INTERCREDITOR AGREEMENT

 

 

TABLE OF CONTENTS

 

		Page
ARTICLE I
DEFINITIONS
SECTION 1.01.	Certain Defined Terms	2
SECTION 1.02.	Other Defined Terms	2
SECTION 1.03.	Terms Generally	7
ARTICLE II
LIEN PRIORITIES
SECTION 2.01.	Relative Priorities	7
SECTION 2.02.	Prohibition on Contesting Liens	8
SECTION 2.03.	No New Liens	8
SECTION 2.04.	Similar Liens and Agreements	8
ARTICLE III
ENFORCEMENT OF RIGHTS; MATTERS RELATING TO COLLATERAL
SECTION 3.01.	Exercise of Rights and Remedies	9
SECTION 3.02.	No Interference	11
SECTION 3.03.	Rights as Unsecured Creditors	13
SECTION 3.04.	Automatic Release of Second Priority Liens	13
SECTION 3.05.	Automatic Release of First Priority Liens	14
SECTION 3.06.	Insurance and Condemnation Awards	14
ARTICLE IV
PAYMENTS
SECTION 4.01.	Application of Proceeds	15
SECTION 4.02.	Payment Over	15
SECTION 4.03.	Certain Agreements with Respect to Unenforceable Liens	16
ARTICLE V
BAILMENT FOR PERFECTION OF CERTAIN SECURITY INTERESTS

 

 

ARTICLE VI
INSOLVENCY OR LIQUIDATION PROCEEDINGS
SECTION 6.01.	Finance and Sale Matters	17
SECTION 6.02.	Relief from the Automatic Stay	19
SECTION 6.03.	Reorganization Securities	19
SECTION 6.04	Post-Petition Interest	19
SECTION 6.05.	Certain Waivers by the Second Lien Secured Parties	19
SECTION 6.06.	Certain Voting Matters	20
ARTICLE VII
OTHER AGREEMENTS
SECTION 7.01.	Matters Relating to Loan Documents	20
SECTION 7.02.	Effect of Refinancing of Indebtedness under First Lien Loan Documents	22
SECTION 7.03.	No Waiver by First Lien Secured Parties	23
SECTION 7.04.	Reinstatement	23
SECTION 7.05.	Further Assurances	23
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
SECTION 8.01.	Representations and Warranties of Each Party	23
SECTION 8.02.	Representations and Warranties of Each Collateral Agent	24
ARTICLE IX
NO RELIANCE; NO LIABILITY; OBLIGATIONS ABSOLUTE
SECTION 9.01.	No Reliance; Information	24
SECTION 9.02.	No Warranties or Liability	25
SECTION 9.03.	Obligations Absolute	25
ARTICLE X
MISCELLANEOUS
SECTION 10.01.	Notices	26
SECTION 10.02.	Conflicts	27
SECTION 10.03.	Effectiveness; Survival	27
SECTION 10.04.	Severability	27
SECTION 10.05.	Amendments; Waivers	27
SECTION 10.06.	Subrogation	28
SECTION 10.07.	Applicable Law; Jurisdiction; Consent to Service of Process	28
SECTION 10.08.	Waiver of Jury Trial	29
SECTION 10.09.	Parties in Interest	29
SECTION 10.10.	Specific Performance	29
SECTION 10.11.	Headings	29

 

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SECTION 10.12.	Counterparts	29
SECTION 10.13.	Provisions Solely to Define Relative Rights	29

 

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INTERCREDITOR AGREEMENT dated as of June 15, 2007 (this “ Agreement ”), STR ACQUISITION, INC., a Delaware corporation, which substantially simultaneously with the execution hereof shall be merged with and into SPECIALIZED TECHNOLOGY RESOURCES, INC., a Delaware corporation (the “ Borrower ”), STR HOLDINGS LLC, a Delaware limited liability company (“ Holdings ”), CREDIT SUISSE, as collateral agent for the First Lien Lenders (as defined below) (in such capacity the “ First Lien Collateral Agent ” ), and CREDIT SUISSE, as collateral agent for the Second Lien Lenders (as defined below) (in such capacity, the “ Second Lien Collateral Agent ”).

 

PRELIMINARY STATEMENT

 

Reference is made to (a) the First Lien Credit Agreement dated as of June 15, 2007 (the “ First Lien Credit Agreement ”), among the Borrower, Holdings, the lenders from time to time party thereto (the “ First Lien Lenders ”) and Credit Suisse, as administrative agent for the First Lien Lenders (in such capacity, the “ First Lien Administrative Agent ”) and First Lien Collateral Agent, (b) the Second Lien Credit Agreement dated as of June 15, 2007 (the “ Second Lien Credit Agreement ” and, together with the First Lien Credit Agreement, the “ Credit Agreements ”), among the Borrower, Holdings, the lenders from time to time party thereto (the “ Second Lien Lenders ”) and Credit Suisse, as administrative agent for the Second Lien Lenders(in such capacity, the “ Second Lien Administrative Agent ”) and Second Lien Collateral Agent, (c)   the First Lien Guarantee and Collateral Agreement dated as of June 15, 2007 (the “ First Lien Guarantee and Collateral Agreement ”), among the Borrower, Holdings, the subsidiaries of the Borrower from time to time party thereto and Credit Suisse as First Lien Collateral Agent, (d) the Second Lien Guarantee and Collateral Agreement dated as of June 15, 2007 (the “ Second Lien Guarantee and Collateral Agreement ”), among the Borrower, Holdings, the subsidiaries of the Borrower from time to time party thereto and Credit Suisse as Second Lien Collateral Agent, and (e) the other Security Documents referred to in the Credit Agreements.

 

RECITALS

 

A.   The First Lien Lenders have agreed to make loans and other extensions of credit to the Borrower pursuant to the First Lien Credit Agreement on the condition, among others, that the First Lien Obligations (such term and each other capitalized term used but not defined in the preliminary statement or these recitals having the meaning given it in Article I) shall be secured by first priority Liens on, and security interests in, the Collateral.

 

B.    The Second Lien Lenders have agreed to make loans to the Borrower pursuant to the Second Lien Credit Agreement on the condition, among others, that the

 

 

Second Lien Obligations shall be secured by second priority Liens on, and security interests in, the Collateral.

 

C. The Credit Agreements require, among other things, that the parties thereto set forth in this Agreement, among other things, their respective rights, obligations and remedies with respect to the Collateral.

 

Accordingly, the parties hereto agree as follows:

 

ARTICLE I

 

Definitions

 

SECTION 1.01. Certain Defined Terms . Capitalized terms used in this Agreement and not otherwise defined herein shall have the meanings set forth in the First Lien Credit Agreement, the Second Lien Credit Agreement, the First Lien Guarantee and Collateral Agreement or the Second Lien Guarantee and Collateral Agreement, as applicable.

 

SECTION 1.02. Other Defined Terms . As used in the Agreement, the following terms shall have the meanings specified below:

 

“ Bankruptcy Code” shall mean Title 11 of the United States Code entitled “Bankruptcy,” as now and hereinafter in effect, or any successor statute.

 

“Bankruptcy Law” shall mean the Bankruptcy Code and any other Federal, state or foreign bankruptcy, insolvency, receivership or similar law.

 

“Borrower” shall have the meaning assigned to such term in the preamble to this Agreement.

 

“Cap Amount” shall have the meaning assigned to such term in Section 7.01(a)(ii).

 

“ Collateral ” shall mean, collectively, the First Lien Collateral and the Second Lien Collateral.

 

“Collateral Agents” shall mean the First Lien Collateral Agent and the Second Lien Collateral Agent.

 

“Comparable Second Lien Security Document” shall mean, in relation to any Collateral subject to any Lien created under any First Lien Security Document, the Second Lien Security Document that creates a Lien on the same Collateral, granted by the same Grantor.

 

“Credit Agreements ” shall have the meaning assigned to such term in the preliminary statement of this Agreement.

 

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‘‘DIP Cap Amount” shall mean the Cap Amount determined without giving effect to clause (A)(2) of the definition thereof.

 

“DIP Financing” shall have the meaning assigned to such term in Section 6.01(a).

 

“DIP Financing Liens” shall have the meaning assigned to such term in Section 6.01(a).

 

“Discharge of First Lien Obligations” shall mean, subject to Sections 7.02 and 7.04, (a) payment in full in cash of the principal of and interest (including interest accruing during the pendency of any Insolvency or Liquidation Proceeding, regardless of whether allowed or allowable in such Insolvency or Liquidation Proceeding) and premium, if any, on all Indebtedness outstanding under the First Lien Loan Documents, (b) payment in full of all other First Lien Obligations that are due and payable or otherwise accrued and owing at or prior to the time such principal and interest are paid, (c) cancellation of or the entry into arrangements satisfactory to the First Lien Administrative Agent and the Issuing Bank with respect to all letters of credit issued and outstanding under the First Lien Credit Agreement and (d) termination or expiration of all commitments to lend and all obligations to issue or extend letters of credit under the First Lien Credit Agreement.

 

“Disposition ” shall mean any sale, lease, exchange, transfer or other disposition. “ Dispose ” shall have a correlative meaning.

 

“First Lien Administrative Agent” shall have the meaning assigned to such term in the preliminary statement of this Agreement.

 

“First Lien Collateral” shall mean all “Collateral”, as defined in the First Lien Guarantee and Collateral Agreement, and any other assets of any Grantor now or at any time hereafter subject to Liens securing any First Lien Obligations.

 

“First Lien Collateral Agent” shall have the meaning assigned to such term in the preamble to this Agreement.

 

“First Lien Credit Agreement” shall have the meaning assigned to such term in the preliminary statement of this Agreement.

 

“First Lien Guarantee and Collateral Agreement” shall have the meaning assigned to such term in the preliminary statement of this Agreement.

 

“First Lien Lenders” shall have the meaning assigned to such term in the preliminary statement of this Agreement.

 

‘‘First Lien Loan Documents” shall mean the “Loan Documents” as defined in the First Lien Credit Agreement.

 

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“First Lien Mortgages” shall mean, collectively, each mortgage, deed of trust, assignment of leases and rents, modifications and any other agreement, document or instrument pursuant to which a Lien on real property is granted to secure any First Lien Obligations or under which rights or remedies with respect to any such Lien are governed.

 

“First Lien Obligations” shall mean the “Obligations”, as defined in the First Lien Guarantee and Collateral Agreement.

 

“First Lien Required Lenders” shall mean the “Required Lenders”, as defined in the First Lien Credit Agreement.

 

“First Lien Secured Parties” shall mean, at any time, (a) the First Lien Lenders, (b) the First Lien Administrative Agent (c)   the First Lien Collateral Agent, (d) the Issuing Bank, (e) each other person to whom any of the First Lien Obligations (including First Lien Obligations under any Hedging Agreement and indemnification obligations) is owed and (f) the successors and assigns of each of the foregoing.

 

“First Lien Security Documents” shall mean the “Security Documents”, as defined in the First Lien Credit Agreement, and any other agreement, document or instrument pursuant to which a Lien is granted to secure any First Lien Obligations or under which rights or remedies with respect to any such Lien are governed.

 

“First Priority Liens” shall mean all Liens on the First Lien Collateral securing the First Lien Obligations, whether created under the First Lien Security Documents or acquired by possession, statute (including any judgment lien), operation of law, subrogation or otherwise.

 

“Grantors” shall mean Holdings, the Borrower and each other person that shall have created or purported to create any First Priority Lien or Second Priority Lien on all or any part of its assets to secure any First Lien Obligations or any Second Lien Obligations.

 

“Guarantors” shall mean, collectively, Holdings and each Subsidiary that has Guaranteed, or that may from time to time hereafter Guarantee, the First Lien Obligations or the Second Lien Obligations, whether by executing and delivering the applicable Guarantee and Collateral Agreement, a supplement thereto or otherwise.

 

“Indebtedness” shall mean and includes all obligations that constitute “Indebtedness”, as defined in the First Lien Credit Agreement or the Second Lien Credit Agreement, as applicable.

 

“Insolvency or Liquidation Proceeding” shall mean (a) any voluntary or involuntary proceeding under the Bankruptcy Code or any other Bankruptcy Law with respect to any Grantor, (b) any voluntary or involuntary appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Grantor or for a substantial part of the property or assets of any Grantor, (c) any voluntary or involuntary

 

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winding-up or liquidation of any Grantor, or (d) a general assignment for the benefit of creditors by any Grantor.

 

“Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, 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 person with respect to such securities.

 

“Loan Documents” shall mean the First Lien Loan Documents and the Second Lien Loan Documents.

 

“New First Lien Collateral Agent” shall have the meaning assigned to such term in Section 7.02.

 

“New First Lien Loan Documents” shall have the meaning assigned to such term in Section 7.02.

 

“New First Lien Obligations” shall have the meaning assigned to such term in Section 7.02.

 

“Pledged or Controlled Collateral” shall have the meaning assigned to such term in Article V.

 

“Refinance” shall mean, in respect of any Indebtedness, to refinance, extend, renew, restructure or replace or to issue other Indebtedness in exchange or replacement for, such Indebtedness, in whole or in part. “ Refinanced ” and “ Refinancing ” shall have correlative meanings.

 

“Refinancing Notice” shall have the meaning assigned to such term in Section 7.02.

 

“Release” shall have the meaning assigned to such term in Section 3.04.

 

“Second Lien Administrative Agent” shall have the meaning assigned to such term in the preliminary statement of this Agreement.

 

“Second Lien Collateral” shall mean all “Collateral”, as defined in the Second Lien Guarantee and Collateral Agreement, and any other assets of any Grantor now or at any time hereafter subject to Liens securing any Second Lien Obligations.

 

“Second Lien Collateral Agent” shall have the meaning assigned to such term in the preamble to this Agreement.

 

“Second Lien Credit Agreement” shall have the meaning assigned to such term in the preliminary statement of this Agreement.

 

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“subsidiary” shall mean, with respect to any person (herein referred to as the “parent” ) , any corporation, partnership, limited liability company, association or other business entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or more than 50% of the general partnership or membership interests are, at the time any determination is being made, owned, Controlled or held, or (b) that is, at the time any determination is made, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.

 

“Subsidiary” shall mean any subsidiary of the Borrower.

 

“Uniform Commercial Code” or “ UCC ” shall mean the Uniform Commercial Code (or any similar or equivalent legislation) as in effect from time to time in any applicable jurisdiction.

 

SECTION 1.03. 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, restated, supplemented or otherwise modified, (b) any reference herein (i) to any person shall be construed to include such person’s successors and assigns and (ii) to the Borrower or any other Grantor shall be construed to include the Borrower or such Grantor as debtor and debtor-in-possession and any receiver or trustee for the Borrower or any other Grantor, as the case may be, in any Insolvency or Liquidation Proceeding, (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 Articles or Sections shall be construed to refer to Articles or Sections of this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

 

ARTICLE II

 

Lien Priorities

 

SECTION 2.01. Relative Priorities . Notwithstanding the date, manner or order of grant, attachment or perfection of any Second Priority Lien or any First Priority Lien, and notwithstanding any provision of the UCC or any other applicable law or the provisions of any Security Document or any other Loan Document or any other circumstance whatsoever, the Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, hereby agrees that, so long as the Discharge of First Lien Obligations has not occurred, (a) any First Priority Lien now or hereafter held

 

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by or for the benefit of any First Lien Secured Party shall be senior in right, priority, operation, effect and all other respects to any and all Second Priority Liens and (b) any Second Priority Lien now or hereafter held by or for the benefit of any Second Lien Secured Party shall be junior and subordinate in right, priority, operation, effect and all other respects to any and all First Priority Liens. The First Priority Liens shall be and remain senior in right, priority, operation, effect and all other respects to any Second Priority Liens for all purposes, whether or not any First Priority Liens are subordinated in any respect to any other Lien securing any other obligation of the Borrower, any other Grantor or any other person.

 

SECTION 2.02. Prohibition on Contesting Liens. Each of the First Lien Collateral Agent, for itself and on behalf of the other First Lien Secured Parties, and the Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that it will 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 any Second Priority Lien or any First Priority Lien, as the case may be; provided that nothing in this Agreement shall be construed to prevent or impair the rights of the First Lien Collateral Agent or any other First Lien Secured Party to enforce this Agreement.

 

SECTION 2.03. No New Liens . The parties hereto agree that, so long as the Discharge of First Lien Obligations has not occurred, none of the Grantors shall, or shall permit any of its subsidiaries to, (a) grant or permit any additional Liens on any asset to secure any Second Lien Obligation unless it has granted, or concurrently therewith grants, a Lien on such asset to secure the First Lien Obligations or (b) grant or permit any additional Liens on any asset to secure any First Lien Obligations unless it has granted, or concurrently therewith grants, a Lien on such asset to secure the Second Lien Obligations, with each such Lien to be subject to the provisions of this Agreement. To the extent that the provisions of the immediately preceding sentence are not complied with for any reason, without limiting any other right or remedy available to the First Lien Collateral Agent or the other First Lien Secured Parties, the Second Lien Collateral Agent agrees, for itself and on behalf of the other Second Lien Secured Parties, that any amounts received by or distributed to any Second Lien Secured Party pursuant to or as a result of any Lien granted in contravention of this Section 2.03 shall be subject to Section 4.02.

 

SECTION 2.04. Similar Liens and Agreements . The parties hereto acknowledge and agree that it is their intention that the First Lien Collateral and the Second Lien Collateral be identical. In furtherance of the foregoing, the parties hereto agree:

 

(a) to cooperate in good faith in order to determine, upon any reasonable request by the First Lien Collateral Agent or the Second Lien Collateral Agent, the specific assets included in the First Lien Collateral and the Second Lien Collateral, the steps taken to perfect the First Priority Liens and the Second Priority

 

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Liens thereon and the identity of the respective parties obligated under the First Lien Loan Documents and the Second Lien Loan Documents; and

 

(b) that the documents, agreements and instruments creating or evidencing the Second Lien Collateral and the Second Priority Liens shall be in all material respects in the same form as the documents, agreements and instruments creating or evidencing the First Lien Collateral and the First Priority Liens, other than with respect to the first priority and second priority nature of the Liens created or evidenced thereunder, the identity of the Secured Parties that are parties thereto or secured thereby and other matters contemplated by this Agreement.

 

ARTICLE III

 

Enforcement of Rights; Matters Relating to Collateral

 

SECTION 3.01. Exercise of Rights and Remedies. (a)   So long as the Discharge of First Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced, the First Lien Collateral Agent and the other First Lien Secured Parties shall have the exclusive right to enforce rights and exercise remedies (including any right of setoff) with respect to the Collateral (including making determinations regarding the release, Disposition or restrictions with respect to the Collateral), or to commence or seek to commence any action or proceeding with respect to such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding), in each case, without any consultation with or the consent of the Second Lien Collateral Agent or any other Second Lien Secured Party; provided that, notwithstanding the foregoing, (i) in any Insolvency or Liquidation Proceeding, the Second Lien Collateral Agent may file a proof of claim or statement of interest with respect to the Second Lien Obligations; (ii) the Second Lien Collateral Agent may take any action to preserve or protect the validity and enforceability of the Second Priority Liens, provided that no such action is, or could reasonably be expected to be, (A) adverse to the First Priority Liens or the rights of the First Lien Collateral Agent or any other First Lien Secured Party to exercise remedies in respect thereof or (B) otherwise inconsistent with the terms of this Agreement, including the automatic release of Second Priority Liens provided in Section 3.04; (iii) the Second Lien Secured Parties may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Second Lien Secured Parties, including any claims secured by the Collateral or otherwise make any agreements or file any motions pertaining to the Second Lien Obligations, in each case, to the extent not inconsistent with the terms of this Agreement; (iv) the Second Lien Secured Parties may exercise rights and remedies as unsecured creditors, as provided in Section 3.03; and (v) subject to Section 3.02(a), the Second Lien Collateral Agent and the other Second Lien Secured Parties may enforce any of their rights and exercise any of their remedies with respect to the Collateral after the termination of the Standstill Period (the actions described in this proviso being referred to herein as the “ Second Lien Permitted Actions ”) .  Except for the Second Lien Permitted Actions, unless and until the Discharge

 

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of First Lien Obligations has occurred, the sole right of the Second Lien Collateral Agent and the other Second Lien Secured Parties with respect to the Collateral shall be to receive the proceeds of the Collateral, if any, remaining after the Discharge of First Lien Obligations has occurred and in accordance with the Second Lien Loan Documents and applicable law.

 

(b) In exercising rights and remedies with respect to the Collateral, the First Lien Collateral Agent and the other First Lien Secured Parties may enforce the provisions of the First Lien Loan Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to Dispose of Collateral upon foreclosure, to incur expenses in connection with any such Disposition and to exercise all the rights and remedies of a secured creditor under the Uniform Commercial Code, the Bankruptcy Code or any other Bankruptcy Law. The First Lien Collateral Agent agrees to provide at least five days’ prior written notice to the Second Lien Collateral Agent of its intention to foreclose upon or Dispose of any Collateral.

 

(c)   The Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Second Lien Security Document or any other Second Lien Loan Document shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent or the other First Lien Secured Parties with respect to the Collateral as set forth in this Agreement and the other First Lien Loan Documents.

 

(d) Notwithstanding anything in this Agreement to the contrary, following the acceleration of the Indebtedness then outstanding under the First Lien Credit Agreement, the Second Lien Secured Parties may, at their sole expense and effort, upon notice to the Borrower and the First Lien Collateral Agent, require the First Lien Secured Parties to transfer and assign to the Second Lien Secured Parties, without warranty or representation or recourse, all (but not less than all) of the First Lien Obligations; provided that (x) such assignment shall not conflict with any law, rule or regulation or order of any court or other Governmental Authority having jurisdiction, and (y) the Second Lien Secured Parties shall have paid to the First Lien Collateral Agent, for the account of the First Lien Secured Parties, in immediately available funds, an amount equal to 100% of the principal of such Indebtedness plus all accrued and unpaid interest thereon plus all accrued and unpaid Fees (as defined in the First Lien Credit Agreement) plus all the other First Lien Obligations then outstanding (which shall include, with respect to (i) the aggregate face amount of the letters of credit outstanding under the First Lien Credit Agreement, an amount in cash equal to 102% thereof, and (ii) Hedging Agreements that constitute First Lien Obligations, 100% of the aggregate amount of such First Lien Obligations (giving effect to any netting arrangements) that the applicable Loan Party would be required to pay if such Hedging Agreements were terminated at such time).   In order to effectuate the foregoing, the First Lien Collateral Agent

 

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shall calculate, upon the written request of the Second Lien Collateral Agent from time to time, the amount in cash that would be necessary so to purchase the First Lien Obligations.

 

SECTION 3.02. No Interference .  (a) The Second Lien Collateral Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding has been commenced, the Second Lien Secured Parties:

 

(i) except for Second Lien Permitted Actions, will not, so long as the Discharge of First Lien Obligations has not occurred, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedie, (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Second Lien Collateral Agent or any other Second Lien Secured Party is a party) or (B) commence or join with any person (other than the First Lien Collateral Agent) in commencing, or petition for or vote in favor of any resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); provided, however, that the Second Lien Collateral Agent may enforce or exercise any or all such rights and remedies, or commence, join with any person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 days has elapsed since the date on which the Second Lien Collateral Agent has delivered to the First Lien Collateral Agent written notice of the acceleration of the Indebtedness then outstanding under the Second Lien Credit Agreement (the “ Standstill Period ”) ; provided further, however, that (A) notwithstanding the expiration of the Standstill Period or anything herein to the contrary, in no event shall the Second Lien Collateral Agent or any other Second Lien Secured Party enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the First Lien Collateral Agent or any other First Lien Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from or modification of the automatic stay or any other stay in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any rights or remedies with respect to any Collateral or any such action or proceeding (prompt written notice thereof to be given to the Second Lien Collateral Agent by the First Lien Collateral Agent) and (B) after the expiration of the Standstill Period, so long as neither the First Lien Collateral Agent nor the First Lien Secured Parties have commenced any action to enforce their Lien on any material portion of the Collateral, in the event that and for so long as the Second Lien Secured Parties (or the Second Lien Collateral Agent on their behalf) have commenced any actions to enforce their Lien with respect to all or any material portion of the Collateral to the extent permitted hereunder and are diligently pursuing such

 

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actions, neither the First Lien Secured Parties nor the First Lien Collateral Agent shall take any action of a similar nature with respect to such Collateral; provided that all other provisions of this Intercreditor Agreement (including the turnover provisions of Article IV) are complied with;

 

(ii) will not contest, protest or object to any foreclosure action or proceeding brought by the First Lien Collateral Agent or any other First Lien Secured Party, or any other enforcement or exercise by any First Lien Secured Party of any rights or remedies relating to the Collateral under the First Lien Loan Documents or otherwise, so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.01;

 

(iii) subject to the rights of the Second Lien Secured Parties under clause (i) above, will not object to the forbearance by the First Lien Collateral Agent or any other First Lien Secured Party from commencing or pursuing any foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral;

 

(iv) will not, so long as the Discharge of First Lien Obligations has not occurred and except for Second Lien Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;

 

(v) will not, except for Second Lien Permitted Actions, take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies under the First Lien Loan Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;

 

(vi) will not, except for Second Lien Permitted Actions, object to the manner in which the First Lien Collateral Agent or any other First Lien Secured Party may seek to enforce or collect the First Lien Obligations or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent or any other First Lien Secured Party is, or could be, adverse to the interests of the Second Lien Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law; and

 

(vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Lien Obligation or any First Lien Security Document, including

 

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this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement.

 

SECTION 3.03. Rights as Unsecured Creditors . The Second Lien Collateral Agent and the other Second Lien Secured Parties may, in accordance with the terms of the Second Lien Loan Documents and applicable law, enforce rights and exercise remedies against the Borrower and any Guarantor as unsecured creditors; provided that no such action is ot