Exhibit 4.12
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INTERCREDITOR AGREEMENT
Dated as of May 21, 1999
among
LSP ENERGY LIMITED PARTNERSHIP,
LSP BATESVILLE FUNDING CORPORATION,
THE BANK OF NEW YORK,
as Trustee,
CREDIT SUISSE FIRST BOSTON,
as VEPCO L/C Agent,
THE OTHER SENIOR SECURED PARTIES
(OR REPRESENTATIVES THEREOF) PARTY HERETO,
THE BANK OF NEW YORK,
as Collateral Agent, Intercreditor Agent and
Administrative Agent
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TABLE OF CONTENTS
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ARTICLE 1: DEFINITIONS; RULES OF INTERPRETATION ............................ 2
1.1 Definitions ............................................... 2
1.2 Rules of Interpretation ................................... 7
ARTICLE 2: INTERCREDITOR AGENT ............................................. 7
2.1 Appointment of the Intercreditor Agent .................... 7
2.2 Intercreditor Agent's Rights and Obligations .............. 7
2.3 Intercreditor Agent ....................................... 9
2.4 Defaults .................................................. 11
2.5 Nonliability .............................................. 12
2.6 Resignation of the Intercreditor Agent .................... 12
2.7 Removal of the Intercreditor Agent ........................ 14
2.8 Authorization ............................................. 14
2.9 Intercreditor Agent as Senior Secured Party;
Other Banking Business .................................... 14
2.10 Notice of Amounts Owed .................................... 14
ARTICLE 3: SHARING ......................................................... 15
3.1 Payments Received by Intercreditor Agent or Collateral
Agent ..................................................... 15
3.2 Payments Received by Any Other Senior Secured Party ....... 15
3.3 Amounts Not Subject to Sharing ............................ 16
3.4 Presumption Regarding Payments ............................ 16
3.5 No Separate Security ...................................... 17
3.6 Subordinated Affiliate Bonds .............................. 17
ARTICLE 4: VOTING AND DECISION MAKING ...................................... 17
4.1 Decision Making ........................................... 17
4.2 Voting Generally; Intercreditor Votes ..................... 18
4.3 Intercreditor Votes; Each Party's Entitlement to Vote ..... 19
4.4 Intercreditor Votes; Votes Allocated to Each Party ........ 19
ARTICLE 5: DEFAULTS AND REMEDIES ........................................... 20
5.1 Notice of Defaults ........................................ 20
5.2 Election to Pursue Remedies Following Events of Default ... 20
5.3 Exercise of Remedies ...................................... 22
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ARTICLE 6: MODIFICATIONS; INSTRUCTIONS; OTHER
RELATIONSHIPS ................................................... 23
6.1 100% Voting Issues: Modifications of, and Instructions
with Respect to, Fundamental Aspects of the Financing
Documents ................................................. 23
6.2 Majority Voting Issues: Modifications of, and
Instructions with Respect to, Material Aspects of
the Financing Documents ................................... 23
6.3 Certain Procedures Relating to Modifications,
Instructions and Exercises of Discretion .................. 23
6.4 Modifications by Senior Secured Parties to their
Respective Facilities ..................................... 25
6.5 Effect of Modification on Intercreditor Agent ............. 25
6.6 Provision of Information; Meetings ........................ 25
ARTICLE 7: MISCELLANEOUS ................................................... 27
7.1 Addresses ................................................. 27
7.2 Delay and Waiver .......................................... 29
7.3 Entire Agreement .......................................... 29
7.4 Governing Law ............................................. 29
7.5 Severability .............................................. 30
7.6 Headings .................................................. 30
7.7 Successors and Assigns .................................... 30
7.8 Reinstatement ............................................. 30
7.9 Counterparts .............................................. 31
7.10 Termination ............................................... 31
7.11 No Partnership ............................................ 31
7.12 No Reliance ............................................... 31
7.13 Third-Party Beneficiaries ................................. 31
7.14 Obligations of Obligors Unaffected ........................ 31
7.15 Action without the Intercreditor Agent .................... 31
7.17 Indemnification ........................................... 32
7.18 Additional Senior Secured Parties ......................... 35
7.19 Amendments ................................................ 36
Schedule A - Fundamental Decisions
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INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT (this "Agreement"), dated as of May 21,
1999, is by and among LSP ENERGY LIMITED PARTNERSHIP, a Delaware limited
partnership (the "Partnership"), LSP BATESVILLE FUNDING CORPORATION, a Delaware
corporation (the "Funding Corporation"), CREDIT SUISSE FIRST BOSTON, as VEPCO
L/C Agent, THE BANK OF NEW YORK, as Trustee, Collateral Agent, Administrative
Agent and Intercreditor Agent, and each other Senior Secured Party (or
representative thereof) that becomes a party to this Agreement pursuant to
Section 7.18.
RECITALS
WHEREAS, the Partnership was formed for the purpose of developing,
financing, constructing, owning and operating an approximately 837 MW natural
gas-fired combined cycle electric generation facility located in Batesville,
Mississippi;
WHEREAS, the Partnership and the Funding Corporation have determined
to issue (i) $150,000,000 aggregate principal amount of their 7.164% Senior
Secured Bonds due January 15, 2014 (the "Series A Bonds") and (ii) $176,000,000
aggregate principal amount of their 8.160% Senior Secured Bonds due July 15,
2025 (the "Series B Bonds" and, collectively with the Series A Bonds, the
"Bonds") pursuant to the Trust Indenture, dated as of the date hereof (the
"Indenture"), among the Partnership, the Funding Corporation and The Bank of New
York, as trustee (the "Trustee");
WHEREAS, the Partnership and the Funding Corporation will use the
proceeds of the Bonds to (i) repay in full the Indebtedness outstanding under
the Amended and Restated Bank Facility Credit Agreement, dated as of December
15, 1998, among the Partnership, the bank facility lenders party thereto and
Credit Suisse First Boston as agent for the bank facility lenders, and (ii) pay
a portion of the remaining Project Costs; and
WHEREAS, in connection with the issuance and sale of the Bonds and
the execution of the related Financing Documents, the parties hereto wish to
enter into this Agreement in order to set forth certain intercreditor
provisions, including the method of voting and decision making for the Senior
Secured Parties, the arrangements applicable to joint consultation and actions
in respect of approval rights and waivers, the limitations on
rights of enforcement upon default and the appointment of the Intercreditor
Agent for the purposes set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereby agree as follows:
ARTICLE 1
DEFINITIONS; RULES OF INTERPRETATION
1.1 Definitions. Except as otherwise expressly provided herein,
capitalized terms used in this Agreement and its exhibits and schedules shall
have the meanings given thereto in the Indenture. In addition, the terms set
forth below shall have the respective meanings given such terms below. To the
extent such terms are defined by reference to other Transaction Documents, for
purposes hereof such terms shall continue to have their original definitions
(but will bear the governing law of this Agreement) notwithstanding any
termination, expiration or amendment of such agreements except to the extent the
parties hereto agree to the contrary.
1.1.1 "Acceleration Event" has the meaning set forth in
Section 6.6.3.
1.1.2 "Additional Indebtedness Facility" means the aggregate
amount of the Combined Exposure outstanding under any Additional Indebtedness
Agreement.
1.1.3 "Bond Facility" means the aggregate amount of the
Combined Exposure outstanding under the Indenture.
1.1.4 "Combined Exposure" means, as of any date of
calculation, the sum (calculated without duplication) of the following, to the
extent the same is held by a Senior Secured Party: (i) the aggregate amount of
Indebtedness out standing under the Facility Documents; (ii) the aggregate
amount of all available undrawn financing commit-
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ments under the Facility Documents which the Senior Secured Parties party
thereto have no right to terminate other than upon the occurrence of an event
of default (howsoever defined) thereunder (including, without limitation, the
Letter of Credit Commitment under and as defined in the VEPCO L/C Agreement);
and (iii) the maximum amount available to be drawn under all letters of credit
issued pursuant to the Facility Documents (including, without limitation, the
amount available for drawing under any issued VEPCO Letter of Credit).
1.1.5 "Decision Period" means the period of time determined by
the Intercreditor Agent and designated in any notice delivered by the
Intercreditor Agent for the Designated Voting Parties to make any decision
hereunder, subject to the following: (i) any such period of time may be extended
by any Designated Voting Party for a period not to exceed thirty (30) days on a
one time basis only for any notice; (ii) if there is no period for giving of
notice, passage of time or cure of the event or circumstance that is the subject
of such notice (each, a "Cure Period"), if the Cure Period has expired, or if
the remaining Cure Period is less than fifteen (15) days after the date of such
notice, the Decision Period shall end not earlier than fourteen (14) days nor
later than twenty-one (21) days after the date of such notice; and (iii) in all
other cases, the Decision Period shall end not earlier than fourteen (14) days
after the date of such notice nor later than the end of the Cure Period;
provided that the Intercreditor Agent may designate a lesser period (being at
least seven (7) days) as it may consider necessary or advisable in circumstances
where the interests of the Senior Secured Parties or any of them would otherwise
be likely to be prejudiced.
1.1.6 "Default" means any event or condition that, with the
giving of notice or the passage of time, or both, would constitute an Event of
Default.
1.1.7 "Designated Voting Party" means, at any time, with
respect to any Voting Facility, the Person then entitled to cast the votes under
this Agreement for such Voting Facility. The Designated Voting Party for each
Voting Facility is as follows:
(a) with respect to the Bond Facility, the Designated
Voting Party is the Trustee acting in accordance with the terms and
provisions of the Indenture;
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(b) with respect to the VEPCO L/C Facility, the
Designated Voting Party is the VEPCO L/C Agent acting in accordance
with the terms and provisions of the VEPCO L/C Agreement;
(c) with respect to any Working Capital Facility, the
Designated Voting Party is the Working Capital Agent therefor acting
in accordance with the terms and provisions of the applicable
Working Capital Agreement;
(d) with respect to any Reserve Account L/C Facility,
the Designated Voting Party is the Reserve Account L/C Agent
therefor, acting in accordance with the terms and provisions of the
applicable Reserve Account L/C Agreement; and
(e) with respect to any Additional Indebtedness
Facility, the Designated Voting Party is the Additional Indebtedness
Agent therefor, acting in accordance with terms and provisions of
the applicable Additional Indebtedness Agreement.
1.1.8 "Event of Default" means an "event of default" under any
Facility Document.
1.1.9 "Facility Documents" means, collectively, the Indenture,
the VEPCO L/C Agreement, any Working Capital Agreement, any Reserve Account L/C
Agreement and any Additional Indebtedness Agreement.
1.1.10 "Fundamental Decisions" has the meaning set forth in
Section 6.1.
1.1.11 "Initiating Percentage" means Designated Voting Parties
representing, in the aggregate, (i) in the case of an Event of Default under
Section 8.1(a) of the Indenture or any similar Event of Default under any other
Financing Document, Senior Secured Parties holding at least thirty-three and
one-third percent (33 1/3%) of the aggregate Combined Exposure, and (ii) in the
case of any other Event of Default, Senior Secured Parties holding greater than
fifty percent (50%) of the aggregate Combined Exposure.
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1.1.12 "Intercreditor Vote" means, at any time, a vote
conducted in accordance with the procedures set forth in Article 4 of this
Agreement among the Designated Voting Parties with respect to the particular
decision at issue at such time.
1.1.13 "Loan Party" means any of the Intercreditor Agent, the
Administrative Agent, the Collateral Agent or any Designated Voting Party, as
applicable.
1.1.14 "Majority Secured Parties" means Senior Secured Parties
holding greater than fifty percent (50%) of the aggregate Combined Exposure.
1.1.15 "Modification" means, with respect to any Financing
Document, any amendment, supplement, Waiver or other modification of the terms
and provisions thereof.
1.1.16 "Notice of Default" has the meaning set forth in
Section 5.1.
1.1.17 "Obligors" means, collectively, the Partnership and the
Funding Corporation.
1.1.18 "One Hundred Percent Secured Parties" means Senior
Secured Parties holding one hundred percent (100%) of the aggregate Combined
Exposure; provided, however, that with respect to any decision regarding clause
(a) of Schedule A hereto, "One Hundred Percent Secured Parties" shall mean all
of the Senior Secured Parties affected by such decision.
1.1.19 "Other Unit" has the meaning set forth in Section
2.2.3.
1.1.20 "Proposed Remedies" has the meaning set forth in
Section 5.2.1.
1.1.21 "Relevant Person" means any Project Party, any
Designated Voting Party, any other Senior Secured Party or any other advisor or
other Person with respect to any of the Transaction Documents.
1.1.22 "Remedies Commencement Date" has the meaning set forth
in Section 5.2.2.
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1.1.23 "Remedies Initiation Notice" has the meaning set forth
in Section 5.2.1.
1.1.24 "Remedies Instruction" has the meaning set forth in
Section 5.3.1. 1.1.25 "Required Secured Parties" has the following meaning:
(a) Designated Voting Parties representing, in the
aggregate, the One Hundred Percent Secured Parties with respect to
any Modification, instruction or exercise of discretion pursuant to
Section 6.1;
(b) Designated Voting Parties representing, in the
aggregate, the Majority Secured Parties with respect to any
Modification, instruction or exercise of discretion pursuant to
Section 6.2, except as otherwise provided therein;
(c) the Initiating Percentage with respect to any
decision to exercise remedies made pursuant to Section 5.2.3; or
(d) Designated Voting Parties representing, in the
aggregate, the Majority Secured Parties with respect to any other
action not otherwise described or dealt with in this definition of
"Required Secured Parties" or elsewhere in this Agreement and not
otherwise specifically delegated to the Intercreditor Agent.
1.1.26 "Reserve Account L/C Facility" means the aggregate
amount of the Combined Exposure outstanding under any Reserve Account L/C
Agreement.
1.1.27 "Subordinated Affiliate Bonds" means Bonds which are
beneficially or legally held by any Obligor, any equity participant in any
Obligor or any of their respective Affiliates and which are purchased after a
Default or an Event of Default shall exist and be continuing.
1.1.28 "VEPCO L/C Facility" means the aggregate amount of the
Combined Exposure outstanding under the VEPCO L/C Agreement.
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1.1.29 "Voting Facility" means any of the Bond Facility, the
VEPCO L/C Facility, any Working Capital Facility, any Reserve Account L/C
Facility or any Additional Indebtedness Facility, as applicable.
1.1.30 "Waiver" means, with respect to any particular conduct,
event or other circumstance, any change to an obligation of any Person under any
Transaction Document requiring the consent of one or more Senior Secured
Parties, which consent has the effect of excusing performance of or compliance
with such obligation, or any Default or Event of Default with respect thereto to
the extent relating to such conduct, event or circumstance, provided that any
Waiver shall be limited solely to the particular conduct, event or circumstance
and shall not purport, directly or indirectly, to alter or otherwise modify the
relevant obligation with respect to future occurrences of the same conduct,
event or circumstance.
1.1.31 "Working Capital Facility" means the aggregate amount
of the Combined Exposure outstanding under any Working Capital Agreement.
1.2 Rules of Interpretation. Except as otherwise expressly provided
herein, the principles of construction set forth in the Indenture shall apply to
this Agreement.
ARTICLE 2
INTERCREDITOR AGENT
2.1 Appointment of the Intercreditor Agent. Each of the Senior
Secured Parties that is a party hereto (for itself, each party on whose behalf
it executes this Agreement and any Person claiming through it) hereby appoints
The Bank of New York to act as its intercreditor agent in connection with the
Project and the Transaction Documents and authorizes it to exercise such rights,
powers, authorities and discretion as are specifically delegated to the
Intercreditor Agent by the terms hereof and any of the other Financing Documents
together with all such rights, powers, authorities and discretion as are
reasonably incidental thereto. By its signature hereto, The Bank of New York
accepts such appointment.
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2.2 Intercreditor Agent's Rights and Obligations.
2.2.1 In the course of its duties hereunder, the Intercreditor
Agent may at all times:
(a) assume, absent written notice to the contrary, that
(i) any representation made by the Partnership, the Funding
Corporation or any Project Party in connection with any Transaction
Document is true, (ii) no Default or Event of Default exists; and
(iii) neither the Partnership, the Funding Corporation nor any
Project Party is in breach or default of its obligations under any
Transaction Document;
(b) assume any notice or certificate given by any
Relevant Person has been validly given by a Person authorized to do
so and act upon such notice or certificate unless the same is
revoked or superseded by a further such notice or certificate;
(c) assume that the address, telecopy and telephone
numbers for the giving of any written notice to any Person hereunder
are those identified in Section 7.1 until it has received from such
Person a written notice designating some other office of such Person
to replace any such address, telecopy or telephone number, and act
upon any such notice until the same is superseded by a further such
written notice;
(d) pay reasonable fees and expenses for the advice or
services of any lawyers, accountants, engineers, consultants or
other experts whose advice or services the Intercreditor Agent may
determine are necessary, expedient or desirable and rely upon any
advice so obtained, and, if it so decides to make any such payment,
such fees and expenses shall be reimbursed to the Intercreditor
Agent pursuant to Section 7.16; provided that it shall be under no
obligation to act upon such advice if it does not deem such action
to be appropriate;
(e) rely upon a certificate signed by or on behalf of
any Relevant Person with respect to any matters of fact which might
reasonably be expected to be within the knowledge of such Relevant
Person;
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(f) rely upon any communication or document from any
Person reasonably believed by it to be genuine;
(g) refrain from acting or continuing to act in
accordance with any instructions of the Required Secured Parties to
begin any legal action or proceeding arising out of or in connection
with any Transaction Document until it shall have received such
indemnity, security or undertaking for costs from the Senior Secured
Parties as it may require (whether by payment in advance or
otherwise) for all costs, claims, losses and expenses (including
reasonable legal fees and expenses) and liabilities which it will or
may expend or incur in complying or continuing to comply with such
instructions; and
(h) seek instructions from the Required Secured Parties
as to the exercise of any of its rights, powers or discretion
hereunder and in the event that it does so it shall not be
considered as having acted unreasonably when acting in accordance
with such instructions or, in the absence of any (or any clear)
instructions, when refraining from taking any action or exercising
any right, power or discretion hereunder.
2.2.2 The Intercreditor Agent shall, subject to Section 2.2.1:
(a) promptly provide each Designated Voting Party with a
copy of any material notice or document which it, in its capacity as
Intercreditor Agent, receives from or delivers to: (i) any Obligor;
(ii) any Project Party; (iii) the Administrative Agent; (iv) the
Collateral Agent; (v) any other Designated Voting Party; (vi) any
Independent Consultant; or (vii) any Governmental Authority;
(b) except as otherwise provided herein, act as
Intercreditor Agent hereunder in accordance with any instructions
given to it by the Required Secured Parties; and
(c) if so instructed by the Required Secured Parties,
refrain from exercising any right, power or discretion vested in it
as the Intercreditor Agent hereunder.
2.2.3 The relevant branch(es), division(s) or department(s) of
the Person serving as the Intercreditor Agent hereunder shall be treated as a
separate entity
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from any other of its branches, divisions or departments ("Other Units") and, if
any Other Unit should act for any Senior Secured Party in any capacity in
relation to any other matter, any information given by such Senior Secured Party
to such Other Unit in such other capacity may be treated as confidential by such
Person.
2.3 Intercreditor Agent.
2.3.1 Notwithstanding anything to the contrary expressed or
implied herein, the Intercreditor Agent shall not:
(a) be bound to inquire as to (i) whether or not any
representation made by any Person in connection with any
Transaction Document is true, (ii) the occurrence or otherwise of
any Default or Event of Default, (iii) the performance by any Person
of its obligations under any of the Trans action Documents or (iv)
any breach of or default by any Person of its obligations under any
of the Transaction Documents;
(b) be bound to account to any Person for any sum or the
profit element of any sum received by it for its own account;
(c) be bound to disclose to any other Person any
information relating to the Project or any Person if such disclosure
would, or might, constitute a breach of any law or regulation or be
otherwise actionable at the suit of any Person;
(d) be under any fiduciary duties or obligations other
than those for which express provision is made herein or in any of
the other Financing Documents to which it is a party; or
(e) whether at the direction of the Required Secured
Parties (pursuant to a Remedies Instruction or otherwise), and
regardless of whether it is indemnified with respect thereto, be
required to take or direct the Collateral Agent to take any action
which it believes, based on a written opinion of counsel, is in
conflict with any Applicable Law, any Governmental Approval, this
Agreement or any other Financing Document or any order of any court
or administrative agency.
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2.3.2 The Intercreditor Agent is not responsible for and does
not accept any responsibility for: (i) any recitals, statements, representations
or warranties made by any Obligor, any Project Party or any Senior Secured Party
(other than itself in its capacity as Intercreditor Agent) contained in this
Agreement or any other Transaction Document or in any certificate or other
document referred to or provided for in, or received by any Senior Secured Party
under, this Agreement or any other Transaction Document; (ii) the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Transaction Document or any other document referred to or
provided for hereunder or thereunder; (iii) the value, validity, perfection,
priority or enforceability of any Lien purported to be created by any Senior
Security Document; or (iv) any failure by any Obligor, any Project Party or any
Senior Secured Party (other than itself in its capacity as Intercreditor Agent)
to perform its obligations under this Agreement or any other Transaction
Document; provided, however, that nothing in this Section 2.3.2 shall be deemed
or construed as limiting the rights of the Intercreditor Agent or any Senior
Secured Party or the obligations of any Project Party, in each case as is set
forth in the applicable Transaction Documents.
2.3.3 Each of the Senior Secured Parties that is a party
hereto (for itself, each party on whose behalf it executes this Agreement and
any Person claiming through it) understands and agrees that it has itself been,
and will continue to be, solely responsible for making its own independent
appraisal of, and investigations into, the financial condition,
creditworthiness, condition, affairs, status and nature of each Obligor and each
Project Party and, accordingly, each such Senior Secured Party warrants to the
Intercreditor Agent that it has not relied on and will not hereafter rely on the
Intercreditor Agent:
(a) to check or inquire on its behalf into the adequacy,
accuracy or completeness of any information provided by any Relevant
Person in connection with any of the Transaction Documents or the
transactions therein contemplated (whether or not such information
has been or is hereafter circulated to such Relevant Person by the
Intercreditor Agent); or
(b) to assess or keep under review on its behalf the
financial condition, creditworthiness, condition, affairs, status or
nature of any Relevant Person.
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It is agreed and understood that the Trustee makes no representation as to
itself but only in its capacity as the Trustee and based only on the
authorization and representations set forth in the Indenture.
2.4 Defaults. The Intercreditor Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default unless
the Intercreditor Agent has received a written notice (i) from a Designated
Voting Party, referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "Notice of Default", (ii) from any
Obligor referring to a Transaction Document, describing such Default or Event
of Default, (iii) from a Project Party stating that a default exists pursuant to
any Transaction Document to which it is a party or (iv) from the Collateral
Agent stating that it has received a notice from a Project Party that a default
exists pursuant to a Transaction Document to which such Project Party is a
party. If the Intercreditor Agent receives such a notice of the occurrence of a
Default or an Event of Default, the Intercreditor Agent shall give prompt notice
thereof to each Designated Voting Party (and each Designated Voting Party shall,
in turn, give prompt notice thereof to each party to its respective Facility
Document). The Intercreditor Agent shall take such action with respect to any
Default or Event of Default as is provided in this Intercreditor Agreement;
provided, however, that unless and until the Intercreditor Agent shall have
received directions from the Required Secured Parties, the Intercreditor Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default or Event of Default as is in the best
interest of the Senior Secured Parties.
2.5 Nonliability. Each of the Senior Secured Parties that is a party
hereto (for itself, each party on whose behalf it executes this Agreement and
any Person claiming through it) agrees that neither the Intercreditor Agent nor
any of its officers, directors, employees, affiliates or agents shall be liable
to any Senior Secured Party or any other Relevant Person for any action taken or
omitted under this Agreement or under the other Financing Documents or in
connection herewith or therewith except to the extent directly caused by the
Intercreditor Agent's gross negligence or willful misconduct, as finally
determined by a court of competent jurisdiction. Each of the Senior Secured
Parties that is a party hereto (for itself, each party on whose behalf it
executes this Agreement and any Person claiming through it) hereby releases,
waives, discharges and exculpates the Intercreditor Agent for any action taken
or omitted under this Agreement or under the other Financing Documents and from
any cost, claim, loss, expense or liability resulting therefrom, except to the
extent directly caused by the Intercreditor Agent's gross negligence or willful
misconduct, as finally determined by a court of competent jurisdiction.
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2.6 Resignation of the Intercreditor Agent.
2.6.1 The Intercreditor Agent may resign its appointment
hereunder at any time without providing any reason therefor by giving not less
than thirty (30) days prior written notice to that effect to each of the other
parties hereto, provided that neither such resignation or a removal of the
Intercreditor Agent pursuant to Section 2.7, shall be effective until:
(a) a successor for the Intercreditor Agent is appointed
in accordance with (and subject to) the succeeding provisions of
this Section 2.6;
(b) the resigning or removed Intercreditor Agent has
transferred to its successor all of its rights and obligations in
its capacity as Intercreditor Agent under this Agreement and the
other Financing Documents; and
(c) the successor Intercreditor Agent has executed and
delivered an agreement to be bound by the terms hereof and of the
other Financing Documents and to perform all duties required of the
Intercreditor Agent hereunder and under the other Financing
Documents.
2.6.2 If the Intercreditor Agent has given notice of its
resignation pursuant to this Section 2.6 or if the Required Secured Parties
give the Intercreditor Agent notice of removal pursuant to Section 2.7, then a
successor to the Intercreditor Agent may be appointed by the Required Secured
Parties during the period of such notice but, if no such successor is so
appointed within thirty (30) days after the above notice, the Intercreditor
Agent may petition a court of competent jurisdiction or it may appoint such a
successor which (a) is authorized under the laws of the jurisdiction of its
incorporation to exercise corporation trust powers, (b) shall have a combined
capital and surplus of at least fifty million Dollars (US$50,000,000), (c) shall
be rated "Baa3" or better by Xxxxx'x or "BBB-" or better by S&P and (d) shall be
acceptable to the Required Secured Parties (provided that, if the Required
Secured Parties do not confirm such acceptance in writing within thirty (30)
days following selection of such successor by the Intercreditor Agent or select
another Intercreditor Agent within such thirty (30) day period, then they shall
be deemed to have given such acceptance and such successor shall be deemed
appointed as the Intercreditor Agent hereunder) and, so long as no Default or
Event of Default has occurred and is continuing, the Partnership and the Funding
Corporation.
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2.6.3 If a successor to the Intercreditor Agent is appointed
under the provisions of Section 2.6.1 or Section 2.6.2, then:
(a) the predecessor Intercreditor Agent shall be
discharged from any further obligation hereunder (but without
prejudice to any accrued liabilities);
(b) notwithstanding the predecessor Intercreditor
Agent's resignation pursuant to this Section 2.6 or removal pursuant
to Section 2.7, the provisions of this Agreement shall continue to
inure to its benefit as to any actions taken or omitted to be taken
by it under this Agreement and the other Financing Documents while
it was the Intercreditor Agent; and
(c) the successor Intercreditor Agent and each of the
other parties hereto shall have the same rights and obligations
among themselves as they would have had if such successor
Intercreditor Agent originally had been a party to this Agreement.
2.7 Removal of the Intercreditor Agent. Designated Voting Parties
representing, in the aggregate, Senior Secured Parties holding at least
thirty-three percent (33%) of the Combined Exposure may remove the Intercreditor
Agent from its appointment hereunder with or without cause by giving not less
than ninety (90) days prior written notice to that effect to the Intercreditor
Agent and the Obligors; provided that no such removal shall be effective until a
successor for the Intercreditor Agent is appointed in accordance with Section
2.6.
2.8 Authorization. The Intercreditor Agent is hereby authorized by
each of the Senior Secured Parties that is a party hereto (for itself, each
party on whose behalf it executes this Agreement and any Person claiming through
it) to execute, deliver and perform each of the Financing Documents to which the
Intercreditor Agent is a party and each Senior Secured Party that is a party
hereto (for itself, each party on whose behalf it executes this Agreement and
any Person claiming through it) agrees to be bound by all of the agreements of
the Intercreditor Agent contained in the Financing Documents.
2.9 Intercreditor Agent as Senior Secured Party; Other Banking
Business. With respect to any Senior Secured Obligations held by it, the Person
serving as
14
Intercreditor Agent hereunder shall have the same rights and powers under the
Financing Documents as any other Senior Secured Party and may exercise the same
as though it were not the Intercreditor Agent. The term "Senior Secured Party",
"Senior Secured Parties", "Holder" or "Holders", and any other similar terms,
when used with respect to such Person, shall, unless otherwise expressly
indicated, include such Person in its individual capacity. Such Person and its
Affiliates may accept deposits from, lend money to, act as trustee under
indentures of and generally engage in any kind of business with any Obligor or
any other Person without any duty to account therefor to the Senior Secured
Parties.
2.10 Notice of Amounts Owed. Upon the request of the Intercreditor
Agent, in connection with the taking of any action hereunder by the
Intercreditor Agent, each Senior Secured Party hereto shall promptly notify the
Intercreditor Agent in writing, as of any time that the Intercreditor Agent may
specify in such request, of (i) the aggregate amount of Senior Secured
Obligations owing under its respective Facility Document as of such date, (ii)
the principal, interest, expenses and other components of such Senior Secured
Obligations, and (iii) such other information as the Intercreditor Agent may
reasonably request.
ARTICLE 3
SHARING
3.1 Payments Received by Intercreditor Agent or Collateral Agent.
Subject to the provisions of Section 3.3 and the provisions set forth in each
Facility Document which affect the allocation of funds among the Senior Secured
Parties party to such Facility Document, all amounts paid to the Collateral
Agent or realized by the Collateral Agent that are to be redistributed to the
Senior Secured Parties (other than the Designated Voting Parties in their
respective capacities as agents) shall be paid, to the extent funds are
available, to each Senior Secured Party (without priority of any one over any
other except as set forth in Section 3.3) in accordance with Article 4 of the
Collateral Agency Agreement.
3.2 Payments Received by Any Other Senior Secured Party. Except as
excluded in Section 3.3 or otherwise provided under this Agreement, if any
Senior Secured Party (other than the Collateral Agent as contemplated by Section
3.1 above) shall obtain any amount (whether (i) by way of voluntary or
involuntary payment, (ii) by
15
virtue of an exercise of any right of set-off, banker's lien or counterclaim,
(iii) as proceeds of any insurance policy covering any properties or assets of
any Obligor, (iv) from proceeds of liquidation or dissolution of any Obligor or
distribution of its assets among its creditors, however such liquidation,
dissolution or distribution may occur, (v) as payment of any Senior Secured
Obligations following the acceleration thereof, whether in whole or in part,
(vi) as consideration for the agreement of such Senior Secured Party or as part
of any transaction or series of related transactions in which such Senior
Secured Party shall have agreed to waive or amend any provision of any Financing
Document, (vii) from any realization on any Senior Collateral, (viii) by virtue
of the application of any provision of any of the Financing Documents (other
than this Agreement), or (ix) in any other manner) other than amounts obtained
from or through the Collateral Agent pursuant to the Financing Documents or
amounts representing capitalized interest in respect of any Financing Document,
such Senior Secured Party shall forthwith notify the Intercreditor Agent thereof
and shall promptly, and in any event within ten (10) Banking Days of its so
obtaining the same, pay such amount (less any reasonable costs and expenses
incurred by such Senior Secured Party in obtaining such amount) to the
Collateral Agent for the account of the Senior Secured Parties, to be shared
among the Senior Secured Parties in accordance with Section 3.1. Upon receipt of
any such payment, the Collateral Agent shall distribute the appropriate amount
to each Senior Secured Party as provided in the previous sentence.
3.3 Amounts Not Subject to Sharing. Notwithstanding any other
provision of this Agreement or any other Financing Document, no Senior Secured
Party shall have any obligation to share:
(a) any payment made to a Senior Secured Party pursuant
to any provision of any Financing Document which is in the nature of
a closing or commitment fee or an indemnity against or reimbursement
for (i) additional funding costs and similar costs incurred by such
Senior Secured Party including, without limitation, payments with
respect to increased reserve provisions, capital adequacy
provisions, make-whole premiums, breakage provisions or other
similar provisions, (ii) costs with respect to taxes incurred or
payable by such Senior Secured Party on principal, interest and
other payments payable to it under the Financing Documents, and
(iii) costs, liabilities, claims and other expenses incurred by such
Senior Secured Party which are the subject of any indemnity or
reimbursement provision contained in the Financing Documents;
16
(b) any non pro rata prepayment made to any Senior
Secured Party pursuant to any Financing Document; and
(c) any payment of fees made to the Intercreditor Agent
pursuant to any separate fee arrangement between the Intercreditor
Agent and the Obligors.
Notwithstanding the foregoing, sharing of payments made with respect to a
particular Voting Facility shall be subject to the sharing provisions of the
applicable Facility Document.
3.4 Presumption Regarding Payments. For purposes hereof, any payment
received by a Senior Secured Party pursuant to this Article 3 may be presumed by
such Senior Secured Party to have been properly received by such Senior Secured
Party in accordance with this Article 3 unless such Senior Secured Party
receives notice from any other Senior Secured Party that such payment was not
made in accordance herewith. If any such distributed or shared payment is
rescinded or must otherwise be restored by the Senior Secured Party that first
obtained it, each other Senior Secured Party that shares the benefit of such
payment shall return to such Senior Secured Party its portion of the payment so
rescinded or required to be restored.
3.5 No Separate Security. Each Senior Secured Party that is a party
hereto (for itself, each party on whose behalf it executes this Agreement and
any Person claiming through it) (a) agrees that all collateral security pledged
under the Senior Security Documents is for the joint benefit of all the Senior
Secured Parties and (b) represents and warrants to each other Senior Secured
Party that, in respect of the Senior Secured Obligations owing to it, it has
received no security or guarantees from the Obligors or any of their respective
Affiliates other than its interest in the Senior Collateral as provided in the
Senior Security Documents.
3.6 Subordinated Affiliate Bonds. Notwithstanding any provision of
this Article 3 or any Financing Document to the contrary, so long as any Default
or Event of Default shall exist and be continuing, no sharing or other payment
shall be made in respect of any Subordinated Affiliate Bonds until the remainder
of the Senior Secured Obligations have been indefeasibly paid in full in cash or
in cash equivalents. Any proceeds otherwise payable as contemplated by this
Agreement and the Collateral Agency Agreement in
17
respect of any Subordinated Affiliate Bonds shall be distributed to the
remainder of the Senior Secured Parties in accordance with Article 4 of the
Collateral Agency Agreement.
ARTICLE 4
VOTING AND DECISION MAKING
4.1 Decision Making.
4.1.1 Each Senior Secured Party that is a party hereto (for
itself, each party on whose behalf it executes this Agreement and any Person
claiming through it) agrees that no Senior Secured Party shall, except in
accordance with the provisions of this Agreement, but without prejudice to any
separate rights expressly granted to a Designated Voting Party under the
Facility Documents, exercise or enforce any right, remedy or power under any
Financing Document where such right, remedy or power arises as a result of a
Default or an Event of Default under such Financing Document (it being agreed
that no acceleration in respect of an Event of Default or termination or
suspension of a commitment under a Facility Document shall be deemed to be a
remedy for any purposes of this Agreement).
4.1.2 Each Senior Secured Party that is a party hereto (for
itself, each party on whose behalf it executes this Agreement and any Person
claiming through it) agrees that each decision made in accordance with the terms
of this Agreement shall be binding upon each Senior Secured Party that is a
party hereto (for itself, each party on whose behalf it executes this Agreement
and any Person claiming through it) and each other party to the Financing
Documents.
4.1.3 Notwithstanding Section 4.1.2 or any other term or
provision of this Agreement, no term or provision of any Facility Document may
be Modified except with the written consent of the applicable Designated Voting
Party party thereto (acting in accordance with the terms of the relevant
Facility Document), but any Modification of a provision of any other Financing
Document made in accordance with the terms of this Agreement and such Financing
Document that is incorporated by reference into such Facility Document shall
also be deemed to modify such Facility Document, mutatis mutandis, without such
written consent of such Designated Voting Party.
18
4.2 Voting Generally; Intercreditor Votes. Where, in accordance with
this Agreement or any other Financing Document, any Modification, direction or
other decision of the Intercreditor Agent, the Collateral Agent or the
Administrative Agent is required (other than as otherwise provided in Section
5.2), the granting or withholding of such Modification, the giving of such
direction, or the making of such other decision shall be determined through an
Intercreditor Vote; provided, however, that the Intercreditor Agent shall (or
shall instruct any party it is entitled to instruct to), at the request of the
Partnership, the Funding Corporation or any Designated Voting Party, make such
corrections to any Financing Document so long as the corrections are of patent
errors in the document and reflective of the clear intent of the parties to such
document (for example, errant cross-references and misspelled defined terms) and
do not involve any material change whatsoever (the Intercreditor Agent being
entitled to rely on the advice of counsel and having all of the rights provided
to it under Article 2 hereof).
4.3 Intercreditor Votes; Each Party's Entitlement to Vote.
4.3.1 Each Designated Voting Party shall be entitled to vote
in each Intercreditor Vote conducted under this Agreement.
4.3.2 For all purposes of voting under this Agreement, no
actual vote need be taken in respect of any Bond if the Indenture permits the
Trustee to rely on a certificate, report of an expert or Rating Agency
confirmation in deter mining how to cast its votes in any Intercreditor Vote.
Upon receipt of such certificate, report or confirmation the Trustee shall cast
its votes in accordance therewith.
4.3.3 Except (i) for the limitation on the enforcement of
rights, remedies and powers under Section 4.1.1, (ii) for matters requiring an
Intercreditor Vote under Section 4.2 or this Section 4.3 or (iii) as otherwise
expressly provided for in a Facility Document, the respective Designated Voting
Parties may make all decisions, determine the acceptability of and rely on
certificates, exercise discretion, execute Modifications and grant Waivers as
are contemplated by such Facility Document.
4.4 Intercreditor Votes; Votes Allocated to Each Party.
4.4.1 Each Person that is a Designated Voting Party for any
Intercreditor Vote shall have a number of votes in such Intercreditor Vote equal
to the portion of the Combined Exposure represented by its Voting Facility.
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4.4.2 In calculating the percentage of the Combined Exposure
in any Intercreditor Vote consenting to, approving, waiving or otherwise
providing direction with respect to a decision which requires an Intercreditor
Vote, the total dollar amount of the Combined Exposure voting, through the
Designated Voting Parties, in any one direction with respect to such decision
shall be divided by the aggregate Combined Exposure. Each Designated Voting
Party and each of the Senior Secured Parties that is a party hereto (for itself,
each party on whose behalf it executes this Agreement and any Person claiming
through it) hereby waives any and all rights it may have to object to or seek
relief from the decision of the Designated Voting Parties voting with respect to
such matter and agrees to be bound by such decision. Nothing contained in this
Section 4.4.2 shall preclude any Designated Voting Party from participating in
any re-voting or further voting relating to such matter.
4.4.3 No Bonds held by any Obligor, any partner, shareholder
or member of any Obligor or any of their respective Affiliates shall have any
vote in respect of any matter and such Bonds shall be disregarded for all
purposes of any such vote.
ARTICLE 5
DEFAULTS AND REMEDIES
5.1 Notice of Defaults. Promptly after any Designated Voting Party
obtains knowledge of the occurrence of any Default or Event of Default under any
Financing Document to which it is a party or that any Default or Event of
Default under any Financing Document to which it is a party has ceased to exist
or has been rescinded, such Designated Voting Party shall notify the
Intercreditor Agent in writing thereof (such notice, a "Notice of Default").
Each such Notice of Default shall specifically refer to this Section 5.1 and
shall describe such Default or Event of Default (or its cessation or rescission)
in reasonable detail (including the date of occurrence of the same). Upon
receipt by the Intercreditor Agent of any such Notice of Default, it shall
promptly send copies thereof to each Designated Voting Party.
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5.2 Election to Pursue Remedies Following Events of Default.
5.2.1 At any time after the occurrence of an Event of Default,
any Designated Voting Party in respect of a Facility Document under which an
Event of Default has occurred and is continuing may serve a notice (such notice,
a "Remedies Initiation Notice") on the Intercreditor Agent which describes the
Event of Default with respect to which such Designated Voting Party is seeking
to pursue remedies as well as the various remedies (the "Proposed Remedies")
that such Designated Voting Party wishes the Intercreditor Agent to pursue.
5.2.2 If the Intercreditor Agent receives any Remedies
Initiation Notice from any Designated Voting Party pursuant to Section 5.2.1,
and if such notice has not been withdrawn by such Designated Voting Party prior
to the end of the fifth Business Day after the day on which the Intercreditor
Agent receives such notice, the Intercreditor Agent shall promptly after such
fifth Business Day provide each Designated Voting Party with a copy of such
notice and inform each of them of the date (such date, which shall be the 30th
day after the date that the Intercreditor Agent receives the Remedies Initiation
Notice, the "Remedies Commencement Date") on which the Intercreditor Agent will
commence the exercise of the Proposed Remedies if so directed by Designated
Voting Parties constituting the Initiating Percentage. Unless the Remedies
Initiation Notice was executed by Designated Voting Parties constituting the
Initiating Percentage, the Intercreditor Agent shall request instructions from
the Designated Voting Parties as to whether the Intercreditor Agent should
exercise the Proposed Remedies or other remedies on the Remedies Commencement
Date or no remedies.
5.2.3 If, on or prior to the Remedies Commencement Date (as
that date may be extended pursuant to the definition of Decision Period),
Designated Voting Parties constituting the Initiating Percentage direct the
Intercreditor Agent to exercise remedies (which direction may include an
instruction to exercise the Proposed Remedies or an instruction to exercise
other remedies), the Intercreditor Agent shall exercise any such remedies in
accordance with Section 5.4 below beginning on the Remedies Commencement Date as
directed by Designated Voting Parties constituting Initiating Percentage,
provided that the Event of Default which is the subject of such Remedies
Initiation Notice has not been previously cured or waived (by Modification of
the provisions giving rise to such Event of Default in accordance with the terms
of Article 6 of this Agreement).
21
5.2.4 During the period prior to the Remedies Commencement
Date with respect to any Event of Default, no Senior Secured Party (other than
the Intercreditor Agent as provided in the proviso to Section 2.4) shall be
entitled to exercise any remedy in connection with such Event of Default, nor
shall any Senior Secured Party instruct the Intercreditor Agent to exercise any
remedy in connection with such Event of Default.
5.2.5 A Designated Voting Party may serve only one Remedies
Initiation Notice with respect to any Event of Default and each Remedies
Initiation Notice served by such Designated Voting Parties shall be deemed to
have been served with respect to all Events of Default in existence on the date
such Remedies Initiation Notice is served.
5.2.6 Nothing in this Section 5.2 shall be construed to
restrict the right of the Required Secured Parties to elect at any time to agree
to any Modification of the Financing Documents in accordance with Article 6
that could have the effect of waiving or rescinding such Event of Default.
5.3 Exercise of Remedies.
5.3.1 If the Required Secured Parties pursuant to Section
5.2.3 above elect to exercise remedies, then subject to Section 5.3.3 the
Intercreditor Agent shall follow the written instruction regarding the exercise
of remedies delivered by the Required Secured Parties which may be in the form
of an Intercreditor Vote (the "Remedies Instruction"). Each Remedies Instruction
shall specify the particular action that the Required Secured Parties propose to
cause the Intercreditor Agent to take.
5.3.2 At the direction of the Required Secured Parties
pursuant to a Remedies Instruction, the Intercreditor Agent shall exercise the
remedies provided therein (provided that the relevant Senior Security Documents
permit such remedy) including, if so directed, to promptly instruct the
Collateral Agent to seek to enforce the Senior Security Documents, to realize
upon the Senior Collateral or, in the case of a proceeding against an Obligor
under the Bankruptcy Code, to seek to enforce the claims of the Senior Secured
Parties thereunder.
5.3.3 Each Remedies Instruction shall, except as otherwise
provided herein, be effective on the date set forth in such notice. In the event
that more
22
than one group of Senior Secured Parties constituting the Required Secured
Parties delivers a Remedies Instruction, then the Remedies Instruction from the
group representing the greatest percentage of the Combined Exposure shall
control unless the Intercreditor Agent has already commenced action called for
by another Remedies Instruction having an earlier effective date, and the
Intercreditor Agent shall be entitled to ignore any Remedies Instruction
provided by any other group of Senior Secured Parties.
5.3.4 Allocation of Collateral Proceeds. Upon the occurrence
of an Acceleration Event, the proceeds of any collection, recovery, receipt,
appropriation, realization or sale of any or all of the Senior Collateral or
the enforcement of any Senior Security Document ("Collateral Proceeds") shall be
applied in accordance with Article 4 of the Collateral Agency Agreement.
5.3.5 No Remedies. No Bonds held by any Obligor, any partner,
shareholder or member of any Obligor or any of their respective Affiliates shall
have the benefit of any remedies until the remainder of the Senior Secured
Obligations are indefeasibly paid in full in cash or cash equivalents.
ARTICLE 6
MODIFICATIONS; INSTRUCTIONS; OTHER RELATIONSHIPS
6.1 100% Voting Issues: Modifications of, and Instructions with
Respect to, Fundamental Aspects of the Financing Documents. With respect to any
of the matters listed on the attached Schedule A (the "Fundamental Decisions"),
(i) no Modification shall be agreed to by the Intercreditor Agent, the
Collateral Agent or the Administrative Agent under any Financing Document, (ii)
no instruction shall be given to the Intercreditor Agent under or with respect
to any Financing Document, and (iii) no discretion shall be exercised by the
Intercreditor Agent under or with respect to any Financing Document, unless, in
each case, an Intercreditor Vote is taken in accordance with the procedures set
forth in Section 6.4 and the One Hundred Percent Secured Parties, through the
Designated Voting Parties, authorize the Intercreditor Agent to agree to such
Modification, provide the Intercreditor Agent with such instruction or authorize
the Intercreditor Agent to exercise such discretion, as the case may be.
23
6.2 Majority Voting Issues: Modifications of, and Instructions with
Respect to, Material Aspects of the Financing Documents. Except as expressly
provided for in Section 6.1 and Section 6.4 and except as set forth in the
proviso to Section 4.2, (i) no Modification shall be agreed to by the
Intercreditor Agent, the Collateral Agent or the Administrative Agent under any
Financing Document, (ii) no instruction shall be given to the Intercreditor
Agent under or with respect to any Financing Document, and (iii) no discretion
shall be exercised by the Intercreditor Agent under or with respect to any
Financing Document, unless, in each case, an Intercreditor Vote is taken in
accordance with the procedures set forth in Section 6.3 and the Majority Secured
Parties authorize the Intercreditor Agent to agree to such Modification, provide
the Intercreditor Agent with such instruction or authorize the Intercreditor
Agent to exercise such discretion, as the case may be.
6.3 Certain Procedures Relating to Modifications, Instructions and
Exercises of Discretion.
6.3.1 If, at any time:
(a) the Intercreditor Agent (i) proposes to agree to a
Modification or proposes to authorize any Senior Secured Party to
agree to a Modification under any Financing Document or (ii)
proposes to exercise any discretion conferred on it under the
Financing Documents; or
(b) any Designated Voting Party or any Obligor (i) pro
poses that there should be a Modification under any Financing
Document, (ii) proposes to provide the Intercreditor Agent with
instructions regarding the Financing Documents, or (iii) proposes a
matter with respect to which it believes the Intercreditor Agent
should exercise its discretion, and, in each case, notifies the
Intercreditor Agent to that effect;
then the Intercreditor Agent shall promptly notify each Designated Voting Party
of the matter in question specifying:
(i) the nature of the Modification, instruction or
exercise of discretion that is at issue (which shall be
conspicuously stated);
24
(ii) the Required Secured Parties applicable to the
decision; and
(iii) the Decision Period determined by the
Intercreditor Agent by which the Designated Voting Parties must
provide the Intercreditor Agent with their votes with respect to
such decision.
6.3.2 Each Designated Voting Party shall, within the specified
Decision Period pursuant to Section 6.3.1, provide a certificate to the
Intercreditor Agent setting forth its vote with respect to the matter for which
its instructions were sought by the Intercreditor Agent under Section 6.3.1.
6.3.3 If (i) a Designated Voting Party fails to provide such a
certificate to the Intercreditor Agent setting forth its vote within the
specified Decision Period and (ii) the matter for which its instructions were
sought by the Intercreditor Agent requires a vote of the One Hundred Percent
Secured Parties, then the Intercreditor Agent shall notify such Designated
Voting Party on or before the close of business on the next Business Day
following the last day of the Decision Period of such Designated Voting Party's
failure to provide such certificate and request that it provide such certificate
no later than 11:00 a.m. on the third Business Day after the last day of the
Decision Period; provided that the Intercreditor Agent shall not be held liable
for any failure by it to provide such notice to such Designated Voting Party;
and provided, further that if such Designated Voting Party does not provide such
certificate by 11:00 a.m. on the third Business Day after the last day of the
Decision Period, such Designated Voting Party shall be deemed to have cast its
votes against the subject decision.
6.4 Modifications by Senior Secured Parties to their
Respective Facilities. Notwithstanding any provision contained herein to the
contrary, each Senior Secured Party (other than the Intercreditor Agent, the
Administrative Agent and the Collateral Agent) may, at any time and from time to
time, without any consent of or notice to any other Senior Secured Party and
without impairing or releasing the obligations of any Person under this
Agreement: (a) make any Modifications under the Facility Document to which such
Person is a party (and to which none of the Intercreditor Agent, the Collateral
Agent or the Administrative Agent is a party); or (b) release anyone liable in
any manner under, or in respect of the Senior Secured Obligations owing under,
such Facility Document (but only in respect of such Senior Secured Obligations).
The rights of each
25
Senior Secured Party pursuant to the foregoing sentence are subject to the
provisions of its respective Facility Document regarding such Modifications and
releases.
6.5 Effect of Modification on Intercreditor Agent. No Modifications
shall be made to any Financing Document by any party hereto that adversely
affects the Intercreditor Agent without the written consent of the Intercreditor
Agent.
6.6 Provision of Information; Meetings.
6.6.1 Each Senior Secured Party that is a party hereto (for
itself, each party on whose behalf it executes this Agreement and any Person
claiming through it) agrees that it will, from time to time (as it deems
reasonably necessary or appropriate in its sole judgment), consult with the
other Senior Secured Parties with respect to the Senior Secured Obligations, the
Project, the Senior Collateral or the affairs of the Obligors in general.
6.6.2 Any Designated Voting Party may, at any time following
the occurrence and during the continuation of an Event of Default, request that
a meeting or meetings of the Designated Voting Parties be convened, at
reasonable times and locations, and with reasonable frequency, and upon such
request having been given in accordance herewith, such meetings shall be
convened as provided herein. Such a request for a meeting shall be made by
written notice given to each Designated Voting Party in accordance herewith.
Each such notice shall state the date of such meeting (which shall be not less
than fifteen (15) nor more than thirty (30) days after the date of such notice,
unless otherwise agreed by the Designated Voting Parties) and a general outline
of the issues to be discussed at such meeting. Any Designated Voting Party shall
have the right to appoint any Person (including, without limitation, another
Designated Voting Party) to act as its representative at any such meeting of
Designated Voting Parties. No Person shall be obligated to attend any such
meetings, and no votes shall be taken at such meeting unless consented to by the
Required Secured Parties. Any costs or expenses incurred by any Senior Secured
Party in connection with the meetings described in this Section 6.6.2 shall be
reimbursed to such Senior Secured Party in accordance with Section 7.16.
6.6.3 Each Designated Voting Party shall use reasonable
efforts to make available promptly to each other Designated Voting Party any
material information received by it regarding the occurrence of any Default or
Event of Default or any determination to accelerate the Indebtedness under its
Facility Document (an "Acceleration
26
Event") or other event requiring joint action; provided, however, that this
Section 6.6.3 shall not require any Designated Voting Party to make available to
any other Person (a) information subject to confidentiality restrictions or
governmental or security clearance requirements prohibiting such disclosure, (b)
analyses, data or reports prepared solely for internal use, or (c) information
that any Obligor is obligated to provide. No Designated Voting Party shall have
any liability for any failure to make available to any other party such
information or for any inaccuracy or incompleteness of any such information made
available in good faith.
6.6.4 Each Designated Voting Party further agrees that it will
from time to time provide such information to each other Designated Voting Party
as may be necessary to enable such Designated Voting Party to make any
calculation required under the Financing Documents.
6.6.5 Each Designated Voting Party shall provide copies of any
Modifications to the Financing Documents to the Intercreditor Agent.
ARTICLE 7
MISCELLANEOUS
7.1 Addresses. Any communications between the parties hereto or
notices provided herein to be given shall be deemed to have been given only if
such notice is in writing and delivered personally, or by registered or
certified first-class mail with postage prepaid, or made, given or furnished in
writing by confirmed telecopy or facsimile transmission, or by prepaid courier
service to the appropriate party as set forth below:
Funding Corporation: LSP Batesville Funding Corporation
Xxx Xxxxx Xxxxxx
00xx Xxxxx Xxxx
Xxxx Xxxxxxxxx, XX 00000
Attn: General Counsel
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
27
Partnership: LSP Energy Limited Partnership
Xxx Xxxxx Xxxxxx
00xx Xxxxx Xxxx
Xxxx Xxxxxxxxx, XX 00000
Attn: General Counsel
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Trustee: The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust Trustee
Administration
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
VEPCO L/C Agent: Credit Suisse First Xxxxxx
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Collateral Agent: The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust Trustee
Administration
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
28
Intercreditor Agent: The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust Trustee
Administration
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Administrative Agent: The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust Trustee
Administration
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Senior Secured
Parties Becoming
Party Hereto After
the Date Hereof: To be specified at the time of execution of a
counterpart hereto pursuant to Section 7.18
hereof.
Any party may change its address by giving notice of such change in the manner
set forth herein. Any notice given to a party by mail or by courier shall be
deemed delivered upon receipt thereof (unless the party refuses to accept
delivery, in which case the party shall be deemed to have accepted delivery upon
presentation). Any notice given to a party by telecopy or facsimile transmission
shall be deemed effective on the date it is actually sent to the intended
recipient by confirmed telecopy or facsimile transmission to the telecopier
number specified above.
7.2 Delay and Waiver. No delay or omission to exercise any right,
power or remedy accruing upon the occurrence of any Default or Event of Default
or any other breach or default of any Obligor under this Agreement shall impair
any such right, power or remedy of any Senior Secured Party nor shall it be
construed to be a waiver of
29
any such breach or default, or an acquiescence therein, or in any similar breach
or default thereafter occurring, nor shall any single or partial exercise by any
such party of any right, power or remedy hereunder preclude any other or future
exercise thereof or the exercise of any other right, power or remedy, nor shall
any waiver of any single Default, Event of Default or other breach or default be
deemed a waiver of any other Default, Event of Default or other breach or
default theretofore or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the part of any Senior Secured Party of any
Default, Event of Default or other breach or default under this Agreement or any
other Financing Document, or any waiver on the part of any Senior Secured Party,
of any provision or condition of this Agreement or any other Transaction
Document must be in writing and signed by such Senior Secured Party and shall be
effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or any other Financing Document or by law
or otherwise afforded to any Senior Secured Party, shall be cumulative and not
alternative.
7.3 Entire Agreement. This Agreement and the other Financing
Documents integrate all the terms and conditions mentioned herein or incidental
hereto and supersede all oral negotiations and prior writings in respect to the
subject matter hereof. In the event of any conflict between the terms,
conditions and provisions of this Agreement and any Financing Document the
terms, conditions and provisions of this Agreement shall prevail.
7.4 Governing Law. This Agreement shall be governed by the laws of
the State of New York of the United States of America and shall for all purposes
be governed by and construed in accordance with the laws of such state without
regard to the conflict of law rules thereof other than Section 5-1401 of the New
York General Obligations Law; provided, however, that, to the extent any terms
of this Agreement are incorporated in and made part of any other Financing
Document, any such term so incorporated shall for all purposes be governed by
and construed in accordance with the law governing the Financing Document into
which such term is so incorporated.
7.5 Severability. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby, and the parties hereto
shall enter into good faith negotiations to replace the invalid, illegal or
unenforceable provision with a view to obtaining the same commercial
30
effect as this Agreement would have had if such provision had been legal, valid
and enforceable.
7.6 Headings. Section headings have been inserted in this Agreement
as a matter of convenience for reference only and it is agreed that such section
headings are not a part of this Agreement and shall not be used in the
interpretation of any provision of this Agreement.
7.7 Successors and Assigns.
7.7.1 The provisions of this Agreement shall be binding upon
and inure to the benefit of each party hereto and their respective successors
and assigns; provided that no Obligor shall assign any of its rights or
obligations hereunder without the consent of the Required Secured Parties.
7.7.2 Any Senior Secured Party may transfer, assign or grant
all or such relevant part of its rights and obligations hereunder in connection
with an assignment or transfer of all or any part of its interest in its Senior
Secured Obligations in accordance with the applicable Financing Documents,
provided that each assignee and participant shall be bound by the terms of this
Agreement and each applicable Financing Document.
7.8 Reinstatement. This Agreement shall continue to be effective or
be reinstated, as the case may be, if at any time payment and performance of the
Obligors' obligations hereunder, or any part thereof, is, pursuant to applicable
law, rescinded or reduced in amount, or must otherwise be restored or returned
by any Senior Secured Party. In the event that any payment or any part thereof
is so rescinded, reduced, restored or returned, such obligations shall be
reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
7.9 Counterparts. This Agreement may be executed in one or more
duplicate counterparts and when signed by all of the parties listed below shall
constitute a single binding agreement.
7.10 Termination. Upon the indefeasible payment in full in cash of
the Senior Secured Obligations in respect of each Financing Document and the
termination of all of the commitments of the Senior Secured Parties under the
Financing Documents, and
31
except as provided in Section 7.8, this Agreement shall terminate and be of no
further force and effect.
7.11 No Partnership. Nothing contained in this Agreement and no
action by any Senior Secured Party is intended to constitute or shall be deemed
to constitute such Senior Secured Parties (or any of them) a partnership,
association, joint venture or other entity.
7.12 No Reliance. No Senior Secured Party has relied on any
representation or warranty of any other Senior Secured Party with respect to
this Agreement and the transactions contemplated hereunder unless such
representation or warranty has been set forth expressly in this Agreement.
7.13 Third-Party Beneficiaries. This Agreement is for the benefit of
the parties hereto (and the Senior Secured Parties claiming through such
parties) and their respective successors and permitted assigns, and nothing
herein shall give any other Person any benefit or any legal or equitable right
or remedy under this Agreement.
7.14 Obligations of Obligors Unaffected. The obligations of the
Obligors under the Financing Documents are absolute and shall be unaffected by
this Agreement.
7.15 Action without the Intercreditor Agent. If the Intercreditor
Agent shall not, in accordance with Section 2.2.1(g), be required to take action
as permitted by Section 2.2.1(g), the Senior Secured Parties may then elect,
upon written notice to the Collateral Agent, the Partnership and the Funding
Corporation (provided that if a Bankruptcy Event shall have occurred with
respect to the Partner ship or the Funding Corporation, such notice shall not be
required and shall be deemed to have been given upon the election by the Senior
Secured Parties to take action hereunder), to take action hereunder, including
pursuing remedies directly and not acting through the Intercreditor Agreement,
if such remedies or other actions are otherwise permitted by the terms of this
Agreement.
7.16 Costs and Expenses. The Partnership and the Funding Corporation
shall pay to each Designated Voting Party all of their costs and expenses
incurred in connection with the preparation, negotiation and closing of this
Agreement and the documents contemplated hereby, including the reasonable fees,
expenses and
32
disbursements of counsel retained by the Designated Voting Parties in connection
with the preparation of such documents and any amendments hereof or thereof, the
reasonable fees, expenses and disbursements of the Independent Consultants and
any other engineering, insurance and construction consultants to the Senior
Secured Parties subsequent to the Closing Date, and the costs of the Designated
Voting Parties in administering the Senior Secured Obligations, including the
reasonable travel and reasonable out-of-pocket costs incurred by the Designated
Voting Parties following the Closing Date. The Partnership and the Funding
Corporation shall reimburse the Collateral Agent and the Intercreditor Agent for
all reasonable costs and expenses, including reasonable attorneys' fees and
Independent Consultant expenses, expended or incurred by the Collateral Agent
and the Intercreditor Agent in enforcing the Financing Documents in connection
with a Default or an Event of Default, in actions for declaratory relief in any
way related to the Financing Documents or in collecting any sum which becomes
due on the Senior Secured Obligations.
7.17 Indemnification.
7.17.1 Except as provided in Section 7.17.2, the Partnership
and the Funding Corporation shall indemnify, defend and hold harmless each of
the Intercreditor Agent, the Collateral Agent and the Administrative Agent and
their respective officers, directors, shareholders, affiliates, controlling
persons, employees, agents and servants (collectively, the "Indemnitees") from
and against and reimburse the Indemnitees for:
(a) any and all claims, obligations, liabilities,
losses, damages, injuries (to person, property, or natural
resources), penalties, stamp or other similar taxes, actions, suits,
judgments, costs and expenses (including attorneys' fees subject to
commercially reasonable limitations) of whatever kind or nature,
whether or not well founded, meritorious or unmeritorious, which are
demanded, asserted or claimed against any such Indemnitee
(collectively, "Subject Claims") in any way relating to, or arising
out of or in connection with this Agreement, the other Transaction
Documents or the Project, except for claims by the Partnership or
the Funding Corporation against an Indemnitee (other than such
claims determined against the Partner ship or the Funding
Corporation, as the case may be);
33
(b) any and all Subject Claims arising in connection
with the release or presence of any Environmentally Regulated
Materials at the Project, whether foreseeable or unforeseeable,
including all costs of removal and disposal of such Environmentally
Regulated Materials, all reasonable costs required to be incurred in
(i) determining whether the Project is in compliance and (ii)
causing the Project to be in compliance, with all Applicable Laws,
all reasonable costs associated with claims for damages to persons
or property, and reasonable attorneys' and consultants' fees and
court costs; and
(c) any and all Subject Claims in any way relating to,
or arising out of or in connection with any claims, suits,
liabilities against an Obligor, any Partner or any of their
Affiliates (it being understood that this Section 7.17 shall not
entitle an Indemnitee to compensation for the costs of monitoring
claims or suits against an Obligor, any Partner or any of their
Affiliates by third persons other than the Indemnitees except to the
extent reasonably required in such a claim or suit where
participation therein by the Indemnitee is reasonably deemed
necessary to protect a material right or interest of the
Indemnitee).
7.17.2 The foregoing indemnities shall not apply with respect
to an Indemnitee, to the extent arising as a result of the gross negligence,
willful misconduct or bad faith of such Indemnitee or its officers or employees,
but shall continue to apply to other Indemnitees (e.g., willful misconduct by an
Intercreditor Agent employee will bar indemnification to the Intercreditor
Agent, but not to the Collateral Agent or the Administrative Agent).
7.17.3 With respect to Subject Claims arising prior to the
payment in full of all Senior Secured Obligations of the Partnership under this
Agreement and the other Financing Documents, the provisions of this Section 7.17
shall survive foreclosure of the Senior Security Documents and satisfaction or
discharge of the Partnership's and the Funding Corporation's obligations under
the Financing Documents, and shall be in addition to any other rights and
remedies of the Senior Secured Parties.
7.17.4 In case any action, suit or proceeding shall be brought
against any Indemnitee, such Indemnitee shall promptly notify the Partnership
and the Funding Corporation of the commencement thereof, and the Partnership and
the Funding Corporation shall be entitled, at its expense, acting through
counsel reason ably acceptable to such Indemnitee, to participate in, and, to
the extent that the Partnership and the
34
Funding Corporation desire, to assume and control the defense thereof. Such
Indemnitee shall be entitled, at its expense, to participate in any action, suit
or proceeding the defense of which has been assumed by the Partnership or the
Funding Corporation. Notwithstanding the foregoing, the Partnership and the
Funding Corporation and the Indemnitee shall each be entitled to participate
with their own counsel, and the Partnership and the Funding Corporation shall
not be accorded control over the defenses of any such action, suit or
proceedings, if and to the extent that, in the reasonable opinion of such
Indemnitee and its counsel, such action, suit or proceeding involves the genuine
threat of the imposition of criminal liability upon such Indemnitee or a
fundamental conflict of interest between such Indemnitee and the Partnership and
the Funding Corporation or between such Indemnitee and another Indemnitee, and
in such event (other than with respect to disputes between such Indemnitee and
another Indemnitee) the Partnership and the Funding Corporation shall pay the
reasonable expenses of such Indemnitee in such defense.
7.17.5 The Partnership and the Funding Corporation shall
report to such Indemnitee on the status of such action, suit or proceeding as
develop ments shall occur and at least within 60 days of the previous report.
The Partnership and the Funding Corporation shall deliver to such Indemnitee a
copy of each document filed or served on any party in such action, suit or
proceeding.
7.17.6 Notwithstanding the Partnership's and the Funding
Corporation's rights hereunder to control certain actions, suits or proceedings,
any Indemnitee against whom any Subject Claim is made shall be entitled to
compromise or settle any such Subject Claim if (a) failure to compromise or
settle such Subject Claim could reasonably be expected to have a material
adverse effect on such Indemnitee, the Project or such Indemnitee's interest in
the Project and (b) the Partnership and the Funding Corporation refuse to pursue
diligent, good faith and timely efforts, in consultation with the Indemnitee, to
settle such claim; provided that prior to entering into any final and binding
compromise or settlement of any such Subject Claim without the Partnership's and
the Funding Corporation's consent such Indemnitee shall provide notice to, and
shall consult with, the Partnership and the Partnership. Any such compromise or
settlement by the Indemnitee in accordance with this Section 7.17 shall be
binding upon the Partnership and the Funding Corporation for purposes of this
Section 7.17.
7.17.7 Upon payment of any Subject Claim by the Partner ship
and the Funding Corporation pursuant to this Section 7.17 or other similar
indemnity
35
provisions contained herein to or on behalf of an Indemnitee, the Partner ship
and the Funding Corporation, without any further action, shall be subrogated to
any and all claims that such Indemnitee may have relating thereto, and such
Indemnitee shall cooperate with the Partnership and the Funding Corporation and
give such further assurances as are necessary or advisable to enable the
Partnership and the Funding Corporation vigorously to pursue such claims.
7.17.8 Any amounts payable by the Partnership and the Funding
Corporation pursuant to this Section 7.17 shall be regularly payable after the
Partnership receives an invoice for such amounts from any applicable Indemnitee.
7.17.9 Notwithstanding anything to the contrary set forth
herein, the Partnership and the Funding Corporation shall not, in connection
with any one legal proceeding or claim, or separate but related proceedings or
claims arising out of the same general allegations or circumstances, in which
the interests of the Indemnitees do not materially differ, be liable to the
Indemnitees (or any of them) under any of the provisions set forth in this
Section 7.17 for the fees and expenses of more than one separate firm of
attorneys (which firm shall be selected by the affected Indemnitees) subject to
the Partnership's and the Funding Corporation's reasonable approval.
The provisions of Sections 7.16 and 7.17 hereunder shall survive
termination of this Agreement and the other Financing Documents and the
resignation or removal of each Senior Secured Party.
7.18 Additional Senior Secured Parties. Each of the parties to this
Agreement agrees that any Person which becomes a Senior Secured Party (or
representative thereof) after the Closing Date shall become a party to this
Agreement upon execution and delivery by such Person of a counterpart to this
Agreement. Any Person that becomes a party to this Agreement pursuant to this
Section 7.18 shall be bound by and subject to the terms and conditions hereof
and the covenants, stipulations and agreements contained herein.
7.19 Amendments. Amendments hereof shall be in writing, shall be
made in accordance with Article VI and shall require the written consent of the
Partnership and the Funding Corporation.
36
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed by their officers thereunto duly authorized as of the day and year
first above written.
THE BANK OF NEW YORK,
in its capacity as the Intercreditor Agent
By: /s/ Xxxx Xxxx Xxxxxxx
----------------------------------------
Name: Xxxx Xxxx Xxxxxxx
Title: Assistant Vice President
THE BANK OF NEW YORK,
in its capacity as the Collateral Agent
By: /s/ Xxxx Xxxx Xxxxxxx
----------------------------------------
Name: Xxxx Xxxx Xxxxxxx
Title: Assistant Vice President
THE BANK OF NEW YORK,
in its capacity as the Administrative Agent
By: /s/ Xxxx Xxxx Xxxxxxx
----------------------------------------
Name: Xxxx Xxxx Xxxxxxx
Title: Assistant Vice President
THE BANK OF NEW YORK,
in its capacity as the Trustee
By: /s/ Xxxx Xxxx Xxxxxxx
----------------------------------------
Name: Xxxx Xxxx Xxxxxxx
Title: Assistant Vice President
CREDIT SUISSE FIRST BOSTON,
in its capacity as the VEPCO L/C Agent
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Associate
By: /s/ Xxxxxxxxx X. Naval
------------------------------------
Name: Xxxxxxxxx X. Naval
Title: Associate
LSP ENERGY LIMITED PARTNERSHIP
By: LSP Energy, Inc.,
its general partner
By: /s/ Xxxxx Xxxxxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Senior Vice President and Secretary
LSP BATESVILLE FUNDING CORPORATION
By: /s/ Xxxxx Xxxxxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Senior Vice President and Secretary
Additional SENIOR SECURED PARTY
pursuant to Section 7.18
By:_______________________________________
Name:
Title:
Schedule A to Intercreditor Agreement
Fundamental Decisions
The following Fundamental Decisions require the vote of the One
Hundred Percent Secured Parties:
(a) any Modification of the Financing Documents to which the
Intercreditor Agent, the Collateral Agent or the Administrative Agent is a party
that has the effect of changing the date for (including any changes to mandatory
or voluntary prepayments), changing the method of calculation contained in,
altering the amount of, or changing the currency of, any payment of principal,
interest or of any other fee, commission or any other amount payable to any
Senior Secured Party under any Financing Document;
(b) any Modification of the Financing Documents to which the
Intercreditor Agent, the Collateral Agent or the Administrative Agent is a party
that has the effect of releasing Senior Collateral from the Lien of any of the
Senior Security Documents or releasing funds held by the Collateral Agent or the
Administrative Agent, in each case other than as expressly permitted in
accordance with the terms of the Financing Documents;
(c) except as set forth in the proviso to Section 4.2 of the
foregoing Intercreditor Agreement, any Modification of Section 3.2(b) of the
Common Agreement;
(d) except as set forth in the proviso to Section 4.2 of the
foregoing Intercreditor Agreement, any Modification of any provision of the
Intercreditor Agreement;
(e) any Modification of any definition contained in the Common
Agreement or in any other Financing Document to which the Intercreditor Agent,
the Collateral Agent or the Administrative Agent is a party but only if and to
the extent such Modification would result in the making of any of the
Modifications referred to in clauses (a) through (e) above;
(f) any Modification of a Financing Document to which the
Intercreditor Agent, the Collateral Agent or the Administrative Agent is a party
which would permit the assignment by any Obligor of its rights under any
Transaction Document other
A-1
than as expressly permitted under the Financing Documents (prior to such
Modification).
A-2
