EXECUTION
INTERCREDITOR AGREEMENT
This
INTERCREDITOR AGREEMENT (this “ Agreement ”), is
dated as of July 11, 2008, and entered into by and among ROYAL
BANK OF CANADA, in its capacity as administrative and collateral
agent (in such capacities, with its successors and assigns, the
“ First Lien Agent ”) for the First Lien Secured
Parties (as defined below), in its capacity as administrative agent
and collateral agent (in such capacities, with its successors and
assigns, the “ Second Lien Agent ”) for the
Second Lien Secured Parties (as defined below), and as collateral
agent for Secured Parties (as defined below) (in such capacity,
“ Collateral Agent ”), and QUEST CHEROKEE, LLC,
a Delaware limited liability company (the “ Borrower
”), for itself and on behalf of each of the other Credit
Parties (as defined below).
WHEREAS,
the Borrower, the First Lien Agent and certain financial
institutions (with their respective successors and assigns, the
“ First Lien Lenders ”) are parties to an
Amended and Restated Credit Agreement dated November 15, 2007
(as amended, supplemented, restated or otherwise modified from time
to time, the “ Existing First Lien Agreement ”),
pursuant to which such financial institutions have agreed to make
loans and extend other financial accommodations to the Borrower;
and
WHEREAS,
the Borrower, the Second Lien Agent and certain lenders (with their
respective successors and assigns, the “ Second Lien
Lenders ”) are parties to a Second Lien Senior Term Loan
Agreement of even date herewith (as amended, supplemented, restated
or otherwise modified from time to time, the “ Second Lien
Agreement ”), pursuant to which such financial
institutions have agreed to make loans to the Borrower; and
WHEREAS,
pursuant to the First Lien Security Documents (as defined below)
Borrower and the other Credit Parties have granted liens and
security interests in the Common Collateral (as defined below) in
favor of the First Lien Agent on behalf of the First Lien Secured
Parties, as security for the payment and performance of the First
Lien Obligations (as defined below); and
WHEREAS,
pursuant to the Second Lien Security Documents (as defined below)
Borrower and the other Credit Parties have granted liens and
security interests in the Common Collateral in favor of the Second
Lien Agent, on behalf of Secured Parties, as security for the
payment and performance of the Second Lien Obligations (as defined
below), which liens and security interests will be junior, subject
and subordinated to the First Liens (as defined below); and
WHEREAS,
pursuant to the initial Shared Security Documents (as defined
below) Borrower and the other Credit Parties have granted liens and
security interests in the Common Collateral in favor of the
Collateral Agent on behalf of (i) the First Lien Secured
Parties, as security for the payment and performance of the First
Lien Obligations and (ii) the Second Lien Secured Parties, as
security for the payment and performance of the Second Lien
Obligations, which liens and security interests will be junior,
subject and subordinated to the First Liens; and
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1
WHEREAS,
the First Lien Lenders have agreed to permit the grant of such
Second Liens (as defined below) on the terms and conditions of this
Agreement; and
WHEREAS,
Collateral Agent has agreed to act as collateral agent for First
Lien Secured Parties and Second Lien Secured Parties for the
purposes of dealing with the Common Collateral and apportioning
payments among the First Lien Secured Parties and the Second Lien
Secured Parties with respect to proceeds thereof;
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:
SECTION 1 Definitions.
The
following terms, as used herein, have the following meanings:
“
Bankruptcy Code ” means the United States Bankruptcy
Code (11 U.S.C. §101 et seq.), as amended from time to
time.
“
Cash Management Obligations ” means, with respect to
any Credit Party, any obligations of such Credit Party owed to the
First Lien Agent or any First Lien Lender (or any of their
respective affiliates) in respect of treasury management
arrangements, depositary or other cash management services.
“
Common Collateral ” means all assets that are both
First Lien Collateral and Second Lien Collateral.
“
Comparable Second Lien Security Document ” means, in
relation to any Common Collateral subject to any First Lien
Security Document, that Second Lien Security Document that creates
a security interest in the same Common Collateral, granted by the
same Credit Party, as applicable.
“
Credit Party ” means the Borrower and each direct or
indirect affiliate or shareholder (or equivalent) of the Borrower
or any of its affiliates that is now or hereafter becomes a party
to any First Lien Document or Second Lien Document.
“
Enforcement Action ” means, with respect to the First
Lien Collateral or the Second Lien Collateral, 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 under, as applicable, the First
Lien Documents or the Second Lien Documents, or applicable law,
including without limitation the exercise of any rights of set-off
or recoupment, and the exercise of any rights or remedies of a
secured creditor under the Uniform Commercial Code of an applicable
jurisdiction or under the Bankruptcy Code.
“First Lien Agreement ” means (i) the
Existing First Lien 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
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or in
part the indebtedness and other obligations outstanding under the
Existing First Lien Agreement or any other agreement or instrument
referred to in this clause (ii). Any reference to the First Lien
Agreement hereunder shall be deemed a reference to any First Lien
Agreement then extant.
“
First Lien Collateral ” means all assets, whether now
owned or hereafter acquired by the Borrower or any other Credit
Party, in which a Lien is granted or purported to be granted in
favor of First Lien Secured Parties or in favor of Collateral Agent
for the benefit of First Lien Secured Parties, as security for any
First Lien Obligation.
“
First Lien Documents ” means the First Lien Agreement
and each First Lien Security Document.
“
First Lien 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
First Lien 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 First Lien Agreement,
(iii) all Hedging Obligations of any Credit Party owed to a
First Lien Secured Party, (iv) all Cash Management Obligations
of any Credit Party, and (v) all fees, expenses and other amounts
payable from time to time pursuant to the First Lien Documents, in
each of the foregoing cases whether or not allowed or allowable
against any Credit Party or their estates in an Insolvency
Proceeding. To the extent any payment with respect to any First
Lien Obligation (whether by or on behalf of any Credit 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 Second Lien Secured 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 First Lien Secured Parties
and the Second Lien Secured Parties, be deemed to be reinstated and
outstanding as if such payment had not occurred.
“
First Lien Obligations Payment Date ” means the first
date on which (i) the First Lien Obligations (other than those
that constitute Unasserted Contingent Obligations) have been
indefeasibly paid in cash in full (or cash collateralized or
defeased in accordance with the terms of the First Lien Documents),
(ii) all commitments to extend credit under the First Lien
Documents have been terminated, and (iii) there are no
outstanding letters of credit or similar instruments issued under
the First Lien Documents (other than such as have been cash
collateralized or defeased in accordance with the terms of the
First Lien Security Documents).
“
First Lien Secured Parties ” means the First Lien
Agent, the First Lien Lenders (or their affiliates), and any other
holders of First Lien Obligations, including replacement First Lien
Lenders, and Collateral Agent, acting in its capacity as collateral
agent for the benefit of First Lien Secured Parties under any
Shared Security Document.
“
First Lien Security Documents ” means each
“Mortgage”, each “Security Agreement” now
or hereafter executed (as such terms are defined in the First Lien
Agreement), any other documents that are designated under the First
Lien Agreement as “Collateral Documents” for
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purposes
of this Agreement that grant a Lien in favor of First Lien Secured
Parties, or in favor of Collateral Agent, for the benefit of First
Lien Secured Parties, to secure First Lien Obligations.
“
First Liens ” means (i) the first and prior liens
and security interests granted in the Common Collateral in favor of
the First Lien Agent on behalf of the First Lien Secured Parties,
as security for the payment and performance of the First Lien
Obligations and (ii) the first and prior liens and security
interests granted in the Common Collateral in favor of the
Collateral Agent on behalf of the First Lien Secured Parties, as
security for the payment and performance of the First Lien
Obligations.
“
Hedging Obligations ” means, with respect to any
Credit Party, any obligations of such Credit Party owed to any
First Lien Secured Party (or any of its affiliates) or to any
Second Lien Secured Party (or any of its affiliates) in respect of
any Lender Hedging 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.
“
Lender Hedging Agreement ” has, as the context may
require, the meaning given such term in the First Lien Agreement or
Second Lien Agreement, respectively.
“
Lien ” means, with respect to any asset, (a) any
mortgage, deed of trust, deed to secure debt, lien, pledge,
hypothecation, assignment, encumbrance, charge or security interest
in, on or of such asset, (b) 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 (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such
securities.
“
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.
“
Post-Petition Interest ” means any interest or
entitlement to fees or expenses that accrues after the commencement
of any Insolvency Proceeding, whether or not allowed or allowable
in any such Insolvency Proceeding.
“
Second Lien Agreement ” means (i) the Second Lien
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 Second Lien Agreement
or other agreement or instrument referred to in this clause (ii).
Any reference to the Second Lien Agreement hereunder shall be
deemed a reference to any Second Lien Agreement then extant.
“
Second Lien Collateral ” means all assets, whether now
owned or hereafter acquired by the Borrower or any other Credit
Party, in which a Lien is granted or purported to be granted
in
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favor of
Second Lien Secured Parties, or in favor Collateral Agent for the
benefit of Second Lien Secured Parties, as security for any Second
Lien Obligation.
“
Second Lien Documents ” means each Second Lien
Agreement and each Second Lien Security Document.
“
Second Lien Obligations ” means (i) all principal
of and interest (including without limitation any Post-Petition
Interest) and premium (if any) on all indebtedness under the Second
Lien Agreement, (ii) Hedging Obligations of any Credit Party
owed to a Second Lien Secured Party; and (iii) all fees,
expenses and other amounts payable from time to time pursuant to
the Second Lien Documents, in each case whether or not allowed or
allowable against any Credit Party or their estates in an
Insolvency Proceeding. To the extent any payment with respect to
any Second Lien Obligation (whether by or on behalf of any Credit
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 First Lien Secured 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 First Lien Secured Parties
and the Second Lien Secured Parties, be deemed to be reinstated and
outstanding as if such payment had not occurred.
“
Second Lien Secured Party ” means the Second Lien
Agent, the Second Lien Lenders (or their affiliates), and any other
holders of Second Lien Obligations, including replacement Second
Lien Lenders, and Collateral Agent, acting in its capacity as
collateral agent for the benefit of Second Lien Secured Parties
under any Shared Security Document.
“
Second Lien Security Documents ” means any documents
that grant a Lien in favor of Second Lien Secured Parties, or in
favor of Collateral Agent, for the benefit of Second Lien Secured
Parties, to secure Second Lien Obligations.
“
Second Liens ” means (i) the second and junior
liens and security interests granted in the Common Collateral in
favor of the Second Lien Agent on behalf of the Second Lien Secured
Parties, as security for the payment and performance of the Second
Lien Obligations and (ii) the second and junior liens and
security interests granted in the Common Collateral in favor of the
Collateral Agent on behalf of the Second Lien Secured Parties, as
security for the payment and performance of the Second Lien
Obligations.
“
Secured Parties ” means the First Lien Secured Parties
and the Second Lien Secured Parties.
“
Shared Security Document ” means any documents that
grant a Lien in favor of Collateral Agent, for the benefit of First
Lien Secured Parties and Second Lien Secured Parties, to secure
First Lien Obligations and Second Lien Obligations.
“
Unasserted Contingent Obligations ” shall mean, at any
time, First Lien Obligations or Second Lien Obligations for taxes,
costs, indemnifications, reimbursements, damages and other
liabilities (excluding (i) the principal of, and interest and
premium (if any) on, and fees and expenses relating to, any First
Lien Obligation or Second Lien Obligation, as the case may be, and
(ii) contingent reimbursement obligations in respect of amounts
that may be drawn under
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outstanding letter of credit) in respect of which no assertion of
liability (whether oral or written) and no claim or demand for
payment (whether oral or written) has been made (and, in the case
of First Lien Obligations for indemnification, no notice for
indemnification has been issued by the indemnitee) at such
time.
“
Uniform Commercial Code ” shall mean the Uniform
Commercial Code as in effect from time to time in the State of New
York.
SECTION 2 Lien Priorities.
2.1
Subordination of Second Liens .
(a) Any
and all Liens now existing or hereafter created or arising in favor
of any Second Lien Secured Party, or in favor of Collateral Agent
for the benefit of Second Lien Secured Parties, securing the Second
Lien 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 the First Lien
Secured Parties, or in favor of Collateral Agent for the benefit of
First Lien Secured Parties, securing the First Lien Obligations,
notwithstanding (i) anything to the contrary contained in any
agreement or filing to which any Second Lien Secured 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 Liens 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 First Lien
Document or Second Lien Document or any other circumstance
whatsoever and (iii) the fact that any such Liens in favor of
any First Lien Secured Party or in favor of the Collateral Agent
for the benefit of First Lien Secured Parties securing any of the
First Lien Obligations are (x) subordinated to any Lien securing
any obligation of any Credit Party other than the Second Lien
Obligations or (y) otherwise subordinated, voided, avoided,
invalidated or lapsed.
(b) No
First Lien Secured Party or Second Lien Secured 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 or to the Collateral Agent. Notwithstanding
any failure by any First Lien Secured Party or Second Lien Secured
Party or by Collateral Agent on their behalf to perfect its
security interests in the Common Collateral or any avoidance,
invalidation or subordination by any third party or court of
competent jurisdiction of the security interests in the Common
Collateral granted to the First Lien Secured Parties or the Second
Lien Secured Parties, or to the Collateral Agent for their benefit,
the priority and rights as between the First Lien Secured Parties
and the Second Lien Secured Parties with respect to the Common
Collateral and proceeds thereof shall be as set forth herein.
2.2
Nature of First Lien Obligations . The Second Lien Agent on
behalf of itself and the other Second Lien Secured Parties
acknowledges that all or a portion of the First Lien 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
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subject
to Section 6.2 the terms of the First Lien Obligations may be
modified, extended or amended from time to time, and that the
aggregate amount of the First Lien Obligations may be increased,
replaced or refinanced, in each event, without notice to or consent
by the Second Lien Secured Parties and without affecting the
provisions hereof. The Lien priorities provided in Section 2.1
shall not be altered or otherwise affected by any such amendment,
modification, supplement, extension, repayment, reborrowing,
increase, replacement, renewal, restatement or refinancing of
either the First Lien Obligations or the Second Lien Obligations,
or any part thereof.
2.3
Agreements Regarding Actions to Perfect Liens .
(a) The
Second Lien Agent on behalf of itself and the other Second Lien
Secured 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 Second Lien Agent shall be in
form satisfactory to the First Lien Agent.
(b) The
Collateral Agent, First Lien Agent (on behalf of itself and the
other First Lien Secured Parties) and Second Lien Agent (on behalf
of itself and the other Second Lien Secured Parties) agree that all
mortgages, deeds of trust, deeds and similar instruments
(collectively, “ mortgages ”) now or hereafter
filed against real property in favor of Second Lien Agent or
Collateral Agent for the benefit of the Second Lien Secured
Parties, including without limitation all Shared Security
Documents, shall be in form satisfactory to the First Lien Agent
and shall contain the following notation: “ALL LIENS GRANTED
BY THIS INSTRUMENT SHALL, TO THE EXTENT SET FORTH IN THE
INTERCREDITOR AGREEMENT DATED JULY 11, 2008 BY AND AMONG QUEST
CHEROKEE, LLC, ROYAL BANK OF CANADA, AS FIRST LIEN AGENT, ROYAL
BANK OF CANADA, AS SECOND LIEN AGENT AND PARTIES THERETO, BE
SUBORDINATE AND JUNIOR TO ALL LIENS GRANTED BY GRANTOR TO SECURE
THE FIRST LIEN OBLIGATIONS REGARDLESS OF THE RELATIVE PRIORITY OF
SUCH LIENS, SUCH INTERCREDITOR AGREEMENT BEING INCORPORATED HEREIN
AND BY THIS REFERENCE BEING MADE A PART HEREOF.”
(c) The
Collateral Agent hereby acknowledges that, to the extent that it
holds, or a third party holds on its behalf, physical possession of
or “control” (as defined in the Uniform Commercial
Code) over Common Collateral pursuant to the First Lien Security
Documents, such possession or control is also for the benefit of
the Second Lien Agent and the other Second Lien Secured Parties for
purposes of perfecting 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
the Second Lien Agent or any other Second Lien Secured Party with
any rights with respect to such Common Collateral beyond those
specified in this Agreement and the Second Lien Security Documents;
provided that subsequent to the occurrence of the First Lien
Obligations Payment Date, the Collateral Agent shall promptly
deliver written notice of the occurrence of same to Second Lien
Agent and shall (x) deliver to the Second Lien Agent, at the
Borrower’s sole cost and expense, the Common Collateral in
its possession or control together with any necessary endorsements
to the extent required by the Second Lien Documents, and shall
deliver to Borrower written notice of such action, or
(y) direct and deliver such Common Collateral as a
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court of
competent jurisdiction otherwise directs, and provided
further that the provisions of this Agreement are intended
solely to govern the respective Lien priorities as between the
First Lien Secured Parties and the Second Lien Secured Parties, and
shall not impose on the Collateral Agent or the First Lien Secured
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.
2.4
No New Second Liens . So long as the First Lien Obligations
Payment Date has not occurred, the parties hereto agree that no
Second Lien Secured Party shall acquire or hold any Lien on any
assets of any Credit Party securing any Second Lien Obligation
which assets are not also subject to a First Lien in favor of the
First Lien Secured Parties under the First Lien Documents or under
Shared Security Documents. If any Second Lien Secured Party shall
(nonetheless and in breach hereof) acquire or hold any Lien on any
assets of any Credit Party securing any Second Lien Obligation
which assets are not also subject to a First Lien in favor of the
First Lien Secured Parties under the First Lien Documents, then the
Second Lien Agent (or the relevant Second Lien Secured Party)
shall, and shall be deemed to have, without the need for any
further consent of any other Second Lien Secured Party and
notwithstanding anything to the contrary in any other Second Lien
Document be deemed to hold and have held such Lien for the benefit
of the First Lien Agent as security for the First Lien Obligation
and shall assign such Lien to the Collateral Agent or the First
Lien Agent (in which case the Second Lien Agent may retain a junior
Second Lien on such assets subject to the terms hereof).
2.5
Similar Liens and Agreements . The parties hereto agree that
it is their intention that the First Lien Collateral and the Second
Lien Collateral be identical. To the extent that, notwithstanding
this Section 2.5, the First Lien Collateral and Second Lien
Collateral are not identical, the Second Lien Agent, on behalf of
Second Lien Secured Parties, agrees that any amounts received by or
distributed to any of them pursuant to or as a result of Liens on
Second Lien Collateral that is not First Lien Collateral, shall be
subject to Section 4.1. In furtherance of the foregoing, the
parties hereto agree, subject to the other provisions of this
Agreement:
(a) upon
reasonable request by the First Lien Agent or the Second Lien
Agent, to cooperate in good faith (and to direct their counsel to
cooperate in good faith) from time to time in order to determine
the specific items included in the First Lien Collateral and the
Second Lien Collateral and the steps taken to perfect their
respective Liens thereon and the identity of the respective parties
obligated under the First Lien Documents and the Second Lien
Documents;
(b) that
the documents and agreements creating or evidencing the First Lien
Collateral and the Second Lien Collateral and guarantees for the
First Lien Obligations and the Second Lien Obligations shall be
Shared Security Documents or otherwise in all material respects the
same forms of documents other than with respect to the First Lien
and Second Lien nature of the obligations and Common Collateral
thereunder; and
(c) that
in the event either First Lien Agent shall obtain or record any
First Lien Documents in favor of First Lien Agent granting Liens on
Common Collateral to secure First Lien Obligations, or Second Lien
Agent shall obtain or record any Second Lien Documents in favor of
Second Lien Agent granting Liens on Common Collateral to secure
Second Lien Obligations, and such First Lien Documents or Second
Lien Documents are not Shared Security
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Documents, then First Lien Agent or Second Lien Agent, as the case
may be, shall notify the other of such documentation and provide a
copy thereof.
SECTION 3 Enforcement Rights.
3.1
Enforcement . Until the First Lien Obligations Payment Date
has occurred, whether or not a Insolvency Proceeding has been
commenced by or against any Credit Party:
(a) The
Second Lien Agent and the Second Lien Secured Parties (and
Collateral Agent, on behalf of Second Lien Agent or Second Lien
Secured Parties, under any Shared Security Document):
(i) will not exercise or seek to
exercise any rights or remedies (including setoff) with respect to
the Common Collateral (including, without limitation, the exercise
of any right under any lockbox agreement, account control
agreement, landlord waiver or bailee’s letter or similar
agreement or arrangement to which the Second Lien Agent or any
Second Lien Secured Party is a party), or institute any action or
proceeding with respect to such rights or remedies (including any
action of foreclosure); provided, however, that the Second Lien
Agent may exercise (and direct Collateral Agent to exercise,
pursuant to any Shared Security Document) any or all such rights
and remedies of Second Lien Secured Parties under any Second Lien
Security Document after the passage of a period of 179 days
from the date of delivery of a notice in writing to the First Lien
Agent that an Event of Default (as defined in the Second Lien
Agreement) has occurred under the Second Lien Documents and the
Second Lien Obligations have been accelerated (with respect to each
individual Event of Default, each a “ Standstill
Period ”) which notice may only be delivered following
the occurrence of and during the continuation of an Event of
Default (as defined in the Second Lien Agreement) under the Second
Lien Documents and the Second Lien Obligations have been
accelerated; provided, further, however, notwithstanding anything
herein to the contrary, in no event shall the Second Lien Agent or
any Second Lien Secured Party exercise or continue to exercise any
rights or remedies with respect to the Common Collateral if,
notwithstanding the expiration of any outstanding Standstill
Period, the First Lien Agent or First Lien Lenders (or the
Collateral Agent on their behalf) shall have commenced and are
diligently pursuing the exercise of any of their rights or remedies
with respect the Common Collateral (prompt notice of such exercise
to be given to the Second Lien Agent),
(ii) will not contest, protest or
object to any foreclosure proceeding or action brought by the
Collateral Agent, the First Lien Agent or any First Lien Secured
Party or any other exercise by the Collateral Agent, the First Lien
Agent or any First Lien Secured Party, of any rights and remedies
relating to the Common Collateral under the First Lien Documents or
otherwise, and
(iii) subject to its rights under
clause (a)(i) above, will not object to the forbearance by the
Collateral Agent, the First Lien Agent or the First Lien Secured
Party from bringing or pursuing any foreclosure proceeding or
action or any other exercise of any rights or remedies relating to
the Common Collateral.
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(b) Except
as provided in Section 3.1(a)(i) hereof following the
expiration of a Standstill Period, the First Lien Secured Parties
shall have the exclusive right (and under any Shared Security
Document shall have the exclusive right to instruct the Collateral
Agent) to take and continue any Enforcement Action with respect to
the Common Collateral, without any consultation with or consent of
any Second Lien Secured Party, but subject to the proviso set forth
in Section 5.1. Upon the occurrence and during the continuance of a
default or an event of default under the First Lien Documents,
subject to the provisions of this Agreement, the First Lien Agent
and the other First Lien Secured Parties may (and under any Shared
Security Document may instruct the Collateral Agent on their behalf
to) take and continue any Enforcement Action in such order and
manner as they may determine in their sole discretion.
(c) Collateral
Agent shall not be obligated to follow any instructions of Second
Lien Secured Parties if such instructions conflict with the
provisions of this Agreement, any Shared Security Document or any
applicable law or Collateral Agent determines, in its sole and
absolute discretion, that such instructions are ambiguous,
inconsistent, in conflict with previously received instructions or
otherwise insufficient to direct the actions of Collateral Agent,
provided that Collateral Agent explains the grounds for a refusal
based on a deficiency of instructions. Nothing in this
Article II shall impair the right of Collateral Agent in its
discretion to take any action authorized under this Agreement or
any Shared Security Document, to the extent that the consent of any
party hereto is not required or to the extent such action is not
prohibited by the terms hereof or thereof, which it deems proper
and consistent with the instructions given by First Lien Secured
Parties as provided for herein or otherwise in the best interest of
First Lien Secured Parties. In the absence of written instructions
for any particular matter, Collateral Agent shall have no duty to
take or refrain from taking any action unless such action or
inaction is explicitly required by the terms of this Agreement, the
Shared Security Documents, or applicable law. Collateral Agent
shall have no duty with respect to the expiration of any Standstill
Period unless it first receives notice that such Standstill Period
has expired. On and after the First Lien Obligations Payment Date,
and at any time prior thereto following the expiration of any
applicable Standstill Period pursuant to Section 3.1(a)(i)
above, and subject to the first sentence of this
Section 3.1(c) and Section 10 hereof, Collateral Agent
agrees that it shall follow instructions of Second Lien Secured
Parties with respect to the Common Collateral and Shared Security
Documents.
(d) Beyond
its duties expressly provided herein or in the Shared Security
Documents and its duties to account to Secured Parties and/or the
Credit Parties for monies and other property received by it
hereunder or under any Shared Security Document, Collateral Agent
shall have no implied duty to Secured Parties or any Credit Party
as to any property belonging to any Credit Party (whether or not
the same constitutes Collateral) in its possession or control or in
the possession or control of any of its agents or nominees, or any
income thereon or as to the preservation of rights against prior
parties or any other rights pertaining thereto.
3.2
Standstill and Waivers . The Second Lien Agent, on behalf of
itself and the other Second Lien Secured Parties, agrees that,
until the First Lien Obligations Payment Date has occurred, subject
to the proviso set forth in Section 5.1 and except as
permitted by Section 3.1(a):
Intercreditor Agreement
10
(a) they
will not take or cause to be taken any action, the purpose or
effect of which is to make any Lien in respect of any Second Lien
Obligation pari passu with or senior to, or to give any Second Lien
Secured Party any preference or priority relative to, the Liens
with respect to the First Lien Obligations or the First Lien
Secured Parties with respect to any of the Common Collateral;
(b) they
will not oppose, object to, interfere with, hinder or delay, in any
manner, whether by judicial proceedings (including without
limitation the filing of an Insolvency Proceeding) or otherwise,
any foreclosure, sale, lease, exchange, transfer or other
disposition of the Common Collateral by the Collateral Agent, the
First Lien Agent or any other First Lien Secured Party or any other
Enforcement Action taken by or on behalf of the Collateral Agent,
the First Lien Agent or any other First Lien Secured Party;
(c) they
have no right to (x) direct either the Collateral Agent, the
First Lien Agent or any other First Lien Secured Party to exercise
any right, remedy or power with respect to the Common Collateral or
pursuant to the First Lien Security Documents or (y) consent
or object to the exercise by the Collateral Agent, the First Lien
Agent or any other First Lien Secured Party of any right, remedy or
power with respect to the Common Collateral or pursuant to the
First Lien Security 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 (c), whether
as a junior Lien creditor or otherwise, they hereby irrevocably
waive such right), except to the extent such exercise was in
violation of this Agreement;
(d) without
waiving any rights to take action as unsecured creditors, they will
not institute any suit or other proceeding or assert in any suit,
Insolvency Proceeding or other proceeding any claim against either
Collateral Agent, First Lien Agent or any other First Lien Secured
Party seeking damages from or other relief by way of specific
performance, instructions or otherwise, with respect to, and none
of the Collateral Agent, First Lien Agent nor any other First Lien
Secured Party shall be liable for, any action taken or omitted to
be taken by the Collateral Agent, the First Lien Agent or any other
First Lien Secured Party with respect to the Common Collateral or
pursuant to the First Lien Documents, so long as such actions or
omissions were not taken in violation of this Agreement;
(e) without
waiving any rights to take action as unsecured creditors, they will
not make any judicial or nonjudicial claim or demand or commence
any judicial or non-judicial proceedings against any Credit Party
or any of its subsidiaries or affiliates under or with respect to
any Second Lien Security Document seeking payment or damages from
or other relief by way of specific performance, instructions or
otherwise under or with respect to any Second Lien Security
Document (other than filing a proof of claim) or exercise any
right, remedy or power under or with respect to, or otherwise take
any action to enforce, other than filing a proof of claim, any
Second Lien Security Document;
(f) 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, attempt any action to take
possession of, exercise any right, remedy or power with respect to,
or otherwise take any action to enforce their interest in or
realize upon, the Common Collateral or pursuant to the Second Lien
Security Documents; or
Intercreditor Agreement
11
(g) they
will not seek, and hereby waive any right, to have the Common
Collateral or any part thereof marshaled upon any foreclosure or
other disposition of the Common Collateral.
3.3
Judgment Creditors . In the event that any Second Lien
Secured Party becomes a judgment Lien creditor in respect of Common
Collateral as a result of its enforcement of its rights as an
unsecured creditor, such judgment Lien shall be subject to the
terms of this Agreement for all purposes (including in relation to
the First Liens and the First Lien Obligations) to the same extent
as all other Liens, securing the Second Lien Obligations (created
pursuant to the Second Lien Security Documents) subject to this
Agreement. !
3.4
Cooperation . The Second Lien Agent, on behalf of itself and
the other Second Lien Secured Parties, agrees that each of them
shall take such actions as the Collateral Agent or th
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