Exhibit 10.5
INTERCREDITOR AGREEMENT
dated as of
October 9, 2008,
among
NEXTWAVE WIRELESS LLC
as Issuer and Guarantor
NEXTWAVE WIRELESS INC.
as Issuer and Guarantor
THE GUARANTORS
from time to time party hereto,
THE NOTE HOLDERS
from time to time party hereto,
THE BANK OF NEW YORK MELLON
as First Lien Collateral Agent
THE BANK OF NEW YORK MELLON
as Second Lien Collateral Agent
THE BANK OF NEW YORK MELLON
as Third Lien Collateral Agent
THIS IS THE INTERCREDITOR
AGREEMENT REFERRED TO IN (A) THE SECOND LIEN PLEDGE AND SECURITY
AGREEMENT OF EVEN DATE HEREWITH AMONG NEXTWAVE WIRELESS LLC,
NEXTWAVE WIRELESS INC., THE GRANTORS PARTY THERETO FROM TIME TO
TIME, AND THE BANK OF NEW YORK MELLON, AS SECOND LIEN COLLATERAL
AGENT, (B) THE SECOND LIEN GUARANTY OF EVEN DATE HEREWITH AMONG THE
GUARANTORS PARTY THERETO FROM TIME TO TIME, AND THE BANK OF NEW
YORK MELLON, AS SECOND LIEN COLLATERAL AGENT, (C) THE SECOND LIEN
PARENT GUARANTY OF EVEN DATE HEREWITH AMONG NEXTWAVE WIRELESS INC.,
AND THE BANK OF NEW YORK MELLON, AS SECOND LIEN COLLATERAL AGENT,
(D) THE THIRD LIEN PLEDGE AND SECURITY AGREEMENT OF EVEN DATE
HEREWITH AMONG NEXTWAVE WIRELESS INC., NEXTWAVE WIRELESS LLC, THE
GRANTORS PARTY THERETO FROM TIME TO TIME, AND THE BANK OF NEW YORK
MELLON, AS THIRD LIEN COLLATERAL AGENT, (E) THE THIRD LIEN GUARANTY
OF EVEN DATE HEREWITH AMONG NEXTWAVE WIRELESS LLC, THE GUARANTORS
PARTY THERETO FROM TIME TO TIME, AND THE BANK OF NEW YORK MELLON,
AS SECOND LIEN COLLATERAL AGENT, AND
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(F) CERTAIN OF THE OTHER
COLLATERAL DOCUMENTS REFERRED TO IN THE PURCHASE AGREEMENTS
REFERRED TO HEREIN.
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INTERCREDITOR AGREEMENT
This
INTERCREDITOR AGREEMENT dated as of October 9, 2008 (this
Agreement ), among NEXTWAVE WIRELESS LLC, a Delaware limited
liability company ( Company ), NEXTWAVE WIRELESS INC., a
Delaware Corporation ( Parent ), the Subsidiaries of Company
party hereto, THE BANK OF NEW YORK MELLON ( BONY ), as
collateral agent for the First Lien Note Holders (as defined below)
(in such capacity, the First Lien Collateral Agent ), the
Second Lien Note Holders (as defined below), THE BANK OF NEW YORK
MELLON, as collateral agent for the Second Lien Note Holders (in
such capacity, the Second Lien Collateral Agent ), the Third
Lien Note Holders (as defined below), and THE BANK OF NEW YORK
MELLON, as collateral agent for the Third Lien Note Holders (in
such capacity, the Third Lien Collateral Agent ).
PRELIMINARY STATEMENT
Reference
is made to (a) the Purchase Agreement dated as of July 17, 2006
(the First Lien Purchase Agreement ), among Company, Parent,
the guarantors from time to time party thereto, the note holders
from time to time party thereto (the First Lien Note Holders
), and the First Lien Collateral Agent, (b) the Second Lien
Subordinated Note Purchase Agreement dated as of the date hereof
(the Second Lien Purchase Agreement ), among Company,
Parent, the guarantors from time to time party thereto, the note
holders from time to time party thereto (the Second Lien Note
Holders ), and the Second Lien Collateral Agent, (c) the Third
Lien Subordinated Exchange Note Exchange Agreement dated as of the
date hereof (the Third Lien Purchase Agreement and, together
with the First Lien Purchase Agreement and the Second Lien Purchase
Agreement, the Purchase Agreements ), among Parent, Company,
the guarantors party thereto from time to time, the note holders
from time to time party thereto (the Third Lien Note Holders
), and the Third Lien Collateral Agent, (d) the Guaranty dated as
of July 17, 2006 (the First Lien Guaranty ), among the
subsidiaries of Company from time to time party thereto and the
First Lien Collateral Agent, (e) the Parent Guaranty dated as of
July 17, 2006, as amended by the Amendment to Parent Guaranty dated
as of the date hereof (the First Lien Parent Guaranty ),
among Parent and the First Lien Collateral Agent, (f) the Guaranty
dated as of the date hereof (the Second Lien Guaranty ),
among the subsidiaries of Company from time to time party thereto
and the Second Lien Collateral Agent, (g) the Parent Guaranty dated
as of the date hereof (the Second Lien Parent Guaranty ),
among Parent and the Second Lien Collateral Agent, (h) ) the
Guaranty dated as of the date hereof (the Third Lien
Guaranty ), among Company, the subsidiaries of Company from
time to time party thereto and the Third Lien Collateral Agent, (i)
the Pledge and Security Agreement dated as of July 17, 2006 (the
First Lien Security Agreement ), among Company, Parent, the
subsidiaries of Company from time to time party thereto and the
First Lien Collateral Agent, (j) the Second Lien Pledge and
Security Agreement dated as of the date hereof (the Second Lien
Security Agreement ), among Company, Parent, the subsidiaries
of Company from time to time party thereto and the Second Lien
Collateral Agent, (k) the Third Lien Pledge and Security Agreement
dated as of the date hereof (the Third Lien Security
Agreement ), among Parent, Company, the subsidiaries of Company
from time to time party thereto and the Third Lien Collateral
Agent, and (l) the other Collateral Documents referred to in the
Purchase Agreements.
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RECITALS
A.
The First Lien Note Holders purchased notes of Company pursuant to
the First Lien Purchase Agreement, upon, among other terms and
conditions, the condition that the First Lien Obligations (such
term and each other capitalized term used but not defined in 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 Note Holders have agreed to purchase notes of
Company pursuant to the Second Lien Purchase Agreement, upon, among
other terms and conditions, the condition that the Second Lien
Obligations shall be secured by second priority Liens on, and
security interests in, the Collateral.
C.
The Third Lien Note Holders have agreed to exchange certain
preferred stock of Parent for notes of Parent pursuant to the Third
Lien Purchase Agreement, upon, among other terms and conditions,
the condition that the Third Lien Obligations shall be secured by
third priority Liens on, and security interests in, the
Collateral.
C.
The Purchase 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 Purchase Agreement, the Second
Lien Purchase Agreement and the Third Lien Purchase 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.
BONY shall mean The Bank of New York Mellon.
Collateral shall mean, collectively, the First Lien
Collateral, the Second Lien Collateral and the Third Lien
Collateral.
Collateral Agents shall mean the First Lien Collateral
Agent, the Second Lien
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Collateral Agent and the Third
Lien Collateral Agent.
Collateral Documents shall mean the First Lien Collateral
Documents, the Second Lien Collateral Documents and the Third Lien
Collateral Documents.
Company shall have the meaning assigned to such term in the
preamble to this Agreement.
Comparable Second Lien Collateral Document shall mean, in
relation to any Collateral subject to any Lien created under any
First Lien Collateral Document, the Second Lien Collateral Document
that creates a Lien on the same Collateral, granted by the same
Grantor.
Comparable Third Lien Collateral Document shall mean, in
relation to any Collateral subject to any Lien created under any
First Lien Collateral Document or under any Second Lien Collateral
Document, the Third Lien Collateral Document that creates a Lien on
the same Collateral, granted by the same Grantor.
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
Section 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 Note Documents and (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. Upon the satisfaction of the conditions set
forth in clauses (a) and (b), the First Lien Collateral Agent
agrees to promptly deliver to the Second Lien Collateral Agent and
the Third Lien Collateral Agent written notice of the same when and
as delivered to it by the First Lien Required Holders.
Discharge of Second 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 Second Lien Note Documents, (b) payment in
full of all other Second Lien Obligations that are due and payable
or otherwise accrued and owing at or prior to the time such
principal and interest are paid, and (c) termination or expiration
of all commitments to purchase notes under the Second Lien Purchase
Agreement. Upon the satisfaction of the conditions set forth in
clauses (a) through (c), the Second Lien Collateral Agent agrees to
promptly deliver to the Third Lien Collateral Agent written notice
of the same when and as delivered to it by the Second Lien Required
Holders.
Disposition shall mean any sale, lease, exchange, transfer
or other disposition. Dispose shall have a correlative
meaning.
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First Lien Collateral shall mean all Collateral, as defined
in the First Lien Security Agreement, and any other assets of
Parent, Company or any other 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 Collateral Documents shall mean the Collateral
Documents, as defined in the First Lien Purchase 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 Lien Guaranty shall have the meaning assigned to such
term in the preliminary statement of this Agreement.
First Lien Note Documents shall mean the Note Documents, as
defined in the First Lien Purchase Agreement.
First Lien Note Holders shall have the meaning assigned to
such term in the preliminary statement of this
Agreement.
First Lien Parent Guaranty shall have the meaning assigned
to such term in the preliminary statement of this
Agreement.
First Lien Purchase Agreement shall have the meaning
assigned to such term in the preliminary statement of this
Agreement.
First Lien Obligations shall mean the Secured Obligations,
as defined in the First Lien Security Agreement.
First Lien Release shall have the meaning assigned to such
term in Section 3.04(a) .
First Lien Required Holders shall mean the Required Holders,
as defined in the First Lien Purchase Agreement.
First Lien Secured Parties shall mean, at any time, (a) the
First Lien Note Holders, (b) the First Lien Collateral Agent, (c)
each other person to whom any of the First Lien Obligations
(including indemnification obligations) is owed, and (d) the
successors and assigns of each of the foregoing.
First Lien Security Agreement shall have the meaning
assigned to such term in the preliminary statement of this
Agreement; provided that First Lien Security Agreement shall
not include any security agreement or other Collateral Documents
entered into in connection with any extension, replacement or
refinancing of the First Lien Obligations, including without
limitation any amendment that would extend the maturity date of any
First Lien Obligations.
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First Priority Liens shall mean all Liens on the First Lien
Collateral to secure the First Lien Obligations, whether created
under the First Lien Collateral Documents or acquired by
possession, statute, operation of law, subrogation or
otherwise.
Governing Body means the board of directors or other body
having the power to direct or cause the direction of the management
and policies of a person that is a corporation, partnership, trust
or limited liability company.
Grantors shall mean Company, Parent and each Guarantor that
shall have created or purported to create any First Priority Lien,
Second Priority Lien or Third Priority Lien on all or any part of
its assets to secure any First Lien Obligations, any Second Lien
Obligations or any Third Lien Obligations, respectively.
Guarantors shall mean, collectively, each Subsidiary of
Company that has guaranteed, or that may from time to time
hereafter guarantee, the First Lien Obligations, the Second Lien
Obligations or the Third Lien Obligations, whether by executing and
delivering a Guaranty, a supplement thereto or
otherwise.
Guaranties shall mean, collectively, each of the First Lien
Guaranty, the First Lien Parent Guaranty, the Second Lien Guaranty,
the Second Lien Parent Guaranty, and the Third Lien
Guaranty.
Indebtedness shall mean and includes all obligations that
constitute Indebtedness, as defined in the First Lien Purchase
Agreement, the Second Lien Purchase Agreement or the Third Lien
Purchase 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 winding-up or liquidation
of any Grantor, or (d) a general assignment for the benefit of
creditors by any Grantor.
Junior Securities means:
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(a) debt
securities of Parent, Company or the Subsidiaries as reorganized or
readjusted, or debt securities of Parent, Company or the
Subsidiaries or any other person provided for by a plan of
reorganization or readjustment authorized by an order or decree of
a court of competent jurisdiction in an Insolvency or Liquidation
Proceeding under any applicable law, so long as such securities (i)
are subordinated in right of payment to (A) prior to the Discharge
of First Lien Obligations, all First Lien Obligations, (B) prior to
the Discharge of Second Lien Obligations, in the case of the
securities issued to the Third Lien Note Holders, all Second Lien
Obligations and (C) all debt securities issued in exchange for (1)
prior to the Discharge of First Lien Obligations, the First Lien
Obligations and (2) prior to the Discharge of Second Lien
Obligations, in the case of debt securities issued to the Third
Lien Note Holders, all Second Lien Obligations outstanding at such
time to the same extent as, or to a greater extent than, the Third
Lien Obligations and, prior to the Discharge of First Lien
Obligations, the Second
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Lien Obligations, are so
subordinated as provided for in this Agreement and (ii) have
material terms that are no less favorable (taken as a whole) to (A)
prior to the Discharge of First Lien Obligations, the First Lien
Obligations and (B) prior to the Discharge of Second Lien
Obligations, with respect to securities issued to the Third Lien
Note Holders, all Second Lien Obligations, in each case, than the
terms set forth in the applicable Loan Documents; or
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(b) equity
securities of Parent, Company or the Subsidiaries as reorganized or
readjusted, or equity securities of Parent, Company or the
Subsidiaries or any other person provided for by a plan of
reorganization or readjustment authorized by an order or decree of
a court of competent jurisdiction in an Insolvency or Liquidation
Proceeding under any applicable law, so long as (x) (i) the First
Lien Note Holders receive (A) debt securities and equity securities
(and such equity securities are senior to the equity securities
received by the Second Lien Note Holders, (B) solely equity
securities, and such equity securities are senior to the equity
securities received by the Second Lien Note Holders, or (C) solely
debt securities and (ii) the equity securities received by the
Second Lien Note Holders, if any, do not contain a mandatory
redemption date (or require dividends to be paid on a date) that is
earlier than the mandatory redemption date or final maturity date
of the securities received by the First Lien Note Holders and (y)
(i) the Second Lien Note Holders receive (A) debt securities and
equity securities (and such equity securities are senior to the
equity securities received by the Third Lien Note Holders, (B)
solely equity securities, and such equity securities are senior to
the equity securities received by the Third Lien Note Holders, or
(C) solely debt securities and (ii) the equity securities received
by the Third Lien Note Holders, if any, do not contain a mandatory
redemption date (or require dividends to be paid on a date) that is
earlier than the mandatory redemption date or final maturity date
of the securities received by the Second Lien Note
Holders.
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Lien means any lien, mortgage, pledge, assignment (only for
the purposes of creating a security interest), security interest,
charge or encumbrance of any kind (including any conditional sale
or other title retention agreement, any lease in the nature
thereof, and any agreement to give any security interest) and any
option, trust or other preferential arrangement having the
practical effect of any of the foregoing.
New First Lien Collateral Agent shall have the meaning
assigned to such term in Section 7.02 .
New First Lien Note 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 .
New Second Lien Collateral Agent shall have the meaning
assigned to such term in Section 7.02 .
New Second Lien Note Documents shall have the meaning
assigned to such
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term in Section 7.02
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New Second Lien Obligations shall have the meaning assigned
to such term in Section 7.02 .
New Third Lien Collateral Agent shall have the meaning
assigned to such term in Section 7.02 .
New Third Lien Note Documents shall have the meaning
assigned to such term in Section 7.02 .
New Third Lien Obligations shall have the meaning assigned
to such term in Section 7.02 .
Note Documents shall mean the First Lien Note Documents, the
Second Lien Note Documents and the Third Lien Note
Documents.
Note Holders shall mean, collectively, the First Lien Note
Holders, the Second Lien Note Holders, and the Third Lien Note
Holders.
Pledged or Controlled Collateral shall have the meaning
assigned to such term in Article V .
Purchase Agreements shall have the meaning assigned to such
term in the preliminary statement of this Agreement.
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.
Second Lien Collateral shall mean all Collateral, as defined
in the Second Lien Security Agreement, and any other assets of
Parent, Company or any other 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 Collateral Documents shall mean the Collateral
Documents, as defined in the Second Lien Purchase Agreement, and
any other agreement, document or instrument pursuant to which a
Lien is granted to secure any Second Lien Obligations or under
which rights or remedies with respect to any such Lien are
governed.
Second Lien Guaranty shall have the meaning assigned to such
term in the preliminary statement of this Agreement.
Second Lien Mortgages shall mean, collectively, each
mortgage, deed of trust, leasehold mortgage, assignment of leases
and rents, modifications and any other agreement,
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document or instrument pursuant
to which any Lien on real property is granted to secure any Second
Lien Obligations or under which rights or remedies with respect to
any such Lien are governed.
Second Lien Note Documents shall mean the Note Documents, as
defined in the Second Lien Purchase Agreement.
Second Lien Note Holders shall have the meaning assigned to
such term in the preliminary statement of this
Agreement.
Second Lien Obligations shall mean the Secured Obligations,
as defined in the Second Lien Security Agreement.
Second Lien Parent Guaranty shall have the meaning assigned
to such term in the preliminary statement of this
Agreement.
Second Lien Permitted Actions shall have the meaning
assigned to such term in Section 3.01(a) .
Second Lien Purchase Agreement shall have the meaning
assigned to such term in the preliminary statement of this
Agreement.
Second Lien Refinancing Notice shall have the meaning
assigned to such term in Section 7.02 .
Second Lien Release shall have the meaning assigned to such
term in Section 3.04(b) .
Second Lien Required Holders shall mean the Required
Holders, as defined in the Second Lien Purchase
Agreement.
Second Lien Secured Parties shall mean, at any time, (a) the
Second Lien Note Holders, (b) the Second Lien Collateral Agent, (c)
each other person to whom any of the Second Lien Obligations
(including indemnification obligations) is owed and (d) the
successors and assigns of each of the foregoing.
Second Lien Security Agreement shall have the meaning
assigned to such term in the preliminary statement of this
Agreement.
Second Priority Liens shall mean all Liens on the Second
Lien Collateral to secure the Second Lien Obligations, whether
created under the Second Lien Collateral Documents or acquired by
possession, statute, operation of law, subrogation or
otherwise.
Secured Parties shall mean the First Lien Secured Parties,
the Second Lien Secured Parties and the Third Lien Secured
Parties.
Standstill Period shall have the meaning assigned to such
term in Section 3.02(a) ,
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subsidiary, with respect to any person, means any
corporation, partnership, trust, limited liability company,
association, joint venture or other business entity of which more
than 50% of the total voting power of shares of stock or other
ownership interests entitled (without regard to the occurrence of
any contingency) to vote in the election of the members of the
Governing Body is at the time owned or controlled, directly or
indirectly, by that person or one or more of the other subsidiaries
of that person or a combination thereof.
Subsidiary shall mean any subsidiary of Company.
Third Lien Collateral shall mean all Collateral, as defined
in the Third Lien Security Agreement, and any other assets of
Parent, Company or any other Grantor now or at any time hereafter
subject to Liens securing any Third Lien Obligations.
Third Lien Collateral Agent shall have the meaning assigned
to such term in the preamble to this Agreement.
Third Lien Collateral Documents shall mean the Collateral
Documents, as defined in the Third Lien Purchase Agreement, and any
other agreement, document or instrument pursuant to which a Lien is
granted to secure any Third Lien Obligations or under which rights
or remedies with respect to any such Lien are governed.
Third Lien Guaranty shall have the meaning assigned to such
term in the preliminary statement of this Agreement.
Third Lien Obligations shall mean the Secured Obligations,
as defined in the Third Lien Security Agreement.
Third Lien Mortgages shall mean, collectively, each
mortgage, deed of trust, leasehold mortgage, assignment of leases
and rents, modifications and any other agreement, document or
instrument pursuant to which any Lien on real property is granted
to secure any Third Lien Obligations or under which rights or
remedies with respect to any such Lien are governed.
Third Lien Note Documents shall mean the Note Documents, as
defined in the Third Lien Purchase Agreement.
Third Lien Note Holders shall have the meaning assigned to
such term in the preliminary statement of this
Agreement.
Third Lien Permitted Actions shall have the meaning assigned
to such term in Section 3.01(a) .
Third Lien Purchase Agreement shall have the meaning
assigned to such term in the preliminary statement of this
Agreement.
Third Lien Required Holders shall mean the Required Holders,
as defined in the Third Lien Purchase Agreement.
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Third Lien Secured Parties shall mean, at any time, (a) the
Third Lien Note Holders, (b) the Third Lien Collateral Agent, (c)
each other person to whom any of the Third Lien Obligations
(including indemnification obligations) is owed and (d) the
successors and assigns of each of the foregoing.
Third Lien Security Agreement shall have the meaning
assigned to such term in the preliminary statement of this
Agreement.
Third Priority Liens shall mean all Liens on the Third Lien
Collateral to secure the Third Lien Obligations, whether created
under the Third Lien Collateral Documents or acquired by
possession, statute, operation of law, subrogation or
otherwise.
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, refinanced or otherwise modified, (b) any reference
herein (i) to any person shall be construed to include such persons
successors and assigns and (ii) to Parent, Company or any other
Grantor shall be construed to include Parent, Company or such
Grantor as debtor and debtor-in-possession and any receiver or
trustee for Parent, Company or such 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
Priorities
SECTION 2.01 Subordination in Right of Payment and Subordination
of Liens .
(a) To
the extent and in the manner set forth in this Agreement, the
Second Lien Obligations and the Third Lien Obligations are hereby
expressly made subordinate and subject in right of payment to the
prior payment of all First Lien Obligations as set forth in this
Agreement. Until the earlier of the Discharge of First Lien
Obligations or the consent of the First Lien Note Holders, (i)
neither the Second Lien Note
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Holders nor the Third Lien Note
Holders will take, demand or receive from Parent, Company or any
Subsidiary, and none of Parent, Company or any Subsidiary will
make, give or permit, directly or indirectly, by set off,
redemption, purchase or in any other manner, any payment of (of
whatever kind or nature, whether in cash, property, securities or
otherwise) or security for the whole or any part of the Second Lien
Obligations or the Third Lien Obligations, and (ii) neither the
Second Lien Note Holders nor the Third Lien Note Holders will
accelerate for any reason the scheduled maturities of any amount
owing under the Second Lien Purchase Agreement or the Third Lien
Purchase Agreement, except in either case as otherwise permitted
herein. In the event of any Insolvency or Liquidation Proceeding
the First Lien Note Holders shall be entitled to receive payment in
full in cash of all amounts due in respect of all First Lien
Obligations before the Second Lien Note Holders or the Third Lien
Note Holders are entitled to receive any payment (other than Junior
Securities) on account of the Second Lien Obligations or the Third
Lien Obligations, and to that end the First Lien Note Holders shall
be entitled to receive, for application to the payment of the First
Lien Obligations, any payment or distribution of any kind or
character (including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other
Indebtedness of Parent, Company or Guarantors that is subordinated
to the payment of the First Lien Obligations) other than Junior
Securities, which may be payable or deliverable in respect of the
Second Lien Obligations or the Third Lien Obligations in any such
Insolvency or Liquidation Proceeding, to the extent necessary to
pay or provide for the payment of all First Lien Obligations in
full in cash, after giving effect to any concurrent payment or
distribution to or for the First Lien Note Holders.
(b) To
the extent and in the manner set forth in this Agreement, the Third
Lien Obligations are hereby expressly made subordinate and subject
in right of payment to the prior payment of all Second Lien
Obligations as set forth in this Agreement. Until the earlier of
the Discharge of Second Lien Obligations or the consent of the
Second Lien Note Holders, (i) the Third Lien Note Holders will not
take, demand or receive from Parent, Company or any Subsidiary, and
none of Parent, Company or any Subsidiary will make, give or
permit, directly or indirectly, by set off, redemption, purchase or
in any other manner, any payment of (of whatever kind or nature,
whether in cash, property, securities or otherwise) or security for
the whole or any part of the Third Lien Obligations, and (ii) the
Third Lien Note Holders will not accelerate for any reason the
scheduled maturities of any amount owing under the Third Lien
Purchase Agreement, except as otherwise permitted herein. In the
event of any Insolvency or Liquidation Proceeding the Second Lien
Note Holders shall be entitled to receive payment in full in cash
of all amounts due in respect of all Second Lien Obligations before
the Third Lien Note Holders are entitled to receive any payment
(other than Junior Securities) on account of the Third Lien
Obligations, and to that end the Second Lien Note Holders shall be
entitled to receive, for application to the payment of the Second
Lien Obligations, any payment or distribution of any kind or
character (including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other
Indebtedness of Parent, Company or Guarantors that is subordinated
to the payment of the Second Lien Obligations) other than Junior
Securities, which may be payable or deliverable in respect of the
Third Lien Obligations in any such Insolvency or Liquidation
Proceeding, to the extent necessary to pay or provide for the
payment of all Second Lien Obligations in full in cash, after
giving effect to any concurrent payment or distribution to or for
the Second Lien Note Holders.
11
(c) Notwithstanding
the date, manner or order of grant, attachment or perfection of any
First Priority Lien, any Second Priority Lien or any Third Priority
Lien, and notwithstanding any provision of the UCC or any other
applicable law or the provisions of any Collateral Document or any
other Note Document or any other circumstance whatsoever, (a) each
of the Second Lien Collateral Agent, for itself and on behalf of
the other Second Lien Secured Parties, and the Third Lien
Collateral Agent, for itself and on behalf of the other Third Lien
Secured Parties, hereby agrees, as applicable, that, so long as the
Discharge of First Lien Obligations has not occurred, (i) any First
Priority Lien now or hereafter held 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 Third Priority Liens, and (ii) any Second
Priority Lien now or hereafter held by or for the benefit of any
Second Lien Secured Party, or any Third Priority Lien now or
hereafter held by or for the benefit of any Third Lien Secured
Party shall be junior and subordinate in right, priority,
operation, effect and all other respects to any and all First
Priority Liens and (b) the Third Lien Collateral Agent, for itself
and on behalf of the other Third Lien Secured Parties, hereby
agrees that, so long as the Discharge of Second Lien Obligations
has not occurred, (i) any Second Priority Lien now or hereafter
held by or for the benefit of any Second Lien Secured Party shall
be senior in right, priority, operation, effect and all other
respects to any and all Third Priority Liens, and (ii) any Third
Priority Lien now or hereafter held by or for the benefit of any
Third Lien Secured Party shall be junior and subordinate in right,
priority, operation, effect and all other respects to any and all
Second Priority Liens. So long as the Discharge of First Lien
Obligations has not occurred, the First Priority Liens shall be and
remain senior in right, priority, operation, effect and all other
respects to any Second Priority Liens or Third 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 Parent, Company, any other Grantor or any other
person. So long as the Discharge of Second Lien Obligations has not
occurred, the Second Priority Liens shall be and remain senior in
right, priority, operation, effect and all other respects to any
Third Priority Liens for all purposes, whether or not any Second
Priority Liens are subordinated in any respect to any other Lien
securing any other obligation of Parent, Company, 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, the Second Lien Collateral Agent, for
itself and on behalf of the other Second Lien Secured Parties, and
the Third Lien Collateral Agent, for itself and on behalf of the
other Third 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 First Priority Lien, Second Priority Lien or any Third
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, or the Second Lien Collateral Agent or any other Second Lien
Secured Party or the Third Lien Collateral Agent or any other Third
Lien Secured Party to enforce this Agreement.
SECTION 2.03 No New Liens . The parties hereto agree that
none of the Grantors shall, or shall permit any of its subsidiaries
to, (a) so long as the Discharge of First Lien Obligations has not
occurred, (i) grant or permit any additional Liens on any asset to
secure any
12
Second Lien Obligations unless it
has granted, or concurrently therewith grants, a Lien on such asset
to secure the First Lien Obligations and the Third Lien
Obligations, (ii) grant or permit any additional Liens on any asset
to secure any Third Lien Obligations unless it has granted, or
concurrently therewith grants, a Lien on such asset to secure the
First Lien Obligations and the Second Lien Obligations, or (iii)
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 and the Third Lien Obligations, and (b) after the
Discharge of First Lien Obligations has occurred and so long as the
Discharge of Second Lien Obligations has not occurred, (i) grant or
permit any additional Liens on any asset to secure any Third Lien
Obligations unless it has granted, or concurrently therewith
grants, a Lien on such asset to secure the Second Lien Obligations,
(ii) grant or permit any additional Liens on any asset to secure
any Second Lien Obligations unless it has granted, or concurrently
therewith grants, a Lien on such asset to secure the Third Lien
Obligations, in each case, 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, or the Second Lien Collateral Agent or the other Second
Lien Secured Parties, each of the Second Lien Collateral Agent, for
itself and on behalf of the other Second Lien Secured Parties, and
the Third Lien Collateral Agent, for itself and on behalf of the
other Third Lien Secured Parties, agrees (i) that any amounts
received by or distributed to any Second Lien Secured Party or
Third Lien Secured Party, as applicable, pursuant to or as a result
of any Lien granted in contravention of this Section shall be
subject to Section 4.02 , (ii) if the Second Lien Collateral
Agent or any Second Lien Secured Party acquires any Lien on any
assets of Parent, Company or any other Grantor which assets are not
also subject to the Lien of the First Lien Collateral Agent under
the First Lien Collateral Documents and/or the Lien of the Third
Lien Collateral Agent under the Third Lien Collateral Documents,
then without the need for any further action or consent of any
other Person, the Second Lien Collateral Agent shall be deemed to
hold and have held such Lien for the benefit of the First Lien
Collateral Agent as security of the First Lien Obligations and for
the benefit of the Third Lien Collateral Agent as security for the
Third Lien Obligations, in each case subject to the lien
subordination provisions set forth in this Agreement and (iii) if
the Third Lien Collateral Agent or any Third Lien Secured Party
acquires any Lien on any assets of Parent, Company or any Grantor
which assets are not also subject to the Lien of the First Lien
Collateral Agent under the First Lien Collateral Documents and/or
the Lien of the Second Lien Collateral Agent under the Second Lien
Collateral Documents, then without the need for any further action
or consent of any other Person, the Third Lien Collateral Agent
shall be deemed to hold and have held such Lien for the benefit of
the First Lien Collateral Agent as security of the First Lien
Obligations and for the benefit of the Second Lien Collateral Agent
as security for the Second Lien Obligations, in each case subject
to the lien subordination provisions set forth in this
Agreement.
SECTION 2.04 Similar Liens and Agreements . The parties
hereto acknowledge and agree that it is their intention that the
First Lien Collateral, the Second Lien Collateral and the Third
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, the Second Lien
Collateral Agent or the Third Lien
13
Collateral Agent, the specific
assets included in the First Lien Collateral, the Second Lien
Collateral and the Third Lien Collateral, the steps taken to
perfect the First Priority Liens, the Second Priority Liens and the
Third Priority Liens thereon and the identity of the respective
parties obligated under the First Lien Note Documents, the Second
Lien Note Documents and the Third Lien Note Documents;
and
(b) that
(i) the documents, agreements and instruments creating or
evidencing the First Lien Collateral and the First Priority Liens
shall be in all material respects in the same form as the
documents, agreements and instruments creating or evidencing the
Second Lien Collateral and the Second Priority Liens and (ii) 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 Third Lien Collateral
and the Third Priority Liens, in each case, other than with respect
to the first priority, second priority and third priority nature of
the Liens created or evidenced thereunder, the obligations secured
thereby, 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, or the Third Lien Collateral Agent or any other
Third Lien Secured Party; provided that, notwithstanding the
foregoing, (i) in any Insolvency or Liquidation Proceeding, (A) the
Second Lien Collateral Agent may file a proof of claim or statement
of interest with respect to the Second Lien Obligations and the
Second Lien Secured Parties may vote such claims to the extent not
inconsistent with the terms of this Agreement and (B) the Third
Lien Collateral Agent may file a proof of claim or statement of
interest with respect to the Third Lien Obligations and the Third
Lien Secured Parties may vote such claims to the extent not
inconsistent with the terms of this Agreement; (ii) each of the
Second Lien Collateral Agent and Third Lien Collateral Agent may
take any action to perfect, preserve or protect the validity and
enforceability of the Second Priority Liens and Third Priority
Liens, respectively, 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
and Third Priority Liens provided in Section 3.04 ; (iii)
the Second Lien Secured Parties and Third Lien Secured Parties may
file any necessary 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 or Third Lien Secured
Parties,
14
respectively, including any
claims secured by the Collateral or otherwise make any agreements
or file any motions pertaining to the Second Lien Obligations and
Third Lien Secured Parties, respectively, in each case, to the
extent not inconsistent with the terms of this Agreement; (iv) each
of the Second Lien Collateral Agent, any Second Lien Secured Party,
the Third Lien Collateral Agent and any Third Lien Secured Party
may vote on a plan of reorganization; (v) each of the Second Lien
Note Holders and the Third Lien Note Holders may accelerate the
Second Lien Obligations and the Third Lien Obligations pursuant to
the terms of the Second Lien Note Documents and the Third Lien Note
Documents, respectively; and (vi) 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 of the Second Lien Secured
Parties described in this proviso being referred to herein as the
Second Lien Permitted Actions and the actions of the Third
Lien Secured Parties described in this proviso being referred to
herein as the Primary Third Lien Permitted Actions
).
After
the Discharge of First Lien Obligations and so long as the
Discharge of Second Lien Obligations has not occurred, whether or
not any Insolvency or Liquidation Proceeding has been commenced,
the Second Lien Collateral Agent and the other Second 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 Third Lien Collateral Agent or any other Third Lien
Secured Party; provided that, notwithstanding the foregoing,
(i) in any Insolvency or Liquidation Proceeding, the Third Lien
Collateral Agent may file a proof of claim or statement of interest
with respect to the Third Lien Obligations and the Third Lien
Secured Parties may vote such claims to the extent not inconsistent
with the terms of this Agreement; (ii) the Third Lien Collateral
Agent may take any action to perfect, preserve or protect the
validity and enforceability of the Third Priority Liens,
provided that no such action is, or could reasonably be
expected to be, (A) adverse to the Second Priority Liens or the
rights of the Second Lien Collateral Agent or any other Second Lien
Secured Party to exercise remedies in respect thereof or (B)
otherwise inconsistent with the terms of this Agreement, including
the automatic release of Third Priority Liens provided in
Section 3.04 ; (iii) the Third Lien Secured Parties may file
any necessary 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 Third Lien Secured Parties, including any claims
secured by the Collateral or otherwise make any agreements or file
any motions pertaining to the Third Lien Secured Parties, in each
case, to the extent not inconsistent with the terms of this
Agreement; (iv) each of the Third Lien Collateral Agent and any
Third Lien Secured Party may vote on a plan of reorganization; and
(v) the Third Lien Note Holders may accelerate the Third Lien
Obligations pursuant to the terms of the Third Lien Note Documents
(the actions described in this proviso being referred to herein as
the Secondary Third Lien Permitted Actions and, together
with the Primary Third Lien Permitted Actions, the Third Lien
Permitted Actions ).
Except
for the Second Lien Permitted Actions, unless and until the
Discharge of First Lien Obligations has occurred, the sole right of
the Second Lien Collateral Agent and the
15
other Second Lien Secured Parties
with respect to the Collateral shall be to receive a share of the
proceeds of the Collateral, if any, after the Discharge of First
Lien Obligations has occurred and in accordance with the Second
Lien Note Documents and applicable law.
Except
for the Third Lien Permitted Actions, unless and until the
Discharge of First Lien Obligations and the Discharge of Second
Lien Obligations has occurred, the sole right of the Third Lien
Collateral Agent and the other Third Lien Secured Parties with
respect to the Collateral shall be to receive a share of the
proceeds of the Collateral, if any, after the Discharge of First
Lien Obligations and the Discharge of Second Lien Obligations has
occurred and in accordance with the Third Lien Note Documents and
applicable law.
(b) Subject
to the limitations set forth herein, including Section
3.01(a) above, 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 Note 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 and the Third Lien Collateral Agent of
its intention to foreclose upon or Dispose of any
Collateral.
(c) Subject
to the limitations set forth herein, including Section
3.01(a) above, in exercising rights and remedies with respect
to the Collateral in accordance with this Agreement, the Second
Lien Collateral Agent and the other Second Lien Secured Parties may
enforce the provisions of the Second Lien Note 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 Second
Lien Collateral Agent agrees to provide at least five days prior
written notice to the Third Lien Collateral Agent of its intention
to foreclose upon or Dispose of any Collateral.
(d) 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
Collateral Document or any other Second Lien Note 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 Note Documents.
(e) The
Third Lien Collateral Agent, for itself and on behalf of the other
Third Lien Secured Parties, hereby acknowledges and agrees that no
covenant, agreement or restriction contained in any Third Lien
Collateral Document or any other Third Lien Note 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, or
the Second Lien Collateral Agent or the other Second
Lien
16
Secured Parties with respect to
the Collateral as set forth in this Agreement, the First Lien Note
Documents and the Second Lien Note Documents.
(f) Notwithstanding
anything in this Agreement to the contrary, following the
acceleration of the Indebtedness then outstanding under the First
Lien Purchase Agreement (prompt notice of which shall be given by
the First Lien Collateral Agent to the Second Lien Collateral Agent
and the Third Lien Collateral Agent), the Second Lien Secured
Parties may, at their sole expense and effort, upon notice to
Company 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 applicable premiums
plus all accrued and unpaid fees plus all the other First Lien
Obligations then outstanding. In order to effectuate the foregoing,
the First Lien Collateral Agent shall calculate, upon the written
request of the Second Lien Collateral Agent from time to time, the
amount in cash that would be necessary 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)
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 remedies (including any right of setoff and
the enforcement of any right under any account control agreement,
landlord waiver or bailees 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
and the Third Lien Collateral Agent written notice of the
acceleration of the Indebtedness then outstanding under the Second
Lien Purchase Agreement (the Standstill Period );
provided further , however , that
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, in
good faith and in accordance with applicable law, the enforcement
or exercise of any rights or remedies with respect to all or a
material
17
portion of the Collateral or any
such action or proceeding (prompt written notice thereof to be
given to the Second Lien Collateral Agent and the Third Lien
Collateral Agent by the First Lien Collateral Agent);
(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 Note 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 Second Lien Secured Parties rights under clause (i) above,
will not object to the forbearance by the First Lien Collateral
Agent or any other First Lien Secured Parties 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 so long as Second Priority Liens attach to the
proceeds thereof subject to the relative priorities set forth in
Section 2.01 ;
(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 Collateral or
any condemnation award (or deed in lieu of condemnation) relating
to 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 Note 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, so long as
Second Priority Liens attach to the proceeds thereof subject to the
relative priorities set forth in Section 2.01 ;
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
Collateral Document, including this Agreement, or the validity or
enforceability of the priorities, rights or obligations established
by this Agreement.
18
(b) The
Third Lien Collateral Agent, for itself and on behalf of the other
Third Lien Secured Parties, agrees that, whether or not any
Insolvency or Liquidation Proceeding has been commenced, the Third
Lien Secured Parties:
(i) will
not, so long as the Discharge of First Lien Obligations and the
Discharge of Second Lien Obligations has not occurred, (A) enforce
or exercise, or seek to enforce or exercise, any rights or remedies
(including any right of setoff and the enforcement of any right
under any account control agreement, landlord waiver or bailees
letter or any similar agreement or arrangement to which the Third
Lien Collateral Agent or any other Third Lien Secured Party is a
party) or (B) commence or join with any person (other than the
First Lien Collateral Agent or, after the Discharge of First Lien
Obligations has occurred, the Second 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);
(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, Second Lien Collateral Agent or any other
Second Lien Secured Party, or any other enforcement or exercise by
any First Lien Secured Party or Second Lien Secured Party of any
rights or remedies relating to the Collateral under the First Lien
Note Documents or Second Lien Note Documents, respectively, or
otherwise, so long as Third Priority Liens attach to the proceeds
thereof subject to the relative priorities set forth in Section
2.01 ;
(iii) will
not object to the forbearance by the First Lien Collateral Agent,
any other First Lien Secured Parties, Second Lien Collateral Agent
or any other Second Lien Secured Parties 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, so long as Third Priority Liens attach to the
proceeds thereof subject to the relative priorities set forth in
Section 2.01 ;
(iv) will
not, so long as the Discharge of First Lien Obligations and the
Discharge of Second Lien Obligations has not occurred and except
for the Third 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 Collateral or
any condemnation award (or deed in lieu of condemnation) relating
to Collateral;
(v) will
not, except for the Third 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 Note
Documents or Second Lien Note Documents, including any Disposition
of any Collateral, whether by foreclosure or otherwise;
(vi) will
not, except for the Third Lien Permitted Actions, object to the
manner in which (A) 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, or (B) the Second
Lien Collateral Agent or any other Second Lien Secured Party may
seek to enforce or collect the Second Lien Obligations or the
Second Priority Liens, in each case regardless of whether
any
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action or failure to act by or on
behalf of the First Lien Collateral Agent or any other First Lien
Secured Party, or Second Lien Collateral Agent or any other Second
Lien Secured Party is, or could be, adverse to the interests of the
Third 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, so long as Third Priority Liens attach to the
proceeds thereof subject to the relative priorities set forth in
Section 2.01 ; 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, any First Lien
Collateral Document, any Second Lien Obligation or any Second Lien
Collateral Document, including this Agreement, or the validity or
enforceability of the priorities, rights or obligations established
by this Agreement.
(c) Nothing
in this Agreement shall be construed to in any way limit or impair
the right of (i) any of the Second Lien Secured Parties or Third
Lien Secured Parties to bid for or purchase for cash the Collateral
at any private or judicial foreclosure upon such Collateral, (ii)
the Second Lien Collateral Agent, any Second Lien Secured Party,
the Third Lien Collateral Agent or any Third Lien Secured Party
from joining (but not controlling) any foreclosure or other
judicial lien proceeding with respect to the Collateral initiated
by the First Lien Collateral Agent or any First Lien Secured Party
(and to the extent permitted by the terms of this Agreement, the
Second Lien Collateral Agent or any Second Lien Secured Party) so
long as it does not delay or interfere in any material respect with
the exercise by the First Lien Collateral Agent or such First Lien
Secured Party (or to extent permitted by the terms of this
Agreement, the exercise by the Second Lien Collateral Agent or such
Second Lien Secured Party) of its rights as provided in this
Agreement, (iii) the Second Lien Collateral Agents and the Second
Lien Note Holders rights to receive any remaining proceeds of the
Collateral after the Discharge of First Lien Obligations and (iv)
the Third Lien Collateral Agents and the Third Lien Note Holders
rights to receive any remaining proceeds of the Collateral after
the Discharge of Second Lien Obligations.
SECTION 3.03 Intentionally Omitted.
SECTION 3.04 Automatic Release of Second Priority Liens and
Third Priority Liens . (a) If, in connection with (i) any
Disposition of any Collateral permitted under the terms of the
First Lien Note Documents (including following any waiver granted
to permit such Disposition) or (ii) the enforcement or exercise of
any rights or remedies with respect to the Collateral, including
any Disposition of Collateral, the First Lien Collateral Agent, for
itself and on behalf of the other First Lien Secured Parties, (x)
releases any of the First Priority Liens, or (y) releases Parent or
any Guarantor from its obligations under its guarantee of the First
Lien Obligations (in each case, a First Lien Release ),
other than any such First Lien Release granted in connection with
the Discharge of First Lien Obligations then, subject to Section
3.04(c) , the Second Priority Liens and Third Priority Liens on
such Collateral, and the obligations of Parent or such Guarantor
under its guarantee of the Second Lien Obligations and the
obligations of such Guarantor under its guarantee of the Third Lien
Obligations, shall be automatically, unconditionally and
simultaneously released, and each of the Second Lien
20
Collateral Agent, for itself and
on behalf of the other Second Lien Secured Parties, and the Third
Lien Collateral Agent, for itself and on behalf of the other Third
Lien Secured Parties, shall promptly execute and deliver to the
First Lien Collateral Agent, the relevant Grantor, such Guarantor
or Parent, as the case may be, such termination statements,
releases and other documents as the First Lien Collateral Agent or
the relevant Grantor, Guarantor or Parent, as the case may be, may
reasonably request to effectively confirm such First Lien Release;
provided that, in the case of a Disposition of Collateral
(other than any such Disposition in connection with the enforcement
or exercise of any rights or remedies with respect to the
Collateral), the Second Priority Liens and Third Priority Liens
shall not be so released if such Disposition is prohibited under
the terms of the Second Lien Purchase Agreement and the Third Lien
Purchase Agreement, respectively.
(b) After
the Discharge of First Lien Obligations has occurred, if, in
connection with (i) any Disposition of any Collateral permitted
under the terms of the Second Lien Note Documents (including
following any waiver granted to permit such Disposition) or (ii)
the enforcement or exercise of any rights or remedies with respect
to the Collateral, including any Disposition of Collateral, the
Second Lien Collateral Agent, for itself and on behalf of the other
Second Lien Secured Parties, (x) releases any of the Second
Priority Liens, or (y) releases any Guarantor from its obligations
under its guarantee of the Second Lien Obligations (in each case, a
Second Lien Release ), other than any such Second Lien
Release granted in connection with the Discharge of Second Lien
Obligations then, subject to Section 3.04(d) , the Third
Priority Liens on such Collateral, and the obligations of such
Guarantor under its guarantee of the Third Lien Obligations, shall
be automatically, unconditionally and simultaneously released,
an
