COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT
This
COLLATERAL
AGENCY AND INTERCREDITOR AGREEMENT (this
“Agreement”)
dated
as of December 30, 2005 is entered into among THE
BANK OF NEW YORK,
a
company organized under the laws of the State of New York, as collateral agent
(“Collateral
Agent”)
and
(i) the undersigned holders from time to time of the 2003 Senior Notes (as
defined below) (each, together with its successors and assigns, a “2003
Holder”
and
collectively the “2003
Holders”)
and
(ii) the undersigned holders from time to time of the 2005 Senior Notes (as
defined below) (each, together with its successors and assigns, a “2005
Holder,”
collectively the “2005
Holders”
and,
together with the 2003 Holders, each a “Holder,”
and
collectively, the “Holders”),
and,
for purposes of Section 4.03 hereof only, InSite Vision Incorporated, a Delaware
corporation (the “Company”).
R
E C I T A L S
A. The
Company has issued to each 2003 Holder a promissory note, the form of which
is
attached hereto as Exhibit B (each such note, as amended, restated, supplemented
or modified from time to time, a “2003
Senior Note”
and
collectively, the “2003
Senior Notes”)
and
has issued to each 2005 Holder a promissory note due June 30, 2006, as such
date
may be extended at the Company’s election in accordance with the terms of such
promissory note, the form of which attached hereto as Exhibit C (each such
note,
as amended, restated, supplemented or modified from time to time, the form
of
which a “2005
Senior Note,”
collectively, the “2005
Senior Notes”
and,
collectively with the 2003 Senior Notes, the “Senior
Notes”).
B. The
Company and the Collateral Agent, in its capacity as collateral agent and
representative for the 2003 Holders and in its capacity as collateral agent
and
representative for the 2005 Holders, have entered into that certain Amended
and
Restated Security Agreement dated as of December 30, 2005 (as the same may
be
amended, restated, supplemented or otherwise modified from time to time, the
“Security
Agreement”)
pursuant to which the Company has secured the obligations of the Company to
the
Holders under the Senior Notes (the “Obligations”).
C. The
Security Agreement, among other things, grants to the Collateral Agent, on
behalf of the Holders, security interests in, and liens on, certain property
of
the Company and proceeds thereof as set forth in such agreement and may in
the
future grant to the Collateral Agent security interests in, and/or liens on,
additional property of the Company (hereinafter all of such collateral shall
be
referred to collectively as the “Collateral”).
D. The
Collateral Agent and the Holders wish to enter into this Agreement to, among
other things, set forth their understandings and agreements regarding the
Holders’ and the Collateral Agent’s respective rights, obligations and
priorities with respect to the Collateral and all proceeds thereof.
NOW,
THEREFORE,
for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and the mutual covenants and promises set forth herein, each of
the
parties to this Agreement agrees as follows:
SECTION
I. DEFINITIONS;
INTERPRETATION.
1.01 Definitions.
Unless
otherwise indicated in this Agreement each term set forth in Exhibit
A
when
used in this Agreement shall have the respective meaning given to that term
in
Exhibit
A.
Initially capitalized terms used in this Agreement without definition are
defined in the Security Agreement or the Senior Notes unless the context
requires otherwise.
1.02 Headings.
Headings
in this Agreement are for convenience of reference only and are not part of
the
substance hereof or thereof.
1.03 Plural
Terms.
All
terms defined in this Agreement in the singular form shall have comparable
meanings when used in the plural form and vice versa.
1.04 Time.
All
references in this Agreement to a time of day mean New York time, unless
otherwise indicated.
1.05 Construction.
This
Agreement is the result of negotiations among, and has been reviewed by the
Holders, the Collateral Agent and their respective counsel. Accordingly, this
Agreement shall be deemed to be the product of all parties hereto and no
ambiguity shall be construed in favor of or against any Holder or the Collateral
Agent.
1.06 Conflicts.
In the
event of a conflict between the terms of this Agreement and the terms of the
Security Agreement or any of the Senior Notes with respect to the matters
related to the Collateral contained herein, as among the Collateral Agent and
the Holders the terms of this Agreement shall control.
1.07 Other
Interpretive Provisions.
References in this Agreement to “Recitals,” “Sections,” “Exhibits” and
“Schedules” are to recitals, sections, exhibits and schedules herein and hereto
unless otherwise indicated. References in this Agreement to any document,
instrument or agreement shall (a) include all exhibits, schedules and other
attachments thereto, (b) include all documents, instruments or agreements issued
or executed in replacement thereof, and (c) mean such document, instrument
or
agreement, or replacement or predecessor thereto, as amended, modified and
supplemented from time to time and in effect at any given time. The words
“hereof,” “herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. The words “include” and “including” and words of
similar import when used in this Agreement shall not be construed to be limiting
or exclusive.
SECTION
II. COLLATERAL
AND REMEDIES.
2.01 Priority
of Liens.
The
Collateral Agent, the 2003 Holders and the 2005 Holders hereby agree that the
security interests and liens granted to the Collateral Agent under the Security
Agreement shall be treated, as among the 2003 Holders and the 2005 Holders,
as
having equal priority and shall, except to the extent otherwise provided in
Section 3.02,
at all
times be shared by the 2003 Holders and the 2005 Holders as provided herein
regardless of any claim or defense (including any claims under the fraudulent
transfer, preference or similar avoidance provisions of applicable bankruptcy,
insolvency or other applicable Governmental Rules affecting the rights of
creditors generally) to which the Collateral Agent or any Holder may be entitled
or subject, and notwithstanding the relative timing of the filing of any
financing statements by any party hereto with respect to the Collateral.
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2.02 Custody
of Collateral.
From
and after the occurrence and during the continuance of an Event of Default,
if
any Holder acquires custody, control or possession of any Collateral other
than
any proceeds thereof distributed to such Holder pursuant to the terms of the
Security Agreement or this Agreement, then such Holder shall promptly cause
such
Collateral to be delivered to, or put in the custody, possession or control
of,
the Collateral Agent for disposition or distribution in accordance with the
provisions of this Agreement. From and after the occurrence and during the
continuance of an Event of Default and until such time as the provisions of
the
immediately preceding sentence have been complied with, such Holder shall be
deemed to hold such Collateral in trust for the parties entitled thereto under
this Agreement.
2.03 Additional
Collateral or Guaranties.
None of
the Holders shall accept a security interest in, or a Lien on, any collateral
for the Obligations other than such Holder’s beneficial interest in the security
interest in, and Lien on, the Collateral granted to the Collateral Agent under
the Security Agreement; provided, however, that nothing contained in the
foregoing shall be construed as prohibiting the opening and maintenance of
deposit accounts for the account of the Company or its subsidiaries in the
ordinary course of business. No Holder shall accept any guaranty of its
Obligations from any Person unless such Person has previously or simultaneously
guaranteed the Obligations held by each of the other Holders.
2.04 Enforcement
of Remedies.
Upon the
occurrence and during the continuance of any Event of Default, the Collateral
Agent shall, subject to the other provisions of this Agreement, take such action
with respect to such Event of Default as shall be reasonably directed by the
Required Holders (a “Direction
Notice”);
provided,
however,
that,
in the absence of a Direction Notice, the Collateral Agent may (but shall not
be
obligated to) take such action, or refrain from taking such action, with respect
to such Event of Default as it shall deem advisable in the best interests of
the
Holders (other than the exercise of foreclosure remedies). Upon receipt by
the
Collateral Agent of a Direction Notice, the Collateral Agent shall seek to
enforce the Security Agreement and to realize upon the Collateral in accordance
with such Direction Notice; provided,
however,
that
the Collateral Agent shall not be obligated to follow any Direction Notice
if
the Collateral Agent reasonably determines that such Direction Notice is in
conflict with any provisions of any applicable Governmental Rule, this Agreement
or the Security Agreement, or would in its reasonable determination otherwise
subject it to liability and the Collateral Agent shall not, under any
circumstances, be liable to any Holder, the Company or any other Person for
following a Direction Notice.
2.05 Remedies
of the Holders.
Unless
otherwise consented to in writing by the Required Holders,
no
Holder, individually or together with any other Holder, shall have the right
to,
nor shall it, exercise or enforce any of the rights, powers or remedies which
the Collateral Agent is authorized to exercise or enforce under this Agreement
or the Security Agreement.
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2.06 Holder
Information.
If
the
Collateral Agent proceeds to foreclose upon, collect, sell or otherwise dispose
of or take any other action with respect to any or all of the Collateral or
to
enforce any provisions of the Security Agreement or takes any other action
pursuant to this Agreement or any provision of the Security Agreement or
requests directions from the Holders as provided herein, upon the request of
the
Collateral Agent, each of the Holders (or any agent of or representative for
such Holder) shall promptly deliver a written notice to the Collateral Agent
and
each of the other Holders setting forth (a) the aggregate amount of principal,
interest, fees, and other Obligations owing to such Holder under the applicable
Senior Notes as of the date specified by the Collateral Agent in such request
and (b) such other information as the Collateral Agent may reasonably
request.
SECTION
III. DISTRIBUTION
OF PROCEEDS.
3.01 Other
Collateral Proceeds Account.
(a) The
Collateral Agent shall establish a collateral proceeds account subject to the
Lien created by the Security Agreement in the name of the Collateral Agent
into
which the Proceeds (as defined below) shall be deposited and from which only
the
Collateral Agent may effect withdrawals (the “Other
Collateral Proceeds Account”).
Such
amounts shall be held by the Collateral Agent in the Other Collateral Proceeds
Account and shall be distributed from time to time by the Collateral Agent
in
accordance with Section 3.02.
(b) Following
the occurrence and during the continuance of an Event of Default, the following
proceeds, payments and amounts (collectively, the “Proceeds”)
shall
be deposited and held by the Collateral Agent in the Other Collateral Proceeds
Account and shall be distributed from time to time by the Collateral Agent
to
the Holders in accordance with Section 3.02:
(i) any
proceeds of any collection, recovery, receipt, appropriation, realization or
sale of any or all of the Collateral through the enforcement of the Security
Agreement received by the Collateral Agent or any Holder (the “Other
Collateral Proceeds”);
and
(ii) any
amounts held in the Other Collateral Proceeds Account at the time an Event
of
Default occurs.
Each
Holder agrees to deliver any Proceeds to the Collateral Agent within three
(3)
Business Days after receipt of such Proceeds, or if later (in the case of clause
(ii)), within three (3) Business Days of being advised of the occurrence of
an
Event of Default. Until such time as the provisions of the immediately preceding
sentence have been complied with, such Holder shall be deemed to hold such
Proceeds in trust for the parties entitled thereto under this Agreement.
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3.02 Distribution
of Proceeds.
The
Collateral Agent shall immediately and from time-to-time distribute the Proceeds
which are held in the Other Collateral Proceeds Account in accordance with
Section 10(c) of the Security Agreement, it being understood, however, that
the
Collateral
Agent may deduct from any distribution the amount of all Collateral Agent’s fees
and expenses that have not been paid by the Company or the Holders pursuant
to
Section 4.03 or otherwise. The Collateral Agent shall make such distributions
as
promptly as reasonably practicable after the deposit of any Proceeds into the
Other Collateral Proceeds Account.
3.03 Distributions
Recovered.
Notwithstanding
anything to the contrary contained in this Agreement, in each case in which
any
proceeds (or the value thereof) or payments are recovered as a preferential
or
otherwise voidable payment (whether by a trustee in bankruptcy or otherwise)
from the party which distributed those proceeds to another party or parties
under this Agreement (the “Distributor”),
each
party to whom any of those proceeds were ultimately distributed (a “Distributee”)
shall,
upon the Distributor’s notice of the recovery to the Distributee, return to the
Distributor an amount equal to the Distributee’s ratable share of the amount
recovered, together with a ratable share of interest thereon to the extent
the
Distributor is required to pay interest thereon computed on the amount to be
returned from the date of the recovery. For purposes of this Agreement,
“proceeds”
means
any payment (whether made voluntarily or involuntary) from any source, including
any offset of any deposit or other indebtedness, any security (including any
guaranty or any collateral) or otherwise.
SECTION
IV. THE
COLLATERAL AGENT AND RELATIONS AMONG SECURED CREDITORS.
4.01 Appointment,
Powers and Immunities.
Each
Holder has appointed and authorized the Collateral Agent to act as its agent
hereunder and under the Security Agreement with such powers as are expressly
delegated to the Collateral Agent by the terms of the Security Agreement and
this Agreement, together with such other powers as are reasonably incidental
thereto. The Collateral Agent shall not have any duties or responsibilities
except those expressly set forth in the Security Agreement or this Agreement.
The Collateral Agent shall not have any fiduciary relationship with the Holders
or any Holder, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or the Security
Agreement or otherwise exists against Collateral Agent. Notwithstanding anything
to the contrary contained herein, the Collateral Agent shall not be required
to
take any action which is contrary to this Agreement, the Security Agreement
or
any applicable Governmental Rule. The Collateral Agent may employ agents and
attorneys-in-fact and shall not be responsible to the Holders or any Holder
for
the negligence or misconduct of any such agents or attorneys-in-fact selected
by
it with reasonable care.
4.02 Reliance
by the Collateral Agent.
The
Collateral Agent shall be fully justified in failing or refusing to take any
action under this Agreement or the Security Agreement as it deems appropriate
or
it shall first be indemnified to its satisfaction by the Holders against any
and
all liability and expense that may be incurred by it by reason of taking or
continuing to take any such action. The Collateral Agent shall in all cases
be
fully protected by the Holders in acting, or in refraining from acting,
hereunder or under the Security Agreement in accordance with instructions (or
pending receipt of instructions) of the Required Holders, or any other
instructing group of holders specified hereunder or under the Security Agreement
or the Senior Notes, and such instructions of the Required Holders and any
action taken or failure to act pursuant thereto shall be binding on all of
the
Holders and all future holders of the Senior Notes.
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4.03 Collateral
Agent Fees; Expenses.
(a) The
Company, by its execution of the signature page of this Agreement, hereby agrees
to pay to the Collateral Agent, for its own account, a collateral agent fee
in
the amount and on the dates of payment set forth in the Collateral Agent Fee
Letter (the “Collateral
Agency Fee”).
In
addition, the Company hereby agrees to pay promptly on demand all costs and
expenses required to be paid by the Company pursuant to the Collateral Agent
Fee
Letter. If
any
amounts required to be paid by the Company under this Agreement, the Security
Agreement or the Senior Notes remain unpaid after such amounts are due, the
Company shall pay interest on the aggregate, outstanding balance of such amounts
from the date due until those amounts are paid in full at a per annum rate
in
accordance with the default interest rate provided therein. Interest shall
be
calculated on the basis of a 360-day year of twelve 30-day months.
(b) The
Collateral Agent shall not be obliged to expend its own funds in performing
its
obligations under this Agreement or the Security Agreement.
4.04 Resignation
or Removal of the Collateral Agent.
Subject
to the appointment and acceptance of a successor Collateral Agent in this
Section 4.04, the Collateral Agent may resign as collateral agent by delivering
not less than thirty (30) days prior written notice to the Holders and the
Collateral Agent may be removed at any time with or without cause by the
Required Holders. Upon any such resignation or removal, the Required Holders
shall have the right to appoint a successor Collateral Agent. If no successor
Collateral Agent shall have been appointed by the Required Holders and shall
have accepted such appointment within thirty (30) days after the retiring
Collateral Agent’s giving of notice of resignation or the Required Holders’
removal of the retiring Collateral Agent, then the retiring Collateral Agent’s
resignation shall nevertheless thereupon become effective and the Holders shall
assume and perform all of the duties of the Collateral Agent under the Security
Agreement until such time, if any, as the Required Holders appoint a successor
agent. Upon the acceptance of any appointment as Collateral Agent hereunder
by a
successor Collateral Agent, such successor Collateral Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Collateral Agent, and the retiring Collateral Agent shall be
discharged from its duties and obligations hereunder. After any retiring
Collateral Agent’s resignation or removal hereunder as Collateral Agent, the
provisions of this Section 4 shall continue in effect for its benefit in respect
of any actions taken or omitted to be taken by it while it was acting as
Collateral Agent.
4.05 Appointment
of Co-Collateral Agent.
The
Collateral Agent may and, upon the request of the Required Holders, shall by
an
instrument in writing delivered to the Company and Purchasers, appoint a bank
or
trust company or an individual to act as separate Collateral Agent or
co-Collateral Agent in a jurisdiction where the Collateral Agent is disqualified
from acting or for any other purpose deemed by the Collateral Agent or the
Required Holders to be advantageous to their respective interests, such separate
Collateral Agent or co-Collateral Agent to exercise only such rights and to
have
only such duties as shall be specified in the instrument of appointment. The
Company will pay the reasonable compensation and expenses of any such separate
Collateral Agent or co-Collateral Agent and, if requested by the Collateral
Agent, such separate Collateral Agent or co-Collateral Agent or the Required
Holders, the Company will enter into an amendment to this Agreement,
satisfactory in substance and form to the Collateral Agent, the Required
Holders, such separate Collateral Agent or co-Collateral Agent and the Company,
confirming the rights and duties of such separate Collateral Agent or
co-Collateral Agent.
6
4.06 Authorization;
Liability of Collateral Agent and Reliance.
(a) Each
Holder hereby authorizes the Collateral Agent to (i) execute, deliver and
perform the Security Agreement to which the Collateral Agent is or is intended
to be a party, (ii) subject to the other terms and provisions hereof, exercise
and enforce any or all rights, powers and remedies provided to the Collateral
Agent by the Security Agreement, this Agreement, any applicable Governmental
Rule or any other document, instrument or agreement, whether before or after
the
occurrence of an Event of Default, and (iii) subject to the other terms and
provisions hereof, take any other action under the Security Agreement which
it
shall deem advisable in the best interests of the Holders. Each Holder shall
be
bound by all of the agreements of the Collateral Agent contained in this
Agreement and the Security Agreement and by all other actions taken by the
Collateral Agent pursuant to this Agreement and the Security
Agreement.
(b) Collateral
Agent shall not (i) be liable for any action taken or omitted to be taken by
it
under or in connection with the Security Agreement or the transactions
contemplated hereby, except to the extent that any of the damages or losses
resulting from the foregoing are found by a final and nonappealable decision
of
a court of competent jurisdiction to have directly and primarily resulted from
its or such person’s own gross negligence or willful misconduct in connection
with its duties expressly set forth herein, (ii) be liable for any apportionment
or distribution of payments made by it in good faith and if any such
apportionment or distribution is subsequently determined to have been made
in
error, other than an error resulting from its own gross negligence or willful
misconduct, the sole recourse of any Holder to whom payment was due but not
made
shall be to recover from other Holders any payment in excess of the amount
to
which they are determined to be entitled (and such other Holders hereby agree
to
return to such Holder any such erroneous payments received by them) , or (iii)
be responsible in any manner to any Holder or its transferees for any recital,
statement, representation or warranty made by the Company or any officer
thereof, contained herein, in the Senior Notes or in the Security Agreement,
or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Collateral Agent under or in connection with, the
Security Agreement or the Senior Notes, or the validity, effectiveness,
genuineness, enforceability or sufficiency of the Security Agreement or the
Senior Notes (including the attachment or perfection of liens by reason of
the
Security Agreement or otherwise), or for any failure of the Company or any
other
party to any Senior Note to perform its obligations hereunder or thereunder.
In
no event shall the Collateral Agent be liable for punitive, special,
consequential, incidental, exemplary or other similar damages. The Collateral
Agent shall be under no obligation to any Holder or transferee to ascertain
or
to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, the Security Agreement or the Senior Notes
or
the existence or possible existence of any Default or Event of Default, or
to
inspect the properties, books or records of the Company or any Affiliate
thereof. The Collateral Agent shall not be deemed to have knowledge or notice
of
the occurrence of any Event of Default unless it has received notice from a
Holder or the Company referring to this Agreement, describing such Event of
Default and stating that such notice is a “notice of default.”
7
(c) The
Collateral Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, communication, signature, resolution, representation,
notice, consent, certificate, affidavit, letter, telegram, facsimile, telex
or
telephone message, statement or other document or conversation believed by
it in
good faith to be genuine and correct and to have been signed, sent or made
by
the proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Collateral Agent.
The
Collateral Agent shall be entitled to rely upon the advice of legal counsel,
independent accountants, and other experts selected by such Person in its sole
discretion. The Collateral Agent shall have no obligation to take any action
if
it believes, in good faith, that such action is deemed to be illegal or exposes
the Collateral Agent to any liability for which the Collateral Agent has not
received satisfactory indemnification.
4.07 Free
Exercise of Rights.
Except
as specifically provided herein and in the Security Agreement, (a) each Holder
may exercise its rights and remedies under this Agreement, the Security
Agreement, its Senior Note(s) and all related documents, instruments and
agreements for its sole benefit and (b) no Holder shall have any obligation
or
duty to exercise any such rights or duties for the benefit of any other
Holder.
4.08 Indemnification
by the Holders With Respect to Section 2.05.
Without
limiting the obligations of the Company hereunder, each Holder hereby agrees
to
indemnify each other Holder (any such Holder, a “Harmed
Holder”)
for
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may at any time be imposed on, incurred by or asserted against
any Harmed Holder in any way relating to or arising out of an action that would
cause a breach by such Holder of Section 2.05 of this Agreement. The provisions
of this Section 4.08 shall survive the payment in full of all the Obligations
and the termination of this Agreement, the Security Agreement and the Senior
Notes, and shall continue to apply to any Holder which ceases to be a Holder
hereunder.
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4.09 Indemnification
of Collateral Agent by the Holders.
Each
Holder hereby agrees to indemnify the Collateral Agent in its capacity as such
(in each case to the extent not reimbursed by the Company and without limiting
the obligation of the Company to do so), ratably according to the respective
percentage that the principal amount of its Senior Note or Senior Notes bear
to
the principal of all outstanding Senior Notes in effect on the date on which
indemnification is sought under this Section (or, if indemnification is sought
after the date upon which the Senior Notes shall have been paid in full, ratably
in accordance with such percentages immediately prior to such date) from and
against any and all liabilities, obligations, losses, damages, penalties,
actions judgments, suits, costs, expenses or disbursements of any kind
whatsoever that may at any time (whether before or after the payment of the
Senior Notes) be imposed on, incurred by or asserted against Collateral Agent
in
any way relating to or arising out of, this Agreement, the Security Agreement
or
the Senior Notes or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by such Collateral Agent under or in connection with any of the
foregoing (including any indemnities, expenses or other amounts paid or payable
by the Collateral Agent pursuant to indemnification or reimbursement provisions
contained in the Security Agreement); provided that no Holder shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
that are found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the Collateral Agent’s gross negligence or
willful misconduct. The agreements in this Section shall survive the payment
of
the Senior Notes and all other amounts payable under the Security Agreement
and
the Senior Notes.
SECTION
V. MISCELLANEOUS.
5.01 Third
Party Beneficiaries.
Nothing
expressed in or to be implied from this Agreement is intended to give, or shall
be construed to give, any Person (including the Company and its Subsidiaries),
other than the Holders and the Collateral Agent, their permitted successors
and
assigns hereunder any benefit or legal or equitable right, remedy or claim
under
or by virtue of this Agreement or under or by virtue of any provision herein.
5.02 Notices.
All
notices and other communications provided for herein, (including any
modifications of, or waivers or consents under this Agreement) shall be sent
in
accordance with Section 13 of the Security Agreement or if to the Collateral
Agent, to the address provided below,
or to
such other address specified in writing by the Collateral Agent and provided
to
the Company and Holders:
0
XXX
XXXX
XX XXX XXXX
000
X.
Xxx Xxxxxxx Xxxx. Xxx. #0000
Xxxxxx,
Xxxxx 00000
Attention:
Xxxxxxx Xxxxxx
Telecopy:
(000) 000-0000
Telephone:
(000) 000-0000
5.03 Amendments;
Waivers.
Any
term, covenant, agreement or condition of this Agreement or the Security
Agreement may be amended or waived if such amendment or waiver is in writing
and
is signed by Required Holders; provided,
however
that:
(a) Any
amendment or waiver which affects the rights, duties, exculpations or
indemnities of, or to, the Collateral Agent must be in writing and be signed
also by the Collateral Agent;
(b) Any
amendment or waiver which waives or amends this Section 5.03 must be in writing
and signed by all Holders;
(c) Any
amendment to (i) the Security Agreement, or (ii) to Section 4.03 or Section
5.03
of this Agreement which with respect to this subpart (ii) by its terms increases
the obligations of the Company hereunder, must be in writing and acknowledged
and agreed to by the Company;
and
(d)
Any
amendment which affects the holders of the 2003 Senior Notes or the 2005 Senior
Notes in a manner that is different from the holders of the 2005 Senior Notes
or
the holders of the 2003 Senior Notes, respectively, must be in writing and
signed by the holders of greater than 50% in principal amount, at the time
outstanding, of the 2003 Senior Notes or the 2005 Senior Notes, as the case
may
be, subject to such amendment.
No
failure or delay by the Collateral Agent or the Holders in exercising any right
hereunder shall operate as a waiver thereof or of any other right nor shall
any
single or partial exercise of any such right preclude any other further exercise
thereof or of any other right. Unless otherwise specified in such waiver or
consent, a waiver or consent given hereunder shall be effective only in the
specific instance and for the specific purpose for which given. Except as set
forth in clause (c) above, the Company’s consent is not required to amend any
provision of this Agreement.
5.04 Releases
of Collateral.
The
parties hereto agree that the Collateral Agent shall release (and hereby
authorize the Collateral Agent to release) all or any portion of the Collateral
(other than in connection with the exercise of its rights and remedies pursuant
to Section 2.04) upon the receipt by the Collateral Agent of a written notice
from the Required Holders stating that the Required Holders have approved the
release of all of the Collateral or such portion of the Collateral specified
in
such notice. Upon receipt of such written notice, the Collateral Agent shall,
at
the Company’s expense, execute and deliver such releases of its security
interest in, or Lien on, such Collateral to be released, and provide a copy
of
such releases to the Holders.
Notwithstanding the foregoing, the parties hereto agree that the Collateral
Agent shall release all of the Collateral without the written approval of the
Required Holders in accordance with Sections 20 and 21 of the Security
Agreement.
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5.05 Successors
and Assigns.
This
Agreement and the Security Agreement shall be binding upon and inure to the
benefit of the Holders and the Collateral Agent and their respective successors
and permitted assigns, except that no Person other than a Holder (including
any
Person which becomes a holder of Senior Notes after the date hereof) and the
Collateral Agent (including any Person which becomes a successor Collateral
Agent pursuant to Section 4.04) shall have any rights and remedies under this
Agreement or the Security Agreement. Any purported assignment that does not
comply with the Security Agreement shall be null and void. Subject to the
foregoing limitations, all references in this Agreement to any Person shall
be
deemed to include all successors and permitted assigns of such
Person.
5.06 Counterparts.
This
Agreement may be executed in any number of counterparts, all of which taken
together will constitute one and the same instrument and any of the parties
hereto may execute this Agreement by signing any such counterpart.
5.07 GOVERNING
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF
THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THE STATE OF
NEW
YORK.
5.08 Merger.
This
Agreement, the Security Agreement and the Senior Notes supersede all prior
agreements, written or oral, among the parties with respect to the subject
matter of such agreements.
5.09 Partial
Invalidity.
If at
any time any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any respect under any applicable Governmental Rule of any
jurisdiction, neither the legality, validity or enforceability of the remaining
provisions of this Agreement nor the legality, validity or enforceability of
such provision under the Governmental Rules of any other jurisdiction shall
in
any way be affected or impaired thereby.
5.10 Jury
Trial.
EACH OF
THE COLLATERAL AGENT AND THE HOLDERS TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY OF ANY
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY THIS AGREEMENT OR
IN
ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES
HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT, OR THE TRANSACTIONS
RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH OF THE COLLATERAL
AGENT AND THE HOLDERS HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND
THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY
OF
THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE COLLATERAL
AGENT AND THE HOLDERS TO THE WAIVER OF THEIR RIGHT TO TRIAL BY
JURY.
5.11 Final
Agreement.
The written documents, agreements and instruments referred to above represent
the final agreements between the parties and may not be contradicted by evidence
of prior, contemporaneous, or subsequent oral agreements of the parties.
There
are no unwritten oral agreements between the parties.
11
[Remainder
of page intentionally left blank]
12
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement as of the date first set forth
above.
| THE BANK OF NEW YORK, as the Collateral Agent | |||
| By: | |||
| Name: | |||
|
Title:
|
|||
-i-
THE
UNDERSIGNED HEREBY ACKNOWLEDGE AND CONSENT TO THE FOREGOING AND EXPRESSLY
ACKNOWLEDGE AND AGREE THAT PAYMENTS MADE TO ANY SECURED PARTY THAT CONSTITUTE
COLLATERAL PROCEEDS OR SETOFF PROCEEDS SHALL BE DEEMED TO SATISFY OBLIGATIONS
OWED TO SUCH SECURED PARTY ONLY TO THE EXTENT APPLIED TO SATISFY SUCH
OBLIGATIONS IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT:
[HOLDER
NAME]
By:
[Holder Name]
By:
____________________________
Name:
[_____________________]
Title:
[_____________________]
Notice
Address:
-ii-
Exhibit
A
Glossary
“Collateral”
has
the
meaning given to that term in Recital E of this Agreement.
“Collateral
Agent”
has
the
meaning given to that term in the introductory paragraph of this
Agreement.
“Collateral
Agent Fee Letter”
means
the Fee Schedule dated December 29, 2005 from the Collateral Agent addressed
to
the Company with respect to the collateral agent fee to be paid from the Company
to the Collateral Agent.
“Company”
has
the
meaning given to that term in Recital A to this Agreement.
“Direction
Notice”
has
the
meaning given to that term in Section 2.04 of this Agreement.
“Distributee”
has
the
meaning given to that term in Section 3.03 of this Agreement.
“Distributor”
has
the
meaning given to that term in Section 3.03 of this Agreement.
“Event
of Default”
means
any event of default, event of acceleration or other event which upon the
occurrence thereof the obligations thereunder may be accelerated or become
payable upon demand, pursuant to the 2003 Senior Notes or the 2005 Senior
Notes.
“Governmental
Authorization”
means
any permit, license, registration, approval, finding of suitability,
authorization, plan, directive, order, consent, exemption, waiver, consent
order
or consent decree of or from, or notice to, action by or filing with, any
Governmental Authority.
“Governmental
Rule”
means
any law, rule, regulation, ordinance, order, code interpretation, judgment,
decree, directive, Governmental Authorization guidelines, policy or similar
form
of decision of any Governmental Authority.
“Holders”
has
the
meaning given to that term in the introductory paragraph of this
Agreement.
“Required
Holders”
means,
at any time, the holders of greater than 50% in principal amount of the 2003
Senior Notes at the time outstanding and the 2005 Senior Notes at the time
outstanding, collectively.
“Security
Agreement”
has
the
meaning given to that term in Recital A of this Agreement.
“Obligations”
has
the
meaning given to that term in Recital B to this Agreement.
-iii-
“Other
Collateral Proceeds”
has
the
meaning given to that term in Section 3.01(b)(i) of this Agreement.
“Other
Collateral Proceeds Account”
has
the
meaning given to that term in Section 3.01(a) of this Agreement.
“Proceeds”
has
the
meaning given to that term in Section 3.01(b) of this Agreement.
“Senior
Notes”
has
the
meaning given to that term in Recital A to this Agreement.
-iv-
