
portion of
all Commitments (as defined in the Senior Secured Credit
Agreement)
and all letter of credit reimbursement obligations now existing
or
hereafter arising, under the Senior Secured Credit Agreement,
provided
that the
aggregate outstanding principal amount of Senior Secured
Indebtedness under this clause (a) shall not exceed $100,000,000 at
any
time, and
provided further, that if the aggregate principal amount of
Senior
Secured Indebtedness (constituting principal and letter of
credit
reimbursement obligations) shall exceed $100,000,000, then the
subordination of Liens with respect to the Second Lien
Indebtedness, as
contemplated by this Agreement to the Senior Secured Indebtedness
of
$100,000,000 or less shall not be impaired, (b) all amounts now
or
hereafter
owing to any Swap Counterparty, (c) all interest accruing on
the
Senior
Secured Indebtedness described in the preceding clauses (a) and
(b), and
(d) all other monetary obligations (whether now outstanding or
hereafter
incurred) for which either of the Borrowers or any of the
Guarantors
is responsible or liable as obligor, guarantor or otherwise
under or
pursuant to any of the Senior Secured Loan Documents including,
without
limitation, all fees, penalties, yield protections, breakage
costs,
damages, indemnification obligations, reimbursement
obligations,
and
expenses (including, without limitation, fees and expenses of
counsel
to the
Senior Indebtedness Representative and the Senior Secured
Lenders)
together
with interest on the foregoing to the extent provided for in
the
Senior
Secured Loan Documents. The interest described in the preceding
clause (c)
and the monetary obligations described in the preceding clause
(d)
include, without limitation, all interest and monetary
obligations
accruing
after the commencement of any Insolvency Proceeding under the
terms of
the Senior Secured Loan Documents whether or not such interest
or
monetary
obligations constitute an allowed claim in any such Insolvency
Proceeding.
"Senior Secured Indebtedness Acceleration" means, with respect
to
the Senior
Secured Indebtedness, that the holder or holders of such Senior
Secured
Indebtedness, or an agent or representative on behalf of such
holder or
holders, have caused the maturity of such Senior Secured
Indebtedness to be accelerated or the Senior Secured Indebtedness
has
otherwise
been accelerated.
"Senior Secured
Indebtedness Default"
means a Payment Default or
a
Non-Payment Default.
"Senior Secured Indebtedness Representative" means (a)
initially,
the Senior
Administrative Agent or (b) such other Person selected by the
Majority
Lenders (as such term is defined in the Senior Secured Credit
Agreement)
to replace the Senior Administrative Agent or the then Senior
Indebtedness Representative.
"Senior Secured Lenders" means all Persons which now or
hereafter
constitute
"Lenders" under the Senior Secured Credit Agreement and their
respective
successors and assigns, and all Persons refinancing any Senior
Secured
Indebtedness and their respective successors and assigns.
8
<PAGE>
"Senior Secured Loan Documents" means, collectively, (a) the
Senior
Secured
Credit Agreement and the Swap Agreements, (b) any note, bond or
other
instrument evidencing Senior Secured Indebtedness, (c) all
mortgages,
security agreements, pledge agreements or financing statements
evidencing, creating or perfecting any Lien to secure the Senior
Secured
Indebtedness in any way, (d) all guarantees of the Senior
Secured
Indebtedness, (e) all other documents, instruments or agreements
relating
to the
Senior Secured Indebtedness now or hereafter executed or
delivered
by any
Loan Party, including without limitation each of the other the
"Loan
Documents" as such term is defined in the Senior Secured Credit
Agreement,
and (f) all renewals, extensions, amendments, modifications or
restatements of the foregoing.
"Standstill Period" means the period beginning with the date of
delivery
of the notice by the Second Lien Lenders or the Second Lien
Administrative Agent as set forth in Section 12(a) hereof and
ending on
the
earliest of (a) the date when the Second Lien Indebtedness
Default
giving
rise to such Standstill Period has been cured or waived in
writing,
(b) the
date upon which the Senior Secured Indebtedness has been paid
in
full in
cash, all commitments of any holder of Senior Secured
Indebtedness
to make
loans or extensions of credit have terminated, and all letters
of
credit
issued by Senior Secured Creditor or any Affiliate thereof have
expired,
terminated or been fully collateralized in cash, (c) the date
on
which the
Senior Secured Indebtedness shall have been declared due and
payable
prior to its stated maturity and (d) the date upon which any
Insolvency
Proceeding is commenced; provided that the total duration of
all
Standstill Periods shall not exceed 120 days in any consecutive
365
day
period.
"Subsidiary" means: (a) any Person of which at least a majority
of
the
outstanding Equity Interests having by the terms thereof
ordinary
voting
power to elect a majority of the board of directors, managers
or
other
governing body of such Person (irrespective of whether or not at
the
time
Equity Interests of any other class or classes of such Person
shall
have or
might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned or
controlled by
the
Borrowers or one or more of their respective Subsidiaries or by one
of
the
Borrowers or one or more of its Subsidiaries and (b) any
partnership
of which
one of the Borrowers or any of its Subsidiaries is a general
partner.
Unless otherwise indicated herein, each reference to the term
"Subsidiary" shall mean a Subsidiary of one of the Borrowers.
"Swap Agreement" means, at any date of determination, any
agreement
entered
into by either Borrower or any of their Subsidiaries that is in
full force
and effect with respect to any swap, forward, future or
derivative
transaction, collar or option or similar agreement, whether
exchange
traded, "over-the-counter" or otherwise, involving, or settled
by
reference
to, one or more rates, currencies, commodities, equity or debt
instruments or securities, or economic, financial or pricing
indices or
measures
of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions; provided that
no
phantom
stock or similar plan providing for payments only on account of
services
provided by current or former directors, officers, employees or
consultants of the Borrowers or their Subsidiaries shall be a
Swap
Agreement.
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"Swap Counterparty" means any party to a Swap Agreement other
than
Borrower
or any Subsidiary of Borrower and, initially shall be BP
Corporation North America Inc.
"UCC" shall mean the Uniform Commercial Code as in effect from
time
to time in
the State of New York.
Section 2.
General. (a) Notwithstanding any provision of the Second Lien
Loan Documents, the Liens securing the Second Lien Indebtedness
shall be
subordinate and junior to the Liens securing all or any part of any
of the
Senior Secured Indebtedness to the extent and in the manner
provided in this
Agreement and each Second Lien Lender, by acceptance thereof
whether upon
original issuance, transfer, assignment or exchange, agrees to be
bound by the
provisions of this Agreement.
(b)
Notwithstanding any provision of the Senior Secured Loan
Documents,
the Liens securing all or any part of the Senior Secured Term Loans
shall be
subordinate and junior to the Liens securing the Senior Secured
Revolving Loans
to the extent and in the manner provided in this Agreement and each
Senior
Secured Term Lender, by acceptance thereof whether upon original
issuance,
transfer, assignment or exchange, agrees to be bound by the
provisions of this
Agreement.
(c) At any
time when an event of default has occurred and is continuing
under the terms of any Swap Agreement, the Swap Counterparty under
that Swap
Agreement may deliver a written notice to that effect to the
Senior
Administrative Agent and/or the Collateral Agent.
Section 3.
Collateral Agent Appointment. Powers, Duties and Immunities.
------------------------------------------------------------
(a)
Pursuant to the Security Documents executed by, or in favor of,
the
Senior Administrative Agent, the Loan Parties have granted Liens in
favor of the
Senior Administrative Agent in the Collateral. Pursuant to the
Security
Documents executed by, or in favor of, Second Lien Administrative
Agent, the
Loan Parties have granted Liens in favor of the Second Lien
Administrative Agent
in the Collateral. Each of the Senior Secured Creditor, the Second
Lien Creditor
and the Swap Counterparty that is a signatory hereto hereby
irrevocably appoints
and authorizes Guggenheim Corporate Funding, LLC to act as
Collateral Agent
under the Security Documents on the terms and conditions set forth
in this
Agreement and Guggenheim Corporate Funding, LLC, hereby accepts
such appointment
and shall have all of the rights and obligations of the Collateral
Agent
hereunder and of the Senior Administrative Agent and the Second
Lien
Administrative Agent under the Security Documents.
(b) Each
Lender hereby authorizes Collateral Agent to do the following
in
accordance with the terms of this Agreement and the Security
Documents:
(i) to receive all documents and items to be furnished from time
to
time to
Collateral Agent, Senior Administrative Agent, Second Lien
Administrative Agent or any Lender under the Security
Documents;
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<PAGE>
(ii) to distribute to Senior Administrative Agent and Second
Lien
Administrative Agent information, requests, documents, and other
items
received
from the Loan Parties and other Persons under the Security
Documents;
(iii) to execute and deliver to Borrowers and other Persons
requests,
demands, notices, approvals, consents, waivers, and other
communications received from Senior Administrative Agent and Second
Lien
Administrative Agent in connection with the Security Documents
and
herewith
subject to the terms and conditions set forth therein and
herein;
(iv) to
receive on behalf of Senior Administrative Agent and Second
Lien
Administrative Agent any payment of monies paid to Collateral
Agent
in
accordance with this Agreement and the Security Documents, and
to
distribute
to Senior Administrative Agent and/or Second Lien
Administrative Agent for the account of the applicable Lenders
in
accordance
with the terms of this Agreement such monies so received by
such
Senior Administrative Agent and/or Second Lien Administrative
Agent;
(v) to act on behalf of Lenders and the Swap Counterparties at
the
direction
of Senior Administrative Agent and/or Second Lien
Administrative
Agent to
maintain the perfection and priority of the Liens created under
the
Security Documents;
(vi) subject to the terms and conditions of the Security
Documents
and this
Agreement, to exercise on behalf of Senior Administrative Agent
all Lien
Enforcement Actions and, subject to the terms and conditions of
this
Agreement to exercise on behalf of Second Lien Administrative
Agent
all Lien
Enforcement Actions permitted hereunder; and
(vii) subject to the terms and conditions of the Security
Documents
and this
Agreement, to take such other actions as may be directed by
Senior
Administrative Agent and/or Second Lien Administrative Agent as
are
reasonably
incident to any powers granted to Collateral Agent hereunder.
(c)
Notwithstanding any provision to the contrary contained
elsewhere
herein or in any Senior Secured Loan Document, Swap Agreement or
Second Lien
Loan Document, the Collateral Agent shall not have any duties
or
responsibilities, except those expressly set forth herein, nor
shall the
Collateral Agent have or be deemed to have any fiduciary
relationship with any
Lender, Swap Counterparty or participant, and no implied covenants,
functions,
responsibilities, duties, obligations or liabilities shall be read
into this
Agreement or any Senior Secured Loan Document, Swap Agreement or
Second Lien
Loan Document or otherwise exist against the Collateral Agent.
Without limiting
the generality of the foregoing sentence, the use of the term
"agent" herein
with reference to the Collateral Agent is not intended to connote
any fiduciary
or other implied (or express) obligations arising under agency
doctrine of any
applicable law. Instead, such term is used merely as a matter of
market custom,
and is intended to create or reflect only an administrative
relationship between
independent contracting parties. The Lenders and the Swap
Counterparties
irrevocably authorize the Collateral Agent, at its option and in
its discretion,
to release any lien on or security interest in any Collateral (i)
if the
property subject to such lien or security interest is permitted to
be sold or
otherwise transferred pursuant to the Senior Secured Credit
Agreement or such
lien is otherwise permitted to be released pursuant to the Senior
Secured Loan
Documents and (ii) upon termination of and payment in full of all
Senior Secured
Indebtedness and Second Lien Indebtedness (other than contingent
indemnification
obligations).
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<PAGE>
(d) The
Collateral Agent may execute any of its duties under this
Agreement or the Security Documents by or through agents, employees
or
attorneys-in-fact and shall be entitled to advice of counsel and
other
consultants or experts concerning all matters pertaining to such
duties. The
Collateral Agent shall not be responsible for the negligence or
misconduct of
any agent or attorney-in-fact that it selects in the absence of
gross negligence
or willful misconduct.
(e) No
Collateral Agent-Related Person shall (i) be liable for any
action
taken or omitted to be taken by any of them under or in connection
with this
Agreement or the Security Documents or the transactions
contemplated hereby and
thereby including but not limited to those arising from its own
negligence
(except for its own gross negligence or willful misconduct in
connection with
its duties expressly set forth herein), or (ii) be responsible in
any manner to
any Lender, Swap Counterparty or participant for any recital,
statement,
representation or warranty made by the Loan Parties, or any officer
thereof,
contained herein or in the Security Documents, or in any
certificate, report,
statement or other document referred to or provided for in, or
received by the
Collateral Agent under or in connection with, this Agreement or the
Security
Documents, or the validity, effectiveness, genuineness,
enforceability or
sufficiency of this Agreement or the Security Documents, or for any
failure of
the Loan Parties to perform their obligations hereunder or
thereunder. No
Collateral Agent-Related Person shall be under any obligation to
any Lender or
participant to ascertain or to inquire as to the observance or
performance of
any of the agreements contained in, or conditions of, this
Agreement, the Senior
Secured Loan Documents, the Second Lien Loan Documents, this
Agreement, the
Security Documents, or to inspect the properties, books or records
of the Loan
Parties.
(f) The
Collateral Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, communication, signature,
resolution,
representation, notice, consent, certificate, affidavit, letter,
telegram,
facsimile, telex or telephone message, electronic mail message,
statement or
other document or conversation reasonably believed by it to be
genuine and
correct and to have been signed, sent or made by the proper Person
or Persons,
and upon advice and statements of legal counsel (including counsel
to the Loan
Parties), independent accountants and other experts selected by the
Collateral
Agent. The Collateral Agent shall be fully justified in failing or
refusing to
take any action under the Security Documents unless it shall first
receive such
advice or concurrence of Senior Administrative Agent as it deems
appropriate
and, if it so requests, it shall first be indemnified to its
satisfaction by the
Lenders against any and all liability and expense which may be
incurred by it by
reason of taking or continuing to take any such action. The
Collateral Agent
shall in all cases be fully protected in acting, or in refraining
from acting,
under this Agreement or the Security Documents in accordance with a
request or
consent of Senior Administrative Agent and such request and any
action taken or
failure to act pursuant thereto shall be binding upon all the
Lenders and Swap
Counterparties.
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<PAGE>
(g) The
Collateral Agent shall not be deemed to have knowledge or
notice
of the occurrence of any "Default" or "Event of Default" under the
Senior
Secured Credit Agreement, the Second Lien Credit Agreement, the
Security
Documents or any Swap Agreement (as "Default" or "Event of Default"
is defined
in any of such documents), unless the Collateral Agent shall have
received
written notice from the Senior Administrative Agent or Second
Lien
Administrative Agent, as applicable, or the Swap Counterparty or a
Borrower,
describing such "Default" or "Event of Default" and stating that
such notice is
a "notice of default." The Collateral Agent will notify Senior
Administrative
Agent and the Second Lien Administrative Agent of its receipt of
any such
notice. The Collateral Agent shall take such action with respect to
the
Collateral after any such "Default" or "Event of Default" as may be
directed by
Senior Administrative Agent in accordance with the terms hereof
until the Senior
Secured Indebtedness has been paid in full in cash and all
Commitments under the
Senior Secured Credit Agreement have been terminated and thereafter
as directed
by the Second Lien Administrative Agent in accordance with the
terms of hereof.
Unless and until the Collateral Agent has received any such
direction, the
Collateral Agent shall not be obligated to take such action with
respect to such
"Default" or "Event of Default". Furthermore, the Collateral Agent
may (but
shall not be obligated to) take action hereunder to the extent
necessary to
maintain insurance on the Collateral or otherwise protect the
Collateral from
damage or destruction.
(h) Each
Lender acknowledges that no Collateral Agent-Related Person has
made any representation or warranty to it, and that no act by the
Collateral
Agent hereafter taken, including any consent to and acceptance of
any assignment
or review of the affairs of the Loan Parties, shall be deemed to
constitute any
representation or warranty by any Collateral Agent-Related Person
to any Lender
as to any matter, including whether Collateral Agent-Related
Persons have
disclosed material information in their possession. Each Lender and
Swap
Counterparty represents to the Collateral Agent that it has,
independently and
without reliance upon any Collateral Agent-Related Person and based
on such
documents and information as it has deemed appropriate, made its
own appraisal
of and investigation into the business, prospects, operations,
property,
financial and other condition and creditworthiness of the Loan
Parties, and all
applicable bank or other regulatory laws relating to the
transactions
contemplated hereby, and made its own decision to enter into the
Senior Secured
Loan Documents or Second Lien Loan Documents, as applicable, and
this Agreement
and to extend credit to Borrowers under the applicable credit
agreement. Each
Lender and each Swap Counterparty also represents that it will,
independently
and without reliance upon any Collateral Agent-Related Person and
based on such
documents and information as it shall deem appropriate at the time,
continue to
make its own credit analysis, appraisals and decisions in taking or
not taking
action under this Agreement and the Senior Secured Loan Documents,
Swap
Agreement or Second Lien Loan Documents, as applicable, and to make
such
investigations as it deems necessary to inform itself as to the
business,
prospects, operations, property, financial and other condition
and
creditworthiness of the Loan Parties. Except for notices, reports
and other
documents expressly required to be furnished to Senior
Administrative Agent or
Second Lien Administrative Agent by the Collateral Agent herein,
the Collateral
Agent shall not have any duty or responsibility to provide any
Lender or Swap
Counterparty with any credit or other information concerning the
business,
prospects, operations, property, financial and other condition
or
creditworthiness of any of the Loan Parties which may come into the
possession
of any Collateral Agent-Related Person.
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<PAGE>
(i) The
Lenders shall indemnify upon demand each Collateral
Agent-Related
Person (to the extent not reimbursed by or on be
