Exhibit 99.4
EXECUTION COPY
INTERCREDITOR
AGREEMENT
Intercreditor Agreement (this
“ Agreement ”) dated as of March 24, 2005,
among MORGAN STANLEY & CO. INCORPORATED, in its capacity
as collateral agent (in such capacity, with its successors and
assigns, the “ Collateral Agent ”) for the
Lender Parties (as defined below), WELLS FARGO BANK, NATIONAL
ASSOCIATION, as trustee (in such capacity, with its successors and
assigns, the “ Trustee ”) for the Noteholders
(as defined below), FOSTER WHEELER LLC, a Delaware limited
liability company (the “ Company ”), and the
affiliates of the Company from time to time parties hereto,
including those additional entities that hereafter become parties
hereto by executing the form of Supplement attached hereto as
Annex 1.
WHEREAS, the Company, the Borrowing
Subsidiaries (as defined below), certain other Obligor Parties (as
defined below), the Collateral Agent, the Administrative Agent (as
defined therein), the Lead Arranger (as defined therein) and the
Lenders (as defined therein) are parties to a Loan Agreement and
Guaranty dated as of March 24, 2005 (as amended, supplemented,
restated or otherwise modified from time to time, the “
Existing Loan Agreement ”), pursuant to which the
Lenders have agreed to make loans and extend other financial
accommodations to the Company and the Borrowing Subsidiaries;
and
WHEREAS, the Company and certain
Guarantors have entered into an Indenture dated as of
September 24, 2004 (as the same may be amended, supplemented,
restated or otherwise modified from time to time, the “
Existing New Indenture ”) with the Trustee pursuant to
which Senior Secured Notes due 2011, Series A and
Series B (collectively, the “ Notes ”),
consisting of $150,000,000 of rollover notes and $120,000,000 of
upsized notes, were issued to certain holders (together with their
respective successors and assigns, the “ Noteholders
”, and, together with the Trustee, the “ Note
Parties ”); and
WHEREAS, this Agreement shall amend
and restate that certain Intercreditor Agreement (the “
Existing Intercreditor Agreement ”) dated as of
September 24, 2004, by and among Bank of America, N.A., as
administrative agent and collateral agent for the Lenders (as
defined therein), the Trustee, the Company, and certain affiliates
of the Company; and
WHEREAS, the Company, the Borrowing
Subsidiaries and the other Obligor Parties have granted to the
Collateral Agent security interests in the Common Collateral (as
defined below) as security for payment and performance of the
Lender Obligations (as defined below); and
WHEREAS, it is a condition precedent
to the Lenders’ extending credit to the Company and the
Borrowing Subsidiaries that the Trustee, the Company and the
subsidiaries of the Company party hereto execute and deliver this
Agreement to the Collateral Agent and perform their respective
obligations hereunder; and
WHEREAS, the parties hereto wish to
provide, inter alia , for certain intercreditor arrangements
(including with respect to the relative priority of their Liens on
the Common
Collateral) between the Collateral Agent and the
Lender Parties, on the one hand, and the Trustee and the
Noteholders, on the other hand, in each case on the terms and
conditions set forth herein; and
NOW THEREFORE, in consideration of
the foregoing and the mutual covenants herein contained and other
good and valuable consideration, the existence and sufficiency of
which is expressly recognized by all of the parties hereto, the
parties agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01 .
Definitions. The following terms, as used herein, have
the following meanings:
“ Adequate Protection
Payment ” means any cash payment constituting
“adequate protection” within the meaning of
section 361 of the Bankruptcy Code but excluding (i) the
accrual and payment of Post-Petition Interest and (ii) fees
and expenses of advisers, in the case of each of the foregoing
clauses (i) and (ii) owing to either the Lender Parties
or the Note Parties. For avoidance of doubt, such adequate
protection payments may be calculated at a rate per annum that may
or may not be equal to the contractual rate of interest applicable
to the relevant secured obligations, but, in such circumstances,
shall nonetheless constitute an Adequate Protection Payment and not
a current Post-Petition Interest payment unless and until the court
shall have determined by final non-appealable order that the
recipient of such payments is entitled to the payment of
Post-Petition Interest pursuant to section 506(b) of the
Bankruptcy Code (it being understood that an appeal solely of other
findings and rulings also contained in any order ruling that any
Note Party is entitled to Post-Petition Interest shall not prevent
such order from being deemed final and non-appealable as to
Post-Petition Interest).
“ Applicable Indenture
” means the Existing New Indenture, as in effect on the date
hereof and without giving effect to any modifications or
supplements thereto after the date hereof unless expressly
consented to in writing by the Collateral Agent (in its discretion)
for purposes of this definition.
“ Bankruptcy Code
” means the United States Bankruptcy Code (11 U.S.C.
§101 et seq.), as amended from time to time.
“ Borrowing
Subsidiaries ” means Foster Wheeler USA Corporation, a
Delaware corporation, Foster Wheeler North America Corp., a
Delaware corporation (formerly known as Foster Wheeler Power
Group, Inc.), Foster Wheeler Energy Corporation, a Delaware
corporation, and Foster Wheeler Inc., a Delaware corporation, in
each case for so long as such Persons are Subsidiaries of the
Company, and their respective successors and assigns.
“ Cash Collateralize
” means to pledge and deposit with or deliver to the
Collateral Agent, for the benefit of the Lender Parties, as
collateral for the applicable Letter of Credit Obligations, cash or
deposit account balances pursuant to documentation in form and
substance reasonably satisfactory to the Collateral Agent.
Derivatives of such term shall have
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corresponding meaning. Each Obligor Party
hereby grants the Collateral Agent, for the benefit of the Lender
Parties, a security interest in all such cash and deposit account
balances.
“ Collateral Agent
” has the meaning set forth in the introductory paragraph
hereof.
“ Common Collateral
” means all assets that are both Lender Collateral and
Noteholder Collateral.
“ Company ” has
the meaning set forth in the introductory paragraph
hereof.
“ Comparable New Indenture
Document ” means, in relation to any Common Collateral
subject to any Loan Agreement Document, that New Indenture Document
that creates a security interest in the same Common Collateral,
granted by the same Obligor Party, as applicable.
“ Enforcement Action
” means, with respect to the Lender Obligations or the Note
Obligations, the exercise of any rights and remedies with respect
to any Common Collateral securing such obligations or the
commencement or prosecution of enforcement of any of the rights and
remedies with respect to the Liens granted under, as applicable,
the Loan Agreement Documents or the New Indenture Documents, or
applicable law, including without limitation the exercise of any
rights or remedies of a secured creditor under the UCC of any
applicable jurisdiction, under the Bankruptcy Code or under foreign
law. Notwithstanding the foregoing, it is understood and
agreed that the term “Enforcement Action” shall not
include any demand for payment or acceleration of any of the Lender
Obligations or Note Obligations, the commencement or prosecution of
enforcement of any of the rights and remedies under, as applicable,
the Loan Agreement Documents or the new Indenture Documents, or
applicable law, including without limitation the exercise of any
rights of set-off or recoupment, the filing of any bankruptcy or
insolvency proceeding, or the imposition of interest at a
post-default rate, in each case to the extent that the foregoing do
not constitute an exercise of rights or remedies with respect to
the Liens created in the Common Collateral.
“ Existing Loan
Agreement ” has the meaning set forth in the first
WHEREAS clause of this Agreement.
“ Existing New
Indenture ” has the meaning set forth in the second
WHEREAS clause of this Agreement.
“ Insolvency Proceeding
” means any proceeding in respect of bankruptcy, insolvency,
winding up, receivership, dissolution or assignment for the benefit
of creditors, in each of the foregoing events whether under the
Bankruptcy Code or any similar federal, state or foreign
bankruptcy, insolvency, reorganization, receivership or similar
law.
“ Lenders ” means
the “Lenders” as defined in the Loan Agreement, or any
Persons that are, at any time, designated under the Loan Agreement
as the “Lenders” for purposes of this
Agreement.
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“ Lender Collateral
” means all assets, whether now owned or hereafter acquired
by the Company or any other Obligor Party, in which a Lien is
granted or purported to be granted to any Lender Party as security
for any Lender Obligation.
“ Lender Misconduct
” means bad acts or willful misconduct on the part of the
Collateral Agent or any Lender Party that, in either of the
foregoing events, result in the avoidance or subordination of a
Lender Obligation (i) pursuant to section 510(c) of
the Bankruptcy Code or (ii) pursuant to any other rule of
law to the extent in the case of this clause (ii) that such
bad acts or willful misconduct would also have satisfied the
standard for avoidance or subordination pursuant to
section 510(c) of the Bankruptcy Code.
“ Lender Obligations
” means (i) all principal of and interest (including
without limitation any Post-Petition Interest) and premium (if any)
on all loans made pursuant to the Loan Agreement, (ii) all
reimbursement obligations (if any) and interest thereon (including
without limitation any Post-Petition Interest) with respect to any
letter of credit or similar instruments issued pursuant to the Loan
Agreement, (iii) all other obligations of any Lender Party
arising under the Wachovia Cash Management Agreement, (iv) the
Parallel Debt of each Parallel Debtor (each as defined in the
Parallel Debt Agreement), and (iv) all fees, expenses,
indemnities and similar amounts payable from time to time pursuant
to the Loan Agreement Documents, in each case whether or not
allowed or allowable as a claim against any Obligor Party or its
estate in an Insolvency Proceeding, but only so long as any of the
foregoing amounts constituting “Debt” under and as
defined in the Applicable Indenture do not exceed the amount
thereof permitted under Section 4.05(b)(1) of the
Applicable Indenture (it being understood and agreed that pursuant
to clauses (A) and (E) of the definition of
“Debt” in the Applicable Indenture, only principal and
reimbursement obligations in respect of letters of credit are
subject to the dollar limitations with respect to
“Debt” set forth in Section 4.05(b)(1) of the
Applicable Indenture). To the extent any payment with respect to
any Lender Obligation (whether by or on behalf of any Obligor
Party, as proceeds of security, enforcement of any right of setoff
or otherwise) is declared to be a fraudulent conveyance or a
preference in any respect, set aside or required to be paid to a
debtor in possession, any Note Party, receiver or similar Person,
then the obligation or part thereof originally intended to be
satisfied shall, for the purposes of this Agreement and the rights
and obligations of the Lender Parties and the Note Parties, be
deemed to be reinstated and outstanding as if such payment had not
occurred. Notwithstanding the foregoing, in no event shall
“Lender Obligations” include any Indebtedness in
respect of Qualified Term Loans.
“ Lender Obligations
Payment Date ” means the first date on which (i) the
Lender Obligations have been indefeasibly paid in cash in full (or
cash collateralized or defeased in accordance with the terms of the
Loan Agreement Documents), (ii) all commitments to extend
credit under the Loan Agreement Documents have been terminated, and
(iii) there are no outstanding letters of credit or similar
instruments issued under the Loan Agreement Documents (other than
such as have been cash collateralized or defeased in accordance
with the terms of the Loan Agreement Documents).
“ Lender Parties
” means the holders of the Lender Obligations.
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“ Lender Security
Agreement ” means the Pledge and Security Agreement dated
as of March 24, 2005 (as amended, supplemented, restated or
otherwise modified from time to time) among the Company, certain
Grantors (as defined in the Lender Security Agreement) and the
Collateral Agent.
“ Letter of Credit
” means “Letter of Credit” as defined in the Loan
Agreement.
“ Letter of Credit
Obligations ” means the sum of (i) the aggregate
undrawn amount of all outstanding Letters of Credit and
(ii) the aggregate amount of all unreimbursed drawings under
all Letters of Credit.
“ Lien ” means,
with respect to any asset, (i) any mortgage, deed of trust,
deed to secure debt, lien, pledge, hypothecation, assignment,
encumbrance, charge or security interest in, on or of such asset,
(ii) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention
agreement (or any financing lease having substantially the same
economic effect as any of the foregoing) relating to such asset and
(iii) in the case of securities, any purchase option, call or
similar right of a third party with respect to such
securities.
“ Loan Agreement
” means (i) the Existing Loan Agreement and
(ii) any other credit agreement, loan agreement, note
agreement, promissory note, indenture or other agreement or
instrument evidencing or governing the terms of any indebtedness or
other financial accommodation that has been incurred to extend,
replace, refinance or refund in whole or in part the indebtedness
and other obligations outstanding under the Existing Loan Agreement
or any other agreement or instrument referred to in this clause
(ii) so long as such agreement or instrument (x) expressly
provides that it is intended to be and is a Loan Agreement
hereunder, (y) expressly provides that the Lender Parties
thereunder shall be bound by the provisions of this Agreement that
purport to be binding on them and (z) is a permitted “Credit
Facility” under Section 4.05(b)(1) of the
Applicable Indenture. Any reference to the Loan Agreement
hereunder shall be deemed a reference to any Loan Agreement then
extant.
“ Loan Agreement
Documents ” means the “Loan Documents” as
defined in the Loan Agreement, and any other documents that are, at
any time, designated under the Loan Agreement as “Loan
Agreement Documents” for purposes of this Agreement,
excluding, however, this Agreement.
“ Netherlands Common
Collateral ” means (i) all Common Collateral pledged
by any Obligor Party organized under the laws of the Netherlands
and (ii) all pledged Common Collateral consisting of present
or future equity interests in any Obligor Party under the laws of
the Netherlands, pursuant to documentation governed by the laws of
the Netherlands, i.e. all pledges and security interests subject to
the Netherlands law previously granted in favor of Wells Fargo
Bank, National Association (the “ Trustee Pledges
”) and all pledges and security interests similar to the
existing Trustee Pledges which are being granted on or about the
date hereof in favor of Morgan Stanley & Co. Incorporated
(the “ Lender Pledges ”).
“ New Indenture ”
means (i) the Existing New Indenture and (ii) any other
credit agreement, loan agreement, note agreement, promissory note,
indenture, or other agreement or instrument evidencing or governing
the terms of any indebtedness or other financial
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accommodation that has been incurred to extend,
replace, refinance or refund in whole or in part the indebtedness
and other obligations outstanding under the Existing New Indenture
or other agreement or instrument referred to in this clause
(ii). Unless otherwise specified herein, any reference to the
New Indenture hereunder shall be deemed a reference to any New
Indenture then extant.
“ New Indenture
Documents ” means the New Indenture and the
“Collateral Documents” under and as defined in the New
Indenture and any documents that are designated under the New
Indenture as “New Indenture Documents” for purposes of
this Agreement, excluding, however, this Agreement.
“ Noteholder Collateral
” means all assets, whether now owned or hereafter acquired
by the Company or any other Obligor Party, in which a Lien is
granted or purported to be granted to any Note Party as security
for any Note Obligation.
“ Noteholders ”
has the meaning set forth in the second WHEREAS clause of this
Agreement.
“ Note Obligations
” means (i) all principal of and interest (including
without limitation any Post-Petition Interest) and premium (if any)
on all indebtedness under the New Indenture, (ii) all other
obligations secured pursuant to the New Indenture Documents and
(iii) all fees, expenses and other amounts payable from time
to time pursuant to the New Indenture Documents, in each case
whether or not allowed or allowable as a claim against any Obligor
Party in an Insolvency Proceeding. To the extent any payment
with respect to any Note Obligation (whether by or on behalf of any
Obligor Party, as proceeds of security, enforcement of any right of
setoff or otherwise) is declared to be a fraudulent conveyance or a
preference in any respect, set aside or required to be paid to a
debtor in possession, any Lender Party, receiver or similar Person,
then the obligation or part thereof originally intended to be
satisfied shall, for the purposes of this Agreement and the rights
and obligations of the Lender Parties and the Note Parties, be
deemed to be reinstated and outstanding as if such payment had not
occurred.
“ Note Party ”
means the Trustee and any holders of the Note
Obligations.
“ Notes” has the
meaning set forth in the second WHEREAS clause of this
Agreement.
“ Obligor Party ”
means the Company and each direct or indirect affiliate or
shareholder (or equivalent) of the Company or any of its affiliates
that is now or hereafter becomes a party to the Loan Agreement or
the New Indenture, or to any documents relating to
either.
“ Parallel Debt
Agreement ” means that certain Parallel Debt Agreement of
even date herewith among the Trustee, the Collateral Agreement, the
Company and certain of its subsidiaries.
“ Person ” means
any person, individual, sole proprietorship, partnership, joint
venture, corporation, limited liability company, unincorporated
organization, association, institution, entity, party, including
any government and any political subdivision, agency or
instrumentality thereof.
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“ Post-Petition
Interest ” means any interest, fees, expenses or other
amounts that accrue or would have accrued after the commencement of
any Insolvency Proceeding, whether or not allowed or allowable as a
claim in any such Insolvency Proceeding.
“ Proceeds ”
means “proceeds” as defined in Article 9 of the
UCC. Proceeds of Common Collateral shall in any event include
any Adequate Protection Payment in respect of Common
Collateral.
“ Secured Parties
” means the Lender Parties and the Note Parties.
“ Standstill Period
” means, with respect to any Obligor Party and the Common
Collateral pledged by it, the period from and including the date
hereof to and including the earliest of (i) the Lender
Obligations Payment Date, (ii) the continuance for 90 or more
days of an “event of default” under the New Indenture
Documents, but only so long as the Lender Parties shall not be
actively and diligently exercising remedies with respect to a
material portion of the Common Collateral (unless the Lender
Parties shall have been stayed from the commencement or prosecution
of such exercise) and (iii) the commencement of an Insolvency
Proceeding against such Obligor Party.
“ Trustee ” has
the meaning set forth in the introductory paragraph
hereof.
“ UCC ” means the
Uniform Commercial Code as in effect from time to time in the State
of New York.
“ Wachovia Cash Management
Agreement ” means the Deposit Account Control Agreement
dated as of March 24, 2005, by and among Wachovia Bank,
National Association, the Company and Collateral Agent, or any
successor, replacement, renewal or extension thereof on terms
substantially similar to such agreement (a copy of which is
delivered to the Trustee and which is certified pursuant to an
Officers’ Certificate under the Indenture as being on terms
substantially similar to the Wachovia Cash Management
Agreement).
ARTICLE 2
LIEN PRIORITIES
Section 2.01 .
Subordination of Liens. (a) Subject to
Section 2.01(c), any and all Liens now existing or hereafter
created or arising in favor of any Note Party securing the Note
Obligations, regardless of how acquired, whether by grant, statute,
operation of law, subrogation or otherwise are expressly junior in
priority, operation and effect to any and all Liens now existing or
hereafter created or arising in favor of any of the Lender Parties
securing the Lender Obligations, notwithstanding (i) anything
to the contrary contained in any agreement or filing to which any
Note Party may now or hereafter be a party, and regardless of the
time, order or method of grant, attachment, recording or perfection
of any financing statements or other security interests,
assignments, pledges, deeds, mortgages and other liens, charges or
encumbrances or any defect or deficiency or alleged defect or
deficiency in any of the foregoing, (ii) any provision of the
UCC or any applicable law or any Loan Agreement Document or New
Indenture Document or any other circumstance whatsoever and
(iii) the fact that any such Liens
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in favor of any Lender Party securing any of the
Lender Obligations are (x) subordinated to any Lien securing any
obligation of any Obligor Party other than the Note Obligations or
(y) otherwise subordinated, voided, avoided, invalidated or
lapsed.
(b)
No Lender Party or Note Party shall
object to or contest, or support any other Person in contesting or
objecting to, in any proceeding (including without limitation, any
Insolvency Proceeding), the validity, extent, perfection, priority
or enforceability of any security interest in the Common Collateral
granted to the other.
(c)
If and to the extent that any Lender
Obligation is avoided or subordinated to the Note Obligations or to
unsecured creditors generally (and the Note Obligations are not
similarly subordinated) by reason of Lender Misconduct, the rights
and obligations under this Agreement of the Collateral Agent and
the Lender Parties, on the one hand, and the Trustee and the Note
Parties, on the other hand, with respect to such Lender Obligation
shall no longer be applicable.
Section 2.02 . Nature
of Lender Obligations. The Trustee on behalf of itself
and the other Note Parties acknowledges that the Lender Obligations
are revolving in nature and that the amount thereof that may be
outstanding at any time or from time to time may be increased or
reduced and subsequently reborrowed, and that the terms of the
Lender Obligations may be modified, extended or amended from time
to time, and that the aggregate amount of the Lender Obligations
may be increased, replaced or refinanced, in each event, without
notice to or consent by the Note Parties and without affecting the
provisions hereof (it being understood that in no event shall the
aggregate amount of the Lender Obligations constituting
“Debt” under and as defined in the New Indenture exceed
the amount thereof permitted under Section 4.05(b)(1) of
the Applicable Indenture (it being further understood and agreed
that pursuant to clauses (A) and (E) of the definition of
“Debt” in the Applicable Indenture, only principal and
reimbursement obligations in respect of letters of credit are
subject to the dollar limitations with respect to
“Debt” set forth in Section 4.05(b)(1) of the
Applicable Indenture)). Subject to the foregoing, neither the
lien priorities provided in Section 2.01 nor the other rights
of the Secured Parties hereunder shall be altered or otherwise
affected by any such amendment, modification, supplement,
extension, repayment, reborrowing, increase, replacement, renewal,
restatement or refinancing of either the Lender Obligations or the
Note Obligations, or any portion thereof.
Section 2.03 .
Agreements Regarding Actions to Perfect Liens.
(a) The Trustee on behalf of itself and the other Note Parties
agrees that UCC-1 financing statements, patent, trademark or
copyright filings or other filings or recordings filed or recorded
by or on behalf of the Trustee shall be in form satisfactory to the
Collateral Agent. Notwithstanding the foregoing, any such
financing statement, filing or recording that is either (i) in
the form approved by the Collateral Agent to be filed in favor of
the Trustee concurrently with the execution and delivery of this
Agreement or (ii) in the form filed by the Collateral Agent
(and which contains a statement that the Lien of such filing or
recording is junior and subordinate to the Lien in favor of the
Collateral Agent), and in the case of either of the foregoing
clauses (i) and (ii) which are certified to the
Trustee and the Collateral Agent in an Officers’ Certificate
as satisfying the requirements of said clauses, shall not require
the approval of the Collateral Agent hereunder.
(b)
The Trustee agrees on behalf of
itself and the other Note Parties that all mortgages, deeds of
trust, deeds and similar instruments (collectively, “
mortgages ”) now or thereafter filed
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against real property in favor of or for the
benefit of the Trustee shall be in form satisfactory to the
Collateral Agent and shall contain the following
notation:
“The lien created by this
mortgage on the property described herein is junior and subordinate
to the lien on such property created by any mortgage, deed of trust
or similar instrument now or hereafter granted to Morgan
Stanley & Co. Incorporated, and its successors and
assigns, in such property, and securing “Lender
Obligations” under and as defined in the Intercreditor
Agreement dated as of March 24, 2005, among the Obligor
Parties, Morgan Stanley & Co. Incorporated, as Collateral
Agent for the Lender Parties, and Wells Fargo Bank, National
Association, as trustee for the Noteholders (in each case as
defined in the Intercreditor Agreement).”
Notwithstanding the foregoing, any such
mortgage, deed of trust or similar instrument that is either
(i) in the form approved by the Collateral Agent to be filed
in favor of the Trustee concurrently with the execution and
delivery of this Agreement or (ii) in the form filed by the
Collateral Agent (and which contains the foregoing statement that
the Lien of such filing or recording is junior and subordinate to
the Lien in favor of the Collateral Agent), and in the case of
either of the foregoing clauses (i) and (ii) which
are certified to the Trustee and the Collateral Agent in an
Officers’ Certificate as satisfying the requirements of said
clauses shall not require the approval of the Collateral Agent
hereunder.
(c)
The Trustee agrees on behalf of
itself and the other Note Parties that all UCC financing statements
now or hereafter filed in favor of or for the benefit of the
Trustee shall contain the following notation, and the Trustee
hereby authorizes the filing of any UCC amendment filing to add
such notation:
“The lien evidenced by this
financing statement is subject to the terms of a certain
Intercreditor Agreement, dated as of March 24, 2005, among
Morgan Stanley & Co. Incorporated, in its capacity as
Collateral Agent, Wells Fargo Bank, National Association, as
Trustee for the Noteholders, the Debtor, and certain affiliates of
the Debtor from time to time party thereto.”
(d)
The Collateral Agent hereby
acknowledges on behalf of itself and each of the Lenders (which
acknowledgment shall be binding upon the Lenders) that, to the
extent that it holds, or a third party holds on its behalf,
physical possession of or “control” (as defined in the
UCC) over Common Collateral pursuant to the Loan Agreement
Documents, such possession or control is also for the benefit of
the Trustee and the other Note Parties solely to the extent
required to perfect their security interest in such Common
Collateral. Nothing in the preceding sentence shall be
construed to impose any duty on the Collateral Agent (or any third
party acting on its behalf) with respect to such Common Collateral
or provide a Noteholder or any other Note Party with any rights
with respect to such Common Collateral beyond those specified in
this Agreement and the New Indenture Documents, provided
that promptly following the occurrence of the Lender Obligations
Payment Date, the Collateral Agent shall (x) deliver to the
Trustee, at the Company’s sole cost and expense, the Common
Collateral in its possession or control together with any necessary
endorsements to the extent required by the New Indenture Documents
or (y) direct and deliver such Common Collateral as a court of
competent jurisdiction otherwise directs, and provided
further that the provisions of this Agreement are intended
solely
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to govern the respective Lien priorities as
between the Lender Parties and the Note Parties and shall not
impose on the Lender Parties any obligations in respect of the
disposition of any Common Collateral (or any Proceeds thereof) that
would conflict with prior perfected Liens or any claims thereon in
favor of any other Person that is not a Secured Party.
Section 2.04 . No New
Liens. So long as the Lender Obligations Payment Date has
not occurred, the parties hereto agree that (a) if any Note
Party shall acquire or hold any Lien on any assets of any Obligor
Party securing any Note Obligation which assets are not also
subject to the first priority Lien of the Collateral Agent under
the Loan Agreement Documents, then the Trustee (or the relevant
Note Party) shall, without the need for any further consent of any
other Note Party, and notwithstanding anything to the contrary in
any other New Indenture Document (i) be deemed to hold and
have held such Lien for the benefit of the Collateral Agent as
security for the Lender Obligations and shall assign such Lien to
the Collateral Agent as security for the Lender Obligations (in
which case the Trustee may retain a junior Lien on such assets
subject to the terms hereof) or (ii) if so requested by the
Collateral Agent, release such Lien and (b) if any Lender
Party shall acquire or hold any Lien on any assets of any Obligor
Party securing any Lender Obligation which assets are not also
subject to the second-priority Lien of the Trustee under the New
Indenture Documents, then the Collateral Agent (or the relevant
Lender Party) shall, without the need for any further consent of
any other Lender Party, and notwithstanding anything to the
contrary in any other Loan Agreement Document, be deemed to hold
and have held a junior Lien on such assets for the benefit of the
Trustee as security for the Note Obligations subject to the terms
of this Agreement. Each Obligor Party hereby consents to and
confirms its grant of a Lien for the benefit of all Secured Parties
on the terms set forth above.
ARTICLE 3
ENFORCEMENT RIGHTS
Section 3.01 .
Exclusive Enforcement. During the Standstill Period, the
Lender Parties shall have the exclusive right to take and continue
any Enforcement Action with respect to the Common Collateral,
without any consultation with or consent of any Note Party.
Upon the occurrence and during the continuance of a default or an
event of default under the Loan Agreement Documents, the Collateral
Agent and the other Lender Parties may take and continue any
Enforcement Action with respect to the Lender Obligations and the
Common Collateral in such order and manner as they may determine in
their sole discretion.
Section 3.02 .
Standstill Period Waivers. (a) The Trustee, on
behalf of itself and the other Note Parties, agrees that, during
the Standstill Period:
(i)
subject to Section 3.02(b),
they will not oppose, object to, interfere with, hinder or delay,
in any manner, whether by judicial proceedings or otherwise, any
foreclosure, sale, lease, exchange, transfer or other disposition
of the Common Collateral by the Collateral Agent or any other
Lender Party or any other Enforcement Action taken by or on behalf
of the Collateral Agent or any other Lender Party;
(ii)
they have no right to (x) direct
either the Collateral Agent or any other Lender Party to exercise
any right, remedy or power with respect to the Common
10
Collateral or pursuant to the Loan
Agreement Documents or (y) subject to Section 3.02(b), consent
or object to the exercise by the Collateral Agent or any other
Lender Party of any right, remedy or power with respect to the
Common Collateral or pursuant to the Lender Collateral Documents or
to the timing or manner in which any such right is exercised or not
exercised (or, to the extent they may have any such right described
in this clause (ii), whether as a junior lien creditor or
otherwise, they hereby irrevocably waive such right);
(iii)
they will not exercise any right,
remedy or power under or with respect to, or otherwise take any
action to enforce, any Noteholder Collateral Document;
(iv)
they will not commence judicial or
nonjudicial foreclosure proceedings with respect to, seek to have a
trustee, receiver, liquidator or similar official appointed for or
over any Common Collateral, attempt any action to take possession
of any Common Collateral, exercise any right, remedy or power with
respect to, or otherwise take any action to enforce their interest
in or realize upon, any Common Collateral; or
(v)
they will not seek, and hereby waive
any right, to
