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Exhibit 4.11
INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT, dated as of September 9, 2004, among ING
CAPITAL
LLC ("ING"), as Intercreditor Agent, THE BANK OF NEW YORK TRUST
COMPANY, N.A.,
as Trustee, SECURUS TECHNOLOGIES INC., a Delaware corporation (the
"COMPANY")
and each Subsidiary of the Company listed on Schedule I hereto.
A. The Company and the Company's Subsidiaries (such term and
each
other capitalized term used herein having the meanings set forth in
Section 1
below) have entered into a Credit Agreement dated as of September
9, 2004 (as
further amended, restated, refinanced, replaced, supplemented or
otherwise
modified from time to time, the "CREDIT AGREEMENT") with, among
others, ING, as
administrative agent for the lenders and certain lenders named
therein;
B. The Company and certain of the Company's Subsidiaries have
entered
into a Pledge Agreement dated as of September 9, 2004 (as further
amended,
restated, supplemented, replaced or otherwise modified from time to
time, the
"PLEDGE AGREEMENT") with, among others, ING, as administrative
agent for the
lenders and certain lenders named therein;
C. The Company and the Company's Subsidiaries have entered into
a
Security Agreement dated as of September 9, 2004 (as further
amended, restated,
supplemented, replaced or otherwise modified from time to time, the
"SECURITY
AGREEMENT") with, among others, ING, as administrative agent for
the lenders and
certain lenders named therein;
D. The Obligations of the Company under the Credit Agreement
are
secured on a first-priority basis by all personal property and
certain real
property assets of the Company and certain of the Company's
Subsidiaries;
E. The Company, the Company's Subsidiaries and the Trustee have
entered into an Indenture dated as of September 9, 2004 (as
amended,
supplemented or otherwise modified from time to time, the
"INDENTURE"), pursuant
to which the Notes shall be governed;
F. The obligations of the Company and the Subsidiary Guarantors
under
the Indenture and the Notes are secured on a second-priority basis
by certain
personal property and certain real property assets of the Company
and certain of
the Company's Subsidiaries.
G. The Company, certain of the Company's subsidiaries, the Trustee
and
the Intercreditor Agent are entering into this Agreement to set
forth, among
other things, certain rights and priorities with respect to the
"Senior Lender
Collateral" and the "Noteholder Collateral" (each as defined
below);
Accordingly, in consideration of the foregoing, the mutual
covenants
and obligations herein set forth and for other good and valuable
consideration,
the sufficiency and receipt of which are hereby acknowledged, the
parties
hereto, intending to be legally bound, hereby agree as follows:
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SECTION 1. DEFINITIONS.
1.1 Defined Terms. As
used in this Agreement, the following terms
have the meanings specified below:
"AGREEMENT" shall mean this Agreement, as amended, renewed,
extended,
supplemented or otherwise modified from time to time in accordance
with the
terms hereof.
"BANKRUPTCY LAW" shall mean Title 11 of the United States Code and
any
similar Federal, state or foreign law for the relief of
debtors.
"BUSINESS DAY" shall mean any day other than a Saturday, a Sunday
or a
day that is a legal holiday under the laws of the State of New York
or the State
of Georgia or on which banking institutions in the State of New
York or the
State of Georgia are required or authorized by law or other
governmental action
to close.
"COMMON COLLATERAL" shall mean all of the assets of any
Grantor,
whether real, personal or mixed, constituting both Senior Lender
Collateral and
Noteholder Collateral.
"COMPANY" shall have the meaning set forth in the preamble.
"COMPARABLE NOTEHOLDER COLLATERAL DOCUMENT" shall mean, in relation
to
any Common Collateral subject to any Lien created under any Senior
Collateral
Document, that Noteholder Collateral Document that creates a Lien
on the same
Common Collateral, granted by the same Grantor.
"CREDIT AGREEMENT" shall have the meaning set forth in the
recitals.
"DEPOSIT ACCOUNT" shall have the meaning set forth in the
Uniform
Commercial Code.
"DEPOSIT ACCOUNT COLLATERAL" shall mean that part of the Common
Collateral comprised of or contained in (i) Deposit Accounts
relating to
proceeds of Common Collateral or (ii) Securities Accounts.
"DIP FINANCING" shall have the meaning set forth in Section
6.1.
"DISCHARGE OF SENIOR LENDER CLAIMS" shall mean, except to the
extent
otherwise provided in Section 5.6, payment in full in cash (except
for
contingent indemnities and cost and reimbursement obligations to
the extent no
claim has been made) of (a) all Obligations in respect of all
outstanding
First-Lien Indebtedness and, with respect to letters of credit or
letter of
credit guaranties outstanding thereunder, delivery of cash
collateral or
backstop letters of credit in respect thereof in compliance with
the Senior
Credit Agreement, in each case after or concurrently with the
termination of all
commitments to extend credit thereunder and (b) any other Senior
Lender Claims
that are due and payable or otherwise accrued and owing at or prior
to the time
such principal and interest are paid.
"FIRST-LIEN INDEBTEDNESS" shall mean (a) all Indebtedness incurred
by
the
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Company and its Subsidiaries pursuant to the Senior Lender
Documents, that is
secured by a Permitted Lien (as defined in the Indenture on the
date hereof and
incurred or deemed incurred pursuant to clause (7) of the
definition thereof),
(b) all other Obligations (not constituting Indebtedness) of the
Company and its
Subsidiaries under the Senior Lender Documents and (c) all other
Obligations of
the Company and its Subsidiaries in respect of Hedging Obligations
entered into
with ING, any of the Senior Lenders or any of their affiliates that
are secured
under any of the Senior Lender Documents.
"FUTURE FIRST-LIEN INDEBTEDNESS" shall mean any First-Lien
Indebtedness other than First-Lien Indebtedness referred to in
clauses (a) and
(b) of the definition of First-Lien Indebtedness incurred pursuant
to the Credit
Agreement and the Senior Lender Documents entered into in
connection therewith.
"GRANTORS" shall mean the Company and each of the Subsidiaries
that
has executed and delivered a Noteholder Collateral Document or a
Senior
Collateral Document.
"HEDGING OBLIGATIONS" shall mean, with respect to any Person,
all
obligations and liabilities, whether now owing or hereafter
arising, of such
Person in respect of (a) interest rate or commodity swap
agreements, interest
rate or commodity cap agreements, and interest rate or commodity
collar
agreements and (b) other agreements or arrangements designed to
protect such
Person against fluctuations in interest rates or commodity
prices.
"INDEBTEDNESS" shall mean and include all obligations that
constitute
"Indebtedness" or "Debt" within the meaning of the Indenture or the
Senior
Credit Agreement.
"INDENTURE" shall have the meaning set forth in the recitals.
"INSOLVENCY OR LIQUIDATION PROCEEDING" shall mean (a) any voluntary
or
involuntary case or proceeding under any Bankruptcy Law with
respect to any
Grantor, (b) any other voluntary or involuntary insolvency,
reorganization or
bankruptcy case or proceeding, or any receivership, liquidation,
reorganization
or other similar case or proceeding with respect to any Grantor or
with respect
to any of its assets, (c) any liquidation, dissolution,
reorganization or
winding up of any Grantor whether voluntary or involuntary and
whether or not
involving insolvency or bankruptcy or (d) any assignment for the
benefit of
creditors or any other marshalling of assets and liabilities of any
Grantor.
"INTERCREDITOR AGENT" shall mean ING, in its capacity as
Administrative Agent for the Senior Lenders under the Credit
Agreement and the
other Senior Lender Documents, together with its successors (or if
there is more
than one Senior Credit Agreement or a subsequent Senior Credit
Agreement, such
agent or trustee as is designated "Intercreditor Agent" by Senior
Lenders
holding a majority of the Senior Lender Claims then outstanding)
and permitted
successors and assigns under the Senior Credit Agreement
exercising
substantially the same rights and powers.
"LIEN" shall mean, with respect to any asset, any mortgage, deed
of
trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in,
on or of such asset.
"NOTEHOLDER CLAIMS" shall mean all Obligations in respect of the
Notes
or arising under the Noteholder Documents or any of them, including
all fees and
expenses of the Trustee
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thereunder.
"NOTEHOLDER COLLATERAL" shall mean all of the assets of any
Grantor,
whether real, personal or mixed, with respect to which a Lien is
granted as
security for any Noteholder Claim.
"NOTEHOLDER COLLATERAL DOCUMENTS" shall mean the Noteholder
Pledge
Agreement, the Noteholder Security Agreement and any other document
or
instrument pursuant to which a Lien is granted by any Grantor to
secure any
Noteholder Claims or under which rights or remedies with respect to
any such
Lien are governed.
"NOTEHOLDER DOCUMENTS" shall mean (a) the Indenture, the Notes,
the
Noteholder Collateral Documents and (b) any other related document
or instrument
executed and delivered pursuant to any Noteholder Document
described in clause
(a) above evidencing or governing any Obligations thereunder.
"NOTEHOLDER PLEDGE AGREEMENT" shall mean the Pledge Agreement dated
as
of September 9, 2004, among the Company, certain other domestic
Grantors and the
Trustee.
"NOTEHOLDER SECURITY AGREEMENT" shall mean the Security
Agreement
dated as of September 9, 2004, among the Company, certain other
domestic
Grantors and the Trustee.
"NOTEHOLDERS" shall mean the Persons holding Noteholder Claims.
"NOTES" shall mean (a) the initial $154,000,000 in aggregate
principal
amount of 11% second-priority senior secured notes due 2011 to be
issued by the
Company pursuant to the Indenture, (b) the exchange notes issued in
exchange
therefor as contemplated by the Registration Rights Agreement dated
as of
September 9, 2004, among the Company, certain of the Company's
Subsidiaries and
the initial purchasers party thereto, and (c) any additional notes
issued under
the Indenture by the Company, to the extent permitted by the
Indenture and the
Credit Agreement.
"OBLIGATIONS" shall mean, with respect to any Indebtedness, any
and
all obligations, whether now owing or hereafter arising, with
respect to the
payment of (a) any principal of or interest (including interest
accrued on or
accruing after the commencement of any Insolvency or Liquidation
Proceeding,
whether or not a claim for post-filing interest is allowed in such
proceeding)
or premium on any Indebtedness, including any reimbursement
obligation in
respect of any letter of credit or letter of credit guaranty, (b)
any fees,
indemnification obligations, expense reimbursement obligations or
other
liabilities payable under the documentation governing such
Indebtedness, (c) any
obligation to post cash collateral in respect of letters of credit
or letter of
credit guaranties and any other obligations and (d) with respect to
any
Indebtedness constituting Senior Lender Claims, any Hedging
Obligations owing to
any of the Senior Lenders holding such Senior Lender Claims or any
affiliates
thereof.
"OFFICERS' CERTIFICATE" shall mean a certificate signed by any two
of
the Chairman of the Board, the President, any Vice President, the
Treasurer and
the Secretary of the Company.
"PLEDGE AGREEMENT" shall have the meaning set forth in the
recitals.
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"PERSON" shall mean any natural person, corporation, limited
liability
company, trust, joint venture, association, company, partnership,
entity or
other party, including any government and any political
subdivision, agency or
instrumentality thereof.
"PLEDGED COLLATERAL" shall mean the Common Collateral in the
possession of the Intercreditor Agent (or its agents or bailees),
to the extent
that possession thereof is necessary or effective to perfect a Lien
thereon
under the Uniform Commercial Code.
"RECOVERY" shall have the meaning set forth in Section 6.4.
"REQUIRED LENDERS" shall mean, with respect to any Senior
Credit
Agreement, those Senior Lenders the approval of which is required
to approve an
amendment or modification of, termination or waiver of any
provision of or
consent to any departure from such Senior Credit Agreement (or
would be required
to effect such consent under this Agreement if such consent were
treated as an
amendment of the Senior Credit Agreement).
"SECOND-PRIORITY LIEN" shall mean any Lien or any assets of the
Company or any other Grantor securing any Noteholder Claims.
"SECURITIES ACCOUNT" shall have the meaning set forth in the
Uniform
Commercial Code.
"SECURITY AGREEMENT" shall have the meaning set forth in the
recitals.
"SENIOR COLLATERAL DOCUMENTS" shall mean the Pledge Agreement,
the
Security Agreement and any other agreement, document or instrument
pursuant to
which a Lien is now or hereafter granted securing any Senior Lender
Claims or
under which rights or remedies with respect to such Liens are at
any time
governed.
"SENIOR CREDIT AGREEMENT" shall mean the Credit Agreement and
any
other agreement governing any Future First-Lien Indebtedness.
"SENIOR LENDER CLAIMS" shall mean (a) all First-Lien
Indebtedness
outstanding, including any Future First-Lien Indebtedness, and (b)
all other
Obligations (not constituting Indebtedness under any such
First-Lien
Indebtedness) with respect to First-Lien Indebtedness, including,
without
limitation, all "Obligations" (as defined in the Senior Credit
Agreement) and
all Senior Lender Hedging Obligations. Senior Lender Claims shall
include all
interest and expenses accrued or accruing (or that would, absent
the
commencement of an Insolvency or Liquidation Proceeding, accrue)
after the
commencement of an Insolvency or Liquidation Proceeding in
accordance with and
at the rate specified in the relevant Senior Lender Document
whether or not the
claim for such interest or expenses is allowed as a claim in such
Insolvency or
Liquidation Proceeding.
"SENIOR LENDER COLLATERAL" shall mean all of the assets of any
Grantor, whether real, personal or mixed, with respect to which a
Lien is
granted as security for any Senior Lender Claim.
"SENIOR LENDER DOCUMENTS" shall mean the Senior Credit Agreement,
the
Senior
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Collateral Documents and each of the other agreements, documents
and instruments
(including each agreement, document or instrument providing for or
evidencing a
Senior Lender Hedging Obligation) providing for, evidencing or
securing any
Obligation under the Credit Agreement or any Future First-Lien
Indebtedness and
any other related document or instrument executed or delivered
pursuant to any
Senior Lender Document at any time or otherwise evidencing or
securing any
Indebtedness arising under any Senior Lender Document.
"SENIOR LENDER HEDGING OBLIGATIONS" shall mean any Hedging
Obligations
secured under the Senior Collateral Documents.
"SENIOR LENDERS" shall mean the Persons holding Senior Lender
Claims,
including the Intercreditor Agent.
"SUBSIDIARY" shall mean any "Subsidiary" of the Company as defined
in
the Indenture.
"TRUSTEE" shall mean The Bank of New York, in its capacity as
trustee
under the Indenture and collateral agent under the Noteholder
Collateral
Documents, and its permitted successors.
"UNIFORM COMMERCIAL CODE" or "UCC" shall mean the Uniform
Commercial
Code as from time to time in effect in the State of New York.
1.2 Terms Generally.
The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined.
Whenever the
context may require, any pronoun shall include the corresponding
masculine,
feminine and neuter forms. The words "include," "includes" and
"including" shall
be deemed to be followed by the phrase "without limitation." The
word "will"
shall be construed to have the same meaning and effect as the word
"shall."
Unless the context requires otherwise (a) any definition of or
reference to any
agreement, instrument or other document herein shall be construed
as referring
to such agreement, instrument or other document as from time to
time amended,
supplemented or otherwise modified in accordance with this
Agreement, (b) any
reference herein to any Person shall be construed to include such
Person's
successors and assigns, (c) the words "herein," "hereof" and
"hereunder," and
words of similar import, shall be construed to refer to this
Agreement in its
entirety and not to any particular provision hereof, (d) all
references herein
to Sections shall be construed to refer to Sections of this
Agreement and (e)
the words "asset" and "property" shall be construed to 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.
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SECTION 2. LIEN PRIORITIES.
2.1 Subordination.
Notwithstanding the date, time, manner or order of
filing or recordation of any document or instrument or grant,
attachment or
perfection of any Liens granted to the Trustee or the Noteholders
on the Common
Collateral or of any Liens granted to the Intercreditor Agent or
the Senior
Lenders on the Common Collateral or on the Senior Lender Collateral
and
notwithstanding any provision of the UCC, or any applicable law or
the
Noteholder Documents or the Senior Lender Documents or any other
circumstance
whatsoever, the Trustee, on behalf of itself and each Noteholder,
hereby agrees
that: (a) any Lien on the Common Collateral securing any Senior
Lender Claims
now or hereafter held by or on behalf of the Intercreditor Agent or
any Senior
Lenders or any agent or trustee therefor regardless of how
acquired, whether by
grant, statute, operation of law, subrogation or otherwise, shall
have priority
over and be senior in all respects and prior to any Lien on the
Common
Collateral securing any Noteholder Claims and (b) any Lien on the
Common
Collateral securing any Noteholder Claims now or hereafter held by
or on behalf
of the Trustee or any Noteholders or any agent or trustee therefor
regardless of
how acquired, whether by grant, statute, operation of law,
subrogation or
otherwise, shall be junior and subordinate in all respects to all
Liens on the
Common Collateral securing any Senior Lender Claims. All Liens on
the Common
Collateral securing any Senior Lender Claims shall be and remain
senior in all
respects and prior to all Liens on the Common Collateral securing
any Noteholder
Claims for all purposes, whether or not such Liens securing any
Senior Lender
Claims are subordinated to any Lien securing any other obligation
of the
Company, any other Grantor or any other Person.
2.2 Prohibition on Contesting Liens. Each of the Trustee, for
itself
and on behalf of each Noteholder, and the Intercreditor Agent, for
itself and on
behalf of each Senior Lender, agrees that it shall not (and hereby
waives any
right to) contest or support any other Person in contesting, in any
proceeding
(including any Insolvency or Liquidation Proceeding), the validity,
perfection,
priority, validity or enforceability of (a) a Lien securing any
Senior Lender
Claims held (or purported to be held) by or on behalf of the
Intercreditor Agent
or any of the Senior Lenders or any agent or trustee therefor in
any Senior
Lender Collateral or (b) a Lien securing any Noteholder Claims held
(or
purported to be held) by or on behalf of any Noteholder in the
Common
Collateral, as the case may be; provided, however, that nothing in
this
Agreement shall be construed to prevent or impair the rights of
the
Intercreditor Agent or any Senior Lender to enforce this Agreement
(including
the priority of the Liens securing the Senior Lender Claims as
provided in
Section 2.1) or any of the Senior Lender Documents.
2.3 No New Liens. So
long as the Discharge of Senior Lender Claims
has not occurred, the parties hereto agree that, after the date
hereof, if the
Trustee shall hold any Lien on any assets of the Company or any
other Grantor
securing any Noteholder Claims that are not also subject to the
first-priority
Lien in respect of the Senior Lender Claims under the Senior Lender
Documents,
the Trustee, upon demand by the Intercreditor Agent or the Company,
will assign
or release such Lien to the Intercreditor Agent as security for the
Senior
Lender Claims (in the case of an assignment, the Trustee may retain
a junior
lien on such assets subject to the terms hereof).
2.4 Perfection of Liens. Neither the Intercreditor Agent,
the Trustee
nor the Senior Lenders shall be responsible for perfecting and
maintaining the
perfection of Liens with respect to the Common Collateral for the
benefit of the
Trustee and the Noteholders. The
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provisions of this Intercreditor Agreement are intended solely to
govern the
respective Lien priorities as between the Senior Lenders and the
Noteholders and
shall not impose on the Intercreditor Agent, the Trustee, the
Noteholders or the
Senior Lenders or any agent or trustee therefor any obligations in
respect of
the disposition of proceeds of any Common Collateral which would
conflict with
prior perfected claims therein in favor of any other Person or any
order or
decree of any court or governmental authority or any applicable
law.
SECTION 3. ENFORCEMENT.
3.1
Exercise of Remedies.
(a) So long as the Discharge of Senior Lender Claims has not
occurred,
whether or not any Insolvency or Liquidation Proceeding has been
commenced by or
against the Company or any other Grantor, (i) neither the Trustee
nor any
Noteholder will (x) exercise or seek to exercise any rights or
remedies
(including setoff) with respect to any Common Collateral in respect
of any
Noteholder Claims, institute any action or proceeding with respect
to such
rights or remedies (including any action of foreclosure), (y)
contest, protest
or object to any foreclosure proceeding or action brought with
respect to the
Common Collateral by the Intercreditor Agent or any Senior Lender
in respect of
the Senior Lender Claims, the exercise of any right by the
Intercreditor Agent
or any Senior Lender (or any agent or sub-agent on their behalf) in
respect of
the Senior Lender Claims under any lockbox agreement, control
agreement,
landlord waiver or bailee's letter or similar agreement or
arrangement, or other
comparable Noteholder Collateral Document, to which the Trustee or
any
Noteholder either is a party or may have rights as a third party
beneficiary, or
any other exercise by any such party, of any rights and remedies
relating to the
Common Collateral under the Senior Lender Documents or otherwise in
respect of
Senior Lender Claims, or (z) object to the forbearance by the
Senior Lenders
from bringing or pursuing any foreclosure proceeding or action or
any other
exercise of any rights or remedies relating to the Common
Collateral in respect
of Senior Lender Claims and (ii) except as otherwise provided
herein, the
Intercreditor Agent and the Senior Lenders shall have the exclusive
right to
enforce rights, exercise remedies (including setoff and the right
to credit bid
their debt) and make determinations regarding the release,
disposition or
restrictions with respect to the Common Collateral without any
consultation with
or the consent of the Trustee or any Noteholder; provided, however,
that (A) in
any Insolvency or Liquidation Proceeding commenced by or against
the Company or
any other Grantor, the Trustee may file a claim or statement of
interest with
respect to the Noteholder Claims and (B) the Trustee may take any
action (not
adverse to the prior Liens on the Common Collateral securing the
Senior Lender
Claims, or the rights of the Intercreditor Agent or the Senior
Lenders to
exercise remedies in respect thereof) in order to create, prove,
perfect,
preserve or protect (but not enforce) its rights in, and perfection
and priority
of its Lien on, the Common Collateral subject to the limitations
set forth in
Section 6.3. In exercising rights and remedies with respect to the
Senior Lender
Collateral, the Intercreditor Agent and the Senior Lenders may
enforce the
provisions of the Senior Lender Documents and exercise remedies
thereunder, all
in such order and in such manner as they may determine in the
exercise of their
sole discretion. Such exercise and enforcement shall include the
rights of an
agent appointed by them to sell or otherwise dispose of Common
Collateral upon
foreclosure, to incur expenses in connection with such sale or
disposition, and
to exercise all the rights and remedies of a secured lender under
the Uniform
Commercial Code of any applicable jurisdiction and of a secured
creditor under
Bankruptcy
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Laws of any applicable jurisdiction.
(b) So long as the Discharge of Senior Lender Claims has not
occurred,
the Trustee, on behalf of itself and each Noteholder, agrees that
it will not
take or receive any Common Collateral or any proceeds of Common
Collateral in
connection with the exercise of any right or remedy (including
setoff) with
respect to any Common Collateral in respect of Noteholder Claims.
Without
limiting the generality of the foregoing, unless and until the
Discharge of
Senior Lender Claims has occurred, except as expressly provided in
the proviso
in clause (ii) of Section 3.1(a), the sole right of the Trustee and
the
Noteholders with respect to the Common Collateral is to hold a Lien
on the
Common Collateral in respect of Noteholder Claims pursuant to the
Noteholder
Documents for the period and to the extent granted therein and to
receive a
share of the proceeds thereof, if any, after the Discharge of the
Senior Lender
Claims has occurred.
(c) Subject to the proviso in clause (ii) of Section 3.1(a), (i)
the
Trustee, for itself and on behalf of each Noteholder, agrees that
neither the
Trustee nor any Noteholder will take any action that would hinder
any exercise
of remedies undertaken by the Intercreditor Agent or the Senior
Lenders with
respect to the Common Collateral under the Senior Loan Documents,
including any
sale, lease, exchange, transfer or other disposition of the Common
Collateral,
whether by foreclosure or otherwise, and (ii) the Trustee, for
itself and on
behalf of each Noteholder, hereby waives any and all rights it or
any Noteholder
may have as a junior lien creditor or otherwise to object to the
manner in which
the Intercreditor Agent or the Senior Lenders seek to enforce or
collect the
Senior Lender Claims or the Liens granted in any of the Senior
Lender
Collateral, regardless of whether any action or failure to act by
or on behalf
of the Intercreditor Agent or Senior Lenders is adverse to the
interests of the
Noteholders.
(d) The Trustee hereby acknowledges and agrees that no
covenant,
agreement or restriction contained in any Noteholder Document shall
be deemed to
restrict in any way the rights and remedies of the Intercreditor
Agent or the
Senior Lenders with respect to the Senior Lender Collateral as set
forth in this
Agreement and the Senior Lender Documents.
3.2 Cooperation.
Subject to the proviso in clause (ii) of Section
3.1(a), the Trustee, on behalf of itself and each Noteholder,
agrees that,
unless and until the Discharge of Senior Lender Claims has
occurred, it will not
commence, or join with any Person (other than the Senior Lenders
and the
Intercreditor Agent upon the request thereof) in commencing, any
enforcement,
collection, execution, levy or foreclosure action or proceeding
with respect to
any Lien held by it in the Common Collateral under any of the
Noteholder
Documents or otherwise in respect of the Noteholder Claims.
SECTION 4. PAYMENTS.
4.1 Application of Proceeds. After an event of default under
any
First-Lien Indebtedness has occurred with respect to which the
Intercreditor
Agent has provided written notice to the Trustee, and until such
event of
default is cured or waived, so long as the Discharge of Senior
Lender Claims has
not occurred, the Common Collateral or proceeds thereof received in
connection
with the sale or other disposition of, or collection on, such
Common Collateral
upon the exercise of remedies, shall be applied by the
Intercreditor Agent to
the Senior Lender
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Claims in such order as specified in the relevant Senior Lender
Documents until
the Discharge of Senior Lender Claims has occurred. Upon the
Discharge of the
Senior Lender Claims, the Intercreditor Agent shall deliver
promptly to the
Trustee any Common Collateral or proceeds thereof held by it in the
same form as
received, with any necessary endorsements or as a court of
competent
jurisdiction may otherwise direct to be applied by the Trustee to
the Noteholder
Claims in such order as specified in the relevant Noteholder
Documents.
4.2 Payments Over. Any
Common Collateral or proceeds thereof received
by the Trustee or any Noteholder in connection with the exercise of
any right or
remedy (including setoff) relating to the Common Collateral in
contravention of
this Agreement shall be segregated and held in trust for the
benefit of and
forthwith paid over to the Intercreditor Agent for the benefit of
the Senior
Lenders in the same form as received, with any necessary
endorsements or as a
court of competent jurisdiction may otherwise direct. The
Intercreditor Agent is
hereby authorized to make any such endorsements as agent for the
Trustee or any
such Noteholder. This authorization is coupled with an interest and
is
irrevocable.
SECTION 5. OTHER AGREEMENTS.
5.1 Releases.
(a) If, at any time, any Grantor or the holder of any Senior
Lender
Claim delivers notice to the Trustee that any specified Common
Collateral
(including, without limitation, all or substantially all of the
equity interests
of a Grantor or any of its Subsidiaries) is sold, transferred or
otherwise
disposed of:
(i) by the owner of such Common Collateral, other than to
another
Grantor or to any subsidiary of the Company, in a transaction
permitted
under the Senior Credit Agreement and the Indenture; or
(ii) during the existence of any Event of Default under (and as
defined in) the Senior Credit Agreement to the extent the
Intercreditor
Agent has consented to such sale, transfer or disposition;
then (whether or not any Insolvency or Liquidation Proceeding is
pending at the
time) the Liens in favor of the Trustee upon such Collateral will
automatically
be released and discharged as and when, but only to the extent,
such Liens on
such Collateral securing Senior Lender Claims are released and
discharged. At
the sole discretion of the Intercreditor Agent, upon delivery to
the Trustee of
a notice from the Intercreditor Agent stating that any release of
Liens securing
or supporting the Senior Lender Claims has become effective (or
shall become
effective upon Trustee's release) pursuant to the first sentence of
this clause
(a), the Trustee will prom
