Exhibit 10.7
INTERCREDITOR AND
SUBORDINATION AGREEMENT
THIS INTERCREDITOR AND
SUBORDINATION AGREEMENT (this “ Agreement ”) is
entered into as of March 29, 2005, by and among the First Lien
Agent on behalf of the First Lien Lenders, the Second Lien Agent,
the Second Lien Lenders, the Third Lien Agent, the Third Lien
Lenders and the Loan Parties (each as defined below).
R E C I T A L S
A. Interstate FiberNet, Inc., a
Delaware corporation (the “ Borrower ”),
ITC^DeltaCom, Inc., a Delaware corporation (the “
Parent ”), the subsidiary guarantors listed on the
signature pages thereof (together with the Parent, the “
Guarantors ”), Wells Fargo Bank, N.A., as
Administrative Agent and Collateral Agent, and each of the banks,
financial institutions and other institutional lenders listed on
the signature pages thereof, are entering into the First Lien Loan
Agreement (as defined below) contemporaneously with the execution
and delivery of this Agreement.
B. The Borrower, the Guarantors, the
Second Lien Lenders (as defined below) and General Electric Capital
Corporation, as Administrative Agent and Collateral Agent are
parties to the Second Lien Loan Agreement (as defined
below).
C. The Borrower, the Guarantors, the
Third Lien Lenders (as defined below) and Welsh, Carson, Anderson
& Stowe VIII, L.P., as Administrative Agent and Collateral
Agent, are entering into the Third Lien Loan Agreement (as defined
below) contemporaneously with the execution and delivery of this
Agreement.
D. All First Lien Debt (as defined
below) is secured by (i) a continuing first priority Lien (as
defined below) on substantially all of the Borrower Collateral (as
defined below) and (ii) a continuing first priority Lien on
substantially all of the Guarantor Collateral (as defined below).
All Second Lien Debt (as defined below) is secured by (i) a junior
and subordinated continuing second priority Lien on substantially
all of the Borrower Collateral and (ii) a junior and subordinated
continuing second priority Lien on substantially all of the
Guarantor Collateral. All Third Lien Debt (as defined below) is
secured by (i) a junior and subordinated continuing third priority
Lien on substantially all of the Borrower Collateral and (ii) a
junior and subordinated continuing third priority Lien on
substantially all of the Guarantor Collateral.
E. The Loan Parties, the First Lien
Lender Parties and the Second Lien Lender Parties are party to an
Intercreditor and Subordination Agreement dated as of October 6,
2003 (as amended by that certain Consent and First Amendment to
Intercreditor and Subordination Agreement, dated as of the date
hereof, and as may be further amended, amended and restated,
supplemented or otherwise modified from time to time, the “
Second Lien Intercreditor Agreement ”) pursuant to
which each of the parties thereto agreed to, among other
things, confirm the relative priorities of the
Liens on the Collateral held by the First Lien Agent, for the
benefit of the First Lien Lenders, on the one hand, and the Second
Lien Agent, for the benefit of the Second Lien Lenders, on the
other hand.
F. Senior Liens Lender Parties, the
Third Lien Lender Parties and the Loan Parties desire to enter into
this Agreement to, among other things, confirm the relative
priorities of the Liens on the Collateral held by the Senior Liens
Agents (as defined below), for the benefit of the Senior Liens
Lenders (as defined below), on the one hand, and the Third Lien
Agent, for the benefit of the Third Lien Lenders, on the other
hand.
NOW, THEREFORE,
in order to induce the Senior Liens
Lender Parties and the Third Lien Lender Parties to consummate the
transactions contemplated by, respectively, the Senior Liens Debt
Documents and the Third Lien Debt Documents, and for other good and
valuable consideration, the receipt and sufficiency of which hereby
are acknowledged, the parties hereto hereby agree as
follows:
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1.
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Definitions and Other Definitional
Provisions .
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1.1 Definitions
. The following terms
shall have the following meanings in this Agreement (including the
premises and the recitals hereto):
“ Acceptable Refinancing
Debt ” shall mean a replacement, substitution,
refunding or refinancing of all (but not less than all) of the then
outstanding First Lien Debt or Second Lien Debt, as the case may
be, by a financing transaction that constitutes a Permitted
Refinancing, a Receivables Financing or a Replacement
Financing.
“ Bankruptcy
Code ” shall mean Title 11 of the United States Code,
as amended from time to time, and any successor statute and all
rules and regulations promulgated thereunder.
“ Borrower
” shall mean Interstate FiberNet, Inc. and its respective
successors and assigns, including, without limitation, any
receiver, trustee or debtor-in-possession on behalf of any such
Person or on behalf of any such successor or assign, as well as any
other Person that becomes a Borrower under the Senior Liens Loan
Agreements and the Third Lien Loan Agreement after the date hereof,
whether by acquisition or otherwise.
“ Borrower
Collateral ” shall mean all Property of the
Borrower.
“ Business Day
” shall mean a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances (as
defined in the Senior Liens Loan Agreements), on which dealings are
carried on in the London interbank market.
“ Collateral
” shall mean the Borrower Collateral and the Guarantor
Collateral.
“ Distribution
” shall mean, with respect to any indebtedness or obligation,
(a) any payment or distribution by any Loan Party of cash,
securities or other Property, by
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set-off or otherwise, on account of
such indebtedness or obligation, (b) any redemption,
purchase or other acquisition of such indebtedness or obligation by
any Person or (c) the granting of any Lien to or for the
benefit of the holders of such indebtedness or obligation in or
upon any Property of any Loan Party.
“ Enforcement
Action ” shall mean any action in the nature of an
exercise of remedies, including, without limitation, any action
pursuant to which a Lender (a) takes from or for the account
of any Loan Party, by set off or in any other manner, the whole or
any part of any funds which may now or hereafter be owing by such
Loan Party to such Lender, (b) notifies account debtors, or
directly collects accounts receivable or other payment rights, of
any Loan Party, (c) takes any action under the provisions of
any state or federal law, including, without limitation, the UCC,
to enforce its Liens on the Collateral, ( d ) under any
contract or agreement, enforces, forecloses upon, takes possession
of or sells any Property of any Loan Party, including, without
limitation, any Collateral or ( e ) accelerates, demands
payment of, or sues for payment of, any indebtedness.
“ First Lien
Agent ” shall mean (a) initially, Wells Fargo
Bank, N.A., acting in its capacity as administrative and collateral
agent for the First Lien Lenders under the respective First Lien
Debt Documents and its successors and assigns in such capacity
(including any similar agent or any representative for any lender
or group of lenders that at any time is a party to any First Lien
Debt Document) and (b) to the extent any Permitted
Refinancing or Receivables Financing is outstanding, the Person
acting in the capacity of collateral agent for the lenders
thereunder and its successors and assigns in such capacity, which
Person shall become a party to this Agreement as a condition to the
consummation of any such Permitted Refinancing or Receivables
Financing (and any similar agent or any representative for any
lender or group of lenders that at any time is a party to any First
Lien Debt Document), and (c) to the extent any Replacement
Financing is outstanding, the Person acting in the capacity as
collateral agent for the lenders thereunder and the Person acting
in the capacity as collateral agent for any other lenders secured
by a Lien of the same priority as the Lien which secures the
Replacement Financing lenders, and its successors and assigns in
such capacity, which Persons shall become a party to an agreement
pursuant to which all of the lenders secured by the same priority
Liens shall acknowledge such fact as a condition to the
consummation of any such Replacement Financing (and any similar
agent or any representative for any lender or group of lenders that
at any time is a party to any First Lien Debt Document).
“ First Lien
Debt ” shall mean any and all obligations,
liabilities and indebtedness of every kind, nature and description
owing by any Loan Party to any of the First Lien Lender Parties
evidenced by, or arising under, the First Lien Debt Documents,
whether direct or indirect, absolute or contingent, joint or
several, due or not due, primary or secondary, liquidated or
unliquidated, including principal, interest, charges, fees, costs,
indemnities, expenses and any amounts previously paid and awarded
and recovered by the Loan Parties in connection with any
Proceeding, however evidenced, whether as principal, surety,
endorser, guarantor or otherwise, whether now existing or hereafter
arising, whether arising during or after the initial or any renewal
term of the First Lien
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Loan Agreement or after the
commencement of any Proceeding with respect to such Loan Party.
First Lien Debt shall be considered to be outstanding whenever any
loan commitment under the First Lien Debt Documents is
outstanding.
“ First Lien Debt
Documents ” shall mean the First Lien Loan Agreement,
all notes issued thereunder, the First Lien Security Agreement, the
First Lien Guaranties and all security agreements, guaranties,
pledge agreements, mortgages, leasehold mortgages, deeds of trust,
leasehold deeds of trust and other agreements, documents and
instruments now or at any time hereafter entered into or delivered
by any Loan Party or other Person pursuant thereto and to the
extent otherwise permitted pursuant to the terms hereof, evidencing
(a) any amendment, amendment and restatement, or renewal of
all or any part of, the First Lien Debt or (b) any
Acceptable Refinancing Debt, in each case as the same may be
amended, modified, supplemented, extended, renewed or restated, to
the extent permitted pursuant to the terms hereof.
“ First Lien
Default ” shall mean any “Default” or
“Event of Default” under the First Lien Debt Documents,
and any other event or occurrence permitting the First Lien Lender
Parties to accelerate the maturity of the First Lien
Debt.
“ First Lien Default
Notice ” shall mean a written notice from the First
Lien Agent to the Third Lien Agent pursuant to which the Third Lien
Agent is notified of the occurrence of a First Lien Default, which
notice shall identify such First Lien Default.
“ First Lien
Guaranties ” shall mean those certain guaranty
agreements of each of the Guarantors in favor of the First Lien
Lender Parties as set forth in the First Lien Loan Agreement, and
any guaranty or similar agreement executed and delivered in
connection with (a) any, amendment, amendment and
restatement or renewal of all or any part of the First Lien Debt or
(b) any Acceptable Refinancing, in each case as the same may
be amended, modified, supplemented, extended, renewed or restated,
to the extent permitted pursuant to the terms hereof.
“ First Lien Lender
Parties ” shall mean the First Lien Agent and First
Lien Lenders.
“ First Lien
Lenders ” shall mean each of the banks, financial
institutions and other institutional lenders listed on the
signature pages of the First Lien Loan Agreement and their
respective successors and assigns (including any other lender or
group of lenders that at any time provides Acceptable Refinancing
Debt at any time and from time to time), in their capacity as
lenders thereunder.
“ First Lien Loan
Agreement ” shall mean (a) the Third Amended
and Restated Credit Agreement, dated as of the date hereof, by and
among the Loan Parties and the First Lien Lender Parties, and
(b) any loan or credit agreement evidencing any Acceptable
Refinancing Debt with the same or other lenders, as more fully
described therein and permitted thereby, in each case as the same
may be amended, modified, supplemented, extended, renewed or
restated, to the extent permitted pursuant to the terms
hereof.
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“ First Lien Security
Agreement ” shall mean the Third Amended and Restated
Security Agreement, dated as of the date hereof, by and among the
Loan Parties and the First Lien Agent, and any security agreement
or similar agreement executed and delivered in connection with any
Acceptable Refinancing Debt, as the same may be amended, modified,
supplemented, extended, renewed or restated, to the extent
permitted pursuant to the terms hereof.
“ Guarantor
Collateral ” shall mean substantially all Property of
the respective Guarantors.
“ Guarantors
” shall mean the Parent and the direct and indirect
subsidiaries of the Parent (other than the Borrower) as well as any
other Person that becomes a Guarantor under the Senior Liens Loan
Agreements and the Third Lien Loan Agreement after the date hereof,
whether by acquisition or otherwise and any other Person (other
than the Borrower) liable on or in respect of any Senior Liens Debt
or the Third Lien Debt and their respective successors and assigns,
including, without limitation, any receiver, trustee or
debtor-in-possession on behalf of any such Person or on behalf of
any such successor or assign.
“ Lenders
” shall mean the First Lien Lender Parties, the Second Lien
Lender Parties and the Third Lien Lender Parties.
“ Lien ”
shall mean any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, security interest, encumbrance
(including, without limitation, easements, rights of way and the
like), lien (statutory or other), security agreement or transfer
intended as security, including, without limitation, any
conditional sale or other title retention agreement, the interest
of a lessor under a capital lease or any financing lease having
substantially the same economic effect as any of the
foregoing.
“ Loan Parties
” shall mean the Borrower and the Guarantors.
“ Permitted
Refinancing ” has the meaning specified in the Second
Lien Loan Agreement and the Third Lien Loan Agreement.
“ Person ”
shall mean any natural person, corporation, general or limited
partnership, limited liability company, firm, trust, association,
government, governmental agency or other entity, whether acting in
an individual, fiduciary or other capacity.
“ Proceeding
” shall mean any voluntary or involuntary insolvency,
bankruptcy, receivership, custodianship, liquidation, dissolution,
reorganization, assignment for the benefit of creditors,
appointment of a custodian, receiver, trustee or other officer with
similar powers or any other proceeding for the liquidation,
dissolution or other winding up of a Person.
“ Property
” shall mean, with respect to any Person, all assets and
properties of any kind whatsoever, real or personal, tangible or
intangible, or mixed, in each case of
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such Person, whether now owned or
existing or hereafter acquired or arising and wheresoever
located.
“ Receivables
Financing ” has the meaning specified in the Second
Lien Loan Agreement and the Third Lien Loan Agreement.
“ Replacement
Financing ” has the meaning specified in the Second
Lien Loan Agreement and the Third Lien Loan Agreement.
“ Second Lien
Agent ” shall mean General Electric Capital
Corporation, acting in its capacity as administrative and
collateral agent for the Second Lien Lenders under the respective
Second Lien Debt Documents and its successors and assigns in such
capacity (including any similar agent or any representative for any
lender or group of lenders that at any time is a party to any
Second Lien Debt Document).
“ Second Lien
Debt ” shall mean any and all obligations,
liabilities and indebtedness of every kind, nature and description
owing by any Loan Party to any of the Second Lien Lender Parties
evidenced by or arising under the Second Lien Debt Documents,
whether direct or indirect, absolute or contingent, joint or
several, due or not due, primary or secondary, liquidated or
unliquidated, including principal, interest, charges, fees, costs,
indemnities, expenses and any amounts previously paid and avoided
and recovered by the Loan Parties in connection with any
Proceeding, however evidenced, whether as principal, surety,
endorser, guarantor or otherwise, whether now existing or hereafter
arising, whether arising during or after the initial or any renewal
term of the Second Lien Loan Agreement or after the commencement of
any Proceeding with respect to such Loan Party. Second Lien Debt
shall be considered to be outstanding wherever any loan commitment
under the Second Lien Debt Documents is outstanding.
“ Second Lien Debt
Documents ” shall mean the Second Lien Loan
Agreement, all notes issued thereunder, the Second Lien Security
Agreement, the Second Lien Guaranties and all security agreements,
guaranties, pledge agreements, mortgages, leasehold mortgages,
deeds of trust, leasehold deeds of trust and other agreements,
documents and instruments now or at any time hereafter entered into
or delivered by any Loan Party or other Person pursuant thereto, or
evidencing any replacement, increase, amendment, amendment and
restatement, substitution, refunding, renewal or refinancing of or
for all or any part of, the Second Lien Debt, in each case as the
same may be amended, modified, supplemented, extended, renewed or
restated and otherwise in effect from time to time, to the extent
permitted pursuant to the terms hereof.
“ Second Lien
Default ” shall mean any “Default” or
“Event of Default” under the Second Lien Debt
Documents, and any other event or occurrence permitting the Second
Lien Lender Parties to accelerate the maturity of the Second Lien
Debt.
“ Second Lien Default
Notice ” shall mean a written notice from the Second
Lien Agent to the Third Lien Agent pursuant to which the Third Lien
Agent is notified of the occurrence of the Second Lien Default,
which notice shall identify such Second Lien Default.
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“ Second Lien
Guaranties ” shall mean those certain guaranty
agreements of each of the Guarantors in favor of the Second Lien
Lender Parties as set forth in the Second Lien Loan Agreement, and
any guaranty or similar agreement executed and delivered in
connection with any replacement, increase, amendment, amendment and
restatement, substitution, refunding, renewal or refinancing of or
for all or any part of the Second Lien Debt, in each case as the
same may be amended, modified, supplemented, extended, renewed or
restated and otherwise in effect from time to time, to the extent
permitted pursuant to the terms hereof.
“ Second Lien
Intercreditor Agreement ” shall have the meaning
ascribed to such term in the recitals hereto.
“ Second Lien Lender
Parties ” shall mean the Second Lien Agent and the
Second Lien Lenders.
“ Second Lien
Lenders ” shall mean each of the banks, financial
institutions and other institutional lenders listed on the
signature pages of the Second Lien Loan Agreement and their
respective successors and assigns (including any other lender or
group of lenders that at any time provides Acceptable Refinancing
Debt at any time and from time to time), in their capacity as
lenders thereunder.
“ Second Lien Loan
Agreement ” shall mean (a) the First Amended and
Restated Credit Agreement, dated as of the date hereof, by and
among the Loan Parties, and the Second Lien Lender Parties and (b)
any loan or credit agreement evidencing any Acceptable Refinancing
Debt with the same or other lenders, as more fully described
therein and permitted thereby, in each case as the same may be
amended, modified, supplemented, extended, renewed or restated to
the extent permitted pursuant to the terms hereof.
“ Second Lien Security
Agreement ” shall mean the Amended and Restated
Security Agreement, dated as of the date hereof, by and among the
Loan Parties and the Second Lien Agent, and any Security Agreement
or similar agreement executed and delivered in connection with any
replacement, increase, amendment, amendment and restatement,
substitution, refunding, renewal or a refinancing of or offer for
all or any part of the Second Lien Debt, as the same may be
amended, modified, supplemented, extended, renewed, restated or
otherwise in effect from time-to-time, to the extent permitted
pursuant to the terms hereof.
“ Senior Liens
Agents ” shall mean the First Lien Agent and the
Second Lien Agent.
“ Senior Liens
Debt ” shall mean the First Lien Debt and the Second
Lien Debt.
“ Senior Liens Debt
Documents ” shall mean the First Lien Debt Documents,
the Second Lien Debt Documents, and the Second Lien Intercreditor
Agreement.
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“ Senior Liens
Default ” shall mean a First Lien Default or a Second
Lien Default, as the case may be.
“ Senior Liens Default
Notice ” shall mean a First Lien Default Notice or a
Second Lien Default Notice, as the case may be.
“ Senior Liens
Guaranties ” shall mean the First Lien Guaranties and
the Second Lien Guarantees.
“ Senior Liens Lender
Parties ” shall mean the First Lien Lender Parties
and the Second Lien Lender Parties.
“ Senior Liens
Lenders ” shall
mean the First Lien Lenders and the Second Lien Lenders.
“ Senior Liens Loan
Agreements ”
shall mean the First Lien Loan Agreement and the Second Lien Loan
Agreement.
“ Senior Liens Security
Agreements ”
shall mean the First Lien Security Agreement and the Second Lien
Security Agreement.
“ Third Lien
Agent ” shall mean Welsh, Carson, Anderson &
Stowe, acting in its capacity as administrative and collateral
agent for the Third Lien Lenders under the respective Third Lien
Debt Documents and its successors and assigns in such capacity
(including any similar agent or any representative for any lender
or group of lenders that at any time is a party to any Third Lien
Debt Document).
“ Third Lien
Debt ” shall mean any and all obligations,
liabilities and indebtedness of every kind, nature and description
owing by any Loan Party to any of the Third Lien Lender Parties
evidenced by or arising under the Third Lien Debt Documents,
whether direct or indirect, absolute or contingent, joint or
several, due or not due, primary or secondary, liquidated or
unliquidated, including principal, interest, charges, fees, costs,
indemnities and expenses, however evidenced, whether as principal,
surety, endorser, guarantor or otherwise, whether now existing or
hereafter arising, whether arising during or after the initial or
any renewal term of the Third Lien Loan Agreement or after the
commencement of any Proceeding with respect to such Loan Party.
Third Lien Debt shall be considered outstanding whenever any loan
commitment under the Third Lien Debt Documents is
outstanding.
“ Third Lien Debt
Documents ” shall mean the Third Lien Loan Agreement,
all notes issued thereunder, the Third Lien Guaranties and all
security agreements, guaranties, pledge agreements, mortgages,
deeds of trust and other agreements, documents and instruments now
or at any time hereafter entered into or delivered by any Loan
Party or other Person pursuant thereto, or evidencing any
replacement, increase, amendment, amendment and restatement,
substitution, refunding, renewal or refinancing of or for all or
any part of, the Third Lien Debt, in each case as the same may
be
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amended, modified, supplemented,
extended, renewed or restated and otherwise in effect from time to
time, to the extent permitted pursuant to the terms
hereof.
“ Third Lien
Guaranties ” shall mean those certain guaranty
agreements of each of the Guarantors in favor of the Third Lien
Lender Parties as set forth in the Third Lien Loan Agreement, and
any guaranty or similar agreement executed and delivered in
connection with any replacement, increase, amendment, amendment and
restatement, substitution, refunding, renewal or refinancing of or
for all or any part of the Third Lien Debt, in each case as the
same may be amended, modified, supplemented, extended, renewed or
restated and otherwise in effect from time to time, to the extent
permitted pursuant to the terms hereof.
“ Third Lien Lender
Parties ” shall mean the Third Lien Agent and the
Third Lien Lenders.
“ Third Lien
Lenders ” shall mean each of the banks, financial
institutions and other institutional lenders listed on the
signature pages of the Third Lien Loan Agreement and their
respective successors and assigns (including any other lender or
group of lenders that at any time succeeds to or replaces,
substitutes, refunds, renews, supplements or refinances all or any
part of the Third Lien Debt at any time and from time to time), in
their capacity as lenders thereunder.
“ Third Lien Loan
Agreement ” shall mean the Credit Agreement, dated as
of the date hereof, by and among the Loan Parties, and the Third
Lien Lender Parties and any loan or credit agreement evidencing any
replacement, increase, amendment, amendment and restatement,
substitution, refunding, renewal or refinancing of or for all or
any part of the Third Lien Debt, with the same or other lenders, as
more fully described therein and permitted thereby in each case as
the same may be amended, modified, supplemented, extended, renewed
or restated and otherwise in effect from time to time, to the
extent permitted pursuant to the terms hereof.
“ Third Lien Negative
Covenant Default ” shall mean any “Event of
Default” under the Third Lien Loan Agreement resulting from
the failure of the Loan Parties to comply with any provision of
Section 5.02 thereof, excluding Sections 5.02 (e), (g) and (k)
thereof.
“ Third Lien Payment
Default ” shall mean any “Event of
Default” under the Third Lien Debt Documents resulting from
the failure of any Loan Party to pay, on a timely basis, principal
upon maturity or any payment, on a timely basis, of interest, fees
or other obligations under the Third Lien Loan Documents, other
than any default in payment of Third Lien Debt due on account of
acceleration thereof.
“ Third Lien Restricted
Covenant Default ” shall mean any “Event of
Default” under the Third Lien Loan Agreement resulting from
the failure of the Loan Parties to comply with any provision of
Section 5.02(e), (g) or (k) thereof.
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“ Third Lien Security
Agreement ” shall mean that certain Security
Agreement, dated as of the date hereof, by and among the Loan
Parties and the Third Lien Agent, and any security agreement or
similar agreement executed and delivered in connection with any
replacement, increase, amendment, amendment and restatement,
substitution, refunding, renewal or refinancing of or for all or
any part of the Third Lien Debt, as the same may be amended,
modified, supplemented, extended, renewed or restated and otherwise
in effect from time to time, to the extent permitted pursuant to
the terms hereof.
“ UCC ”
shall mean the Uniform Commercial Code, as in effect from time to
time in any applicable jurisdiction.
1.2 Computation of Time
Periods; Other Definitional Provisions .
In this Agreement in the computation
of periods of time from a specified date to a later specified date,
the word “ from ” means “from and
including” and the words “ to ” and
“ until ” each mean “to but
excluding”. References in the this Agreement to any agreement
or contract “ as amended ” shall mean and
be a reference to such agreement or contract as amended, amended
and restated, supplemented or otherwise modified from time to time
in accordance with the terms hereof and thereof. All references to
any term in the plural shall include the singular and all
references to any term in the singular shall include the
plural.
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2.
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Priorities; Remedies
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2.1 Relationship Among First
Lien Lenders and Second Lien Lenders . The terms and provisions of this Agreement
shall not govern the relationship of the First Lien Lenders and the
Second Lien Lenders, as among themselves, which relationship shall
be governed by the provisions of the Second Lien Intercreditor
Agreement, and nothing contained herein shall be deemed to limit
any provision of the Second Lien Intercreditor Agreement. In the
event of any conflict or inconsistency between this Agreement and
the Second Lien Intercreditor Agreement as between the First Lien
Lender Parties and the Second Lien Lender Parties, the Second Lien
Intercreditor Agreement shall govern.
2.2 Liquidation, Dissolution,
Bankruptcy . In the
event of any Proceeding involving any Loan Party:
(a) This Agreement shall be applicable both before
and after the institution of any Proceeding involving the Borrower
or any other Loan Party, including, without limitation, the filing
of any petition by or against the Borrower or any other Loan Party
under the Bankruptcy Code and all converted or succeeding cases in
respect thereof, and all references herein to the Borrower or any
Loan Party shall be deemed to apply to the trustee for the Borrower
or such Loan Party and the Borrower or such Loan Party as
debtor-in-possession. The relative rights of the Senior Liens
Lender Parties and Third Lien Lender Parties in or to any
distributions from or in respect of any Collateral or proceeds of
any Collateral shall continue after the institution of any
Proceeding involving the Borrower or any other Loan Party,
including, without limitation, the filing of any petition by or
against the Borrower or any other Loan Party under the Bankruptcy
Code and all converted or succeeding cases in respect thereof, on
the same basis as prior to the date of such institution, subject to
any court order approving the financing of, or use of cash
collateral by, the Borrower or any Loan Party as
debtor-in-possession.
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(b) Each Third Lien Lender Party agrees not to seek
to challenge, to avoid, to subordinate or to contest or directly or
indirectly to support any other Person in challenging, avoiding or
contesting in any judicial or other proceeding, including, without
limitation, any Proceeding, the priority, validity, extent,
perfection or enforceability of any Lien held by any Senior Liens
Lender Party in all or any part of the Collateral. Each Senior
Liens Lender Party agrees not to seek to challenge, to avoid, to
subordinate to any indebtedness (other than the Senior Liens Debt),
or to contest or directly or indirectly to support any other Person
in challenging, avoiding or contesting in any judicial or other
proceeding, including, without limitation, any Proceeding, the
priority of the Liens on the Collateral securing the Third Lien
Debt relative to any indebtedness other than Senior Liens Debt or
the validity, extent, perfection or enforceability of
