INTERCREDITOR AGREEMENT

Exhibit 10.2

 

 

INTERCREDITOR AGREEMENT

 

dated as of

 

August 29, 2005,

 

among

 

GENERAL ELECTRIC CAPITAL CORPORATION

 

and

 

WEBSTER BUSINESS CREDIT CORPORATION,

 

as Senior Agents

 

and

 

ORIX FINANCE CORP.,

 

as Junior Agent

 

 

TABLE OF CONTENTS

 

 

 

INTERCREDITOR AGREEMENT dated as of August 29, 2005, among GENERAL ELECTRIC CAPITAL CORPORATION, as agent for itself and the other Term A Secured Parties (as defined below) (in such capacity, the “ Term A Agent ”), WEBSTER BUSINESS CREDIT CORPORATION, as agent for itself and the other Revolver Secured Parties (as defined below) (in such capacity, the “ Revolver Agent ”) (for the avoidance of doubt, the agreements made herein by Term A Agent, for itself and on behalf of the Term A Secured Parties, and by Revolver Agent, for itself and on behalf of the Revolver Secured Parties, are several and not joint), and ORIX FINANCE CORP., as agent for itself and the other Junior Secured Parties (as defined below) (in such capacity, the “ Junior Agent ”).

 

RECITALS

 

A. Pursuant to that certain Credit Agreement dated as of May 18, 2005, as amended by the First Amendment to Credit Agreement dated as of July 29, 2005, and the Second Amendment to Credit Agreement dated as of the date hereof (as amended, and as it may be further amended, restated, supplemented or otherwise modified from time to time, the “ Term A Credit Agreement ”), among OMNI Energy Services Corp., a Louisiana corporation (“ Omni ”), TRUSSCO, INC., a Louisiana corporation (“ Trussco ”; Omni and Trussco being hereinafter sometimes referred to individually as a “ Borrower ” and collectively as “ Borrowers ”), OMNI ENERGY SERVICES CORP.-MEXICO, a Louisiana corporation (“ Mexico ”), OMNI PROPERTIES CORP., a Louisiana corporation (“Omni Properties”), OMNI OFFSHORE AVIATION CORP., a Louisiana corporation (“ Offshore Aviation ”), OMNI SEISMIC AVIATION CORP., a Louisiana corporation (“Seismic Aviation”), OMNI ENERGY SEISMIC SERVICES CORP., a Louisiana corporation (“ Seismic Services ”), Trussco Properties, L.L.C., a Louisiana limited liability company (“ Trussco Properties ”), American Helicopters Inc., a Texas corporation (“ American ”; Mexico, Omni Properties, Offshore Aviation, Seismic Aviation, Seismic Services Trussco Properties, American and Borrowers being hereinafter sometimes referred to individually as a “ Credit Party ” and collectively as “ Credit Parties ”), the lenders from time to time party thereto (the “ Term A Lenders ”), and Term A Agent, Term A Lenders are providing financial accommodations to or for the benefit of Credit Parties upon the terms and conditions set forth therein.

 

B. Pursuant to that certain Security Agreement dated as of May 18, 2005 (the “ Term A Security Agreement ”), among Credit Parties and Term A Agent, Credit Parties granted to Term A Agent, for the benefit of Term A Agent and Term A Lenders, a Lien (such term and each other capitalized term used but not defined in these recitals having the meaning given it in Article I of this Agreement) upon the Senior Collateral upon the terms and conditions set forth therein.

 

C. Pursuant to that certain Amended and Restated Credit and Security Agreement dated as of May 18, 2005, as amended by a Consent, dated as of July 29, 2005, and the Consent dated as of the date hereof (as amended, and as it may be further amended, restated, supplemented or otherwise modified from time to time, the “ Revolver Credit Agreement ”), among Credit Parties, the lenders from time to time party thereto (the “ Revolver Lenders ”), and Revolver Agent, (i) Revolver Lenders are providing financial accommodations to or for the benefit of Credit Parties, and (ii) Credit Parties granted to Revolver Agent, for the benefit of Revolver Agent and Revolver Lenders, a Lien upon the Senior Collateral, all upon the terms and conditions set forth therein.

 

D. Pursuant to that certain Intercreditor Agreement dated as of May 18, 2005 (the “ GE Capital/Webster Intercreditor Agreement ”), between Revolver Agent and Term A Agent, Revolver Agent and Term A Agent agreed to the relative priorities of their respective Liens in the Senior Collateral upon the terms and conditions set forth therein.

 

E. Pursuant to the Credit Agreement dated as of the date hereof (the “ Junior Credit Agreement ”), among Credit Parties, the lenders from time to time party thereto (the “ Junior Lenders ”), and the Junior Agent, Junior Lenders are providing financial accommodations to or for the benefit of Credit Parties upon the terms and conditions set forth therein.

 

F. Pursuant to the Security Agreement dated as of the date hereof (the “ Junior Security Agreement ”), among Credit Parties and Junior Agent, Credit Parties are granting to Junior Agent, for the benefit of Junior Agent and Junior Lenders, a Lien upon the Junior Collateral upon the terms and conditions set forth therein.

 

G. Senior Agents and Junior Agent desire to enter into this Agreement to (i) confirm the relative priorities of the respective Liens of Senior Agents and Senior Lenders, on the one hand, and Junior Agent and Junior Lenders, on the other hand, in the Collateral, and (ii) provide for the orderly allocation between such parties, in accordance with such priorities, of the proceeds of such Collateral upon any foreclosure thereon or other disposition thereof.

 

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 have the meanings set forth in the Term A Credit Agreement.

 

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

 

“ Agents ” shall mean the Senior Agents and the Junior Agent.

 

“ Agreement ” shall mean this Intercreditor Agreement.

 

“ 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.

 

“ Borrowers ” shall have the meaning assigned to such term in the recitals to this Agreement.

 

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

 

“ Closing Date ” shall mean August 29, 2005.

 

“ Collateral ” shall mean, collectively, the Senior Collateral and the Junior Collateral.

 

“ Collateral Documents ” shall mean the Senior Collateral Documents and the Junior Collateral Documents.

 

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

 

“ Credit Documents ” shall mean the Senior Credit Documents and the Junior Credit Documents.

 

“ Credit Parties ” shall have the meaning assigned to such term in the recitals to this Agreement.

 

“ 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(b) .

 

“ Discharge of Revolver Obligations ” shall mean, subject to Sections 7.02(b) 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 Revolver Credit Documents, (b) payment in full of all other Revolver Obligations that are due and payable or otherwise accrued and owing at or prior to the time such principal and interest are paid, or the posting of cash collateral in respect thereof, in the case of outstanding letters of credit, and (c) termination or expiration of all commitments to lend under the Revolver Credit Agreement.

 

“ Discharge of Senior Obligations ” shall mean both the Discharge of Revolver Obligations and the Discharge of Term A Obligations.

 

“ Discharge of Term A Obligations ” shall mean, subject to Sections 7.02(a) 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 Term A Credit Documents, (b) payment in full of all other Term A 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 lend under the Term A Credit Agreement.

 

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

 

“ GE Capital/Webster Intercreditor Agreement ” shall have the meaning assigned to such term in the recitals to this Agreement.

 

“ Grantors ” shall mean the Credit Parties and any other party that shall have created or purported to create any Senior Lien or Junior Lien on its assets to secure any Senior Obligations or any Junior Obligations.

 

“ Indebtedness ” shall mean and include all obligations that constitute “Obligations,” as defined in the Term A Credit Agreement, the Revolver Credit Agreement or the Junior Credit Agreement, as applicable.

 

“ Insolvency or Liquidation Proceeding ” shall mean (a) any voluntary or involuntary case or 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 Agent ” shall have the meaning assigned to such term in the preamble to this Agreement.

 

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

 

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

 

“ Junior Credit Agreement ” shall have the meaning assigned to such term in the recitals to this Agreement.

 

“ Junior Credit Documents ” means the Junior Credit Agreement, the other Loan Documents (as defined in the Junior Credit Agreement), each of the other agreements, documents and instruments providing for or evidencing any other Junior Obligation, and any other document or instrument executed or delivered at any time in connection with any Junior Obligations, including any intercreditor or joinder agreement among holders of the Junior Obligations, to the extent such are effective at the relevant time, as the same may be modified from time to time in accordance with the provisions of Section 7.01 .

 

“ Junior Lenders ” shall have the meaning assigned to such term in the recitals to this Agreement.

 

“ Junior Liens ” shall mean all Liens on the Junior Collateral to secure the Junior Obligations, whether created under the Junior Collateral Documents or acquired by possession, statute, operation of law, subrogation or otherwise.

 

“ Junior Obligations ” shall mean the “Obligations,” as defined in the Junior Credit Agreement.

 

“ Junior Permitted Actions ” shall have the meaning assigned to such term in Section 3.01(a) .

 

“ Junior Secured Parties ” shall mean, at any time, (a) the Junior Lenders, (b) the Junior Agent, (c) each other Person to whom any of the Junior Obligations (including Junior Obligations under any indemnification obligations) is owed and (d) the successors, replacements and assigns of each of the foregoing.

 

“ Junior Security Agreement ” shall have the meaning assigned to such term in the recitals to this Agreement.

 

“ Lien ” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.

 

“ New Revolver Agent ” shall have the meaning assigned to such term in Section 7.02(b) .

 

“ New Revolver Credit Documents ” shall have the meaning assigned to such term in Section 7.02(b) .

 

“ New Revolver Obligations ” shall have the meaning assigned to such term in Section 7.02(b) .

 

“ New Term A Agent ” shall have the meaning assigned to such term in Section 7.02(a) .

 

“ New Term A Credit Documents ” shall have the meaning assigned to such term in Section 7.02(a) .

 

“ New Term A Obligations ” shall have the meaning assigned to such term in Section 7.02(a) .

 

“ Payment Blockage Period ” means any period commencing with the receipt by Junior Agent of a written notice from a Senior Agent notifying Junior Agent that an Event of Default (other than a Senior Payment Default) has occurred and is continuing under the Senior Credit Documents and that a Payment Blockage Period is in effect by reason thereof, and ending on the earlier of (a) 120 days after the date of commencement, and (b) the cure or waiver in accordance with the terms of the applicable Senior Credit Documents of all such Events of Default specified in such notice; provided, however, that (1) during any period of 240 consecutive days, the number of days during which a Payment Blockage Period can be in effect shall not exceed 120 days, (2) the Senior Agents shall not be permitted to issue more than two (2) such blockage notices to Junior Agent within any period of 360 consecutive days, and (3) during the term of this Agreement, the total number of notices that Senior Agents may give to commence a Payment Blockage Period shall not exceed six.

 

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

 

“ Refinance ” shall mean, in respect of any Indebtedness, to refinance 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.

 

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

 

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

 

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

 

“ Revolver Credit Agreement ” shall have the meaning assigned to such term in the recitals to this Agreement.

 

“ Revolver Credit Documents ” means the Revolver Credit Agreement, the Revolver Collateral Documents, each of the other agreements, documents and instruments providing for or evidencing any other Revolver Obligation, and any other document or instrument executed or delivered at any time in connection with any Revolver Obligations, including any intercreditor or joinder agreement among holders of Revolver Obligations, to the extent such are effective at the relevant time, as each may be modified from time to time in accordance with the provisions of Section 7.01 .

 

“ Revolver Lenders ” shall have the meaning assigned to such term in the recitals to this Agreement.

 

“ Revolver Liens ” shall mean all Liens on the Revolver Collateral to secure the Revolver Obligations, whether created under the Revolver Collateral Documents or acquired by possession, statute, operation of law, subrogation or otherwise.

 

“ Revolver Obligations ” shall mean the “Obligations,” as defined in the Revolver Credit Agreement.

 

“ Revolver Purchase Option Closing Date ” shall have the meaning assigned to such term in Section 7.05(b) .

 

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

 

“ Revolver Secured Parties ” shall mean, at any time, (a) the Revolver Lenders, (b) the Revolver Agent, (c) each other Person to whom any of the Revolver Obligations (including Revolver Obligations under any indemnification obligations) is owed and (d) the successors, replacements and assigns of each of the foregoing.

 

“ Secured Parties ” shall mean the Junior Secured Parties and the Senior Secured Parties.

 

“ Senior Agents ” shall mean the Term A Agent and the Revolver Agent.

 

“ Senior Collateral ” shall mean the Term A Collateral and the Revolver Collateral.

 

“ Senior Collateral Documents ” shall mean the Term A Collateral Documents and the Revolver Collateral Documents.

 

“ Senior Credit Agreements ” shall mean the Term A Credit Agreement and the Revolver Credit Agreement.

 

“ Senior Credit Documents ” shall mean the Term A Credit Documents and the Revolver Credit Documents.

 

“ Senior Lenders ” shall mean the Term A Lenders and the Revolver Lenders.

 

“ Senior Liens ” shall mean the Term A Liens and the Revolver Liens.

 

“ Senior Obligations ” shall mean Term A Obligations and the Revolver Obligations.

 

“ Senior Payment Default ” means any default in payment of any Senior Obligations as and when due (whether at maturity, by acceleration or otherwise) in accordance with the Senior Credit Documents.

 

“ Senior Secured Parties ” shall mean the Term A Secured Parties and the Revolver Secured Parties.

 

“ Standstill Period ” shall have the meaning assigned to such term in Section 3.02(a) .

 

“ Term A Agent ” shall have the meaning assigned to such term in the preamble to this Agreement.

 

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

 

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

 

“ Term A Credit Agreement ” shall have the meaning assigned to such term in the recitals to this Agreement.

 

“ Term A Credit Documents ” means the Term A Credit Agreement, the other Loan Documents (as defined in the Term A Credit Agreement), each of the other agreements, documents and instruments providing for or evidencing any other Term A Obligation, and any other document or instrument executed or delivered at any time in connection with any Term A Obligations, including any intercreditor or joinder agreement among holders of Term A Obligations, to the extent such are effective at the relevant time, as each may be modified from time to time in accordance with the provisions of Section 7.01 .

 

“ Term A Lenders ” shall have the meaning assigned to such term in the recitals to this Agreement.

 

“ Term A Liens ” shall mean all Liens on the Term A Collateral to secure the Term A Obligations, whether created under the Term A Collateral Documents or acquired by possession, statute, operation of law, subrogation or otherwise.

 

“ Term A Obligations ” shall mean the “Obligations,” as defined in the Term A Credit Agreement.

 

“ Term A Prepayment Fee ” shall have the meaning assigned to such term in Section 7.05(a) .

 

“ Term A Purchase Option Closing Date ” shall have the meaning assigned to such term in Section 7.05(a) .

 

“ Term A Refinancing Notice ” shall have the meaning assigned to such term in Section 7.02(a) .

 

“ Term A Secured Parties ” shall mean, at any time, (a) the Term A Lenders, (b) the Term A Agent, (c) each other Person to whom any of the Term A Obligations (including Term A Obligations under any indemnification obligations) is owed and (d) the successors, replacements and assigns of each of the foregoing.

 

“ Term A Security Agreement ” shall have the meaning assigned to such term in the recitals to this Agreement.

 

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

 

SECTION 1.03. Terms Generally . The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, supplemented or otherwise modified, (b) any reference herein (i) to any Person shall be construed to include such Person’s successors and assigns and (ii) to any Credit Party or any other Grantor shall be construed to include such Credit Party or such Grantor as debtor and debtor-in-possession and any receiver or trustee for any Credit Party or any other Grantor, as the case may be, in any Insolvency or Liquidation Proceeding, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles or Sections shall be construed to refer to Articles or Sections of this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

 

ARTICLE II

 

Lien Priorities

 

SECTION 2.01. Relative Priorities . Notwithstanding the date, manner or order of grant, attachment or perfection of any Junior Lien or any Senior Lien, and notwithstanding any provision of the UCC or any other applicable law or the provisions of any Collateral Document or any other Credit Document or any other circumstance whatsoever, the Junior Agent, for itself and on behalf of the other Junior Secured Parties, hereby agrees that (a) any Senior Lien now or hereafter held by or for the benefit of any Senior Secured Party shall be senior in right, priority, operation, effect and all other respects to any and all Junior Liens and (b) any Junior Lien now or hereafter held by or for the benefit of any Junior Secured Party shall be junior and subordinate in right, priority, operation, effect and all other respects to any and all Senior Liens. The Senior Liens shall be and remain senior in right, priority, operation, effect and all other respects to any Junior Liens for all purposes, whether or not any Senior Liens are subordinated in any respect to any other Lien securing any other obligation of any Credit Party, any other Grantor or any other Person. Without limiting the generality of the foregoing, Junior Agent, for itself and on behalf of the other Junior Secured Parties, acknowledges that the relative priorities of the respective Senior Liens are set forth in the GE Capital/Webster Intercreditor Agreement. Notwithstanding the foregoing, except as specified herein or with respect to Liens that would constitute a “Permitted Encumbrance” under the Term A Credit Documents or a “Permitted Encumbrance” under the Revolver Credit Documents and obligations of the applicable Grantor with respect to such Lien, each Senior Secured Party agrees not to enter into any agreement with another creditor of any Grantor to subordinate the Liens in any Collateral under the Senior Credit Documents to the Lien of such other creditor in the Collateral, or to subordinate the right of the Senior Secured Parties to the payment of the Senior Obligations to the payment of the indebtedness or claim of any other creditor of any Grantor, in each case without the prior written consent of Junior Agent.

 

SECTION 2.02. Prohibition on Contesting Liens . Each of (a) the Term A Agent, for itself and on behalf of the other Term A Secured Parties, and the Revolver Agent, for itself and on behalf of the other Revolver Secured Parties, on the one hand, and (b) the Junior Agent, for itself and on behalf of the other Junior Secured Parties, on the other hand, agrees that it will not, and hereby waives any right to, contest or support any other Person in contesting, including in any Insolvency or Liquidation Proceeding, the perfection, priority, validity or enforceability of any Junior Lien or any Senior Lien, as the case may be; provided , that nothing in this Agreement shall be construed to prevent or impair the rights of either of the Senior Agents or any other Senior Secured Party to enforce this Agreement.

 

SECTION 2.03. No New Liens . The parties hereto agree that, so long as the Discharge of Senior Obligations has not occurred, (a) the Junior Agent shall not demand nor accept the grant of any additional Liens on any asset of any Grantor to secure any Junior Obligations unless such Grantor has granted, or concurrently therewith grants, a Senior Lien on such asset to each of the Senior Agents for themselves and for the benefit of the Senior Lenders to secure the Senior Obligations or (b) no Senior Agent shall demand or accept the grant of any additional Liens on any asset of any Grantor to secure any Senior Obligations unless such Grantor has granted, or concurrently therewith grants, a Junior Lien on such asset to secure the Junior Obligations, with each such Lien to be subject to the provisions of this Agreement. To the extent that the provisions of the immediately preceding sentence are not complied with for any reason, without

 

limiting any other right or remedy available to the Senior Agents or the other Senior Secured Parties, the Junior Agent agrees, for itself and on behalf of the other Junior Secured Parties, that any amounts received by or distributed to any Junior Secured Party pursuant to or as a result of any Lien granted in contravention of this Section shall be subject to Section 4.02 .

 

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

 

(a) to cooperate in good faith in order to determine, upon any request by either of the Senior Agents or the Junior Agent, the specific assets included in the Senior Collateral and the Junior Collateral, the steps taken to perfect the Senior Liens and the Junior Liens thereon and the identity of the respective parties obligated under the Senior Credit Documents and the Junior Credit Documents;

 

(b) that the documents, agreements and instruments creating or evidencing the Senior Collateral and the Senior Liens shall be in all material respects in the same form as the documents, agreements and instruments creating or evidencing the Junior Collateral and the Junior Liens, other than with respect to the priority of the Liens created or evidenced thereunder; and

 

(c) to the extent that, notwithstanding this Section, the Senior Collateral and the Junior Collateral are not identical, the Junior Agent, for itself and on behalf of the other Junior Secured Parties, agrees that any amounts received by or distributed to any of the Junior Secured Parties pursuant to or as a result of Junior Liens on assets that are not subject to the Senior Liens shall be subject to Section 4.02 .

 

ARTICLE III

 

Enforcement of Rights; Matters Relating to Collateral

 

SECTION 3.01. Exercise of Rights and Remedies; Notice . (a) So long as the Discharge of Senior Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced, the Senior Agents and the other Senior 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 Junior Agent or any other Junior Secured Party; provided , that, notwithstanding the foregoing, (i) in any Insolvency or Liquidation Proceeding, the Junior Agent may file a proof of claim with respect to the Junior Obligations; (ii) the Junior Agent may take any action to preserve or protect the validity and enforceability of the Junior Liens; provided , that no such action is, or could reasonably be expected (A) to hinder the rights of the Senior Agents or any other Senior Secured Party to exercise their available remedies in respect thereof or (B) to be otherwise inconsistent with the terms of this Agreement, including the automatic release of Junior Liens provided in Section 3.04 ; (iii) the Junior 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 Junior Secured Parties, including any claims secured by the Collateral, or otherwise make any agreements or file any motions pertaining to the Junior Obligations, in each case, to the extent not inconsistent with the terms of this Agreement; (iv) the Junior Secured Parties may exercise any and all available rights and remedies as unsecured creditors, as provided in Section 3.03 and subject to the other terms and conditions of this Agreement, including, without limitation, declaring a default under the Junior Obligations, accelerating the Junior Obligations (provided that Senior Agents are provided at least five Business Days prior written notice of such acceleration and that, if such acceleration is based solely upon an acceleration of the Senior Obligations that is subsequently rescinded by the applicable Senior Lenders, then such acceleration of the Junior Obligations shall also be rescinded), commencing a suit thereon and pursuing judgment (along with any ancillary actions required to effectuate any of such actions); and (v) the Junior Agent and the other Junior 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 unless either of the Senior Agents shall have commenced and is continuing in a commercially reasonable manner the enforcement or exercise of any rights and remedies with respect to the Collateral as provided in Section 3.02(a) and given notice of such fact to Junior Agent pursuant to subsection (d) hereof (the actions described in this proviso being referred to herein as the “ Junior Permitted Actions ”). Except for the Junior Permitted Actions, unless and until the Discharge of Senior Obligations has occurred, the sole right of the Junior Agent and the other Junior 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 Senior Obligations has occurred and in accordance with the Junior Credit Documents and applicable law.

 

(b) Junior Agent, for itself and on behalf of the other Junior Secured Parties, hereby agrees that in exercising rights and remedies with respect to the Collateral, the Senior Agents and the other Senior Secured Parties may enforce the provisions of the Senior Credit 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 any of 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. Notwithstanding the generality of the foregoing, the rights of each of the respective Senior Agents and other Senior Secured Parties with respect to the Collateral are subject to the express terms of the GE Capital/Webster Intercreditor Agreement.

 

(c) The Junior Agent, for itself and on behalf of the other Junior Secured Parties, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Junior Collateral Document or any other Junior Credit Document shall be deemed to restrict in any way the rights and remedies of the Senior Agents or the other Senior Secured Parties with respect to the Collateral as set forth in this Agreement, the GE Capital/Webster Intercreditor Agreement and the other Senior Credit Documents.

 

(d) Each Secured Party shall give to the other Secured Parties (or the agent therefor) concurrently with the giving thereof to any Grantor (i) a copy of any written notice by such Secured Party of an Event of Default under any of its Credit Documents or a written notice of demand for payment from any Grantor, and (ii) a copy of any written notice sent by such Secured Party to any Grantor stating such Secured Party’s intention to exercise any material

 

enforcement right or remedies against such Grantor, including written notice pertaining to any foreclosure on all or any material part of the Collateral or other judicial or non-judicial remedy in respect thereof, and any legal process served or filed in connection therewith; provided that the failure of any Secured Party to give such required notice shall not result in any liability to Secured Party or affect the enforceability of any provision of this Agreement, including the relative priorities of the Liens of the Secured Party as provided herein, and shall not affect the validity or effectiveness of any such notice as against any Grantor.

 

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

 

(i) will not, so long as the Discharge of Senior Obligations has not occurred, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailee’s letter or any similar agreement or arrangement to which the Junior Agent or any other Junior Secured Party is a party) or (B) commence or join with any Person (other than both Senior Agents) in commencing, or petition for or vote in favor of, any action or proceeding with respect to such rights or remedies (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding); provided , that the Junior Agent may enforce or exercise any or all such rights and remedies, or commence or petition for any such action or proceeding, after a period of 120 days has elapsed since the date on which the Junior Agent has delivered to each of the Senior Agents written notice of the acceleration of the Indebtedness then outstanding under the Junior Credit Agreement (the “ Standstill Period ”); provided further , that notwithstanding the expiration of the Standstill Period or anything herein to the contrary, in no event shall the Junior Agent or any other Junior Secured Party enforce or exercise any rights or remedies with respect to any Collateral, or commence or petition for any such action or proceeding (including any foreclosure action or proceeding or any Insolvency or Liquidation Proceeding), if either of the Senior Agents or any other Senior Secured Party shall have commenced and is continuing in a commercially reasonable manner the enforcement or exercise of any rights or remedies with respect to any of the Collateral or any such action or proceeding (including, without limitation, any of the following: solicitation of bids from third parties to conduct the liquidation of all or a portion of the Collateral, the engagement or retention of sales brokers, marketing agents, investment bankers, accountants, auctioneers or other third parties for the purpose of valuing, marketing, promoting or selling all or a portion of the Collateral, the notification of account debtors to make payments to either of the Senior Agents or their respective agents, the initiation of any action to take possession of all or any portion of the Collateral or the commencement of any legal proceedings or actions against or with respect to all or any portion of the Collateral);

 

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

 

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

 

(iv) will not, so long as the Discharge of Senior Obligations has not occurred and except for Junior 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 remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award or any condemnation award (or deed in lieu of condemnation);

 

(v) will not take any action that would, or could reasonably be expected to, hinder, in any manner, any exercise of remedies by any Senior Agent or any other Senior Secured party under the Senior Credit Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;

 

(vi) will not object to the manner in which any Senior Agent or any other Senior Secured Party may seek to enforce or collect the Senior Obligations or the Senior Liens, regardless of whether any action or failure to act by or on behalf of such Senior Agent or any other Senior Secured Party is, or could be, adverse to the interests of the Junior 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 other rights a junior secured creditor may have under applicable law with respect to the matters described in this clause (vi) except for claims and liabilities arising from gross negligence or willful misconduct; and

 

(vii) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any Senior Obligation or any Senior Collateral Document, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement.

 

SECTION 3.03. Rights as Unsecured Creditors; Permitted Actions (a) Subject to the other terms and conditions of this Agreement, the Junior Agent and the other Junior Secured Parties may, in accordance with the terms of the Junior Credit Documents and applicable law, exercise against the Grantors any and all available rights and remedies as unsecured creditors in their capacities as Junior Agent and Junior Secured Parties. Except as set forth in Section 4.02 , and so long as such receipt is not the direct or indirect result of the enforcement or exercise by the Junior Agent or any other Junior Secured Party of rights or remedies as a secured creditor (including any right of setoff) or enforcement in contravention of this Agreement of any Junior Lien, nothing in this Agreement shall prohibit the receipt by the Junior Agent or any other Junior Secured Party of (i) payment upon closing of the Junior Credit Agreement of the fees, expenses

 

and costs that are due and payable thereunder by any Grantor on such date, (ii) regularly scheduled payments (but not prepayments) of interest and principal and all default interest that are due and payable under the Junior Credit Documents, (iii) post-closing expenses, costs, indemnification payments and any other amounts that are due and payable under the Junior Credit Documents, (iv) payments of interest accruing and adequate protection payments during an Insolvency or Liquidation Proceeding to the extent permitted by Section 6.01 ; and (v) any debt or equity securities that are distributed to the Junior Secured Parties in an Insolvency or Liquidation Proceeding and that Junior Secured Parties would be entitled to retain pursuant to Section 6.03 ; provided , that with respect to the payments described in clauses (ii) and (iii), both at the time and after giving effect to such payment, no Senior Payment Default has occurred and is then continuing and no Payment Blockage Period is then in effect. Nothing herein shall modify or limit the ri