INTERCREDITOR AGREEMENT

 

INTERCREDITOR AGREEMENT

 

This INTERCREDITOR AGREEMENT, dated as of November 16, 2004, is among LASALLE BANK NATIONAL ASSOCIATION, in its capacity as the Administrative Agent under the Credit Agreement (as defined below) (in such capacity, the "Administrative Agent"), WELLS FARGO BANK, N.A., as collateral agent and trustee under the Indenture referred to below (in its capacity as collateral agent, the "Trustee"), and INTEGRATED ALARM SERVICES GROUP, INC., a Delaware corporation (the "Borrower").

 

W I T N E S S E T H:

 

WHEREAS, the Borrower, Criticom International Corporation, Monital Signal Corporation, Payne Security Group, L.L.C., American Home Security, Inc., various financial institutions from time to time parties thereto (the "Lenders") and the Administrative Agent are entering into a Credit Agreement, dated as of November 16, 2004 (as amended, supplemented, amended and restated or otherwise modified from time to time, the "Credit Agreement");

 

WHEREAS, the Obligors (as hereinafter defined) will grant to the Administrative Agent, for the benefit of the Lenders, security interests in the First Priority Collateral (as hereinafter defined) as security for payment and performance of the First Priority Claims (as hereinafter defined);

 

WHEREAS, the Borrower and the Trustee are entering into an Indenture, dated as of November 16, 2004 (as amended, supplemented, amended and restated or otherwise modified from time to time, the "Indenture"), governing the rights and duties of the Borrower under its 12% Senior Secured Notes due 2011 in the original aggregate principal amount of $125,000,000 (together with any additional notes issued under the Indenture, the "Notes"); and

 

WHEREAS, the Obligors will grant to the Trustee, for the benefit of the Noteholders (as hereinafter defined), security interests in the Noteholder Collateral (as hereinafter defined) as security for payment and performance of the Noteholder Claims (as hereinafter defined);

 

NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and obligations herein set forth and for other good and valuable consideration, the adequacy and receipt of which are hereby acknowledged, and in reliance upon the representations, warranties and covenants herein contained, the parties hereto, intending to be legally bound, hereby agree as follows:

 

Section 1.  Definitions.

 

1.1  Defined Terms. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and the plural forms of the terms indicated):

 

"Administrative Agent" means, in addition to the Administrative Agent defined in the preamble, the then acting agent for the Lenders under the Loan Documents and any successor thereto exercising substantially the same rights and powers.

 

     

    "Agreement" means this Intercreditor Agreement, as amended, supplemented, amended and restated or otherwise modified from time to time in accordance with the terms hereof.

 

"Bankruptcy Code" means Title 11 of the United States Code (11 U.S.C. 101 et seq.).

 

"Borrower" is defined in the preamble.

 

"Business Day" means any day other than a Saturday, Sunday or other day on which commercial banks are required or authorized to be closed in New York, New York.

 

"Cash Management Obligations" means all obligations of the Borrower or any other Obligor to any Lender under or in connection with any arrangement in respect of overdraft protection, Automated Clearing House services and other treasury, depositary and cash management services, including reimbursement obligations relating thereto, overdraft liabilities, liabilities in respect of returned items, fees, expenses and indemnities (including interest accruing thereon after the filing of a petition in bankruptcy or the commencement of any Insolvency Proceeding, regardless of whether the same is allowed as a claim in such proceeding).

 

"Common Collateral" means all of the assets and property of the Obligors, whether real, personal or mixed, constituting both First Priority Collateral and Noteholder Collateral.

 

"Comparable Noteholder Collateral Document" means, in relation to any Common Collateral subject to any Lien created under any First Priority Collateral Document, that Noteholder Collateral Document which creates a Lien in the same Common Collateral, granted by the same Obligor, as applicable.

 

"Credit Agreement" is defined in the first recital; provided that (i) the term "Credit" Agreement shall (x) also include any renewal, extension, refunding, restructuring, replacement or refinancing thereof (whether with the original administrative agent and lenders or another administrative agent or agents or other lenders, whether provided under the original Credit Agreement or any other credit or other agreement or indenture and whether entered into concurrently with or subsequent to the termination of the prior Credit Agreement), provided that any such renewal, extension, refunding, restructuring, replacement or refinancing does not increase the principal amount thereof beyond the limit set forth in the Indenture or any other Noteholder Document and (y) exclude the Notes and other Noteholder Documents and (ii) if at any time a Discharge of First Priority Claims occurs with respect to the Credit Agreement (without giving effect to Section 5.6), then, to the extent provided in Section 5.6, the term "Credit Agreement" shall mean the Future First Lien Credit Facility designated by the Borrower in accordance with the terms of such section.

 

"Credit Agreement Obligations" means all Obligations under or pursuant to the Credit Agreement.

 

"DIP Financing" is defined in Section 6.1.

 

 

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"Discharge of First Priority Claims" means, except to the extent otherwise provided in Sections 5.6 and 6.5, payment in full in cash of (a) the principal of and interest (including interest accruing on or after the commencement of any Insolvency Proceeding, whether or not such interest would be allowed in such Insolvency Proceeding) and premium, if any, on all Indebtedness outstanding under the First Lien Credit Facilities and, with respect to letters of credit outstanding thereunder, termination thereof or delivery of cash collateral or backstop letters of credit in respect thereof and for the full amount thereof in compliance with such First Lien Credit Facilities, as applicable, in each case after or concurrently with termination of all commitments to extend credit thereunder and (b) any other First Priority Claims that are due and payable or otherwise accrued and owing at or prior to the time such principal and interest are paid, in each case other than obligations that constitute Unasserted Contingent Obligations at the time such principal and interest is paid.

 

"First Lien Credit Facilities" means (a) the credit facilities provided pursuant to the Credit Agreement and (b) any other credit facility permitted by Section 4.07(b)(i) of the Indenture, that, in the case of both clauses (a) and (b), is secured by a Lien permitted pursuant to clause (5) of the definition of "Permitted Liens" in Section 1.01 of the Indenture.

 

"First Priority Cash Management Obligations" means any Cash Management Obligations secured by any Common Collateral under the same First Priority Collateral Documents that secure Obligations under any First Lien Credit Facility.

 

"First Priority Claims" means (a) all Credit Agreement Obligations, (b) all Obligations under one or more other First Lien Credit Facilities, the Indebtedness under each of which is designated by the Borrower as "First Priority Claims" for purposes of the Indenture, (c) all other Obligations of the Borrower or any other Obligor under the First Priority Documents, including all First Priority Hedging Obligations and First Priority Cash Management Obligations and (d) all Future Other First Lien Obligations. First Priority Claims shall include all interest accrued or accruing (or which would, absent the commencement of an Insolvency Proceeding, accrue) after the commencement of an Insolvency Proceeding in accordance with and at the rate specified in the relevant First Priority Document whether or not the claim for such interest is allowed as a claim in such Insolvency Proceeding. To the extent any payment with respect to the First Priority Claims (whether by or on behalf of any Obligor, as proceeds of security, enforcement of any right of set-off or otherwise) is declared to be fraudulent or preferential in any respect, set aside or required to be paid to a debtor in possession, trustee, receiver or similar Person, then the obligation or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred. Notwithstanding the foregoing the Notes and related Obligations will not constitute First Priority Claims and collateral therefor will not constitute First Priority Collateral even if any proceeds of the Notes are used to repay Obligations under the Credit Agreement. Notwithstanding anything to the contrary contained in this definition, any Obligation under a First Priority Document (including any Cash Management Obligation or Hedging Obligation) shall constitute a "First Priority Claim" if the Administrative Agent or the relevant First Priority Lender or First Priority Lenders under such First Priority Document shall have received a written representation from the Borrower in or in connection with such First Priority Document that such Obligation constitutes a "First Priority Claim" under and as defined in the Indenture (whether or not such Obligation is at any time determined not to have been permitted to be incurred under the Indenture).

 

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"First Priority Collateral" means all of the property or assets of any Obligor, whether real, personal or mixed, with respect to which a Lien is granted or held as security for any First Priority Claim.

 

"First Priority Collateral Documents" means any agreement, document or instrument pursuant to which a Lien is granted securing any First Priority Claim or under which rights or remedies with respect to such Liens are governed.

 

"First Priority Documents" means the Credit Agreement, the Loan Documents, the First Priority Collateral Documents and each of the other agreements, documents and instruments (including each agreement, document or instrument providing for or evidencing a First Priority Hedging Obligation or First Priority Cash Management Obligation) providing for or evidencing any other Obligation under the Credit Agreement or any other First Lien Credit Facility or any Future Other First Lien Obligation, and any other related document or instrument executed or delivered pursuant to any First Priority Document at any time or otherwise evidencing any First Priority Claim.

 

"First Priority Hedging Obligations" means any Hedging Obligations secured by any Common Collateral under the same First Priority Collateral Documents that secure Obligations under a First Priority Credit Facility.

 

"First Priority Lenders" means the Persons holding First Priority Claims, including the Administrative Agent.

 

"First Priority Liens" means all Liens that secure the First Priority Claims.

 

"Future First Lien Credit Facility" shall mean the Credit Agreement and any other First Lien Credit Facility that is designated by the Borrower as a "First Lien Credit Facility" for purposes of the Indenture or any other Noteholder Document; provided that the lenders under any Credit Agreement then in effect have consented to such designation.

 

"Future Other First Lien Obligations" means all Obligations of the Borrower or any other Obligor in respect of Cash Management Obligations or Hedging Obligations that are designated by the Borrower as "First Priority Claims" as permitted by the Indenture (other than any First Priority Cash Management Obligations and First Priority Hedging Obligations); provided that the required lenders (however denominated) under any First Lien Credit Facility then in effect have consented to such designation.

 

"Hedging Obligations" has the meaning assigned thereto in the Indenture.

 

"Indebtedness" has the meaning assigned thereto in the Indenture.

 

"Indenture" is defined in the third recital.

 

 

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"Insolvency Proceeding" means (a) any voluntary or involuntary case or proceeding under the Bankruptcy Code with respect to any Obligor as a debtor, (b) any other voluntary or involuntary insolvency, reorganization or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding with respect to any Obligor as a debtor or with respect to any substantial part of their respective assets, (c) any liquidation, dissolution, reorganization or winding up of any Obligor, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (d) any assignment for the benefit of creditors or any other marshaling of assets and liabilities of any Obligor.

 

"Lenders" is defined in the first recital.

 

"Lien" means, when used with respect to any Person, any interest in any property, asset or other right owned or being purchased or acquired by such Person which secures payment or performance of any obligation, and shall include any mortgage, lien, encumbrance, charge or other security interest of any kind, whether arising by contract, as a matter of law, by judicial process or otherwise.

 

"Loan Documents" means the Credit Agreement, the Loan Documents (as defined in the Credit Agreement), and all documents and instruments evidencing any obligation under any Future First Lien Credit Facility, and any other related document or instrument executed or delivered pursuant to any Loan Document or Future First Lien Credit Facility at any time or otherwise evidencing any First Priority Claim, as any such document or instrument may from time to time be amended, supplemented, amended and restated or otherwise modified from time to time; provided that any such modification does not increase the principal amount thereof beyond the limit set forth in the Indenture or any other Noteholder Document.

 

"Noteholder Claims" means all Indebtedness, Obligations and other liabilities (contingent or otherwise) arising under or with respect to the Noteholder Documents or any of them.

 

"Noteholder Collateral" means any of the property or assets of the Obligors, whether real, personal or mixed, in which the Noteholders or the Trustee or any of them now or hereafter holds a Lien as security for any Noteholder Claim (regardless of the effect of the application of any laws relating to fraudulent transfers or conveyances).

 

"Noteholder Collateral Documents" means, collectively, the Noteholder Security Agreements and any document or instrument executed and delivered pursuant to any Noteholder Document at any time or otherwise pursuant to which a Lien is granted by an Obligor to secure the Noteholder Claims or under which rights or remedies with respect to any such Lien are governed, as the same may be amended, supplemented, amended and restated or otherwise modified from time to time.

 

"Noteholder Documents" means, collectively, the Indenture, the Notes, the Noteholder Collateral Documents, and any other related document or instrument executed and delivered pursuant to any Noteholder Document at any time or otherwise evidencing any Noteholder Claims, as the same may be amended, supplemented, amended and restated or otherwise modified from time to time.

 

"Noteholders" means the Persons holding Noteholder Claims, including the Trustee.

 

"Noteholder Security Agreements" means (i) the Security Agreement, dated as of November 16, 2004, among the Borrower, its Subsidiaries and the Trustee and (ii) the Pledge Agreement dated as of November 16, 2004 between the Borrower and the Trustee, in each case as the same may be amended, supplemented, amended and restated or otherwise modified from time to time.

 

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"Notes" is defined in the third recital.

 

"Obligations" means any and all obligations with respect to the payment of (a) any principal of or interest (including interest accruing on or after the commencement of any Insolvency Proceeding, whether or not a claim for post-filing interest is allowed in such proceeding) or premium on any Indebtedness, including any reimbursement obligation in respect of any letter of credit, (b) any fees, indemnification obligations, damages, expense reimbursement obligations or other liabilities payable under the documentation governing any Indebtedness, (c) any obligation to post cash collateral in respect of letters of credit and any other obligations and (d) any Cash Management Obligations or Hedging Obligations.

 

"Obligors" means the Borrower and each of its Subsidiaries that is party from time to time to any First Priority Document or Noteholder Document.

 

"Person" means any natural person, corporation, partnership, limited liability company, trust, association, governmental authority or unit, or any other entity, whether acting in an individual, fiduciary or other capacity.

 

"Recovery" is defined in Section 6.5.

 

"Standstill Period" is defined in Section 3.1.

 

"Subsidiary" means, with respect to any Person, a corporation, partnership, limited liability company or other entity of which such Person and/or its other Subsidiaries own, directly or indirectly, such number of outstanding shares or other ownership interests as have more than 50% of the ordinary voting power for the election of directors or other managers of such corporation, partnership, limited liability company or other entity.

 

"Trustee" shall include, in addition to the Trustee defined in the preamble, the then acting collateral agent under the Indenture and any successor thereto exercising substantially the same rights and powers.

 

"Unasserted Contingent Obligations" shall mean, at any time, Obligations for taxes, costs, indemnifications, reimbursements, damages and other liabilities (except for (i) the principal of and interest and premium (if any) on, and fees relating to, any Indebtedness and (ii) contingent reimbursement obligations in respect of amounts that may be drawn under letters of credit) in respect of which no claim or demand for payment has been made (or, in the case of  Obligations for indemnification, no notice for indemnification has been issued by the indemnitee) at such time.

 

"Uniform Commercial Code" or "UCC" means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect in any applicable jurisdiction.

 

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1.2  Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words "include", "includes" and "including" shall be deemed to be followed by the phrase "without limitation." The word "will" shall be construed to have the same meaning and effect as the word "shall". Unless the context requires otherwise (a) any definition of or reference to any agreement, document or other writing herein shall be construed as referring to such agreement, document or other writing as from time to time amended, supplemented or otherwise modified, (b) any reference herein to any Person shall be construed to include such Person's successors and assigns to the extent that such successors and assigns are permitted pursuant to the applicable agreement, (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 Exhibits or Sections shall be construed to refer to Exhibits or Sections of this Agreement, (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 general intangibles, (f) terms defined in the UCC but not otherwise defined herein shall have the same meanings herein as are assigned thereto in the UCC, (g) reference to any law means such law as amended, modified, codified, replaced or re-enacted, in whole or in part, and in effect on the date hereof, including rules, regulations, enforcement procedures and any interpretation promulgated thereunder and (h) underscored references to Sections or clauses shall refer to those portions of this Agreement, and any underscored references to a clause shall, unless otherwise identified, refer to the appropriate clause within the same Section in which such reference occurs.

 

Section 2.  Lien Priorities.

 

2.1  Relative Priorities. Notwithstanding the date, manner or order of grant, attachment or perfection of any Lien granted to the Trustee or the Noteholders on the Common Collateral or of any Lien granted to the First Priority Lenders on the Common Collateral and notwithstanding any provision of the UCC or any other applicable law to the contrary, the fact that any First Priority Lien may have been subordinated, voided, avoided, invalidated or lapsed, or any other circumstance whatsoever, the Trustee, on behalf of itself and the Noteholders, hereby agrees that: (i) any Lien on the Common Collateral securing the First Priority Claims now or hereafter held by the First Priority Lenders shall be first in priority to any Lien on the Common Collateral securing the Noteholder Claims; and (ii) any Lien on the Common Collateral now or hereafter held by the Trustee or the Noteholders regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be second in priority in all respects to all Liens on the Common Collateral securing the First Priority Claims. All Liens on the Common Collateral securing the First Priority Claims shall be and remain first in priority to all Liens on the Common Collateral securing the Noteholder Claims for all purposes, whether or not such First Priority Liens are subordinated to any Lien securing any other obligation of any Obligor.

 

2.2  Prohibition on Contesting Liens. Each of the Trustee, for itself and on behalf of each Noteholder, and the Administrative Agent, for itself and on behalf of each other First Priority Lender, agrees that it shall not (and hereby waives any right to) contest or support any other Person in contesting, in any proceeding (including any Insolvency Proceeding), the priority, validity or enforceability of a Lien held by the First Priority Lenders in the Common Collateral or by the Noteholders in the Common Collateral, as the case may be.

 

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2.3  No New Liens. So long as the Discharge of First Lien Obligations has not occurred, the parties hereto agree that the Obligors shall not (i) grant or permit any additional Lien on any asset or property to secure any Noteholder Claim unless it has granted a Lien on such asset or property to secure the First Priority Claims, and (ii) grant or permit any additional Lien on any asset to secure any First Priority Claim unless it has granted a Lien on such asset to secure the Noteholder Claims. To the extent that the foregoing provisions are not complied with for any reason, without limiting any other rights and remedies available to the Administrative Agent and/or the First Priority Lenders, the Trustee, on behalf of the Noteholders, agrees that any amounts received by or distributed to any of them pursuant to or as a result of Liens granted in contravention of this Section 2.3 shall be subject to Section 4.2.

 

2.4  Similar Liens and Agreements. The parties hereto agree that it is their intention that the First Priority Collateral and the Noteholder Collateral be identical. In furtherance of the foregoing and of Section 8.10, the parties hereto agree, subject to the other provisions of this Agreement:

 

(a)  upon request by the Administrative Agent or the Trustee, to cooperate in good faith (and to direct their counsel to cooperate in good faith) from time to time in order to determine the specific items included in the First Priority Collateral and the Noteholder Collateral and the steps taken to perfect their respective Liens thereon and the identity of the respective parties obligated under the First Priority Collateral Documents and the Noteholder Collateral Documents; and

 

(b)  that the documents and agreements creating or evidencing the First Priority Collateral and the Noteholder Collateral and guarantees for the First Priority Claims and the Noteholder Claims shall be in all material respects the same forms of documents other than with respect to the first lien and the second lien nature of the Obligations thereunder.

 

Section 3.  Enforcement.

 

3.1  Exercise of Remedies.(a) So long as the Discharge of First Priority Claims has not occurred, whether or not any Insolvency Proceeding has been commenced by or against any Obligor, (i) the Trustee and the Noteholders will not exercise or seek to exercise any rights or remedies (including the exercise of any right of setoff or any right under any lockbox agreement, account control agreement, landlord waiver or bailee's letter or similar agreement or arrangement to which the Trustee or any Noteholder is a party) with respect to

 

 

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any Common Collateral (and hereby waives any right to), institute any action or proceeding with respect to such rights or remedies, including any action of foreclosure, or contest, protest or object to any foreclosure proceeding or action brought by the Administrative Agent or any other First Priority Lender, any exercise of any right under any control agreement in respect of a deposit account or securities entitlement constituting Common Collateral, or any bailee's letter or similar agreement or arrangement to which the Trustee or any Noteholder is a party, or any other exercise by any such party, of any rights and remedies relating to the Common Collateral under the Noteholder Documents or otherwise, or object to the forbearance by the Administrative Agent from bringing or pursuing any foreclosure proceeding or action or any other exercise of any right or remedy relating to the Common Collateral, in each case so long as the respective interests of the Noteholders attach to the proceeds thereof subject to the relative priorities described in Section 2 and (ii) the Administrative Agent and the other First Priority Lenders shall have the exclusive right to enforce rights, exercise remedies (including the exercise of any right of setoff or any right under any lockbox agreement, account control agreement, landlord waiver or bailee's letter or similar agreement or arrangement to which the Trustee or any Noteholder is a party), refrain from enforcing or exercising remedies, and make determinations regarding release or disposition of the Common Collateral without the consent of or any consultation with the Trustee or any Noteholder; provided that (A) in any Insolvency Proceeding commenced by or against any Obligor, the Trustee or any Noteholder may file a claim or statement of interest with respect to the Noteholder Claims, (B) the Trustee or any Noteholder may take any action not adverse to the Liens on the Common Collateral securing the First Priority Claims or the rights of the Administrative Agent or any other First Priority Lender to exercise remedies in respect thereof in order to establish, preserve, perfect or protect its rights in the Common Collateral and (C) the Trustee and the Noteholders shall be entitled to (i) file any necessary responsive or defensive pleading 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 Noteholders, including without limitation any claim secured by the Common Collateral, if any, in each case in accordance with the terms of this Agreement, (ii) file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Obligors arising under the Bankruptcy Code, any similar law or any applicable non-bankruptcy law, in each case in accordance with the terms of this Agreement (iii) exercise any rights and remedies as an unsecured creditor against the Borrower or any other Obligor in accordance with the Noteholder Documents and applicable law, (iv) bid (cash) for or purchase (for cash) Common Collateral at any private or judicial foreclosure upon such Common Collateral initiated by any secured party in respect thereof, (v) file any notice of or vote any claim in any Insolvency Proceeding of any Obligor in accordance with this Agreement and (vi) file any proof of claim and other filings, appear and be heard on any matter in connection therewith and make any arguments and motions that are, in each case, in accordance with the terms of this Agreement, with respect to the Noteholder Claims and the Noteholder Collateral, (D) nothing herein shall be construed to limit or impair in any way the right of the Trustee or the Noteholders to receive any remaining Common Collateral and proceeds of Common Collateral after the Discharge of First Priority Claims has occurred and (E) notwithstanding anything to the contrary in this Section 3.1(a), the Trustee and the Noteholders may exercise any or all such rights and remedies and take or institute all such other actions in respect of the Common Collateral and make such determinations after the passage of a period of 180 days (the "Standstill Period") from the date of delivery of a notice in writing to the Administrative Agent of their intention to

 

 

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exercise their right to take such actions in respect of such Common Collateral; provided further, however, that notwithstanding anything herein to the contrary, in no event shall the Trustee or any Noteholder exercise any rights or remedies or take such other actions with respect to the Common Collateral as aforesaid if, notwithstanding the expiration of the Standstill Period, the Administrative Agent or any other First Priority Lender shall have commenced and shall be diligently pursuing the exercise of any of their rights or remedies with respect to the Common Collateral (prompt notice of such exercise to be given to the Trustee). In exercising rights and remedies with respect to the Common Collateral, the Administrative Agent or any other First Priority Lender may enforce the provisions of the Loan Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by the Administrative Agent and the other First Priority Lenders to sell or otherwise dispose of Common Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured party under the UCC of any applicable jurisdiction and of a secured creditor under bankruptcy or similar laws of any applicable jurisdiction.

 

(b)  The Trustee, on behalf of itself and the Noteholders, agrees that it will not, in connection with the exercise of any right or remedy (including the exercise of any right of setoff or any right under any lockbox agreement, account control agreement, landlord waiver or bailee's letter or similar agreement or arrangement to which the Trustee or any Noteholder is a party) with respect to any Common Collateral, take or receive any Common Collateral or any proceeds of Common Collateral unless and until the Discharge of First Priority Claims has occurred. Without limiting the generality of the foregoing, unless and until the Discharge of First Priority Claims has occurred, except as expressly provided in the proviso in clause (a)(ii) of Section 3.1, the sole right of the Trustee and the Noteholders as secured parties with respect to the Common Collateral is to hold a perfected Lien on the Common Collateral pursuant to the Noteholder Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of the First Priority Claims has occurred.

 

(c)  The Borrower agrees that it will not, and will not permit any other Obligor to, in connection with the exercise of any right or remedy with respect to any Common Collateral by the Trustee or the Noteholders, transfer, deliver or pay, as applicable, to the Trustee or any Noteholder any Common Collateral or any proceeds of Common Collateral unless and until the Discharge of First Priority Claims has occurred.

 

(d)  Subject to the proviso in clause (a)(ii) of Section 3.1, (i) the Trustee, for itself and on behalf of the Noteholders, agrees that the Trustee and the Noteholders will not take any action that would hinder or cause to delay any exercise of remedies undertaken by the Administrative Agent or any other First Priority Lender under the Loan Documents as secured parties in respect of any Common Collateral, including any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise, and (ii) the Trustee, for itself and on behalf of the Noteholders, hereby waives any and all rights it or the Noteholders may have as a junior lien creditor or otherwise (whether arising under the UCC or any other law) to object to the manner in which the Administrative Agent or the other holders of First Priority Claims seek to enforce the Liens granted in any of the First Priority Collateral.

 

(e)  The Trustee and the Noteholders hereby acknowledge and agree that no covenant, agreement or restriction contained in the Noteholder Collateral Documents or any other Noteholder Document (other than this Agreement) is intended to restrict in any way the rights and remedies of the Administrative Agent or the First Priority Lenders with respect to the Common Collateral as set forth in this Agreement and the First Priority Documents.

 

3.2  Cooperation. Subject to the proviso in clause (a)(ii) of Section 3.1, the Trustee, on behalf of itself and the Noteholders, agrees that, unless and until the Discharge of First Priority Claims has occurred, it will not commence, or join with any Person in commencing any enforcement, collection, execution, levy or foreclosure ac