Exhibit 10.9
INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT, dated as of
October 15, 2003, among PNC BANK, NATIONAL
ASSOCIATION, as Credit Agent, JPMorgan Chase
bank, as Trustee, KOPPERS INC. and each
SUBSIDIARY GUARANTOR listed on Schedule I
hereto.
W I T N E S S E T H :
WHEREAS, the
Company (such term and each other capitalized term used
herein
having the meanings set forth
in Section 1 below), certain of its Subsidiaries,
certain lenders, PNC Bank,
National Association, as administrative agent,
National City Bank of
Pennsylvania, as syndication agent, and Citizens Bank of
Pennsylvania, Fleet National
Bank and Wachovia Bank, National Association, as
co-documentation agents, are
parties to the Credit Agreement dated as of May 12,
2003 (as further amended,
supplemented or otherwise modified from time to time,
the "Credit
Agreement");
WHEREAS, the
Obligations of the Company under the Credit Agreement
are
secured by various assets of
the Company and certain Subsidiaries thereof;
WHEREAS, the
Company, certain Subsidiaries of the Company and the
Trustee
have entered into the
Indenture dated as of October 15, 2003 (as amended,
supplemented or otherwise
modified from time to time, the "Indenture"), pursuant
to which the Notes shall be
governed;
WHEREAS, the
Company and certain lenders under the Credit Agreement
have
entered into a First
Amendment to the Credit Agreement, dated as of October
15,
2003 (the "Amendment"), that,
among other things, permits, subject to certain
terms and conditions, (a) the
issuance of up to $320.0 million in aggregate
principal amount of the Notes
by the Company, (b) the payment of up to $80.0
million in dividends to the
Company's stockholders and (c) a second-priority
Lien (subject to the Lien in
favor of the Credit Agent) on the Noteholder
Collateral to secure the
Noteholder Claims; and
WHEREAS, it is a
condition precedent to the effectiveness of the
Amendment
that the parties hereto enter
into this Agreement;
Now, THEREFORE,
in consideration of the foregoing, the mutual covenants
and
obligations herein set forth
and for other good and valuable consideration, the
sufficiency and receipt of
which are hereby acknowledged, the parties hereto,
intending to be legally
bound, hereby agree as follows:
Section 1. (a)
Definitions. As used in this Agreement, the following
terms
have the meanings specified
below:
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"Agreement"
means this Agreement, as amended, renewed, extended,
supplemented or otherwise
modified from time to time in accordance with the
terms hereof.
"Amendment" has
the meaning set forth in the recitals hereto.
"Bankruptcy Law"
means Title 11 of the United States Code and any similar
Federal, state or foreign law
for the relief of debtors.
"Business Day"
means any day other than a Saturday, a Sunday or a day
that
is a legal holiday under the
laws of the State of New York or on which banking
institutions in the State of
New York or the Commonwealth of Pennsylvania are
required or authorized by law
or other governmental action to close.
"Cash Management
Obligations" means, with respect to any Person, all
obligations of such Person in
respect of overdrafts and related liabilities owed
to any other Person that
arise from treasury, depositary or cash management
services, including any
automated clearing house transfers of funds or any
similar
transactions.
"Common
Collateral" means all of the assets of any Grantor, whether
real,
personal or mixed,
constituting both Senior Lender Collateral and
Noteholder
Collateral.
"Company" means
Koppers Inc., a Pennsylvania corporation, and its
successors.
"Comparable
Noteholder Collateral Document" means, in relation to
any
Common Collateral subject to
any Lien created under any Senior Collateral
Document, that Noteholder
Collateral Document that creates a Lien on the same
Common Collateral, granted by
the same Grantor.
"Credit Agent"
means PNC Bank, National Association, in its capacity as
administrative agent under
the Credit Agreement, and its successors as
collateral agent for the
Senior Lenders (or if there is more than one such
successor agent, such agent
as is designated as "Credit Agent" by Senior Lenders
holding a majority of the
Senior Lender Claims then outstanding) under the
Senior Credit Agreement
exercising substantially the same rights and powers.
"Credit
Agreement" has the meaning set forth in the recitals
hereto.
"Deposit
Account" has the meaning set forth in the Uniform Commercial
Code.
"Deposit Account
Collateral" means that part of the Common Collateral
comprised of Deposit
Accounts.
"DIP Financing"
has the meaning set forth in Section 6.1.
"Discharge of
Senior Lender Claims" means, except to the extent
otherwise
provided in Section 5.6,
payment in full in cash of (a) all Obligations in
respect of all outstanding
First-Lien Indebtedness or, with respect to letters
of credit outstanding
thereunder, delivery of cash collateral or backstop
letters of credit in respect
thereof in compliance with such First-Lien
Indebtedness, as applicable,
in each case after or concurrently with termination
of all commit-
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ments to extend credit
thereunder and (b) any other Senior Lender Claims that
are due and payable or
otherwise accrued and owing at or prior to the time such
principal and interest are
paid.
"First-Lien
Indebtedness" means (a) Indebtedness incurred pursuant to
the
Credit Agreement, and all
renewals, extensions and refinancings thereof, (i) in
an aggregate amount not to
exceed the greater of (A) $130.0 million and (B) the
sum of (x) 60% of the book
value of the inventory of the Company and its
Restricted Subsidiaries (as
defined in the Indenture) and (y) 80% of the book
value of the accounts
receivable of the Company and its Restricted
Subsidiaries
(the book value of the
inventory and accounts receivable to be calculated at
the
time such Indebtedness is
incurred), plus in the case of the clauses (A) and (B)
$20.0 million (provided,
however, that such $20.0 million of Indebtedness or any
portion thereof is issued to
and held by the same lender or group of lenders
providing the balance of the
then outstanding Indebtedness under the Credit
Agreement or any renewal,
extension or refinancing of the Credit Agreement) and
(ii) secured by a Permitted
Lien (as defined in the Indenture) described in
clause (7) of the definition
thereof and (b) all other Obligations (not
constituting Indebtedness) of
any Grantor under any Indebtedness referred to in
clause (a), including in
respect of Senior Lender Hedging Obligations and Senior
Lender Cash Management
Obligations.
"Future
First-Lien Indebtedness" means any First-Lien Indebtedness
other
than Indebtedness incurred
pursuant to the Credit Agreement.
"Grantors" means
the Company and each of the Subsidiaries that has
executed
and delivered a Noteholder
Collateral Document or a Senior Collateral Document.
"Hedging
Obligations" means, with respect to any Person, all
obligations
and liabilities of such
Person in respect of (a) interest rate or currency swap
agreements, interest rate or
currency cap agreements, interest rate or currency
collar agreements or (b)
other agreements or arrangements designed to protect
such Person against
fluctuations in interest rates and/or currency exchange
rates.
"Indebtedness"
means and includes all obligations that constitute
"Indebtedness" within the
meaning of the Indenture or the Senior Credit
Agreement.
"Indenture" has
the meaning set forth in the recitals hereto.
"Insolvency or
Liquidation Proceeding" means (a) any voluntary or
involuntary case or
proceeding under any Bankruptcy Law with respect to any
Grantor, (b) any other
voluntary or involuntary insolvency, reorganization or
bankruptcy case or
proceeding, or any receivership, liquidation,
reorganization
or other similar case or
proceeding with respect to any Grantor or with respect
to any of their respective
assets, (c) any liquidation, dissolution,
reorganization or winding up
of any Grantor whether voluntary or involuntary and
whether or not involving
insolvency or bankruptcy or (d) any assignment for the
benefit of creditors or any
other marshalling of assets and liabilities of any
Grantor.
"Lien" means,
with respect to any asset, any mortgage, deed of trust,
lien,
pledge, hypothecation,
encumbrance, charge or security interest in, on or of
such asset.
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"Noteholder
Australian Security Agreements" means each Security
Agreement,
dated as of October 15, 2003,
among Koppers Australia Holding Company Pty Ltd,
Koppers Australia Pty Ltd,
Koppers Carbon Materials & Chemicals Pty Ltd,
Koppers
Wood Products Pty Ltd,
Koppers Shipping Pty Ltd, Continental Carbon Australia
Pty Ltd and Koppers
Investment Subsidiary Pty Ltd, in favor of the Trustee.
"Noteholder
Canadian Security Documents" means the Deed of Hypothec,
dated
as of October 15, 2003,
between the Company and the Trustee.
"Noteholder
Claims" means all Obligations in respect of the Notes or
arising under the Noteholder
Documents or any of them, including all fees and
expenses of the Trustee
thereunder.
"Noteholder
Collateral" means all of the assets of any Grantor,
whether
real, personal or mixed, with
respect to which a Lien is granted as security for
any Noteholder
Claim.
"Noteholder
Collateral Documents" means the Noteholder Australian
Security
Agreements, the Noteholder
Canadian Security Documents, the Noteholder Patent,
Trademark and Copyright
Security Agreement, the Noteholder Pledge Agreements,
the Noteholder Security
Agreement, the Noteholder Security Trust Deed and any
other document or instrument
pursuant to which a Lien is granted by any Grantor
to secure any Noteholder
Claims or under which rights or remedies with respect
to any such Lien are
governed.
"Noteholder
Documents" means (a) the Indenture, the Notes, the
Noteholder
Collateral Documents and (b)
any other related document or instrument executed
and delivered pursuant to any
Noteholder Document described in clause (a) above
evidencing or governing any
Obligations thereunder.
"Noteholder
Patent, Trademark and Copyright Security Agreement" means
the
Patent, Trademark and
Copyright Security Agreement, dated as of October 15,
2003, among the Company, the
other domestic Grantors and the Trustee.
"Noteholder
Pledge Agreements" means (a) the Pledge Agreement, dated as
of
October 15, 2003, among the
Company, certain other domestic Grantors and the
Trustee and (b) the Pledge
Agreement, dated as of October 15, 2003, between
World-Wide Ventures
Corporation and the Trustee.
"Noteholder
Security Agreement" means the Security Agreement, dated as
of
October 15, 2003, among the
Company, the other domestic Grantors and the
Trustee.
"Noteholder
Security Trust Deed" means the Security Trust Deed, dated as
of
October 15, 2003, among
Koppers Australia Holding Company Pty Ltd, Koppers
Australia Pty Ltd, Koppers
Carbon Materials & Chemicals Pty Ltd, Koppers Wood
Products Pty Ltd, Koppers
Shipping Pty Ltd, Continental Carbon Australia Pty
Ltd, Koppers Investment
Subsidiary Pty Ltd and the Trustee.
"Noteholders"
means the Persons holding Noteholder Claims.
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"Notes" means
(a) the initial $320.0 million in principal amount of
9-7/8%
Senior Secured Notes Due 2013
to be issued by the Company pursuant to the
Indenture, (b) the exchange
notes issued in exchange therefor as contemplated by
the Registration Rights
Agreement dated as of September 30, 2003, among the
Company, certain Subsidiaries
of the Company and the Initial Purchasers (as
defined therein) and (c) any
additional notes issued under the Indenture by the
Company, to the extent
permitted by the Indenture.
"Obligations"
means, with respect to any Indebtedness, any and all
obligations with respect to
the payment of (a) any principal of or interest
(including interest accruing
on or after the commencement of any Insolvency or
Liquidation Proceeding,
whether or not a claim for post-filing interest is
allowed in such proceeding)
or premium on any Indebtedness, including any
reimbursement obligation in
respect of any letter of credit, (b) any fees,
indemnification obligations,
expense reimbursement obligations or other
liabilities payable under the
documentation governing such Indebtedness, (c) any
obligation to post cash
collateral in respect of letters of credit and any other
obligations and/or (d) any
Cash Management Obligations or Hedging Obligations in
connection with such
Indebtedness.
"Person" means
any natural person, corporation, limited liability
company,
trust, joint venture,
association, company, partnership, entity or other
party,
including any government and
any political subdivision, agency or
instrumentality
thereof.
"Pledged
Collateral" means (a) the Common Collateral in the possession
of
the Credit Agent (or its
agents or bailees), to the extent that possession
thereof is necessary to
perfect a Lien thereon under the Uniform Commercial Code
and (b) the "Pledged
Collateral" under, and as defined in, the Noteholder
Pledge
Agreements that is Common
Collateral.
"Proceeds" has
the meaning set forth in Section 4.1.
"Recovery" has
the meaning set forth in Section 6.4.
"Required
Lenders" means, with respect to any Senior Credit
Agreement,
those Senior Lenders the
approval of which is required to approve an amendment
or modification of,
termination or waiver of any provision of or consent or
departure from the Senior
Credit Agreement (or would be required to effect such
consent under this Agreement
if such consent were treated as an amendment of the
Senior Credit
Agreement).
"Senior
Collateral Documents" means the Patent, Trademark and
Copyright
Security Agreement, the
Pledge Agreement, the Security Agreements, the Security
Trust Deed and the Quebec
Security (each as defined in the Credit Agreement) and
any other agreement, document
or instrument pursuant to which a Lien is granted
securing any Senior Lender
Claims or under which rights or remedies with respect
to such Liens are
governed.
"Senior Credit
Agreement" means the Credit Agreement and any other
agreement governing Future
First-Lien Indebtedness.
"Senior Lender
Cash Management Obligations" means any Cash Management
Obligations secured by any
Common Collateral under the Senior Collateral
Documents.
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"Senior Lender
Claims" means all First-Lien Indebtedness outstanding,
including any Future
First-Lien Indebtedness. Senior Lender Claims shall
include
all interest and expenses
accrued or accruing (or that would, absent the
commencement of an Insolvency
or Liquidation Proceeding, accrue) after the
commencement of an Insolvency
or Liquidation Proceeding in accordance with and
at the rate specified in the
relevant Senior Lender Document whether or not the
claim for such interest or
expenses is allowed as a claim in such Insolvency or
Liquidation
Proceeding.
"Senior Lender
Collateral" means all of the assets of any Grantor,
whether
real, personal or mixed, with
respect to which a Lien is granted as security for
any Senior Lender
Claim.
"Senior Lender
Documents" means the Senior Credit Agreement, the Senior
Collateral Documents, and
each of the other agreements, documents and
instruments (including each
agreement, document or instrument providing for or
evidencing a Senior Lender
Hedging Obligation or Senior Lender Cash Management
Obligation) providing for or
evidencing any other Obligation under the Credit
Agreement or any Future
First-Lien Indebtedness and any other related document
or instrument executed or
delivered pursuant to any Senior Lender Document at
any time or otherwise
evidencing any Indebtedness arising under any Senior
Lender Document.
"Senior Lender
Hedging Obligations" means any Hedging Obligations
secured
by any Common Collateral
under the Senior Collateral Documents.
"Senior Lenders"
means the Persons holding Senior Lender Claims,
including
the Credit Agent.
"Subsidiary"
means any "Subsidiary" of the Company as defined in the
Indenture.
"Trustee" means
JPMorgan Chase Bank, in its capacity as trustee under
the
Indenture and collateral
agent under the Noteholder Collateral Documents, and
its permitted successors and
assigns.
"Uniform
Commercial Code" or "UCC" means the Uniform Commercial Code
as
from time to time in effect
in the State of New York.
(b) 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
(a) any definition of or reference to any agreement,
instrument or other document
herein shall be construed as referring to such
agreement, instrument or
other document as from time to time amended,
supplemented or otherwise
modified in accordance with this Agreement, (b) any
reference herein to any
Person shall be construed to include such Person's
successors and assigns, (c)
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, (d) all references herein
to Sections shall be
construed to refer to Sections of this Agreement and (e)
the words "asset" and
"property" shall be construed to
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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.
Section 2. Lien
Priorities.
2.1
Subordination. Notwithstanding the date, time, manner or order
of
filing or recordation of any
document or instrument or grant, attachment or
perfection of any Liens
granted to the Trustee or the Noteholders on the Common
Collateral or of any Liens
granted to the Credit Agent or the Senior Lenders on
the Common Collateral and
notwithstanding any provision of the UCC, or any
applicable law or the
Noteholder Documents or the Senior Lender Documents or
any
other circumstance
whatsoever, the Trustee, on behalf of itself and the
Noteholders, hereby agrees
that: (a) any Lien on the Common Collateral securing
any Senior Lender Claims now
or hereafter held by or on behalf of the Credit
Agent or any Senior Lenders
or any agent or trustee therefor regardless of how
acquired, whether by grant,
statute, operation of law, subrogation or otherwise,
shall have priority over and
be senior in all respects and prior to any Lien on
the Common Collateral
securing any of the Noteholder Claims and (b) any Lien
on
the Common Collateral
securing any Noteholder Claims now or hereafter held by
or
on behalf of the Trustee or
any Noteholders or any agent or trustee therefor
regardless of how acquired,
whether by grant, statute, operation of law,
subrogation or otherwise,
shall be junior and subordinate in all respects to all
Liens on the Common
Collateral securing any Senior Lender Claims. All Liens
on
the Common Collateral
securing any Senior Lender Claims shall be and remain
senior in all respects and
prior to all Liens on the Common Collateral securing
any Noteholder Claims for all
purposes, whether or not such Liens securing any
Senior Lender Claims are
subordinated to any Lien securing any other obligation
of the Company, any other
Grantor or any other Person.
2.2 Prohibition
on Contesting Liens. Each of the Trustee, for itself and
on
behalf of each Noteholder,
and the Credit Agent, for itself and on behalf of
each Senior Lender, agrees
that it shall not (and hereby waives any right to)
contest or support any other
Person in contesting, in any proceeding (including
any Insolvency or Liquidation
Proceeding), the priority, validity or
enforceability of (a) a Lien
securing any Senior Lender Claims held by or on
behalf of any of the Senior
Lenders in the Common Collateral or (b) a Lien
securing any Noteholder
Claims held by or on behalf of any of the Noteholders in
the Common Collateral, as the
case may be; provided that nothing in this
Agreement shall be construed
to prevent or impair the rights of the Credit Agent
or any Senior Lender to
enforce this Agreement, including the priority of the
Liens securing the Senior
Lender Claims as provided in Section 2.1.
2.3 No New
Liens. Subject to Section 11.03 of the Indenture, so long as
the
Discharge of Senior Lender
Claims has not occurred, the parties hereto agree
that, after the date hereof,
if the Trustee shall hold any Lien on any assets of
the Company or any other
Grantor securing any Noteholder Claims that are not
also subject to the
first-priority Lien in respect of the Senior Lender
Claims
under the Senior Lender
Documents, the Trustee, upon demand by the Credit Agent
or the Company, will assign
such Lien to the Credit Agent as security for the
Senior Lender Claims (in
which case the Trustee may retain a junior lien on such
assets subject to the terms
hereof).
2.4 Perfection
of Liens. Neither the Credit Agent nor the Senior
Lenders
shall be responsible for
perfecting and maintaining the perfection of Liens with
respect to the
Com-
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mon Collateral for the
benefit of the Trustee and the Noteholders. The
provisions of this
Intercreditor Agreement are intended solely to govern
the
respective Lien priorities as
between the respective Senior Lenders and the
Noteholders and shall not
impose on the Credit Agent, the Trustee, the
Noteholders or the Senior
Lenders any obligations in respect of the disposition
of Proceeds of any Common
Collateral which would conflict with prior perfected
claims therein in favor of
any other Person or any order or decree of any court
or governmental authority or
any applicable law. Each of the Credit Agent, for
itself and on behalf of the
Senior Lenders and the Trustee, for itself and on
behalf of the Noteholders,
agrees that it will not contest the validity,
perfection, priority or
enforceability of the Liens upon the Common Collateral
of the Credit Agent, the
Trustee, the Noteholders or the Senior Lenders.
Section 3.
Enforcement.
3.1 Exercise of
Remedies.
(a) So long as
the Discharge of Senior Lender Claims has not occurred,
whether or not any Insolvency
or Liquidation Proceeding has been commenced by or
against the Company or any
other Grantor, (i) the Trustee and the Noteholders
will not exercise or seek to
exercise any rights or remedies (including set-off)
with respect to any Common
Collateral in respect of any Noteholder Claims,
institute any action or
proceeding with respect to such rights or remedies
(including any action of
foreclosure), contest, protest or object to any
foreclosure proceeding or
action brought with respect to the Common Collateral
by the Credit Agent or any
Senior Lender in respect of Senior Lender Claims, the
exercise of any right under
any lockbox agreement, control agreement, landlord
waiver or bailee's letter or
similar agreement or arrangement to which the
Trustee or any Noteholder is
a party, or any other exercise by any such party,
of any rights and remedies
relating to the Common Collateral under the Senior
Lender Documents or otherwise
in respect of Senior Lender Claims, or object to
the forbearance by the Senior
Lenders from bringing or pursuing any foreclosure
proceeding or action or any
other exercise of any rights or remedies relating to
the Common Collateral in
respect of Senior Lender Claims and (ii) the Credit
Agent and the Senior Lenders
shall have the exclusive right to enforce rights,
exercise remedies (including
set-off and the right to credit bid their debt) and
make determinations regarding
the release, disposition, or restrictions with
respect to the Common
Collateral without any consultation with or the consent
of
the Trustee or any
Noteholder; and, should the Credit Agent and the Senior
Lenders decide to foreclose
on any of the Common Collateral as part of its
enforcement of the Senior
Lenders Claims under the Senior Collateral Documents,
(A) the Noteholders and the
Trustee shall not contest such foreclosure and shall
release any and all claims in
respect of such Common Collateral (except for the
right to receive the balance
of Proceeds after Discharge of Senior Lender Claims
as described in Section 4.1)
so that it may be sold free and clear of the Liens
of the Noteholders and of the
Trustee, on behalf of the Noteholders, and the
Trustee, for itself and on
behalf of any such Noteholder, shall, within five (5)
business days of written
request by the Credit Agent, execute and deliver to the
Credit Agent such termination
statements, releases and other documents as the
Credit Agent may request to
effectively confirm such release and (B) the
Trustee, for itself and on
behalf of the Noteholders, hereby irrevocably
constitutes and appoints the
Credit Agent and any officer or agent of the Credit
Agent, with full power of
substitution, as its true and lawful attorney-in-fact
with full irrevocable power
and authority in the place and stead of the Trustee
or such holder or in the
Credit Agent's own name, from time to time in the
Credit Agent's discretion,
for the purpose of carrying out the
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terms of this Section 3.1(a),
to take any and all appropriate action and to
execute any and all documents
and instruments that may be necessary to
accomplish the purposes of
this Section 3.1(a), including any termination
statements, endorsements or
other instruments of transfer or release provided,
that (A) in any Insolvency or
Liquidation Proceeding commenced by or against the
Company or any other Grantor,
the Trustee may file a claim or statement of
interest with respect to the
Noteholder Claims and (B) the Trustee may take any
action (not adverse to the
prior Liens on the Common Collateral securing the
Senior Lender Claims, or the
rights of the Credit Agent or the Senior Lenders to
exercise remedies in respect
thereof) in order to preserve or protect its Lien
on the Common Collateral. In
exercising rights and remedies with respect to the
Common Collateral, the Credit
Agent and the Senior Lenders may enforce the
provisions of the Senior
Lender Documents and exercise remedies thereunder, all
in such order and in such
manner as they may determine in the exercise of their
sole discretion. Such
exercise and enforcement shall include the rights of an
agent appointed by them to
sell or otherwise dispose of Common Collateral upon
foreclosure, to cause the
Grantors to deliver a transfer document in lieu of
foreclosure to the Senior
Lenders or any nominee of the Senior Lenders, to incur
expenses in connection with
such sale or disposition, and to exercise all the
rights and remedies of a
secured lender under the Uniform Commercial Code of any
applicable jurisdiction and
of a secured creditor under Bankruptcy Laws of any
applicable
jurisdiction.
(b) The Trustee,
on behalf of itself and the Noteholders, agrees that,
after an event of default
under the First Lien Indebtedness has occurred with
respect to which the Credit
Agent has provided written notice to the Trustee,
and until such event of
default is cured or waived, it will not take or receive
any Common Collateral or any
Proceeds of Common Collateral in respect of
Noteholder Claims, unless and
until the Discharge of Senior Lender Claims has
occurred. Without limiting
the generality of the foregoing, unless and until the
Discharge of Senior Lender
Claims has occurred, except as expressly provided in
the proviso in clause (ii) of
Section 3.1(a), the sole right of the Trustee and
the Noteholders with respect
to the Common Collateral is to hold a Lien on the
Common Collateral in respect
of Noteholder Claims pursuant to the Noteholder
Documents for the period and
to the extent granted therein and to receive a
share of the Proceeds
thereof, if any, after the Discharge of the Senior
Lender
Claims has
occurred.
(c) Subject to
the proviso in clause (ii) of Section 3.1(a), (i) the
Trustee, for itself and on
behalf of the Noteholders, agrees that the Trustee
and the Noteholders will not
take any action that would hinder any exercise of
remedies undertaken by the
Credit Agent or the Senior Lenders with respect to
the Common Collateral under
the Senior Loan Documents, including any sale,
lease, exchange, transfer or
other disposition of the Common Collateral, whether
by foreclosure or otherwise,
and (ii) the Trustee, for itself and on behalf of
the Noteholders, hereby
waives any and all rights it or the Noteholders may have
as a junior lien creditor or
otherwise to object to the manner in which the
Credit Agent or the Senior
Lenders seek to enforce or collect the Senior Lender
Claims or the Liens granted
in any of the Common Collateral in respect of Senior
Lender Claims, regardless of
whether any action or failure to act by or on
behalf of the Credit Agent or
Senior Lenders is adverse to the interest of the
Noteholders. The Trustee, for
itself and on behalf of the Noteholders, waives
the right to commence any
legal action or assert in any legal action or in any
Insolvency or Liquidation
Proceeding any claim against the Senior Lenders
seeking damages from the
Senior Lenders or other relief, by way of
-9-
<PAGE>
specific performance,
injunction or otherwise, with respect to any action
taken
or omitted by the Senior
Lenders in accordance with this Agreement.
(d) The Trustee
hereby acknowledges and agrees that no covenant,
agreement
or restriction contained in
any Noteholder Document shall be deemed to restrict
in any way the rights and
remedies of the Credit Agent or the Senior Lenders
with respect to the Common
Collateral as set forth in this Agreement
