EXECUTED VERSION
INTERCREDITOR AGREEMENT
-----------------------
THIS
INTERCREDITOR AGREEMENT (as amended, modified, supplemented,
renewed,
restated or replaced in writing from time
to time, the "Agreement") is made as
of November 14, 2005, by and among Quest
Resource Corporation, a Nevada
corporation and Quest Cherokee, LLC, a
Delaware limited liability company (the
"Borrowers"), STP Cherokee, Inc., Quest Oil
& Gas Corporation, Quest Energy
Service, Inc., Ponderosa Gas Pipeline
Company, Inc., Producers Service,
Incorporated, J-W Gas Gathering, LLC,
Bluestem Pipeline, LLC and Quest Cherokee
Oilfield Service, LLC, (the "Guarantors"),
Guggenheim Corporate Funding, LLC, a
Delaware limited liability company, in its
capacity as administrative agent, (in
such capacity, the "Senior Administrative
Agent") for itself and for each of the
lenders (the "Senior Secured Term Lenders")
with respect to senior secured term
loans (the "Senior Secured Term Loans") and
each of the lenders (the "Senior
Secured Revolving Lenders" and, with the
Senior Secured Term Lenders, the
"Senior Secured Lenders") with respect to
the senior secured revolving loans
(the "Senior Secured Revolving Loans")
under the Senior Secured Credit
Agreement, as defined below (collectively,
the "Senior Secured Creditor"),
Guggenheim Corporate Funding LLC, a
Delaware limited liability company as
administrative agent (in such capacity, the
"Second Lien Administrative Agent"),
for itself and for each of the lenders (the
"Second Lien Lenders") that is or
becomes a party to the Second Lien Credit
Agreement, as defined below
(collectively, the "Second Lien Creditor")
and Guggenheim Corporate Funding,
LLC, a Delaware limited liability company,
as collateral agent (in such
capacity, the "Collateral Agent" and
collectively with the Senior Administrative
Agent and the Second Lien Administrative
Agent, the "Agents") for the Senior
Secured Creditor, the Second Lien Creditor
and the counterparties with respect
to Swap Agreements entered into by either
Borrower or any of their Subsidiaries
("Swap Counterparties"). The Senior Secured
Revolving Lenders, the Senior
Secured Term Lenders and the Second Lien
Lenders are hereafter referred to as
the "Lenders." BP Corporation North America
Inc. is also a party to this
Agreement, solely for purposes of Section 3
hereof. Capitalized terms not
defined in this Agreement have the meanings
given them in the Senior Secured
Credit Agreement.
RECITALS
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WHEREAS,
Senior Secured Creditor is making credit accommodations
available
to Borrowers pursuant to the terms and
provisions of a credit agreement, dated
as of the date hereof, by and between
Senior Secured Creditor and Borrowers
(such agreement, as the same may be
amended, supplemented, modified, extended,
renewed, restated and/or replaced as
permitted hereunder, the "Senior Secured
Credit Agreement");
WHEREAS,
Second Lien Creditor is making credit accommodations available
to
Borrower pursuant to the terms and
provisions of a Second Lien Term Loan
Agreement dated as of the date hereof (such
agreement, as the same now exists
and may hereafter be amended, supplemented,
modified, extended, renewed,
restated, and/or replaced as permitted
hereunder, the "Second Lien Credit
Agreement") by and among the Second Lien
Creditor and the Borrowers;
WHEREAS,
as a condition for executing and entering into the Senior
Secured
Credit Agreement, the Senior Secured
Creditor has required that the Second Lien
Creditor's liens
<PAGE>
against the Borrowers and the Guarantors be
subordinated in favor of Senior
Secured Creditor's liens under the Senior
Secured Credit Agreement and that the
Second Lien Creditor makes the arrangements
set forth herein with respect to
right to payment and claims against the
Borrowers and the Guarantors;
WHEREAS,
the Senior Secured Revolving Lenders, the Senior Secured Term
Lenders, the Swap Counterparties and the
Second Lien Lenders desire to set forth
certain provisions regarding their
respective rights and the rights of the Swap
Counterparties in the Collateral and the
application of proceeds thereof;
WHEREAS, the parties hereto
are entering into this Agreement in order to
accommodate the Senior Secured Creditor's
conditions and obtain the direct and
indirect benefits to the Borrowers and the
Second Lien Creditor resulting from
the Borrowers' and Senior Secured
Creditor's execution of the Senior Secured
Credit Agreement and other Senior Secured
Loan Documents; and
WHEREAS,
in order to facilitate and administer the respective rights of
the Lenders with respect to the Collateral,
Senior Administrative Agent, on
behalf of the Senior Lenders, and Second
Lien Administrative Agent on behalf of
the Second Lien Lenders, enter into this
Agreement to appoint Guggenheim
Corporate Funding, LLC, as Collateral Agent
under the Security Documents to hold
the Liens in trust for the benefit of the
Senior Secured Creditor, the Second
Lien Creditor and the Swap Counterparties,
subject to the terms and conditions
hereof.
AGREEMENT
---------
NOW, THEREFORE, in
consideration of the above recitals and the provisions
set forth herein, and other good and
valuable consideration, the receipt and
sufficiency of which are hereby
acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
Section 1.
Definitions. For purposes of this Agreement, (a) terms defined
in the introductory paragraphs and recitals
to this Agreement have the meanings
set forth therein, (b) the following terms
used herein shall have the following
meanings, (c) terms defined both in the
introductory paragraphs and recitals and
in this Section 1 shall have the meanings
set forth in this Section 1:
"Blockage Period" means a Non-Payment Blockage Period or a
Payment
Blockage
Period.
"Collateral" shall mean any and all property which now constitutes
or
hereafter
will constitute collateral or other security for payment of the
Senior
Secured Indebtedness pursuant to the Senior Secured Loan
Documents,
all
amounts payable under the Swap Agreements and Second Lien
Indebtedness
pursuant
to the Second Lien Loan Documents.
"Collateral Agent - Related Persons" means Collateral Agent,
together
with its
Affiliates, and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
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"Enforcement Action" means, with respect to any Subordinated
Obligations: any enforcement of any right or remedy including
any
enforcement or foreclosure of Liens granted by the Borrowers or any
of
their
Subsidiaries to secure any or all of such Subordinated
Obligations,
any
enforcement or foreclosure of Liens on any capital stock or
other
equity
interests in either of the Borrowers or any of their
Subsidiaries
which may
be granted by either of the Borrowers or its Subsidiaries or
any
holder of
equity in either of the Borrowers to secure any or all of such
Subordinated Obligations, or any other efforts to collect proceeds
from
either of
the Borrowers' or any of their Subsidiaries' assets or
properties
(including proceeds of production) to satisfy the Subordinated
Obligations, including, without limitation, the commencement, or
the
joining
with any other creditor of either of the Borrowers or any
Subsidiary
in the commencement of any Insolvency Proceeding against either
of the
Borrowers or any of their Subsidiaries; provided, that none of
the
following shall constitute an
Enforcement Action: (a) acceleration of any
of the
Subordinated Obligations following acceleration of any of the
Senior
Indebtedness (provided that such acceleration of Senior
Indebtedness has not previously been rescinded), (b) acceleration
of any
of the
Senior Indebtedness following acceleration of any of the
Subordinated Obligations (provided that such acceleration of
the
Subordinated Obligations has not previously been rescinded), (c)
actions
by the
Second Lien Creditor to obtain possession of or receive
Reorganization Securities, or (d) taking any action described above
in
this
proviso during the existence of any Insolvency Proceeding subject
to
the
jurisdiction of a court of competent authority.
"Enforcement Notice" means a written notice which states that a
default or
an event of default under any provision of the Second Lien
Indebtedness has occurred and that Second Lien Creditor desires to
take
enforcement action as a consequence thereof.
"Guarantors" shall mean each of the current subsidiaries and
any
future
Subsidiary of the Borrowers and any other Person which at any
time
guarantees
the Senior Secured Indebtedness and the Second Lien
Indebtedness whether now or in the future.
"Indemnified Liabilities" means any and all liabilities,
obligations,
losses,
damages, penalties, claims, demands, actions, judgments, suits,
costs,
expenses and disbursements (including reasonable attorney's
costs
and
expenses) of any kind or nature whatsoever which may at any time
be
imposed
on, incurred by or asserted against any Collateral
Agent-Related
Person in
any way relating to or arising out of or in connection with (a)
the
execution, delivery, enforcement, performance or administration
of
this
Agreement or the Security Documents, (b) the use or proposed use
of
the
proceeds of any Collateral, or (c) any actual or prospective
claim,
litigation, investigation or proceeding relating to any of the
foregoing,
whether
based on contract, tort or any other theory (including any
investigation of, preparation for, or defense of any pending or
threatened
claim,
investigation, litigation or proceeding).
"Insolvency Proceeding" shall mean (a) any voluntary or
involuntary
case,
action, or proceeding before any Governmental Authority having
jurisdiction over the applicable Person or its assets relating
to
bankruptcy, reorganization, insolvency, liquidation,
receivership,
dissolution, winding-up, or relief of debtors, or (b) any
general
assignment
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for the benefit
of creditors, composition, marshaling of assets for
creditors, or
other similar arrangement in respect of its creditors
generally or any
substantial portion of its creditors; in each case whether
undertaken under
U.S. Federal, state, or foreign law.
"Lien" shall mean any interest in Property securing an
obligation
owed to,
or a claim by, a Person other than the owner of the Property,
whether
such interest is based on the common law, statute or contract,
and
whether
such obligation or claim is fixed or contingent, and including
but
not
limited to (i) the lien or security interest arising from a
mortgage,
encumbrance, pledge, security agreement, conditional sale or trust
receipt
or a
lease, consignment or bailment for security purposes or (ii)
production
payments and the like payable out of Oil and Gas Properties.
The term
"Lien" shall include reservations, exceptions, encroachments,
easements,
rights of way, covenants, conditions, restrictions, leases and
other
title exceptions and encumbrances affecting Property. For the
purposes
of this Agreement, the Borrowers or any Subsidiary shall be
deemed to
be the owner of any Property which it has acquired or holds
subject to a conditional
sale agreement, or leases under a financing lease
or other
arrangement pursuant to which title to the Property has been
retained
by or vested in some other Person in a transaction intended to
create a
financing.
"Lien Enforcement Action" shall mean any action, whether legal,
equitable,
judicial, non-judicial, or otherwise, to enforce any
assignment, lien, security interest, or other encumbrance now or in
the
future
securing all or any indebtedness or other obligations,
including,
without
limitation, exercise of any assignments of production or the
right
to receive
proceeds thereof, division orders or letters in lieu of
division
orders, any offset, repossession, foreclosure, public sale,
private
sale, or retention of all or any part of an asset for any
indebtedness or other obligations.
"Loan Parties" shall mean, individually and collectively,
Borrowers,
Guarantors
and any other Person (other than the Senior Secured Creditor,
Swap
Counterparties and the Second Lien Creditor) which is at any time
a
party to
any Senior Secured Loan Documents or Second Lien Loan Documents
or
individually, a "Loan Party".
"Non-Payment Blockage Period" means, with respect to any
Non-Payment
Default,
the period from and including the date of receipt by the Second
Lien
Lenders or the Second Lien Administrative Agent or other
representative designated pursuant to Section 16 hereof of a
Non-Payment
Default
Notice relating thereto until the first to occur of (a) the
date
upon which
the Senior Secured Indebtedness has been paid in full in cash,
all
commitments of any holder of Senior Secured Indebtedness to make
loans
or
extensions of credit have terminated, and all letters of credit
issued
by Senior
Secured Creditor or any Affiliate thereof have expired,
terminated
or been fully collateralized in cash, (b) the 180th day after
receipt of
such Non-Payment Default Notice, (c) the date on which the
Non-Payment Default which is the subject of such Non-Payment
Default
Notice has
been waived in writing by the applicable holder or holders of
the Senior
Secured Indebtedness or an agent or representative on their
behalf,
cured, or ceased to exist, or (d) the date upon which the
Person(s)
giving such Non-Payment Default Notice notify the Second Lien
Lenders or
the Second Lien Administrative Agent or other
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<PAGE>
representative designated pursuant to Section 16 hereof in writing
of the
termination of such Non-Payment Blockage Period.
"Non-Payment Default" means the occurrence of any event under
any
Senior
Secured Loan Document, not constituting a Payment Default,
which
gives the
holder(s) of such Senior Secured Indebtedness, or an agent or
representative acting on behalf of such holder(s), the right to
cause the
maturity
of such Senior Secured Indebtedness to be accelerated
immediately
without
any further notice (except such notice as may be required to
effect
such acceleration) or the expiration of any applicable grace
period.
"Non-Payment Default Notice" means a written notice from or on
behalf
of the
Senior Secured Indebtedness Representative that a Non-Payment
Default
has occurred and is continuing which identifies such
Non-Payment
Default
and specifically designates such notice as a "Non-Payment
Default
Notice."
"Payment Blockage Period" means, with respect to any Payment
Default
or Senior
Secured Indebtedness Acceleration, the period from and
including
the date
of receipt by the Second Lien Lenders or the Second Lien
Administrative Agent or other representative designated pursuant
to
Section 16
hereof of a Payment Default Notice relating thereto until the
first to
occur of (a) the date upon which the Senior Secured
Indebtedness
has been
paid in full in cash, all commitments of any holder of Senior
Secured
Indebtedness to make loans or extensions of credit have
terminated, and all letters of credit issued by any holder of
Senior
Secured
Indebtedness have expired, terminated or been fully
collateralized
in cash,
(b) if such Payment Default Notice relates to a Payment
Default,
the date
on which the Payment Default which is the subject of such
Payment
Default
Notice has been waived in writing by the applicable holder or
holders of
the Senior Secured Indebtedness or an agent or representative
on their
behalf, cured or ceased to exist, or if such Payment Default
Notice
relates to a Senior Secured Indebtedness Acceleration, the date
on
which such
acceleration is rescinded, annulled or ceases to exist, or (c)
the day
upon which the Person(s) giving such Payment Default Notice
notify
the Second
Lien Lenders or the Administrative Agent or other
representative in writing of the termination of such Payment
Blockage
Period.
"Payment Default" means a default by the Borrowers or any
Guarantor
in the
payment of any amount owing with respect to the Senior Secured
Indebtedness, whether with respect to principal, interest, premium,
letter
of credit
reimbursement obligations, commitment fees or letter of credit
fees or
otherwise when the same becomes due and payable, whether at
maturity
or at a date fixed for payment of an installment or prepayment
or
by
declaration or acceleration or otherwise.
"Payment Default Notice" means a written notice from or on behalf
of
the Senior
Secured Indebtedness Representative that either (i) a Payment
Default
with respect to Senior Secured Indebtedness has occurred and is
continuing, or (ii) a Senior Secured Indebtedness Acceleration
with
respect to
such Senior Secured Indebtedness has occurred and is continuing
and
specifically designates such notice as a "Payment Default
Notice".
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<PAGE>
"Person" means any natural person, corporation, limited
liability
company,
trust, joint venture, association, company, partnership, or
other
entity.
"Proportionate Share" means at any time with respect to any
Lender,
the amount
equal to (a) the amount of the following owed to such Lender
and/or
such Lender's Affiliates, divided by (b) without duplication
the
sum of:
(i) the principal amount of Senior Secured Indebtedness then
outstanding, including the L/C Exposure, plus (ii) the unused
portion of
the
Commitments of the Senior Secured Lenders, plus (iii) the
principal
amount of
the Second Lien Indebtedness then outstanding.
"Proceeds" shall have the meaning assigned to it under the UCC,
and,
in any
event, shall include, but not be limited to (a) any and all
proceeds
of any insurance, indemnity, warranty, letter of credit or
guaranty or collateral
security payable to any grantor from time to time
with
respect to any of the Collateral, (b) any and all payments (in
any
form
whatsoever) made or due and payable to the owner of the
Collateral
from time
to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the
Collateral
by any
governmental body, authority, bureau or agency (or any Person
acting
under color of governmental authority) and (c) any and all
other
amounts
from time to time paid or payable under or in connection with
any
of the
Collateral.
"Required Lenders" means (i) Lenders holding, in the aggregate,
Proportionate Shares exceeding 66?% and (ii) the Senior
Administrative
Agent.
"Required Second Lien Lenders" means (i) Lenders holding, in
the
aggregate,
outstanding Second Lien Indebtedness representing more than
66?% of
all outstanding Second Lien Indebtedness and (ii) the Second
Lien
Administrative Agent.
"Required Senior Secured Revolving Lenders" means (i) Lenders
holding
outstanding Senior Secured Revolving Loans plus unused Commitments
to make
Senior
Secured Revolving Loans that, in the aggregate, exceed 66?% of
the
sum of all
Commitments to make Senior Secured Revolving Loans and (ii) the
Senior
Administrative Agent.
"Required Senior Secured Term Loan Lenders" means Lenders
holding
outstanding Senior Secured Term Loans plus unused Commitments to
make
Senior
Secured Term Loans that, in the aggregate, exceed 66?% of the
sum
of all
Commitments to make Senior Secured Term Loans and (ii) the
Senior
Administrative Agent.
"Reorganization Securities" means (a) debt securities that are
issued
pursuant
to an Insolvency Proceeding the payment of which is subordinate
and junior
at least to the extent provided in this Agreement to the
payment of
the Senior Secured Indebtedness outstanding at the time of the
issuance
thereof (including any refinancing of Senior Secured
Indebtedness
pursuant
to an Insolvency Proceeding) and to the payment of all debt
securities
issued in exchange for such Senior Secured Indebtedness in such
Insolvency
Proceeding (whether such subordination is effected by the terms
of such
securities, an order or decree issued in such Insolvency
Proceeding, by agreement of the
6
<PAGE>
Second
Lien Lenders or otherwise), or (b) equity securities that are
issued
pursuant to an Insolvency Proceeding; provided, in either case,
that such
securities are authorized by an order or decree made by a court
of
competent jurisdiction in such Insolvency Proceeding.
"Second Lien Credit Agreement" means that certain Second Lien
Term
Loan
Agreement dated as of November 14, 2005 among the Borrowers,
Guggenheim
Corporate Funding, LLC, as administrative agent and the
financial
institutions listed therein from time to time as Second Lien
Lenders,
as from time to time renewed, extended, amended, supplemented,
or
restated,
and any agreements representing the refinancing, replacement,
or
substitution in whole or in part of the loans made or incurred
under such
Second
Lien Credit Agreement.
"Second Lien Creditor" means, individually and collectively,
Second
Lien
Creditor and all other present or future holders of all or part
of
the Second
Lien Indebtedness, and their respective successors and assigns.
"Second Lien Indebtedness" shall mean and include all
indebtedness,
obligations and liabilities of any Loan Party under the Second Lien
Loan
Documents,
including, without limitation, all principal and interest
(including
post-petition interest accrued subsequent to, and interest that
would have
accrued but for, the filing of any petition under any
bankruptcy, insolvency or similar law), and other amounts payable
under
the Second
Lien Loan Documents.
"Second Lien Lenders" means all Persons which now or hereafter
constitute
a "Lender" under the Second Lien Credit Agreement and their
respective
successors and assigns, and all Person refinancing any Senior
Indebtedness and their respective successors and assigns.
"Second Lien Loan Documents" means, collectively, (a) the Second
Lien
Credit
Agreement, (b) the Second Lien Notes, if requested, and any
other
note, bond
or other instrument evidencing Second Lien Indebtedness, (c)
all
mortgages, security agreements, pledge agreements or financing
statements
evidencing, creating or perfecting any Lien to secure the
Second
Lien Credit Agreement and the Second Lien Notes, if requested,
in
any way,
(d) all guarantees thereof, (d) all other documents,
instruments
or
agreements relating to the Second Lien Credit Agreement or the
Second
Lien Note,
if requested, now or hereafter executed or delivered by and
among the
Borrowers, any of their Subsidiaries, the Administrative Agent
or any
Second Lien Lender, including without limitation each of the
other
the
"Second Lien Loan Documents", and (e) all renewals, extensions,
amendments, modifications or restatements of the foregoing.
"Second Lien Notes" means each promissory note requested by a
Second
Lien
Lender and issued under the Second Lien Credit Agreement
evidencing
the term
loans made pursuant to the term thereof, as from time to time
renewed,
extended, amended, supplemented, or restated, and any
agreements
representing the refinancing, replacement, or substitution in whole
or in
part
thereof.
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<PAGE>
"Secured Parties" means the Senior Administrative Agent, the
Second
Lien
Administrative Agent, each Swap Counterparty, each of the
Senior
Secured
Lenders and each of the Second Lien Lenders.
"Security Documents" means all security agreements, pledge
agreements, deeds of trust, mortgages, financing statements,
continuation
statements, extension agreements and other agreements or
instruments now,
heretofore, or hereafter delivered by any Loan Party, Senior
Administrative Agent or the Second Lien Administrative Agent to
secure the
Senior
Secured Indebtedness, amounts payable under the Swap Agreements
and
the Second
Lien Indebtedness.
"Senior
Secured Credit Agreement" means that certain Senior Credit
Agreement
dated as of November 14, 2005 among the Borrowers, Guggenheim
Corporate
Funding, LLC, as administrative agent and the financial
institutions listed therein from time to time as Senior Secured
Lenders,
as from
time to time renewed, extended, amended, supplemented, or
restated,
and any agreements representing the refinancing, replacement,
or
substitution in whole or in part of the loans and letter of
credit
liabilities made or incurred under such Senior Secured Credit
Agreement.
"Senior Secured Creditor" means, individually and collectively,
Senior
Secured Creditor and all other present or future holders of all
or
part of
the Senior Secured Indebtedness, and their respective
successors
and
assigns.
"Senior Secured Indebtedness" means and includes (a) all
principal
indebtedness for loans now outstanding or hereafter incurred, the
undrawn
portion of all Commitments (as
defined in the Senior Secured Credit
Agreement)
and all letter of credit reimbursement obligations now existing
or
hereafter arising, under the Senior Secured Credit Agreement,
provided
that the
aggregate outstanding principal amount of Senior Secured
Indebtedness under this clause (a) shall not exceed $100,000,000 at
any
time, and
provided further, that if the aggregate principal amount of
Senior
Secured Indebtedness (constituting principal and letter of
credit
reimbursement obligations) shall exceed $100,000,000, then the
subordination of the Second Lien Notes, if any, as contemplated by
this
Agreement
to the Senior Secured Indebtedness of $100,000,000 or less
shall
not be impaired, (b) all amounts
now or hereafter owing to any Swap
Counterparty, (c) all interest accruing on the Senior Secured
Indebtedness
described
in the preceding clauses (a) and (b), and (d) all other
monetary
obligations (whether now outstanding or hereafter incurred) for
which
either of
the Borrowers or any of their Subsidiaries is responsible or
liable as
obligor, guarantor or otherwise under or pursuant to any of the
Senior
Secured Loan Documents including, without limitation, all fees,
penalties,
yield protections, breakage costs, damages, indemnification
obligations, reimbursement obligations, and expenses (including,
without
limitation, fees and expenses of counsel to the Senior
Indebtedness
Representative and the Senior Secured Lenders) together with
interest on
the
foregoing to the extent provided for in the Senior Secured Loan
Documents.
The interest described in the preceding clause (c) and the
premiums
and penalties described in the preceding clause (d) include,
without
limitation, all interest accruing after the commencement of any
Insolvency
Proceeding under the
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<PAGE>
terms of
the Senior Secured Loan Documents whether or not such interest
constitutes an allowed claim in any such Insolvency Proceeding.
"Senior Secured Indebtedness Acceleration" means with respect to
the
Senior
Secured Indebtedness that the holder or holders of such Senior
Secured
Indebtedness, or an agent or representative on behalf of such
holder or
holders, have caused the maturity of such Senior Secured
Indebtedness to be accelerated.
"Senior Secured Indebtedness Default" means a Payment Default or
a
Non-Payment Default.
"Senior Secured Indebtedness Representative" means (a) initially,
the
Senior
Administrative Agent or (b) such other Person selected by the
Majority
Lenders (as such term is defined in the Senior Secured Credit
Agreement)
to replace the Senior Administrative Agent or the then Senior
Indebtedness Representative.
"Senior Secured Lenders" means all Persons which now or
hereafter
constitute
"Lenders" under the Senior Secured Credit Agreement and their
respective
successors and assigns, and all Persons refinancing any Senior
Secured
Indebtedness and their respective successors and assigns.
"Senior Secured Loan Documents" means, collectively, (a) the
Senior
Secured
Credit Agreement and the Swap Agreements, (b) any note, bond or
other
instrument evidencing Senior Secured Indebtedness, (c) all
mortgages,
security agreements, pledge agreements or financing statements
evidencing, creating or perfecting any Lien to secure the Senior
Secured
Indebtedness in any way, (d) all guarantees of the Senior
Secured
Indebtedness, (d) all other documents, instruments or agreements
relating
to the
Senior Secured Indebtedness now or hereafter executed or
delivered
by and
among the Borrowers, any Subsidiary, the Senior Indebtedness
Representative or any Senior Secured Lender, including without
limitation
each of
the other the "Loan Documents" as such term is defined in the
Senior
Secured Credit Agreement, and (e) all renewals, extensions,
amendments, modifications or restatements of the foregoing.
"Standstill Period" means the period beginning with the
commencement
of a
Blockage Period and ending on the earliest of (a) the date when
the
Senior
Secured Indebtedness Default giving rise to such Blockage
Period
has been
cured or waived in writing, (b) the date of the repayment in
full
in cash of
the Senior Secured Indebtedness, (c) the date that is 90 days
after the
commencement of a Blockage Period, (d) the end of the
Non-Payment Blockage Period applicable to such Senior Secured
Indebtedness
Default,
(e) the date on which the Senior Secured Indebtedness shall
have
been
declared due and payable prior to its stated maturity or any
holder
of Senior
Secured Indebtedness commences proceedings to collect any
Senior
Secured
Indebtedness or realize upon any material part of the
Collateral
for any
Senior Secured Indebtedness and (f) the date upon which any
Insolvency
Proceeding is commenced.
"Subordinated Obligations" means any and all indebtedness
(whether
for
principal, interest, fees, indemnifications or otherwise, but
not
expenses)
now or hereafter
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owing by
the Borrowers or any of their Subsidiaries under or in
connection
with the
Second Lien Credit Agreement, the Second Lien Notes, if
requested, any mortgage, guaranty
or other security instrument given in
connection
therewith, and any letter agreement or other agreement
providing
for payment of fees in connection therewith.
"Swap Agreement" means, at any date of determination, any
agreement
entered
into by either Borrower or any of their Subsidiaries that is in
full force
and effect with respect to any swap, forward, future or
derivative
transaction, collar or option or similar agreement, whether
exchange
traded, "over-the-counter" or otherwise, involving, or settled
by
reference
to, one or more rates, currencies, commodities, equity or debt
instruments or securities, or economic, financial or pricing
indices or
measures
of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions; provided that
no
phantom
stock or similar plan providing for payments only on account of
services
provided by current or former directors, officers, employees or
consultants of the Borrowers or their Subsidiaries shall be a
Swap
Agreement.
"Swap Counterparty" means any party to a Swap Agreement other
than
Borrower
or any Subsidiary of Borrower and, initially shall be BP
Corporation North America Inc.
"UCC" shall mean the Uniform Commercial Code as in effect from
time
to time in
the State of New York.
Section 2.
General. (a) Notwithstanding any provision of the Second Lien
Loan Documents, the liens and security
interests securing the Second Lien
Indebtedness shall be subordinate and
junior in all respects to all liens and
security interests securing all or any part
of any of the Senior Secured
Indebtedness, to the extent and in the
manner provided in this Agreement, and
each Second Lien Lender, by acceptance
thereof whether upon original issuance,
transfer, assignment or exchange, agrees to
be bound by the provisions of this
Agreement.
(b) Notwithstanding any provision of the Senior Secured Loan
Documents, the liens and security interests
securing the Senior Secured Term
Loans shall be subordinate and junior to
the liens and security interests
securing the Senior Secured Revolving
Loans.
Section 3.
Collateral Agent
Appointment, Powers, Duties and Immunities.
-----------------------------------------------------------
(a) Each of the Lenders and the Swap Counterparty that is a
signatory hereto hereby irrevocably
appoints and authorizes Guggenheim Corporate
Funding, LLC, to act as Collateral Agent
under the Security Documents on the
terms and conditions set forth in this
Agreement and authorizes the Collateral
Agent to execute and/or accept from the
Loan Parties the Security Documents, in
the name of and for the benefit of the
Lenders, and Guggenheim Corporate
Funding, LLC, hereby accepts such
appointment and shall have all of the rights
and obligations of the Collateral Agent
hereunder and under the Security
Documents.
(b) Each Lender hereby authorizes Collateral Agent to do the
following in accordance with the terms of
this Agreement and the Security
Documents:
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(i) to receive all documents and items to be furnished from time
to
time to
Collateral Agent, Senior Administrative Agent, Second Lien
Administrative Agent or any Lender under the Security
Documents;
(ii) to distribute to Senior Administrative Agent and Second
Lien
Administrative Agent
information, requests, documents, and other items
received
from the Loan Parties and other Persons under the Security
Documents;
(iii) to execute and deliver to Borrowers and other Persons
requests,
demands, notices, approvals, consents, waivers, and other
communications received from Senior Administrative Agent and Second
Lien
Administrative Agent in connection with the Security Documents
and
herewith
subject to the terms and conditions set forth therein and
herein;
(iv) to receive on behalf of Senior Administrative Agent and
Second
Lien
Administrative Agent any payment of monies paid to Collateral
Agent
in
accordance with this Agreement and the Security Documents, and
to
distribute
to Senior Administrative Agent and/or Second Lien
Administrative Agent for the account of the applicable Lenders
in
accordance
with the terms of this Agreement such monies so received by
such
Senior Administrative Agent and/or Second Lien Administrative
Agent;
(v) to act on behalf of Lenders and the Swap Counterparties at
the
direction
of Senior Administrative Agent and/or Second Lien
Administrative
Agent to
maintain the perfection and priority of the Liens created under
the
Security Documents;
(vi) subject to the terms and conditions of the Security
Documents
and this
Agreement, to exercise on behalf of Senior Administrative Agent
all Lien
Enforcement Actions and, subject to the terms and conditions of
this
Agreement to exercise on behalf of Second Lien Administrative
Agent
all Lien
Enforcement Actions permitted hereunder; and
(vii) subject to the terms and conditions of the Security
Documents
and this
Agreement, to take such other actions as may be directed by
Senior
Administrative Agent and/or Second Lien Administrative Agent as
are
reasonably
incident to any powers granted to Collateral Agent hereunder.
(c)
Notwithstanding any provision to the contrary contained
elsewhere herein or in any Senior Secured
Loan Document, Swap Agreement or
Second Lien Loan Document, the Collateral
Agent shall not have any duties or
responsibilities, except those expressly
set forth herein, nor shall the
Collateral Agent have or be deemed to have
any fiduciary relationship with any
Lender, Swap Counterparty or participant,
and no implied covenants, functions,
responsibilities, duties, obligations or
liabilities shall be read into this
Agreement or any Senior Secured Loan
Document, Swap Agreement or Second Lien
Loan Document or otherwise exist against
the Collateral Agent. Without limiting
the generality of the foregoing sentence,
the use of the term "agent" herein
with reference to the Collateral Agent is
not intended to connote any fiduciary
or other implied (or express) obligations
arising under agency doctrine of any
applicable law. Instead, such term is used
merely as a matter of market custom,
and is intended
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<PAGE>
to create or reflect only an administrative relationship between independent
contracting parties. The Lenders and the Swap Counterparties irrevocably
authorize the Collateral Agent, at its
option and in its discretion, to release
any lien on or security interest in any Collateral (i) if
the property
subject
to such lien or security interest is permitted to be sold or otherwise
transferred pursuant to the Senior
Secured Credit Agreement or such lien is
otherwise permitted to be released pursuant
to the Senior Secured Loan Documents
and (ii) upon termination of and payment in full of all Senior Secured
Indebtedness and Second Lien Indebtedness
(other than contingent indemnification
obligations).
(d) The Collateral Agent may execute any of its duties under
this
Agreement or the Security Documents by or
through agents, employees or
attorneys-in-fact and shall be entitled to
advice of counsel and other
consultants or experts concerning all
matters pertaining to such duties. The
Collateral Agent shall not be responsible
for the negligence or misconduct of
any agent or attorney-in-fact that it
selects in the absence of gross negligence
or willful misconduct.
(e) No Collateral Agent-Related Person shall (i) be liable for
any
action taken or omitted to be taken by any
of them under or in connection with
this Agreement or the Security Documents or
the transactions contemplated hereby
and thereby including but not limited to
those arising from its own negligence
(except for its own gross negligence or
willful misconduct in connection with
its duties expressly set forth herein), or
(ii) be responsible in any manner to
any Lender, Swap Counterparty or
participant for any recital, statement,
representation or warranty made by the Loan
Parties, or any officer thereof,
contained herein or in the Security
Documents, or in any certificate, report,
statement or other document referred to or
provided for in, or received by the
Collateral Agent under or in connection
with, this Agreement or the Security
Documents, or the validity, effectiveness,
genuineness, enforceability or
sufficiency of this Agreement or the
Security Documents, or for any failure of
the Loan Parties to perform their
obligations hereunder or thereunder. No
Collateral Agent-Related Person shall be
under any obligation to any Lender or
participant to ascertain or to inquire as
to the observance or performance of
any of the agreements contained in, or
conditions of, this Agreement, the Senior
Secured Loan Documents, the Second Lien
Loan Documents, this Agreement, the
Security Documents, or to inspect the
properties, books or records of the Loan
Parties.
(f) The Collateral Agent shall be entitled to rely, and shall
be
fully protected in relying, upon any
writing, communication, signature,
resolution, representation, notice,
consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone
message, electronic mail message,
statement or other document or conversation
reasonably believed by it to be
genuine and correct and to have been
signed, sent or made by the proper Person
or Persons, and upon advice and statements
of legal counsel (including counsel
to the Loan Parties), independent
accountants and other experts selected by the
Collateral Agent. The Collateral Agent
shall be fully justified in failing or
refusing to take any action under the
Security Documents unless it shall first
receive such advice or concurrence of
Senior Administrative Agent as it deems
appropriate and, if it so requests, it
shall first be indemnified to its
satisfaction by the Lenders against any and
all liability and expense which may
be incurred by it by reason of taking or
continuing to take any such action. The
Collateral Agent shall in all cases be
fully protected in acting, or in
refraining from acting, under this
Agreement or the Security Documents in
accordance with a request or consent of
Senior Administrative Agent and such
request and any
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<PAGE>
action taken or failure to act pursuant
thereto shall be binding upon all the
Lenders and Swap Counterparties.
(g) The Collateral Agent shall not be deemed to have knowledge
or
notice of the occurrence of any "Default"
or "Event of Default" under the Senior
Secured Credit Agreement, the Second Lien
Credit Agreement, the Security
Documents or any Swap Agreement (as
"Default" or "Event of Default" is defined
in any of such documents) or unless the
Collateral Agent shall have received
written notice from the Senior
Administrative Agent or Second Lien
Administrative Agent, as applicable, or a
Borrower, describing such "Default" or
"Event of Default" and stating that such
notice is a "notice of default." The
Collateral Agent will notify Senior
Administrative Agent and the Second Lien
Administrative Agent of its receipt of any
such notice. The Collateral Agent
sh
