INTERCREDITOR AGREEMENT

Exhibit 4.22

 

EXECUTION COPY

 

INTERCREDITOR AGREEMENT

 

INTERCREDITOR AGREEMENT (this “ Agreement ”) dated as of June 16, 2004, between U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee for the 2010 Noteholders referred to below (in such capacity, together with its successors and assigns in such capacity, the “ 2010 Notes Trustee ”), U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee for the 2012 Noteholders referred to below ( in such capacity, together with its successors and assigns in such capacity, the “ 2012 Notes Trustee ”), U.S. BANK NATIONAL ASSOCIATION, a national banking association, as collateral agent pursuant to the 2010 Indenture and the 2012 Indenture, defined below (in such capacity, together with its successors and assigns in such capacity, the “ Collateral Agent ”), US UNWIRED INC., a Louisiana corporation (the “ Company ”), each of the Subsidiaries of the Company identified under the caption “Subsidiary Guarantors” on the signature pages hereto (individually, a “ Guarantor ” and collectively, the “ Guarantors ”), each other Loan Party (as defined below) that becomes a party hereto after the date hereof pursuant to Section 11.05(a) and each other Secured Party or Secured Party Representative (each as defined below) that becomes a party hereto after the date hereof pursuant to Section 11.05(b).

 

WHEREAS, the Company and the Guarantors have entered into an indenture dated as of June 16, 2004 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “ 2010 Indenture ”) with the 2010 Notes Trustee relating to the issuance of the Company’s First Priority Senior Secured Floating Rate Notes due 2010 (the “ 2010 Notes ”); and

 

WHEREAS, the Company and the Guarantors have entered into an indenture dated as of June 16, 2004 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “ 2012 Indenture ”) with the 2012 Notes Trustee relating to the issuance of the Company’s 10% Second Priority Senior Secured Notes due 2012 (the “ 2012 Notes ”); and

 

WHEREAS, pursuant to one or more Collateral Documents (as hereinafter defined) the Company, the Guarantors and the other Loan Parties from time to time party thereto have granted (and may in the future grant) to the Collateral Agent for the benefit of the First Lien Secured Parties first priority security interests in the Collateral (as defined below) as security for payment and performance of the First Lien Obligations (as defined below); and

 

WHEREAS, pursuant to such Collateral Documents, the Company, the Guarantors and the other Loan Parties from time to time party thereto have granted (and may in the future grant) to the Collateral Agent for the benefit of the Second Lien Secured Parties second priority security interests in the Collateral as security for payment and performance of the Second Lien Obligations (as defined below);

 

Intercreditor Agreement

NOW THEREFORE, in consideration of the foregoing and the mutual covenants herein contained and other good and valuable consideration, the existence and sufficiency of which is expressly recognized by all of the parties hereto, the parties agree as follows, it being understood that such agreement by the 2010 Notes Trustee is on behalf of itself and the 2010 Noteholders (as defined below), that such agreement by the 2012 Notes Trustee is on behalf of itself and the 2012 Noteholders (as defined below) and that such agreement by any other Secured Party Representative (as defined below) is on behalf of itself and each Secured Party for which it is a representative:

 

ARTICLE I

DEFINITIONS

 

SECTION 1.01. Definitions . As used in this Agreement, the following terms have the meanings specified below:

 

“ Bankruptcy Code ” means the United States Bankruptcy Code (11 U.S.C. §101 et seq.), as amended from time to time.

 

“ Capital Stock ” shall have the meaning assigned to such term in the Indentures.

 

“ Collateral ” means all assets, whether now owned or hereafter acquired by the Company or any other Loan Party, in which a Lien is granted or purported to be granted to the Collateral Agent pursuant to the Collateral Documents as security for any Secured Obligation.

 

“ Collateral Documents ” means, collectively, all agreements, deeds of trust, mortgages, instruments, documents, pledges or filings executed in connection with granting, or that otherwise evidence, the Lien of the Collateral Agent in the Collateral including without limitation the Security Agreement and this Agreement.

 

“ Credit Agreement ” means one or more debt facilities, indentures, note purchase agreements, commercial paper facilities or other agreements evidencing or governing Indebtedness, in each case with banks, investment banks, insurance companies, mutual funds and/or other institutional lenders or investors, providing for revolving credit loans, term loans, debt securities (including, without limitation, Additional Securities under and as defined in each Indenture), receivable or inventory financing (including through the sale of receivables or inventory to such lenders or to special purposes entities formed to borrow from such lenders against such receivables or inventory), letters of credit or other Indebtedness, in each case, as amended, restated, modified, renewed, refunded, replaced (whether upon or after termination or otherwise) or refinanced in whole or in part from time to time.

 

“ Credit Agreement Agent ” means, at any time, the Person serving at such time as the “Agent” or the “Administrative Agent” or the “Trustee” under a Credit Agreement or any other representative of the Lenders then most recently designated as such by the requisite percentage of such Lenders in a written notice delivered to the 2010 Notes Trustee, the 2012 Notes Trustee and the Collateral Agent and set forth in an Officers’ Certificate of the Company.

 

“ Default ” means an Event of Default or any other event that, with notice or lapse of time or both, would become an Event of Default.

 

“ Designation ” means the designation by the Company pursuant to an Officers’ Certificate delivered to each Trustee, the Collateral Agent and each Secured Party Representative of an agreement, document or other instrument as a “First Lien Document” or “Second Lien Document” hereunder, or Indebtedness as “First Lien Obligations” or “Second Lien Obligations” hereunder.

 

“ Enforcement Action ” means, with respect to the First Lien Obligations or the Second Lien Obligations, the exercise of any rights and remedies with respect to any Collateral securing such obligations or the commencement or prosecution of enforcement of any of the rights and remedies under, as applicable, the First Lien Documents or the Second Lien Documents, or applicable law, with respect to any of the Collateral including without limitation the exercise of any rights of set-off or recoupment, and the exercise of any rights or remedies of a secured creditor under the Uniform Commercial Code of any applicable jurisdiction or under the Bankruptcy Code.

 

“ Event of Default ” means any Event of Default under either Indenture or any other event under any other First Lien Document or Second Lien Document that permits the respective holders of the Secured Obligations under such First Lien Document or Second Lien Document to declare such Secured Obligations to be due and payable without any notice (other than notice of default) or lapse of time.

 

“ First Lien Documents ” means the 2010 Indenture, the Subsidiary Guarantees with respect to the 2010 Notes and the 2010 Notes, any Credit Agreement Designated as a “First Lien Document”, all Hedge Agreements evidencing Hedging Obligations that constitute First Lien Obligations and all other documents and instruments pursuant to which any Indebtedness constituting First Lien Obligations has been Incurred or is outstanding, in each case as the same may be amended, restated, replaced, refinanced, renewed, extended, supplemented or modified from time to time.

 

“ First Lien Obligation Period ” means any period during which (i) any First Lien Obligations are outstanding (and, for purposes hereof, 2010 Notes that have been defeased pursuant to Article XII of the 2010 Notes Indenture shall be deemed not to be outstanding), (ii) any commitments pursuant to which First Lien Obligations may be Incurred are in effect or (iii) any letters of credit issued under any First Lien Documents are outstanding but have not been discharged or fully cash collateralized in accordance with the terms of the applicable First Lien Document. Subject to Section 6.05, the First Lien Obligation Period shall be deemed to have terminated upon the delivery by the Company to the Collateral Agent and each Secured Party Representative of an Officers’ Certificate to the effect that the conditions set forth in this definition have been satisfied.

 

“ First Lien Obligations ” means:

 

(1) the 2010 Notes, the Subsidiary Guarantees with respect to the 2010 Notes and the 2010 Note Obligations;

 

(2) all Indebtedness of the Company and its Subsidiaries under any Credit Agreement that is (or, in the case of any reimbursement obligation for a letter of credit issued under any Credit Agreement or any loan required to be made under any Credit Agreement to satisfy such reimbursement obligation, was, when such letter of credit was issued) permitted to be Incurred by clause (b) or (g) of the second paragraph of Section 10.08 of each Indenture and that is Designated as “First Lien Obligations”;

 

(3) all other Indebtedness of the Company and its Subsidiaries (including any additional 2010 Notes) Designated as “First Lien Obligations” for purposes of this Agreement that is permitted to be Incurred by clauses (b) or (g) of the second paragraph of Section 10.08 of each Indenture; and

 

(4) Hedging Obligations that are Designated as “First Lien Obligations”.

 

“ First Lien Representative ” means at any time, collectively, the 2010 Notes Trustee, as the representative hereunder for the holders of the 2010 Notes, and any Persons that are designated by the Company in an Officers’ Certificate delivered to each Secured Party Representative under any other First Lien Document as a “First Lien Representative” for purposes of this Agreement.

 

“ First Lien Secured Parties ” means the 2010 Notes Trustee, the 2010 Noteholders, any other First Lien Representative (including the Credit Agreement Agent for any Credit Agreement Designated as a “First Lien Document”), the Lenders under such Credit Agreement and any other holders of First Lien Obligations.

 

“ First Priority Liens ” means the first priority Liens and security interests in the Collateral granted to the Collateral Agent pursuant to the Collateral Documents as collateral security for the First Lien Obligations.

 

“ Hedge Agreements ” means any interest rate or currency exchange rate swap, cap, collar, floor, caption, or swaption agreements, or any similar arrangements arising at any time between the Company or any other Loan Party, on the one hand, and any Person, on the other hand, as such agreement or arrangement may be modified, supplemented and in effect from time to time.

 

“ Hedging Obligations ” means all obligations and liabilities of the Company and its Subsidiaries (whether directly or as a guarantor) owed to any First Lien Secured Party (or any of its affiliates) in respect of any interest rate or currency swaps, caps or collar agreements, foreign exchange agreements, commodity contracts or similar arrangements providing for protection against fluctuations in interest rates, currency exchange rates, commodity prices or the

 

exchange of nominal interest obligations, either generally or under specific contingencies, in each case to the extent such obligations and liabilities are secured by Collateral.

 

“ Incur ” has the meaning assigned to such term in the Indentures.

 

“ Indebtedness ” shall have the meaning assigned to such term in the Indentures.

 

“ Indentures ” means the 2010 Indenture and the 2012 Indenture.

 

“ Insolvency Proceeding ” means any proceeding in respect of bankruptcy, insolvency, winding up, receivership, dissolution or assignment for the benefit of creditors under the Bankruptcy Code or any similar federal, state or foreign bankruptcy, insolvency, reorganization, receivership or similar law.

 

“ Lenders ” means, at any time, the parties to any Credit Agreement then holding (or committed to provide) loans, letters of credit, debt securities or other extensions of credit that constitute (or when provided will constitute) part of the First Lien Obligations or Second Lien Obligations, as applicable.

 

“ Lien ” means, with respect to any property or assets, any mortgage or deed of trust, pledge, hypothecation, assignment, deposit arrangement, security interest, lien, charge, easement (other than an easement not materially impairing usefulness or marketability), encumbrance, preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever on or with respect to such property or assets (including, without limitation, any conditional sale or other title retention agreement having substantially the same economic effect as any of the foregoing).

 

“ Loan Party ” means the Company, each Guarantor and each of the Subsidiaries of the Company that is now or hereafter becomes a party hereto pursuant to an Assumption Agreement in the form of Annex 1 hereto.

 

“ Obligations ” means any principal, interest, penalties, fees, indemnities, reimbursement obligations, guarantee obligations, costs, expenses (including fees and disbursements of counsel), damages and other liabilities and obligations, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of or in connection with the documentation governing or made, delivered or given in connection with, any Indebtedness (including, without limitation, interest accruing at the then applicable rate provided in such documentation after the maturity of such Indebtedness and interest accruing at the then applicable rate provided in such documentation after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company or any other Loan Party, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).

 

“ Officers’ Certificate ” means a certificate signed by two officers, at least one of whom shall be the principal executive officer, principal accounting officer or principal financial officer of the Company and delivered to the Collateral Agent or a Secured Party Representative.

 

“ Opinion of Counsel ” means a written opinion of counsel, who may be counsel for the Company, and who shall be reasonably acceptable to the Collateral Agent, delivered to the Collateral Agent.

 

“ Person ” means any person, individual, sole proprietorship, partnership, joint venture, corporation, limited liability company, unincorporated organization, association, institution, entity, party, including any government and any political subdivision, agency or instrumentality thereof.

 

“ Post-Petition Interest ” means any interest or entitlement to fees or expenses that accrues after the commencement of any Insolvency Proceeding, whether or not allowed or allowable in any such Insolvency Proceeding.

 

“ Requisite First Lien Secured Parties ” means First Lien Secured Parties holding a majority in aggregate principal amount of the First Lien Obligations (other than Hedging Obligations).

 

“ Requisite Second Lien Secured Parties ” means Second Lien Secured Parties holding a majority in aggregate principal amount of the Second Lien Obligations.

 

“ Requisite Secured Parties ” means (i) at all times prior to the termination of the First Lien Obligation Period, the Requisite First Lien Secured Parties and (ii) at all times after the termination of the First Lien Obligation Period, the Requisite Second Lien Secured Parties.

 

“ Restricted Subsidiary ” shall have the meaning assigned to such term in the Indentures.

 

“ Second Lien Documents ” means the 2012 Indenture, the Subsidiary Guarantees with respect to the 2012 Notes and the 2012 Notes, any Credit Agreement Designated as a “Second Lien Document” and all other documents and instruments pursuant to which any Indebtedness constituting Second Lien Obligations has been Incurred or is outstanding, in each case as the same may be amended, restated, replaced, refinanced, renewed, extended, supplemented or modified from time to time.

 

“ Second Lien Obligations ” means:

 

(1) the 2012 Notes, the Subsidiary Guarantees with respect to the 2012 Notes and the 2012 Note Obligations;

 

(2) all Indebtedness of the Company and its Subsidiaries under any Credit Agreement that is (or, in the case of any reimbursement obligation for a letter of credit issued under any Credit Agreement or any loan required to be made under any Credit Agreement to satisfy such reimbursement obligation, was, when such letter of credit was issued) permitted to be Incurred by clause (b) or (g) of the second paragraph of Section 10.08 of each Indenture and that is Designated as “Second Lien Obligations”; and

 

(3) all other Indebtedness of the Company and its Subsidiaries (including any additional 2012 Notes) Designated as “Second Lien Obligations” that is permitted to be Incurred by clauses (b) or (g) of the second paragraph of Section 10.08 of each Indenture, or by the first paragraph of Section 10.08 of each Indenture.

 

“ Second Lien Representative ” means at any time, collectively, the 2012 Notes Trustee, as the representative hereunder for the holders of the 2012 Notes, and any Persons that are designated by the Company in an Officers’ Certificate delivered to each Secured Party Representative under any other Second Lien Document as a “Second Lien Representative” for purposes of this Agreement.

 

“ Second Lien Secured Parties ” means the 2012 Notes Trustee, the 2012 Noteholders, any other Second Lien Representative (including the Credit Agreement Agent for any Credit Agreement Designated as a “Second Lien Document”), the Lenders under such Credit Agreement and any other holders of Second Lien Obligations.

 

“ Second Priority Liens ” means the second priority Liens and security interests in the Collateral granted to the Collateral Agent pursuant to the Collateral Documents as collateral security for the Second Lien Obligations.

 

“ Secured Obligations ” means the First Lien Obligations and Second Lien Obligations.

 

“ Secured Parties ” means the First Lien Secured Parties and the Second Lien Secured Parties.

 

“ Secured Party Representatives ” means the First Lien Representatives and the Second Lien Representatives.

 

“ Security Agreement ” means the Security Agreement dated as of the date hereof between the Company, the Guarantors and the Collateral Agent, as amended, supplemented, restated, replaced or otherwise modified from time to time.

 

“ Subsidiary ” means, as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person.

 

“ Subsidiary Guarantee ” shall have the meaning assigned to such term in the Indentures.

 

“ Trust Indenture Act ” shall have the meaning assigned to such term in the Indentures.

 

“ Trustee ” means the 2010 Notes Trustee and the 2012 Notes Trustee.

 

“ 2010 Indenture ” shall have the meaning assigned to such term in the first WHEREAS clause hereto.

 

“ 2010 Note Obligations ” means Note Obligations in respect of the 2010 Notes.

 

“ 2010 Noteholders ” means the holders from time to time of the 2010 Notes.

 

“ 2010 Notes ” shall have the meaning assigned to such term in the first WHEREAS clause hereto.

 

“ 2010 Notes Trustee ” shall have the meaning assigned to such term in the introductory paragraph hereto.

 

“ 2012 Indenture ” shall have the meaning assigned to such term in the second WHEREAS clause hereto.

 

“ 2012 Note Obligations ” means Note Obligations in respect of the 2012 Notes.

 

“ 2012 Noteholders ” means the holders from time to time of the 2012 Notes.

 

“ 2012 Notes ” shall have the meaning assigned to such term in the second WHEREAS clause hereto.

 

“ 2012 Notes Trustee ” shall have the meaning assigned to such term in the introductory paragraph hereto.

 

“ Uniform Commercial Code ” means the Uniform Commercial Code as in effect from time to time in the State of New York.

 

“ Unrestricted Subsidiary ” shall have the meaning assigned to such term in the Indentures.

 

ARTICLE II

COLLATERAL AGENT

 

SECTION 2.01. Appointment and Duties of the Collateral Agent . Each Secured Party hereby appoints U.S. Bank National Association to act as Collateral Agent hereunder and under the other Collateral Documents, and authorizes the Collateral Agent to execute, deliver and perform, on behalf of each of the Secured Parties, each Collateral Document to which the Collateral Agent is or is intended to be a party and to take such actions on behalf of the Secured

 

Parties under the provisions of the Collateral Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of each Collateral Document, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in any Collateral Document, the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the Collateral Documents. Each Secured Party shall be bound by all of the agreements of the Collateral Agent contained herein and in the Collateral Documents.

 

SECTION 2.02. Rights of Collateral Agent .

 

(a) Performance of Duties Through Agents . The Collateral Agent may perform any of its duties under the Collateral Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties.

 

(b) Absence of Liability . Neither the Collateral Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any action lawfully taken or omitted to be taken by it under or in connection with this Agreement or any Collateral Document (except for its gross negligence, willful misconduct or bad faith), or (ii) responsible in any manner to any Secured Party for any recitals, statements, representations or warranties made by any Loan Party or any representative thereof or any other Person contained in any Collateral Document 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, any Collateral Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of the Collateral or any Collateral Document or for any failure of any Loan Party to perform its obligations thereunder. Except as expressly provided herein or in any Collateral Document, the Collateral Agent shall not be under any obligation to any Secured Party to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, any Collateral Document or to inspect the properties, books or records of any Loan Party.

 

(c) Reliance, Etc . The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any instruction, direction, order, request, note, writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype message, statement, order or other document 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, independent accountants and other experts.

 

The Collateral Agent shall be fully justified in failing or refusing to take any action hereunder or under any Collateral Document (i) if such action would, in the reasonable opinion of the Collateral Agent, be contrary to law or the terms of the Collateral Documents or (ii) if such action is not specifically provided for herein or in any Collateral Document, or it shall not have received any such advice or concurrence of the Secured Parties as it deems appropriate. The Collateral Agent shall in all cases have the right to consult with, and get direction from, the Requisite Secured Parties, and the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder or under any Collateral Document in accordance with the

 

instructions of the Requisite Secured Parties, and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Secured Parties.

 

(d) Effect of Ambiguous Provisions . In addition to Section 2.02(c) above, and Section 2.02(f) below, if, with respect to a proposed action to be taken by it, the Collateral Agent shall determine in good faith that the provisions of any Collateral Document relating to the functions or responsibilities of the Collateral Agent are or may be ambiguous or inconsistent, the Collateral Agent shall notify the respective Secured Party affected thereby, identifying the proposed action and the provisions that it considers are or may be ambiguous or inconsistent, and may decline to perform such function or responsibility unless it has received the written confirmation from the Requisite Secured Parties, concurring in the circumstances that the action proposed to be taken by the Collateral Agent is consistent with the terms of such Collateral Document or is otherwise appropriate. The Collateral Agent shall be fully protected in acting or refraining from acting upon the confirmation of the Requisite Secured Parties in this respect, and such confirmation shall be binding upon all of the Secured Parties.

 

(e) Notice of Defaults, Etc . The Collateral Agent shall not be deemed to have actual, constructive, direct or indirect knowledge or notice of the occurrence of any Default or Event of Default unless and until the Collateral Agent has received notice or a certificate from a Secured Party or the Company stating that a Default or Event of Default has occurred. The Collateral Agent shall not have any obligation whatsoever either prior to or after receiving such notice or certificate to inquire whether a Default or Event of Default has in fact occurred and shall be entitled to rely conclusively, and shall be fully protected in so relying, on any notice or certificate so furnished to it. No provision of any Collateral Document shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties under any Collateral Document or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. In the event that the Collateral Agent receives such a notice of the occurrence of any Default or Event of Default, the Collateral Agent shall promptly give notice thereof to each Secured Party Representative. The Collateral Agent shall take such action with respect to such Default or Event of Default as requested by the Requisite Secured Parties, and as otherwise provided herein.

 

(f) No Requirement to Exercise Rights . Except as otherwise specifically provided hereby, the Collateral Agent need not exercise any rights, powers or remedies under this Agreement or any of the Collateral Documents, give any consent under any of the Collateral Documents or release any Lien or guarantee, unless it shall have been directed to do so in writing by, or, as applicable, shall have received the written consent to the relevant action of, the Requisite Secured Parties and, to the extent required under Section 5.02, the Requisite Second Lien Secured Parties.

 

(g) Perfection, Etc. Except for actions expressly required hereunder (excluding circumstances in which the Collateral Agent has the ability but not an affirmative duty to act), nothing in this Agreement or any Collateral Document shall be interpreted as giving the Collateral Agent responsibility for or any duty concerning the validity, perfection, priority or enforceability of any lien or security interest in any Collateral or giving the Collateral Agent any

 

obligation to take any action to procure or maintain such validity, perfection, priority or enforceability.

 

SECTION 2.03. Indemnification and Fees of the Collateral Agent .

 

(a) Indemnification . The Loan Parties jointly and severally agree to indemnify and hold harmless the Collateral Agent and its directors, officers, employees, agents and advisors from and against any and all claims, losses, liabilities, obligations, damages and expenses (including reasonable fees and expenses of counsel) that may be incurred by or asserted or awarded against the Collateral Agent or any such Person (hereinafter the “ Indemnification Amount ”) arising out of, related to or in connection with (i) this Agreement or any Collateral Document (including the enforcement of any Collateral Document) or (ii) any refund or adjustment of any amount paid or payable to the Collateral Agent under or in respect of any Collateral Document or any Collateral, or any interest thereon, which may be ordered or otherwise required by any Person, except to the extent such claims, losses, liabilities, damages and expenses are found by a court of competent jurisdiction to have resulted from such Person’s gross negligence or willful misconduct. If the Loan Parties fail to pay on demand the Indemnification Amount, interest will accrue thereon at a rate per annum equal to that specified for post-default interest on the 2012 Notes from the scheduled date for payment thereof until the actual date of payment and such interest shall be added to the Indemnification Amount.

 

(b) Fees and Expenses . The Loan Parties jointly and severally agree to pay upon demand to the Collateral Agent the initial and on-going fees of the Collateral Agent, and the amount of any and all reasonable out-of-pocket expenses of the Collateral Agent, including the reasonable fees and expenses of its counsel (and any local counsel) and of any experts and agents, which the Collateral Agent may incur in connection with (i) the administration of this Agreement and the Collateral Documents, (ii) the custody or preservation of, or the sale of, collection from, or other realization upon, any of the Collateral, (iii) the exercise or enforcement (whether through negotiations, legal proceedings or otherwise) of any of the rights of the Collateral Agent under the Collateral Documents or (iv) the failure by any Loan Party or any other Person (other than the Collateral Agent) to perform or observe any of the provisions of the Collateral Documents.

 

SECTION 2.04. Resignation or Removal of the Collateral Agent . The Collateral Agent may resign upon not less than 30 days’ prior written notice to the Company and each Secured Party Representative, and may be removed at any time with or without cause by the Requisite Secured Parties, with any such resignation or removal to become effective only upon the appointment of a successor Collateral Agent under this Section 2.04. If the Collateral Agent shall resign or be removed, then the Requisite Secured Parties shall (and if no such successor shall have been appointed within 60 days of the Collateral Agent’s resignation or removal, the Collateral Agent may) appoint a successor collateral agent for the Secured Parties, which successor collateral agent shall be a bank or trust company organized under the laws of the United States of America or a State thereof and that has a combined capital and surplus of at least $250,000,000, whereupon such successor agent shall succeed to the rights, powers and duties of the “Collateral Agent” and the term “Collateral Agent” shall mean such successor agent effective upon its appointment, and the former Collateral Agent’s rights, powers and duties as Collateral Agent shall be terminated, without any other or further act or deed on the part of such

 

former Collateral Agent (except that the resigning Collateral Agent shall deliver all Collateral then in its possession to the successor Collateral Agent) or any of the other Secured Parties. After any retiring Collateral Agent’s resignation or removal hereunder, the provisions of this Agreement shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Collateral Agent.

 

To induce a bank or trust company to accept its appointment as a successor Collateral Agent hereunder, the Company agrees to pay to such successor such agency and other fees as is consistent with market rates charged by successor Collateral Agents in similar circumstances.

 

Any corporation into which the Collateral Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Collateral Agent shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Collateral Agent, shall be the successor of the Collateral Agent hereunder; provided such corporation shall be otherwise qualified and eligible under this Section 2.04, without the execution or filing of any paper or any further act on the part of any of the parties hereto.

 

SECTION 2.05. Information as to Secured Parties . The Company shall have sole responsibility for maintaining a registry of, and identification of, Secured Parties. The Company will at such times as shall be requested by the Collateral Agent or any Secured Party Representative, supply a list in form and detail satisfactory to the Collateral Agent (a copy of which shall be supplied to each Secured Party Representative) setting forth the principal of and interest on the Secured Obligations held by each Secured Party as at a date specified in such request. The Collateral Agent shall provide any such list to any Secured Party upon request. The Collateral Agent shall be entitled to rely upon such information, and such information shall be conclusive and binding for all purposes of this Agreement, except to the extent the Collateral Agent shall have been notified by a Secured Party that such information as set forth on any such list is inaccurate.

 

ARTICLE III

LIENS

 

SECTION 3.01. Subordination of Liens . During the First Lien Obligation Period:

 

(a) any and all Liens now existing or hereafter created or arising in favor of any Second Lien Secured Party securing the Second Lien Obligations, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, are expressly junior in priority, operation and effect to any and all Liens now existing or hereafter created or arising in favor of the First Lien Secured Parties securing the First Lien Obligations, notwithstanding (i) anything to the contrary contained in any agreement or filing to which any Second Lien Secured Party may now or hereafter be a party, and regardless of the time, order or method of grant, attachment, recording or perfection of any financing statements or other security interests, assignments, pledges, deeds,

 

mortgages and other liens, charges or encumbrances or any defect or deficiency or alleged defect or deficiency in any of the foregoing, (ii) any provision of the Uniform Commercial Code or any applicable law or any First Lien Document or Second Lien Document or any other circumstance whatsoever and (iii) the fact that any such Liens in favor of any First Lien Secured Party securing any of the First Lien Obligations are (x) subordinated to any Lien securing any obligation of any Loan Party other than the Second Lien Obligations or (y) otherwise subordinated, voided, avoided, invalidated or lapsed; and

 

(b) no First Lien Secured Party or Second Lien Secured Party shall object to or contest, or support any other Person in contesting or objecting to, in any proceeding (including without limitation, any Insolvency Proceeding), the validity, extent, perfection, priority or enforceability of any security interest in the Collateral granted pursuant to any Collateral Document. Notwithstanding any failure by any Secured Party to perfect any security interests in the Collateral or any avoidance, invalidation or subordination by