Exhibit 99.7
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT, dated as of December 21, 2004, and
entered into by and among RCN CORPORATION, a Delaware corporation (the
"Borrower"), each other Grantor (as hereinafter defined) from time to time
party hereto, DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH ("DBAG"), in its
capacities as administrative agent and collateral agent under the First-Lien
Credit Documents (as defined below) (together with its successors and assigns
from time to time in such capacities, the "First-Lien Collateral Agent"), HSBC
BANK USA, NATIONAL ASSOCIATION ("HSBC"), in its capacities as trustee and
collateral agent under the Second-Lien Note Documents (as defined below)
(together with its successors and assigns from time to time in such
capacities, the "Second-Lien Collateral Agent") and HSBC, in its capacities as
administrative agent and collateral agent under the Third-Lien Credit
Documents (as defined below) (together with its successors and assigns from
time to time, the "Third-Lien Collateral Agent"). Capitalized terms used
herein but not otherwise defined herein have the meanings set forth in Section
1 below.
RECITALS
WHEREAS, the Borrower, the lenders party thereto and DBAG, as
administrative agent (in such capacity, together with any successor or
assigns, the "First-Lien Administrative Agent"), have entered into that
certain Credit Agreement, dated as of the date hereof (as amended, restated,
supplemented, modified and/or Refinanced from time to time, the "First-Lien
Credit Agreement");
WHEREAS, the Borrower and HSBC, as trustee (in such capacity,
together with any successors and assigns, the "Second-Lien Trustee"), have
entered into that certain Indenture, dated as of the date hereof (as amended,
restated, supplemented, modified and/or Refinanced from time to time, the
"Second-Lien Note Indenture") pursuant to which the Borrower will issue its
7?% Convertible Second Lien Notes due 2012;
WHEREAS, the Borrower, the lenders party thereto and HSBC, as agent
(in such capacity, together with any successor or assigns, the "Third-Lien
Administrative Agent") have entered into that certain Amended and Restated
Term Loan and Credit Agreement, dated as of December 21, 2004 (as amended,
restated, supplemented, modified and/or Refinanced from time to time, the
"Third-Lien Credit Agreement");
WHEREAS, the obligations of the Borrower and the other Grantors under
the First-Lien Credit Documents, and all Hedging Obligations under Interest
Rate Protection Agreements with one or more Hedging Creditors, will be secured
by substantially all the assets of the Borrower and the other Grantors,
respectively, pursuant to the terms of the First-Lien Security Documents;
WHEREAS, the obligations of the Borrower and the other Grantors under
the Second-Lien Note Documents will be secured by substantially all the assets
of the Borrower and the other Grantors, respectively, pursuant to the terms of
the Second-Lien Security Documents;
WHEREAS, the obligations of the Borrower under the Third-Lien Credit
Documents will be secured by substantially all the assets of the Borrower (but
not any other Grantor) pursuant to the terms of the Third-Lien Security
Documents;
WHEREAS, the First-Lien Credit Documents, the Second-Lien Note
Documents and the Third-Lien Credit Documents provide, among other things,
that the parties thereto shall set forth in this Agreement their respective
rights and remedies with respect to the Collateral;
WHEREAS, in order to induce the First-Lien Collateral Agent and the
First-Lien Creditors to consent to the Grantors incurring the Second-Lien
Obligations and the Borrower incurring the Third-Lien Obligations and to
induce the First-Lien Creditors to extend credit and other financial
accommodations and lend monies to or for the benefit of the Borrower or any
other Grantor, the Second-Lien Collateral Agent on behalf of the Second-Lien
Creditors (and each Second-Lien Creditor by its acceptance of the benefits of
the Second-Lien Security Documents) and the Third-Lien Collateral Agent on
behalf of the Third-Lien Creditors (and each Third-Lien Creditor by its
acceptance of the benefits of the Third-Lien Security Documents) has agreed to
the subordination, intercreditor and other provisions set forth in this
Agreement;
WHEREAS, in order to induce the Second-Lien Collateral Agent and the
Second-Lien Creditors to consent to the Grantors incurring the Second-Lien
Obligations and the Borrower incurring the Third-Lien Obligations and to
induce the Second-Lien Creditors to extend credit and other financial
accommodations and lend monies to or for the benefit of the Borrower or any
other Grantor, the First-Lien Collateral Agent on behalf of the First-Lien
Creditors (and each First-Lien Creditor by its acceptance of the benefits of
the First-Lien Security Documents) and the Third-Lien Collateral Agent on
behalf of the Third-Lien Creditors (and each Third-Lien Creditor by its
acceptance of the benefits of the Third-Lien Security Documents) has agreed to
the intercreditor and other provisions set forth in this Agreement;
WHEREAS, the Borrower and the Subsidiary Guarantors may, from time to
time, incur additional secured debt which the Borrower and the First-Lien
Collateral Agent may agree may share a first-priority security interest in the
Collateral in accordance with the First-Lien Credit Documents in existence at
the time of such incurrence but such additional secured debt shall constitute
First-Lien Obligations only to the extent provided in the definition thereof
contained herein; and
WHEREAS, the Borrower and the Subsidiary Guarantors may, from time to
time, incur additional secured debt which the Borrower and the Second-Lien
Collateral Agent may agree may share a second-priority security interest in
the Collateral in accordance with the Second-Lien Note Documents in existence
at the time of such incurrence but such additional secured debt shall
constitute Second-Lien Obligations only to the extent provided in the
definition thereof contained herein;
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and obligations herein set forth and for other good and valuable
consideration, the sufficiency and receipt of which are hereby acknowledged,
the parties hereto, intending to be legally bound, hereby agree as follows:
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SECTION 1. Definitions.
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1.1 Defined Terms. As used in the Agreement, the following terms
shall have the following meanings:
"Agreement" means this Agreement, as amended, renewed, extended,
supplemented or otherwise modified from time to time in accordance with the
terms hereof.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy," as now and hereafter in effect, or any successor statute.
"Bankruptcy Court" has the meaning set forth in Section 6.1(b)
hereof.
"Bankruptcy Law" means the Bankruptcy Code and any similar federal,
state or foreign law for the relief of debtors.
"Borrower" has the meaning provided in the first paragraph of this
Agreement.
"Business Day" means a day other than a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by law
to close.
"Collateral" means all of the assets and property of any Grantor,
whether real, personal or mixed, constituting First-Lien Collateral,
Second-Lien Collateral and/or Third-Lien Collateral.
"Collateral Agent" means, as the context requires, collectively, the
First-Lien Collateral Agent, the Second-Lien Collateral Agent and/or the
Third-Lien Collateral Agent.
"Comparable Second-Lien Security Document" means, in relation to any
Collateral subject to any Lien created under any First-Lien Security Document,
that Second-Lien Security Document which creates a Lien on the same
Collateral, granted by the same Grantor.
"Comparable Third-Lien Security Document" means, in relation to any
Collateral of the Borrower subject to any Lien created under any First-Lien
Security Document, that Third-Lien Security Document which creates a Lien on
the same Collateral, granted by the Borrower.
"Consolidated EBITDA" has the meaning provided in the First-Lien
Credit Agreement, as originally in effect.
"Creditors" means, collectively, the First-Lien Creditors, the
Second-Lien Creditors and the Third-Lien Creditors.
"DBAG" has the meaning provided in the first paragraph of this
Agreement.
"Defaulting Creditor" has the meaning set forth in Section 5.7(d)
hereto.
"Discharge of First-Lien Obligations" means, except to the extent
otherwise provided in Section 5.6 (and subject to Section 6.5), (a) payment in
full in cash of the principal of and interest (including interest accruing on
or after the commencement of any Insolvency or Liquidation Proceeding, whether
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or not such interest would be allowed in such Insolvency or Liquidation
Proceeding) and premium, if any, on all Indebtedness outstanding under the
First-Lien Documents, (b) payment in full of all other First-Lien Obligations
that are due and payable or otherwise accrued and owing at or prior to the
time such principal and interest and premium, if any, are paid, (c)
termination (without any prior demand for payment thereunder having been made
or, if made, with such demand having been fully reimbursed in cash) or cash
collateralization (in an amount and manner, and on terms, satisfactory to the
First-Lien Collateral Agent) of all letters of credit and Interest Rate
Protection Agreements issued or entered into, as the case may be, by any
Hedging Creditor and (d) termination of all other commitments of the
First-Lien Creditors under the First-Lien Credit Documents.
"Discharge of Second-Lien Obligations" means, except to the extent
otherwise provided in Section 5.6 (and subject to Section 6.5), (a) payment in
full in cash of the principal of and interest (including interest accruing on
or after the commencement of any Insolvency or Liquidation Proceeding, whether
or not such interest would be allowed in such Insolvency or Liquidation
Proceeding) and premium, if any, on all Indebtedness outstanding under the
Second-Lien Note Documents and (b) payment in full of all other Second-Lien
Obligations that are due and payable or otherwise accrued and owing at or
prior to the time such principal and interest and premium, if any, are paid.
Notwithstanding anything to the contrary contained above, for purposes of this
Agreement, any Second-Lien Obligations converted into equity of the Borrower
(or any other Person) at the option of the holder of the respective
Second-Lien Obligations shall be deemed to constitute the payment in full in
cash of the Second-Lien Obligations so converted.
"Discharge of Third-Lien Obligations" means, except to the extent
otherwise provided in Section 5.6, (a) payment in full in cash of the
principal of and interest (including interest accruing on or after the
commencement of any Insolvency or Liquidation Proceeding, whether or not such
interest would be allowed in such Insolvency or Liquidation Proceeding) and
premium, if any, on all Indebtedness outstanding under the Third-Lien Credit
Documents, (b) payment in full of all other Third-Lien Obligations that are
due and payable or otherwise accrued and owing at or prior to the time such
principal and interest and premium, if any, are paid and (c) termination of
all other commitments of the Third-Lien Creditors under the Third-Lien Credit
Documents.
"Disposition" has the meaning set forth in Section 5.1(a)(ii) hereto.
"Documents" means, as the context requires, collectively, the
First-Lien Documents, the Second-Lien Note Documents and the Third-Lien Credit
Documents.
"Eligible Purchaser" has the meaning set forth in Section 5.7(a)
hereto.
"First-Lien Administrative Agent" has the meaning set forth in the
recitals hereto.
"First-Lien Collateral" means all of the assets and property of any
Grantor, whether real, personal or mixed, with respect to which a Lien is
granted (or has been purported to be granted) as security for any First-Lien
Obligations; provided that all property and assets of the types described in
the last sentence of Section 1.1(b) of the First-Lien Security Agreement (or
any substantially similar provision contained in any other First-Lien Security
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Document) or the last sentence of Section 3.1 of the First-Lien Pledge
Agreement (or any substantially similar provision contained in any other
First-Lien Security Document) or consisting of FCC Licenses or Governmental
Authorizations (in each case as defined in the First-Lien Credit Agreement as
originally in effect), shall be deemed to constitute First-Lien Collateral for
purposes of this Agreement notwithstanding the fact that a Lien is not granted
(or purported to be granted) therein.
"First-Lien Collateral Agent" has the meaning provided in the first
paragraph of this Agreement.
"First-Lien Credit Agreement" has the meaning set forth in the
recitals hereto.
"First-Lien Credit Documents" means the First-Lien Credit Agreement
and the Credit Documents (as defined in the First-Lien Credit Agreement) and
each of the other agreements, documents and instruments providing for or
evidencing any other First-Lien Obligation and any other document or
instrument executed or delivered at any time in connection with any First-Lien
Obligation (including any intercreditor or joinder agreement among holders of
First-Lien Obligations but excluding Interest Rate Protection Agreements), to
the extent such are effective at the relevant time, as each may be amended,
modified, restated, supplemented, replaced and/or Refinanced from time to
time; provided that no such modification of the First-Lien Credit Agreement
shall increase the maximum aggregate principal amount of Loans and stated
amount of Letters of Credit thereunder to amount in excess of the Maximum
First-Lien Credit Documents Principal Amount as then in effect.
"First-Lien Creditors" means, at any relevant time, the holders of
First-Lien Obligations at such time, including, without limitation, the
First-Lien Lenders, the Hedging Creditors, the First-Lien Collateral Agent,
the First-Lien Administrative Agent and the other agents under the First-Lien
Credit Agreement.
"First-Lien Documents" shall mean and include the First-Lien Credit
Documents and the Interest Rate Protection Agreements entered into with one or
more Hedging Creditors.
"First-Lien Lenders" means the "Lenders" under, and as defined in,
the First-Lien Credit Agreement; provided that the term "First-Lien Lender"
shall in any event include each letter of credit issuer and each swingline
lender under the First-Lien Credit Agreement.
"First-Lien Obligations" means (i) all Obligations outstanding under
the First-Lien Credit Agreement and the other First-Lien Credit Documents, and
(ii) all Hedging Obligations. "First-Lien Obligations" shall in any event
include: (a) all interest accrued or accruing (or which would, absent
commencement of an Insolvency or Liquidation Proceeding (and the effect of
provisions such as Section 502(b)(2) of the Bankruptcy Code), accrue) after
commencement of an Insolvency or Liquidation Proceeding in accordance with the
rate specified in the relevant First-Lien Document, whether or not the claim
for such interest is allowed as a claim in such Insolvency or Liquidation
Proceeding, (b) any and all fees and expenses (including attorneys' and/or
financial consultants' fees and expenses) incurred by the First-Lien
Collateral Agent, the First-Lien Administrative Agent and the First-Lien
Creditors after the commencement of an Insolvency or Liquidation Proceeding,
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whether or not the claim for fees and expenses is allowed under Section 506(b)
of the Bankruptcy Code or any other provision of the Bankruptcy Code or
Bankruptcy Law as a claim in such Insolvency or Liquidation Proceeding and (c)
all obligations and liabilities of each Grantor under each First-Lien Document
to which it is a party which, but for the automatic stay under Section 362(a)
of the Bankruptcy Code, would become due. The First-Lien Obligations shall not
include (x) principal of Loans or stated amounts of Letters of Credit in
excess of the Maximum First-Lien Credit Documents Principal Amount as in
effect at the time incurred or (y) any amount in clauses (a) through (c) of
the preceding sentence incurred in connection with the enforcement of the
excess amounts referred to in preceding clause (x).
"First-Lien Pledge Agreement" means the Pledge Agreement, dated as of
the date hereof, among the Borrower, the other Grantors from time to time
party thereto and the First-Lien Collateral Agent, as the same may be amended,
supplemented, restated, modified and/or Refinanced from time to time.
"First-Lien Required Lenders" shall mean the "Required Lenders"
under, and as defined in, the First-Lien Credit Agreement.
"First-Lien Security Agreement" means the Security Agreement, dated
as of the date hereof, among the Borrower, the other Grantors from time to
time party thereto and the First-Lien Collateral Agent, as the same may be
amended, supplemented, restated, modified and/or Refinanced from time to time.
"First-Lien Security Documents" means the Security Documents (as
defined in the First-Lien Credit Agreement) and any other agreement, document
or instrument pursuant to which a Lien is granted securing any First-Lien
Obligations or under which rights or remedies with respect to such Liens are
governed, as the same may be amended, supplemented, restated, modified and/or
Refinanced from time to time.
"Governmental Authority" means the government of the United States of
America or any other nation, or of any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government (including any supra-national bodies such as the
European Union or the European Central Bank).
"Grantors" means the Borrower and each of the Subsidiary Guarantors
that have executed and delivered, or may from time to time hereafter execute
and deliver, a First-Lien Security Document, a Second-Lien Security Document
or a Third-Lien Security Document.
"Hedging Creditor" means (i) each First-Lien Lender or any affiliate
thereof (even if the respective First-Lien Lender subsequently ceases to be a
First-Lien Lender under the Credit Agreement for any reason) party to an
Interest Rate Protection Agreement with any Grantor and (ii) the respective
successors and assigns of each such First-Lien Lender, affiliate or other
financial institution referred to in clause (i) above.
"Hedging Obligations" means (i) the full and prompt payment when due
(whether at the stated maturity, by acceleration or otherwise) of all
obligations (including obligations which, but for the automatic stay under
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Section 362(a) of the Bankruptcy Code, would become due) and liabilities
(including, without limitation, indemnities, fees and interest thereon and all
interest that accrues after the commencement of any Insolvency or Liquidation
Proceeding at the rate provided for in the respective documentation, whether
or not a claim for post-petition interest is allowed in any such Insolvency or
Liquidation Proceeding) of each Grantor owing to the Hedging Creditors, now
existing or hereafter incurred under, arising out of or in connection with
each Interest Rate Protection Agreement (including all such obligations and
indebtedness under any guarantee to which each Grantor is a party) and (ii)
the due performance and compliance by each Grantor with the terms, conditions
and agreements of each Interest Rate Protection Agreement; provided that (x)
any Interest Rate Protection Agreement which expressly states that it is not
entitled to the benefits of the First-Lien Security Documents shall not be
entitled to the benefits thereof (or constitute Hedging Obligations for
purposes hereof) and (y) if any Interest Rate Protection Agreement is entered
into at a time when, immediately after giving effect thereto, the aggregate
notional amount of all then outstanding Interest Rate Protection Agreements
constituting Hedging Obligations hereunder (after giving effect to the
provisions of preceding clause (x)) would exceed the Maximum Hedging
Obligations Notional Amount, then amounts owing with respect to such excess
shall not constitute Hedging Obligations hereunder; provided further that, if
at the time of the entering into of any Interest Rate Protection Agreement the
respective Hedging Creditors obtained an officer's certificate of the Borrower
or a representation by the Borrower that the aggregate notional amount thereof
when added to the aggregate notional amount of all other then outstanding
Interest Rate Protection Agreements which constitute Hedging Obligations
hereunder, shall not or would not exceed the Maximum Hedging Obligations
Notional Amount, then such Interest Rate Protection Agreement (and all
obligations thereunder as described above) shall constitute Hedging
Obligations for all purposes hereof notwithstanding the fact that the Maximum
Hedging Obligations Notional Amount has actually been exceeded.
"HSBC" has the meaning provided in the first paragraph of this
Agreement.
"Indebtedness" means and includes all Obligations that constitute
"Indebtedness" within the meaning of the First-Lien Credit Agreement, the
Second-Lien Note Indenture or the Third-Lien Credit Agreement.
"Insolvency or Liquidation Proceeding" means (a) any voluntary or
involuntary case or proceeding under the Bankruptcy Code with respect to any
Grantor, (b) any other voluntary or involuntary insolvency, reorganization or
bankruptcy case or proceeding, or any receivership, liquidation,
reorganization or other similar case or proceeding with respect to any Grantor
or with respect to a material portion of its respective assets, (c) any
liquidation, dissolution, reorganization or winding up of any Grantor whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy
or (d) any assignment for the benefit of creditors or any other marshalling of
assets and liabilities of any Grantor.
"Interest Rate Protection Agreement" shall mean any interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement,
interest rate hedging agreement or other similar agreement or arrangement.
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"Letters of Credit" shall mean "Letters of Credit" under, and as
defined in, the First-Lien Credit Agreement.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any
of the foregoing, any conditional sale or other title retention agreement, any
financing or similar statement or notice filed under the UCC or any similar
recording or notice statute, and any lease having substantially the same
effect as the foregoing).
"Loans" shall mean "Loans" under, and as defined in, the First-Lien
Credit Agreement.
"Maximum First-Lien Credit Documents Principal Amount" shall mean, as
determined on any date, the greater of (x) an amount equal to four times
Consolidated EBITDA for the last four consecutive fiscal quarters for which
financial statements have been delivered to the First-Lien Administrative
Agent pursuant to the First-Lien Credit Agreement (as determined on the basis
of such financial statements) prior to the incurrence of the respective
Indebtedness incurred in reliance on this clause (x) (as may be increased as
provided below) and (y) $400 million; in the case of each of the preceding
clauses (x) and (y), plus an amount equal to $35.5 million.
"Maximum Hedging Obligations Notional Amount" shall mean an aggregate
notional amount equal to $325 million.
"Maximum Second-Lien Principal Amount" shall mean $[150] million.
"Maximum Third-Lien Credit Documents Principal Amount" has the
meaning provided in the definition of "Third-Lien Credit Documents".
"Megacable" shall mean Megacable, S.A. de C.V.
"Megacable Entities" shall mean collectively, Megacable, Megacable
Telecommunications, S.A. de C.V. and MCM Holdings, S.A. de C.V.
"New Agent" has the meaning set forth in Section 5.6(a) hereto.
"New Second-Lien Agent" has the meaning set forth in Section 5.6(b)
hereto.
"Obligations" means any and all obligations (including guaranty
obligations) with respect to the payment and performance of (a) any principal
of or interest or premium on any indebtedness, including, without limitation,
any reimbursement obligation in respect of any letter of credit, or any other
liability, including interest that accrues after the commencement of any
Insolvency or Liquidation Proceeding of any Grantor at the rate provided for
in the respective documentation, whether or not a claim for post-petition
interest is allowed in any such Insolvency or Liquidation Proceeding, (b) any
fees, indemnification obligations, expense reimbursement obligations or other
liabilities payable under the documentation governing any indebtedness
(including, without limitation, the retaking, holding, selling or otherwise
disposing of or realizing on the Collateral), (c) any obligation to post cash
collateral in respect of letters of credit or any other obligations, and (d)
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all performance obligations under the documentation governing any
indebtedness.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Pledged Collateral" means (a) the "Collateral" under, and as defined
in, the First-Lien Pledge Agreement, the Second-Lien Pledge Agreement and the
Third-Lien Pledge Agreement, respectively, and (b) any other Collateral in the
possession of any Collateral Agent (or its agents or bailees), in each case to
the extent that possession thereof is taken to perfect a Lien thereon under
the Uniform Commercial Code.
"Post-Petition Financing" has the meaning set forth in Section 6.1(a)
hereto.
"Priority Lien" has the meaning set forth in Section 5.1(d)(i)
hereto.
"Recovery" has the meaning set forth in Section 6.5(a) hereof.
"RCN International" means RCN International Holdings, Inc.
"Refinance" means, in respect of any indebtedness, to refinance,
extend, renew, defease, amend, modify, supplement, restructure, replace,
refund or repay, or to issue other indebtedness, in exchange or replacement
for, such indebtedness. "Refinanced" and "Refinancing" shall have correlative
meanings.
"Remedial Action" has the meaning set forth in Section 5.1(a)(i)
hereto.
"Required First-Lien Creditors" shall mean (i) at all times prior to
the occurrence of the Discharge of First-Lien Obligations, the First-Lien
Required Lenders (or, to the extent required by the First-Lien Credit
Agreement, each of the First-Lien Lenders), and (ii) at all times after the
occurrence of the Discharge of First-Lien Obligations, the holders of at least
the majority of the then outstanding Hedging Obligations (determined by the
First-Lien Collateral Agent in such reasonable manner as is acceptable to it).
"Required Second-Lien Creditors" shall mean the holders of not less
than a majority in aggregate principal amount of the Second-Lien Notes at the
time outstanding (as determined in accordance with the Second-Lien Note
Indenture).
"Second-Lien Trustee" has the meaning set forth in the recitals
hereto.
"Second-Lien Collateral" means all of the assets of any Grantor,
whether real, personal or mixed, with respect to which a Lien is granted (or
has been purported to be granted) as security for any Second-Lien Obligations;
provided that all property and assets of the types described in the last
sentence of Section 1.1(b) of the Second-Lien Security Agreement (or any
substantially similar provision contained in any other Second-Lien Security
Document) or the last sentence of Section 3.1 of the Second-Lien Pledge
Agreement (or any substantially similar provision contained in any other
Second-Lien Security Document) or consisting of FCC licenses or Governmental
Authorization (in each case as defined in the First-Lien Credit Agreement as
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originally in effect), shall be deemed to constitute Second-Lien Collateral
for purposes of this Agreement notwithstanding the fact that a Lien is not
granted (or purported to be granted) therein.
"Second-Lien Collateral Agent" has the meaning provided in the first
paragraph of this Agreement.
"Second-Lien Creditors" means, at any relevant time, the holders of
Second-Lien Obligations at such time, including without limitation the
Second-Lien Lenders, the Second-Lien Collateral Agent, the Second-Lien Trustee
and any other agents under the Second-Lien Note Indenture.
"Second-Lien Disposition" has the meaning set forth in Section
5.1(b)(ii) hereto.
"Second-Lien Lenders" means the "Holders" under and as defined in the
Second-Lien Note Indenture.
"Second-Lien Mortgages" means a collective reference to each
mortgage, deed of trust and any other document or instrument under which any
Lien on real property owned or leased by any Grantor is granted to secure any
Second-Lien Obligations or under which rights or remedies with respect to any
such Liens are governed.
"Second-Lien Note Documents" means the Second-Lien Note Indenture and
the Transaction Documents (as defined in the Second-Lien Note Indenture) and
each of the other agreements, documents and instruments providing for or
evidencing any other Second-Lien Obligation, and any other document or
instrument executed or delivered at any time in connection with any
Second-Lien Obligation, as the same may be amended, modified or otherwise
supplemented from time to time in accordance with the terms hereof, thereof
and the First-Lien Credit Agreement; provided that any such modification does
not increase the aggregate principal amount thereof beyond the limit set forth
in the First-Lien Credit Agreement and is otherwise in accordance with the
provisions of this First-Lien Credit Agreement; and provided further, that any
such modification does not increase the aggregate principal amount of
Second-Lien Obligations beyond the Maximum Second-Lien Principal Amount.
"Second-Lien Note Indenture" has the meaning set forth in the
recitals hereto.
"Second-Lien Note Indenture Priority Lien" has the meaning set forth
in Section 5.1(d)(ii) hereto.
"Second-Lien Obligations" means all Obligations outstanding under the
Second-Lien Note Indenture and the other Second-Lien Note Documents.
"Second-Lien Obligations" shall in any event include: (a) all interest accrued
or accruing (or which would, absent commencement of an Insolvency or
Liquidation Proceeding (and the effect of provisions such as Section 502(b)(2)
of the Bankruptcy Code), accrue) after commencement of an Insolvency or
Liquidation Proceeding in accordance with the rate specified in the relevant
Second-Lien Note Document whether or not the claim for such interest is
allowed as a claim in such Insolvency or Liquidation Proceeding and (b) any
and all fees and expenses (including attorneys' and/or financial consultants'
fees and expenses) incurred by the Second-Lien Collateral Agent, the
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Second-Lien Trustee and the Second-Lien Creditors after the commencement of an
Insolvency or Liquidation Proceeding, whether or not the claim for fees and
expenses is allowed under Section 506(b) of the Bankruptcy Code or any other
provision of the Bankruptcy Code or Bankruptcy Law as a claim in such
Insolvency or Liquidation Proceeding. The Second-Lien Obligations shall not
include (x) principal in excess of the Maximum Second-Lien Principal Amount or
(y) any amount in clauses (a) through (c) of the preceding sentence incurred
in connection with the enforcement of the excess amounts referred to in
preceding clause (x).
"Second-Lien Pledge Agreement" means the Pledge Agreement, dated as of
the date hereof, among the Borrower, the other Grantors and the Second-Lien
Collateral Agent, as the same may be amended, supplemented, restated or
otherwise modified from time to time in accordance with the terms hereof and
thereof. "Second-Lien Post-Petition Financing" has the meaning set forth in
Section 6.1(c) hereto.
"Second-Lien Remedial Action" has the meaning set forth in Section
5.1(b)(i) hereto.
"Second-Lien Recovery" has the meaning set forth in Section 6.5(b)
hereto.
"Second-Lien Security Agreement" means the Security Agreement, dated as
of the date hereof, among the Borrower, the other Grantors and the Second-Lien
Collateral Agent, as the same may be amended, supplemented, restated or
otherwise modified from time to time in accordance with the terms hereof and
thereof.
"Second-Lien Security Documents" means the Security Documents (as
defined in the Second-Lien Note Indenture) and any other agreement, document,
mortgage or instrument pursuant to which a Lien is granted securing any
Second-Lien Obligations or under which rights or remedies with respect to such
Liens are governed, as the same may be amended, supplemented, restated or
otherwise modified from time to time in accordance with the terms hereof and
thereof.
"Second-Lien Trustee" has the meaning set forth in the recitals hereto.
"Security Documents" means, collectively, the First-Lien Security
Documents, the Second-Lien Security Documents and the Third-Lien Security
Documents.
"Subsidiary" of any Person shall mean and include (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries and (ii) any partnership, limited liability
company, association, joint venture or other entity (other than a corporation)
in which such Person directly or indirectly through Subsidiaries, has more than
a 50% equity interest at the time.
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"Subsidiary Guarantors" means each Subsidiary of the Borrower which
enters into a guaranty of any First-Lien Obligations or Second-Lien Obligations.
"Third-Lien Administrative Agent" has the meaning set forth in the
recitals hereto.
"Third-Lien Collateral" means all of the assets of any Grantor, whether
real, personal or mixed, with respect to which a Lien is granted (or has been
purported to be granted) as security for any Third-Lien Obligations.
"Third-Lien Collateral Agent" has the meaning set forth in the preamble
hereof.
"Third-Lien Credit Agreement" has the meaning set forth in the recitals
hereto.
"Third-Lien Credit Documents" means the Third-Lien Credit Agreement and
the Credit Documents (as defined in the Third-Lien Credit Agreement) and each of
the other agreements, documents and instruments providing for or evidencing any
other Third-Lien Obligation, and any other document or instrument executed or
delivered at any time in connection with any Third-Lien Obligation, as the same
may be amended, modified or otherwise supplemented from time to time in
accordance with the terms hereof, thereof and the First-Lien Credit Agreement;
provided that any such modification does not increase the aggregate principal
amount thereof beyond the lesser of the limit set forth in either the First-Lien
Credit Agreement or the Second-Lien Note Indenture (such lesser amount being
herein called the "Maximum Third-Lien Credit Documents Principal Amount") and is
otherwise in accordance with the provisions of the First-Lien Credit Agreement
and the Second-Lien Note Indenture.
"Third-Lien Creditors" means, at any relevant time, the holders of
Third-Lien Obligations at such time, including without limitation the Third-Lien
Lenders, the Third-Lien Collateral Agent, the Third-Lien Administrative Agent
and any other agents under the Third-Lien Credit Agreement.
"Third-Lien Lenders" means the "Lenders" under and as defined in the
Third-Lien Credit Agreement.
"Third-Lien Mortgages" means a collective reference to each mortgage,
deed of trust and any other document or instrument under which any Lien on real
property owned or leased by any Grantor is granted to secure any Third-Lien
Obligations or under which rights or remedies with respect to any such Liens are
governed.
"Third-Lien Obligations" means all Obligations outstanding under the
Third-Lien Credit Agreement and the other Third-Lien Credit Documents.
"Third-Lien Obligations" shall in any event include: (a) all interest accrued or
accruing (or which would, absent commencement of an Insolvency or Liquidation
Proceeding (and the effect of provisions such as Section 502(b)(2) of the
Bankruptcy Code), accrue) after commencement of an Insolvency or Liquidation
Proceeding in accordance with the rate specified in the relevant Third-Lien
Credit Document whether or not the claim for such interest is allowed as a claim
in such Insolvency or Liquidation Proceeding and (b) any and all fees and
expenses (including attorneys' and/or financial consultants' fees and expenses)
incurred by the Third-Lien Collateral Agent, the Third-Lien Administrative Agent
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and the Third-Lien Creditors after the commencement of an Insolvency or
Liquidation Proceeding, whether or not the claim for fees and expenses is
allowed under Section 506(b) of the Bankruptcy Code or any other provision of
the Bankruptcy Code or Bankruptcy Law as a claim in such Insolvency or
Liquidation Proceeding. The Third-Lien Obligations shall not include (x)
principal in excess of the Maximum Third-Lien Credit Documents Principal Amount
as in effect at the time incurred or (y) any amount in clauses (a) through (c)
of the preceding sentence incurred in connection with the enforcement of the
excess amounts referred to in preceding clause (x).
"Third-Lien Pledge Agreement" means the Pledge Agreement, dated as of
December 21 2004, among the Borrower and the Third-Lien Collateral Agent, as the
same may be amended, supplemented, restated or otherwise modified from time to
time in accordance with the terms hereof and thereof.
"Third-Lien Security Documents" means the Security Documents (as
defined in the Third-Lien Credit Agreement) and any other agreement, document,
mortgage or instrument pursuant to which a Lien is granted securing any
Third-Lien Obligations or under which rights or remedies with respect to such
Liens are governed, as the same may be amended, supplemented, restated or
otherwise modified from time to time in accordance with the terms hereof and
thereof.
"Uniform Commercial Code" or "UCC" means the Uniform Commercial Code as
from time to time in effect in the State of New York.
1.2 Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation." The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified, (b) any reference herein to any Person shall
be construed to include such Person's successors and assigns, (c) the words
"herein", "hereof" and "hereunder", and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Exhibits or Sections shall be
construed to refer to Exhibits or Sections of this Agreement, (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights, (f) terms defined in
the UCC but not otherwise defined herein shall have the same meanings herein as
are assigned thereto in the UCC, (g) reference to any law means such law as
amended, modified, codified, replaced or re-enacted, in whole or in part, and in
effect on the date hereof, including rules, regulations, enforcement procedures
and any interpretations promulgated thereunder and (h) underscored references to
Sections or clauses shall refer to those portions of this Agreement, and any
underscored references to a clause shall, unless otherwise identified, refer to
the appropriate clause within the same Section in which such reference occurs.
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SECTION 2. Priority of Liens; Etc.
-----------------------
2.1 Subordination of Liens; Etc. Notwithstanding the date, manner or
order of grant, attachment or perfection of (x) any Liens securing the
First-Lien Obligations granted on the Collateral, (y) any Liens securing the
Second-Lien Obligations granted on the Collateral or (z) any Liens securing the
Third-Lien Obligations granted on the Collateral and notwithstanding any
provision of the UCC, any applicable law, the Second-Lien Note Documents or the
Third-Lien Credit Documents or any other circumstance whatsoever (including any
invalidity or non-perfection of any Lien purporting to secure the First-Lien
Obligations, the Second-Lien Obligations and/or the Third-Lien Obligations), the
Second-Lien Collateral Agent, on behalf of itself and the other Second-Lien
Creditors, and each other Second-Lien Creditor (by its acceptance of the
benefits of the Second-Lien Note Documents) and the Third-Lien Collateral Agent,
on behalf of itself and the other Third-Lien Creditors, and each other
Third-Lien Creditor (by its acceptance of the benefits of the Third-Lien Credit
Documents) hereby agree that:
(a) (i) any Lien on the Collateral securing any First-Lien
Obligations now or hereafter held by or on behalf of the First-Lien
Collateral Agent or any First-Lien Creditors or any agent or trustee
therefor, regardless of how acquired, whether by grant, possession,
statute, operation of law, subrogation or otherwise, shall be senior in all
respects and prior to any Lien on the Collateral securing any of the
Second-Lien Obligations and to any Lien on the Collateral securing any of
the Third-Lien Obligations;
(ii) any Lien on the Collateral securing any Second-Lien
Obligations now or hereafter held by or on behalf of the Second-Lien
Collateral Agent or any Second-Lien Creditors or any agent or trustee
therefor, regardless of how acquired, whether by grant, possession,
statute, operation of law, subrogation or otherwise shall be senior in all
respects and prior to any Lien on the Collateral securing any of the
Third-Lien Obligations;
(iii) any Lien on the Collateral now or hereafter held by or on
behalf of (x) the Second-Lien Collateral Agent, any Second-Lien Creditors
or any agent or trustee therefor and/or (y) the Third-Lien Collateral
Agent, any Third-Lien Creditors or any agent or trustee therefor,
regardless of how acquired, whether by grant, possession, statute,
operation of law, subrogation or otherwise, shall be junior and subordinate
in all respects to all Liens on the Collateral securing any First-Lien
Obligations;
(iv) any Lien on the Collateral now or hereafter held by or on
behalf of the Third-Lien Collateral Agent, any Third-Lien Creditors or any
agent or trustee therefor, regardless of how acquired, whether by grant,
possession, statute, operation of law, subrogation or otherwise, shall be
junior and subordinate in all respects to all Liens on the Collateral
securing any Second-Lien Obligations;
(v) all Liens on the Collateral securing any First-Lien
Obligations shall be and remain senior in all respects and prior to all
Liens on the Collateral securing any Second-Lien Obligations and/or any
Third-Lien Obligations for all purposes, whether or not such Liens securing
any First-Lien Obligations are subordinated to any Lien securing any other
obligation of the Borrower, any other Grantor or any other Person;
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(vi) all Liens on the Collateral securing any Second-Lien
Obligations shall be and remain senior in all respects and prior to all
Liens on the Collateral securing any Third-Lien Obligations for all
purposes, whether or not such Liens securing any Second-Lien Obligations
are subordinated to any Lien securing any other obligation of the Borrower,
any other Grantor or any other Person; and
(vii) it is their intent that (x) the First-Lien Obligations
(and the security therefor) constitute a separate and distinct class (and
separate and distinct claims) from the Second-Lien Obligations (and the
security therefor) and the Third-Lien Obligations (and the security
therefor), (y) the Second-Lien Obligations (and the security therefor)
constitute a separate and distinct class (and separate and distinct claims)
from the First-Lien Obligations (and the security therefor) and the
Third-Lien Obligations (and the security therefor) and (z) the Third-Lien
Obligations (and the security therefor) constitute a separate and distinct
class (and separate and distinct claims) from the First-Lien Obligations
(and the security therefor) and the Second-Lien Obligations (and the
security therefor).
Notwithstanding anything to contrary contained above or elsewhere in
this Agreement, for all purposes of this Agreement (x) the First-Lien
Obligations shall be deemed secured by Liens on all First-Lien Collateral
regardless of whether a Lien or security interest has in fact been granted (or
purported to be granted) with respect thereto and (y) the Second-Lien
Obligations shall be deemed secured by Liens on all Second-Lien Collateral
regardless of whether a Lien or security interest has in fact been granted (or
purported to be granted) with respect thereto.
2.2 Prohibition on Contesting Liens. Each of the Third-Lien Collateral
Agent, for itself and on behalf of each Third-Lien Creditor, the Second-Lien
Collateral Agent, for itself and on behalf of each Second-Lien Creditor, and the
First-Lien Collateral Agent, for itself and on behalf of each First-Lien
Creditor, agrees that it shall not (and hereby waives any right to) contest or
support any other Person in contesting, in any proceeding (including, without
limitation, any Insolvency or Liquidation Proceeding), (i) the validity or
enforceability of any Security Document or any Obligation thereunder, (ii) the
validity, perfection, priority or enforceability of the Liens, mortgages,
assignments and security interests granted (or purported to be granted) pursuant
to the Security Documents with respect to the First-Lien Obligations, the
Second-Lien Obligations or the Third-Lien Obligations, (iii) in the case of the
Third-Lien Collateral Agent, for itself and on behalf of each Third-Lien
Creditors, only, the validity, perfection, priority or enforceability of the
Liens, mortgages, assignments and security interests granted (or purported to be
granted) pursuant to the Security Documents with respect to the Second-Lien
Obligations, or (iv) the relative rights and duties of the holders of the
First-Lien Obligations, the Second-Lien Obligations and the Third-Lien
Obligations granted and/or established in this Agreement or any other Security
Document (to the extent not inconsistent with the terms of this Agreement) with
respect to such Liens, mortgages, assignments, and security interests; provided
that nothing in this Agreement shall be construed to prevent or impair the
rights of any Collateral Agent or any other Creditor to enforce this Agreement,
including the priority of the Liens securing the respective Obligations as
provided in Section 3.1.
2.3 No New Liens. (a) So long as the Discharge of First-Lien
Obligations has not occurred, the parties hereto agree that the Borrower shall
not, and shall not permit any of its Subsidiaries to, grant or permit any
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additional Liens, or take any action to perfect any additional Liens, on any
asset or property to secure any Second-Lien Obligation or Third-Lien Obligation
unless the Borrower or the respective such Subsidiary is a Grantor hereunder and
has also granted a Lien on such asset or property to secure the First-Lien
Obligations in accordance with the relevant priority set forth in this
Agreement. To the extent that the forgoing provisions are not complied with for
any reason, without limiting any other rights and remedies available to the
First-Lien Collateral Agent and/or the other First-Lien Creditors, the
Second-Lien Collateral Agent on behalf of itself and the other Second-Lien
Creditors and the Third-Lien Collateral Agent on behalf of itself and the other
Third-Lien Creditors, and each Second-Lien Creditor and Third-Lien Creditor (in
each case by its acceptance of the benefits of the respective Security
Documents), agrees that any amounts received by or distributed to any of them
pursuant to or as a result liens granted in contravention of this Section 2.3(a)
shall be subject to Section 4.2(a).
(b) So long as the Discharge of Second-Lien Obligations has not
occurred, the parties hereto agree that the Borrower shall not, and shall not
permit any of its Subsidiaries to, grant or permit any additional Liens, or take
any action to perfect any additional Liens, on any asset or property to secure
any Third-Lien Obligation unless such Lien is expressly permitted by the
Second-Lien Note Documents and the Borrower or the respective such Subsidiary is
a Grantor hereunder and has also granted a Lien on such asset or property to
secure the Second-Lien Obligations in accordance with the relevant priority set
forth in this Agreement. To the extent that the forgoing provisions are not
complied with for any reason, without limiting any other rights and remedies
available to the Second-Lien Collateral Agent and/or the other Second-Lien
Creditors, the Third-Lien Collateral Agent on behalf of itself and the other
Third-Lien Creditors, and each Third-Lien Creditor (in each case by its
acceptance of the benefits of the respective Security Documents), agrees that
any amounts received by or distributed to any of them pursuant to or as a result
liens granted in contravention of this Section 2.3(b) shall be subject to
Section 4.2(b).
2.4 Similar Liens and Agreements. The parties hereto agree that it
is their intention that (x) none of the Second-Lien Collateral be more expansive
in any respect than the First-Lien Collateral and (y) none of the Third-Lien
Collateral be more expansive in any respect than the Second-Lien Collateral or
the First-Lien Collateral and that the Third-Lien Collateral not include any
First-Lien Collateral or Second-Lien Collateral granted by any Grantor other
than the Borrower (except that if the foregoing provisions are not complied
with, for any reason, without limiting any other rights and remedies available
to the First-Lien Collateral Agent and/or the other First-Lien Creditors and the
Second-Lien Collateral Agent on behalf of itself and the other Second-Lien
Creditors, each Third-Lien Creditor (by its acceptance of the benefits of the
respective Security Documents), agrees that the provisions of Section 2.6 shall
apply). In furtherance of the foregoing and of Section 8.9, each Collateral
Agent, on behalf of itself and the Creditors for which it is Collateral Agent,
and each other Creditor (by its acceptance of the benefits of the respective
Security Documents), agree, subject to the other provisions of this Agreement:
(i) upon request by any Collateral Agent, to cooperate in good faith
(and to direct their counsel to cooperate in good faith) from time to time
in order to determine the specific items included in the First-Lien
Collateral, the Second-Lien Collateral and the Third-Lien Collateral and
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the steps taken to perfect the Liens thereon and the identity of the
respective parties obligated under the respective Documents; and
(ii) that the guarantees for the First-Lien Obligations, and the
Second-Lien Obligations entered into by any Subsidiary of the Borrower
after the date of this Agreement shall be in substantially the same form
(with any necessary reference changes, etc.) as the respective guarantees
provided for the respective such Obligations by Subsidiary Guarantors on or
prior to the date of this Agreement.
2.5 Sequencing of Security Filings. Each of the Collateral Agents
hereby agrees that it shall cooperate in good faith with the First-Lien
Collateral Agent so that filings of financing statements (including without
limitation UCC-1 financing statements), mortgages and other security filings are
sequentially made as follows: (i) the respective filings with respect to the
First-Lien Collateral shall be made first, (ii) the respective filings with
respect to the Second-Lien Collateral shall be made second and (iii) the
respective filings with respect to the Third-Lien Collateral shall be made
third. The Third-Lien Collateral Agent agrees to terminate all filings of
financing statements (including without limitation UCC-1 financing statements),
mortgages and other security filings made prior to the date hereof with respect
to the facility which, when amended and restated, became the Third-Lien Credit
Agreement, and to make any filings to be made on or after the date hereof in
accordance with the preceding sentence. The respective priorities to Collateral
(and subordination and other agreements) contained herein shall be fully
effective in accordance with their terms notwithstanding any failure to make (or
terminate) filings as otherwise required above in this Section 2.5.
2.6 Certain Overriding Agreements with Respect to Third-Lien
Obligations. Notwithstanding anything to the contrary contained elsewhere in
this Agreement or in any Third-Lien Credit Document, it is acknowledged and
agreed by parties hereto that:
(i) no Subsidiary of the Borrower shall at any time provide any
guarantee (directly or indirectly) of any Third-Lien Obligations; and
(ii) no Subsidiary of the Borrower shall provide, or grant a security
interest in, any of its assets or property (and accordingly, the Third-Lien
Collateral shall consist solely of assets of the Borrower).
If any Third-Lien Creditor breaches the agreements contained in this
Section 2.6 in any respect, any proceeds obtained as a result thereof shall be
turned over for distribution pursuant to Section 4 in the same manner as
proceeds of Collateral are required to be distributed.
SECTION 3. Enforcement.
-----------
3.1 Exercise of Remedies. (a) The provisions of this clause (a) are
subject to clause (f) below. So long as the Discharge of First-Lien Obligations
has not occurred, whether or not any Insolvency or Liquidation Proceeding has
been commenced by or against the Borrower or any other Grantor: (i) neither (x)
the Second-Lien Collateral Agent and the other Second-Lien Creditors nor (y) the
Third-Lien Collateral Agent and the other Third-Lien Creditors, will exercise or
seek to exercise any rights or remedies (including, without limitation, setoff)
with respect to any Collateral (including, without limitation, the exercise of
any right under any lockbox agreement, control account agreement, landlord
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waiver or bailee's letter or similar agreement or arrangement to which any of
(x) the Second-Lien Collateral Agent or any Second-Lien Creditor or (y) the
Third-Lien Collateral Agent or any Third-Lien Creditor is a party) or institute
or commence, or join with any Person in commencing, any action or proceeding
with respect to such rights or remedies (including, without limitation, any
action of foreclosure, enforcement, collection or execution and any Insolvency
or Liquidation Proceeding), and will not contest, protest or object to any
foreclosure proceeding or action brought by the First-Lien Collateral Agent or
any First-Lien Creditor or any other exercise by the First-Lien Collateral Agent
or any First-Lien Creditor, of any rights and remedies relating to the
Collateral under the First-Lien Credit Documents or otherwise, or object to the
forbearance by the First-Lien Collateral Agent or the First-Lien Creditors from
bringing or pursuing any foreclosure proceeding or action or any other exercise
of any rights or remedies relating to the Collateral; and (ii) the First-Lien
Collateral Agent shall have the exclusive right, and the Required First-Lien
Creditors shall have the exclusive right to instruct the First-Lien Collateral
Agent, to enforce rights, exercise remedies (including, without limitation,
set-off and the right to credit bid their debt) and make determinations
regarding the release, disposition, or restrictions with respect to the
Collateral without any consultation with or the consent of any of (x) the
Second-Lien Collateral Agent or any Second-Lien Creditor or (y) the Third-Lien
Collateral Agent or any Third-Lien Creditor, all as though the Second-Lien
Obligations and the Third-Lien Obligations did not exist; provided, that (A) in
any Insolvency or Liquidation Proceeding commenced by or against the Borrower or
any other Grantor, (x) the Second-Lien Collateral Agent and, if applicable, each
other Second-Lien Creditor may file a claim or statement of interest with
respect to the Second-Lien Obligations and (y) the Third-Lien Collateral Agent
and, if applicable, each other Third-Lien Creditor may file a claim or statement
of interest with respect to the Third-Lien Obligations, (B) the Second-Lien
Collateral Agent and the Third-Lien Collateral Agent may take any action (not
adverse to the prior Liens on the Collateral securing the First-Lien
Obligations, or the rights of the First-Lien Collateral Agent or the First-Lien
Creditors to exercise remedies in respect thereof) in order to preserve or
protect their respective Liens on the Collateral in accordance with the terms of
this Agreement and (C) (x) the Second-Lien Creditors shall be entitled to file
any necessary responsive or defensive pleading in opposition to any motion,
claim, adversary proceeding or other pleading made by any Person objecting to or
otherwise seeking the disallowance of the claims of the Second-Lien Creditors
and (y) the Third-Lien Creditors shall be entitled to file any necessary
responsive or defensive pleading in opposition to any motion, claim, adversary
proceeding or other pleading made by any Person objecting to or otherwise
seeking the disallowance of the claims of the Third-Lien Creditors, including
any claim secured by the Collateral, if any, in each case in accordance with the
terms of this Agreement. In exercising rights and remedies with respect to the
Collateral, the First-Lien Collateral Agent and the First-Lien Creditors may
enforce the provisions of the First-Lien Credit Documents and exercise remedies
thereunder, all in such order and in such manner as they may determine in the
exercise of their sole discretion. Such exercise and enforcement shall include
the rights of an agent appointed by them to sell or otherwise dispose of
Collateral upon foreclosure, to incur expenses in connection with such sale or
disposition, and to exercise all the rights and remedies of a secured creditor
under the Uniform Commercial Code of any applicable jurisdiction and of a
secured creditor under Bankruptcy Laws of any applicable jurisdiction. In any
case, and to the extent, that the provisions of following clause (f) are
applicable, and enforcement actions are being pursued by the Second-Lien
Collateral Agent or any other Second-Lien Creditors prior to the Discharge of
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First-Lien Obligations, the foregoing provisions of this Section 3.1(a) shall
apply with respect to the Third-Lien Collateral Agent and the other Third-Lien
Creditors as fully as if the respective enforcement proceeding were being
pursued by the First-Lien Collateral Agent or First-Lien Creditors.
(b) So long as the Discharge of First-Lien Obligations has occurred,
but the Discharge of Second-Lien Obligations has not occurred, whether or not
any Insolvency or Liquidation Proceeding has been commenced by or against the
Borrower or any other Grantor: (i) the Third-Lien Collateral Agent and the other
Third-Lien Creditors, will not exercise or seek to exercise any rights or
remedies (including, without limitation, setoff) with respect to any Collateral
(including, without limitation, the exercise of any right under any lockbox
agreement, control account agreement, landlord waiver or bailee's letter or
similar agreement or arrangement to which the Third-Lien Collateral Agent or any
Third-Lien Creditor is a party) or institute or commence, or join with any
Person in commencing, any action or proceeding with respect to such rights or
remedies (including, without limitation, any action of foreclosure, enforcement,
collection or execution and any Insolvency or Liquidation Proceeding), and will
not contest, protest or object to any foreclosure proceeding or action brought
by the Second-Lien Collateral Agent or any Second-Lien Creditor or any other
exercise by the Second-Lien Collateral Agent or any Second-Lien Creditor, of any
rights and remedies relating to the Collateral under the Second-Lien Note
Documents or otherwise, or object to the forbearance by the Second-Lien
Collateral Agent or the Second-Lien Creditors from bringing or pursuing any
foreclosure proceeding or action or any other exercise of any rights or remedies
relating to the Collateral; and (ii) the Second-Lien Collateral Agent shall have
the exclusive right, and the Required Second-Lien Creditors shall have the
exclusive right to instruct the First-Lien Collateral Agent, to enforce rights,
exercise remedies (including, without limitation, set-off and the right to
credit bid their debt) and make determinations regarding the release,
disposition, or restrictions with respect to the Collateral without any
consultation with or the consent of the Third-Lien Collateral Agent or any
Third-Lien Creditor, all as though the Third-Lien Obligations did not exist;
provided, that (A) in any Insolvency or Liquidation Proceeding commenced by or
against the Borrower or any other Grantor, the Third-Lien Collateral Agent may
file a claim or statement of interest with respect to the Third-Lien
Obligations, (B) the Third-Lien Collateral Agent may take any action (not
adverse to the prior Liens on the Collateral securing the Second-Lien
Obligations, or the rights of the Second-Lien Collateral Agent or the
Second-Lien Creditors to exercise remedies in respect thereof) in order to
preserve or protect its Liens on the Collateral in accordance with the terms of
this Agreement and (C) the Third-Lien Creditors shall be entitled to file any
necessary responsive or defensive pleading in opposition to any motion, claim,
adversary proceeding or other pleading made by any Person objecting to or
otherwise seeking the disallowance of the claims of the Third-Lien Creditors,
including any claim secured by the Collateral, if any, in each case in
accordance with the terms of this Agreement. In exercising rights and remedies
with respect to the Collateral, the Second-Lien Collateral Agent and the
Second-Lien Creditors may enforce the provisions of the Second-Lien Note
Documents and exercise remedies thereunder, all in such order and in such manner
as they may determine in the exercise of their sole discretion. Such exercise
and enforcement shall include the rights of an agent appointed by them to sell
or otherwise dispose of Collateral upon foreclosure, to incur expenses in
connection with such sale or disposition, and to exercise all the rights and
remedies of a secured creditor under the Uniform Commercial Code of any
applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any
applicable jurisdiction.
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(c) The Second-Lien Collateral Agent, on behalf of itself and the
Second-Lien Creditors, and each other Second-Lien Creditor (by its acceptance of
the benefits of the Second-Lien Note Documents), and the Third-Lien Collateral
Agent, on behalf of itself and the Third-Lien Creditors, and each other
Third-Lien Creditor (by its acceptance of the benefits of the Third-Lien Credit
Documents), agree that it will not take or receive any Collateral or any
proceeds of Collateral in connection with the exercise of any right or remedy
(including, without limitation, setoff) with respect to any Collateral, unless
and until the Discharge of First-Lien Obligations has occurred and, in the case
of the Third-Lien Collateral Agent and the Third-Lien Creditors, the Discharge
of Second-Lien Obligations has occurred. Without limiting the generality of the
foregoing, (x) unless and until the Discharge of First-Lien Obligations has
occurred, the sole right of the Second-Lien Collateral Agent and the Second-Lien
Creditors with respect to the Collateral is to hold a Lien on the Collateral
pursuant to the Second-Lien Security Documents for the period and to the extent
granted therein and to receive a share of the proceeds thereof, if any, after
the Discharge of the First-Lien Obligations has occurred in accordance with the
terms of Section 4 hereof, the Second-Lien Note Documents and applicable law,
and (y) unless and until the Discharge of First-Lien Obligations and the
Discharge of the Second-Lien Obligations has occurred, the sole right of the
Third-Lien Collateral Agent and the Third-Lien Creditors with respect to the
Collateral is to hold a Lien on the Collateral pursuant to the Third-Lien
Security Documents for the period and to the extent granted therein and to
receive a share of the proceeds thereof, if any, after the Discharge of the
First-Lien Obligations and the Discharge of the Second-Lien Obligations has
occurred in accordance with the terms of Section 4 hereof, the Third-Lien Credit
Documents and applicable law.
(d) (i) The Second-Lien Collateral Agent, for itself and on behalf
of the Second-Lien Creditors, and each other Second-Lien Creditor (by its
acceptance of the benefits of the Second-Lien Note Documents), (x) agrees that
the Second-Lien Collateral Agent and the other Second-Lien Creditors will not
take any action that would hinder, delay, limit or prohibit any exercise of
remedies under the First-Lien Credit Documents, including any collection, sale,
lease, exchange, transfer or other disposition of the Collateral, whether by
foreclosure or otherwise, or that would limit, invalidate, avoid or set aside
any Lien or First-Lien Security Document or subordinate the priority of the
First-Lien Obligations to the Second-Lien Obligations or grant the Liens
securing the Second-Lien Obligations equal ranking to the Liens securing the
First-Lien Obligations and (y) hereby waives any and all rights it or the
Second-Lien Creditors may have as a junior lien creditor or otherwise (whether
arising under the UCC or under any other law) to object to the manner in which
the First-Lien Collateral Agent or the First-Lien Creditors seek to enforce or
collect the First-Lien Obligations or the Liens granted in any of the First-Lien
Collateral, regardless of whether any action or failure to act by or on behalf
of the First-Lien Collateral Agent or First-Lien Creditors is adverse to the
interests of the Second-Lien Creditors and/or the Third-Lien Creditors.
(ii) The Second-Lien Collateral Agent hereby acknowledges and
agrees that no covenant, agreement or restriction contained in the Second-Lien
Security Documents or any other Second-Lien Note Document shall be deemed to
restrict in any way the rights and remedies of the First-Lien Collateral Agent
or the First-Lien Creditors with respect to the Collateral as set forth in this
Agreement and the First-Lien Credit Documents.
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(e) (i) The Third-Lien Collateral Agent, for itself and on behalf
of the Third-Lien Creditors, and each other Third-Lien Creditor (by its
acceptance of the benefits of the Third-Lien Credit Documents), (x) agrees that
the Third-Lien Collateral Agent and the other Third-Lien Creditors will not take
any action that would hinder, delay, limit or prohibit any exercise of remedies
under the First-Lien Credit Documents or Second-Lien Note Documents, including
any collection, sale, lease, exchange, transfer or other disposition of the
Collateral, whether by foreclosure or otherwise, or that would limit,
invalidate, avoid or set aside any Lien or First-Lien Security Document or
Second-Lien Security Document, or subordinate the priority of the First-Lien
Obligations to the Second-Lien Obligations and/or the Third-Lien Obligations, or
subordinate the priority of the Second-Lien Obligations to the Third-Lien
Obligations or grant the Liens securing the Third-Lien Obligations equal ranking
to the Liens securing the First-Lien Obligations or the Second-Lien Obligations
and (y) hereby waives any and all rights it or any of the Third-Lien Creditors
may have as a junior lien creditor or otherwise (whether arising under the UCC
or under any other law) to object to the manner in which the First-Lien
Collateral Agent or the First-Lien Creditors, or the Second-Lien Collateral
Agent or Second-Lien Creditors, seek to enforce or collect the First-Lien
Obligations or the Liens granted in any of the First-Lien Collateral or
Second-Lien Obligations or the Liens granted in any of the Second-Lien
Collateral, regardless of whether any action or failure to act by or on behalf
of the First-Lien Collateral Agent or First-Lien Creditors, or the Second-Lien
Collateral Agent or Second-Lien Creditors, is adverse to the interests of the
Second-Lien Creditors and/or the Third-Lien Creditors.
(ii) The Third-Lien Collateral Agent hereby acknowledges and
agrees that no covenant, agreement or restriction contained in the Third-Lien
Security Documents or any other Third-Lien Credit Document shall be deemed to
restrict in any way the rights and remedies of the First-Lien Collateral Agent
or the First-Lien Creditors, or the Second-Lien Collateral Agent or Second-Lien
Creditors, with respect to the Collateral as set forth in this Agreement and the
First-Lien Credit Documents or Second-Lien Note Documents, as the case may be.
(f) Notwithstanding anything to the contrary in the preceding
clauses (a) through (e), at any time while a payment default exists with respect
to the Second-Lien Obligations following the final maturity of the Second-Lien
Obligations, or the acceleration by the relevant Second-Lien Creditors of the
maturity of all then outstanding Second-Lien Obligations, and in either case so
long as 120 days have elapsed after notice thereof (and requesting that
enforcement action be taken with respect to the Collateral) has been received by
the First-Lien Collateral Agent and so long as the respective payment default
shall not have been cured or waived (or the respective acceleration rescinded),
the Second-Lien Collateral Agent, for itself and on behalf of the Second-Lien
Creditors, and the other Second-Lien Creditors may, but only if the First-Lien
Collateral Agent or the First-Lien Creditors are not pursuing enforcement
preceding with respect to the Collateral in a commercially reasonable manner
(with any determination of which Collateral to proceed against, and in what
order, to be made by the First-Lien Collateral Agent or such First-Lien
Creditors in their reasonable judgment), enforce the Liens on Collateral granted
pursuant to the Second-Lien Security Documents, provided that (x) any Collateral
or any proceeds of Collateral received by the Second-Lien Collateral Agent or
such other Second-Lien Creditor, as the case may be, in connection with the
enforcement of such Lien (net of reasonable costs actually incurred in
connection with such enforcement) shall be applied in accordance with the
following Section 4 hereof and (y) the First-Lien Collateral Agent or any other
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First-Lien Creditors may at any time take over such enforcement proceedings,
provided that the First-Lien Collateral Agent or such First-Lien Creditors, as
the case may be, pursues enforcement proceedings in respect of the Collateral in
a commercially reasonably manner, with any determination of which Collateral to
proceed against, and in what order, to be made by the First-Lien Collateral
Agent or such First-Lien Creditors in their reasonable judgment, and provided
further that the Second-Lien Collateral Agent or Second-Lien Creditors, as the
case may be, shall only be able to recoup (from amounts realized by the
First-Lien Collateral Agent or any First-Lien Creditor(s) in any enforcement
proceeding with respect to the collateral (whether initiated by the First-Lien
Collateral Agent or First-Lien Creditor(s) or taken over by them as contemplated
above) any expenses incurred by them in accordance with the priorities set forth
in following Section 4.
SECTION 4. Payments.
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4.1 Application of Proceeds. (a) So long as the Discharge of First-
Lien Obligations has not occurred, any proceeds of any Collateral pursuant to
the enforcement of any Security Document or the exercise of any remedial
provision thereunder, together with all other proceeds received by any Creditor
(including all funds received in respect of post-petition interest or fees and
expenses) as a result of any such enforcement or the exercise of any such
remedial provision or as a result of any distribution of or in respect of any
Collateral (whether or not expressly characterized as such) upon or in any
Insolvency or Liquidation Proceeding with respect to any Grantor, or the
application of any Collateral (or proceeds thereof) to the payment thereof or
any distribution of Collateral (or proceeds thereof) upon the liquidation or
dissolution of any Grantor, shall be applied by the First-Lien Collateral Agent
(or paid over to the First-Lien Collateral Agent and applied by it) to the
First-Lien Obligations in such order as specified in the relevant First-Lien
Security Document. Upon the Discharge of the First-Lien Obligations, the
First-Lien Collateral Agent shall deliver to the Second-Lien Collateral Agent
any proceeds of Collateral held by it in the same form as received, with any
necessary endorsements or as a court of competent jurisdiction may otherwise
direct, to be applied by the Second-Lien Collateral Agent in accordance with the
provisions of following clause (b).
(b) So long as the Discharge of First-Lien Obligations has occurred
and the Discharge of Second-Lien Obligations has not occurred, any proceeds of
any Collateral pursuant to the enforcement of any Security Document or the
exercise of any remedial provision thereunder, together with all other proceeds
received by any Creditor (including all funds received in respect of
post-petition interest or fees and expenses) as a result of any such enforcement
or the exercise of any such remedial provision or as a result of any
distribution of or in respect of any Collateral (whether or not expressly
characterized as such) upon or in any Insolvency or Liquidation Proceeding with
respect to any Grantor, or the application of any Collateral (or proceeds
thereof) to the payment thereof or any distribution of Collateral (or proceeds
thereof) upon the liquidation or dissolution of any Grantor, shall be applied by
the Second-Lien Collateral Agent (or paid over to the Second-Lien Collateral
Agent and applied by it) to the Second-Lien Obligations in such order as
specified in the relevant Second-Lien Security Document. Upon the Discharge of
the Second-Lien Obligations (so long as the Discharge of the First-Lien
Obligations has occurred), the Second-Lien Collateral Agent shall deliver to the
Third-Lien Collateral Agent any proceeds of Collateral held by it in the same
form as received, with any necessary endorsements or as a court of competent
jurisdiction may otherwise direct, to be applied by the Third-Lien Collateral
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Agent to the Third-Lien Obligations in such order as specified in the Third-Lien
Security Documents and this Agreement.
4.2 Payments Over. (a) Until such time as the Discharge of First-
Lien Obligations has occurred, any Collateral or proceeds thereof (together with
assets or proceeds subject to Liens referred to in the final sentence of Section
2.3(a)) (or any distribution in respect of the Collateral, whether or not
expressly characterized as such) received by any of (x) the Second-Lien
Collateral Agent or any Second-Lien Creditors or (y) the Third-Lien Collateral
Agent or any Third-Lien Creditors in connection with the exercise of any right
or remedy (including set-off) relating to the Collateral or otherwise that is
inconsistent with this Agreement shall be segregated and held in trust and
forthwith paid over to the First-Lien Collateral Agent for the benefit of the
First-Lien Creditors in the same form as received, with any necessary
endorsements or as a court of competent jurisdiction may otherwise direct. The
First-Lien Collateral Agent is hereby authorized to make any such endorsements
as agent for any of (x) the Second-Lien Collateral Agent or any such Second-Lien
Creditors or (y) the Third-Lien Collateral Agent or any such Third-Lien
Creditors. This authorization is coupled with an interest and is irrevocable
until such time as this Agreement is terminated in accordance with its terms.
(b) After the Discharge of First-Lien Obligations has occurred, and
thereafter until such time as the Discharge of Second-Lien Obligations has
occurred, any Collateral or proceeds thereof (together with assets or proceeds
subject to Liens referred to in the final sentence of Section 2.3(b)) (or any
distribution in respect of the Collateral, whether or not expressly
characterized as such) received by any of the Third-Lien Collateral Agent or any
Third-Lien Creditors in connection with the exercise of any right or remedy
(including set-off) relating to the Collateral or otherwise that is inconsistent
with this Agreement shall be segregated and held in trust and forthwith paid
over to the Second-Lien Collateral Agent for the benefit of the Second-Lien
Creditors in the same form as received, with any necessary endorsements or as a
court of competent jurisdiction may otherwise direct. The Second-Lien Collateral
Agent is hereby authorized to make any such endorsements as agent for any of the
Third-Lien Collateral Agent or any such Third-Lien Creditors. This authorization
is coupled with an interest and is irrevocable until such time as this Agreement
is terminated in accordance with its terms.
SECTION 5. Other Agreements.
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5.1 Releases. (a) If, in connection with:
(i) the exercise of the First-Lien Collateral Agent's remedies in
respect of the Collateral provided for in Section 3.1, including any sale,
lease, exchange, transfer or other disposition of any such Collateral (any
of the foregoing, a "Remedial Action");
(ii) any sale, lease, exchange, transfer or other disposition (any of
the foregoing, a "Disposition") of any Collateral permitted under the terms
of the First-Lien Credit Documents (whether or not an "event of default"
thereunder or under any Second-Lien Note Document or any Third-Lien Credit
Document has occurred and is continuing), but without waiver of any right
of the Second-Lien Creditors or Third-Lien Creditors to enforce their right
to accelerate under the Second-Lien Note Indenture or Third-Lien Credit
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Agreement, as the case may be, if an event of default occurs thereunder
because such transfer was not permitted thereunder; or
(iii) any agreement (not contravening the First-Lien Credit Documents)
between the First-Lien Collateral Agent and the Borrower or any other
Grantor (x) to release the First-Lien Collateral Agent's Lien on any
portion of the Collateral (other than (1) in connection with, or in
anticipation of, a Discharge of First-Lien Obligations or a Discharge of
First-Lien Obligations or (2) unless consented to by the Required
Second-Lien Creditors, where the aggregate fair market value (as determined
in good faith by the Borrower and certified by it to the First-Lien
Collateral Agent) released in a given calendar year would exceed $5.0
million) or (y) to release any Grantor from its obligations under its
guaranty of the First-Lien Obligations (other than (1) in connection with,
or in anticipation of, a Discharge of First-Lien Obligations or a Discharge
of First-Lien Obligations or (2) unless consented to by the Required
Second-Lien Creditors, where the aggregate fair market value (as determined
by the Borrower in good faith and certified to the First-Lien Collateral
Agent) of the assets of all Grantors so released from guarantees during any
calendar year would exceed $5.0 million);
there occurs the release by the First-Lien Collateral Agent, acting on its own
or at the direction of the Required First-Lien Creditors, of any of its Liens on
any part of the Collateral, or of any Grantor from its obligations under its
guaranty of the First-Lien Obligations, then the Liens, if any, of the
Second-Lien Collateral Agent, for itself and for the benefit of the Second-Lien
Creditors, of any other Second-Lien Creditor, of the Third-Lien Collateral
Agent, for itself and for the benefit of the Third-Lien Creditors, and of any
other Third-Lien Creditor, on such Collateral, and the obligations of such
Grantor under its guaranties (if any) of the Second-Lien Obligations and
Third-Lien Obligations, shall be automatically, unconditionally and
simultaneously released, and the Second-Lien Collateral Agent, for itself and on
behalf of any such Second-Lien Creditors, and the Third-Lien Collateral Agent,
for itself and on behalf of any such Third-Lien Creditors, promptly shall
execute and deliver to the First-Lien Collateral Agent or such Grantor such
termination statements, releases and other documents as the First-Lien
Collateral Agent or such Grantor may request to effectively confirm such
release; provided however that if an "event of default" then exists under the
Second-Lien Note Indenture or the Third-Lien Credit Agreement and the Discharge
of First-Lien Obligations occurs concurrently with any such release, the
Second-Lien Collateral Agent shall be entitled to receive the residual cash or
cash equivalents (if any) remaining after giving effect to such release and the
Discharge of the First-Lien Obligations for application in accordance with the
provisions of Section 4 hereof.
(b) If, after the Discharge of First-Lien Obligations in the case of
following clauses (ii) and (iii), in connection with:
(i) the exercise of the Second-Lien Collateral Agent's remedies in
respect of the Collateral provided for in Section 3.1, including, without
limitation, any sale, lease, exchange, transfer or other disposition of any
such Collateral (any of the foregoing, a "Second-Lien Remedial Action"); or
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(ii) any sale, lease, exchange, transfer or other disposition (any of
the foregoing, a "Second-Lien Disposition") of any Collateral permitted
under the terms of the Second-Lien Note Documents (whether or not an "event
of default" thereunder or any Third-Lien Credit Document has occurred and
is continuing), but without waiver of any right of the Third-Lien Creditors
to enforce their right to accelerate under the Third-Lien Credit Agreement,
if an event of default occurs thereunder because such transfer was not
permitted thereunder;
the release by the Second-Lien Collateral Agent, at the direction of the
Second-Lien Creditors, of any of its Liens on any part of the Collateral, or of
any Grantor from any of its obligations under any guaranty of the Second-Lien
Obligations, then the Liens, if any, of the Third-Lien Collateral Agent, for
itself and for the benefit of the Third-Lien Creditors and of any other
Third-Lien Creditor, on such Collateral, and the obligations of such Grantor
under any of its guaranty of the Third-Lien Obligations, shall be automatically,
unconditionally and simultaneously released, and the Third-Lien Collateral
Agent, for itself and for the benefit of the Third-Lien Creditors, promptly
shall execute and deliver to the Second-Lien Collateral Agent or such Grantor
such termination statements, releases and other documents as the Second-Lien
Collateral Agent or such Grantor may request to effectively confirm such
release; provided, however, that if an "event of default" then exists under any
Third-Lien Credit Document and the Discharge of Second-Lien Obligations occurs
concurrently with any such Second-Lien Remedial Action, Second-Lien Disposition
or release, the Third-Lien Collateral Agent (on behalf of the Third-Lien
Creditors) shall be entitled to receive the residual cash or cash equivalents
(if any) remaining after giving effect to such Second-Lien Remedial Action,
Second-Lien Disposition or release and the Discharge of the Second-Lien
Obligations for application in accordance with the provisions of Section 4
hereof.
(c) (i) Until the Discharge of First-Lien Obligations occurs, the
Second-Lien Collateral Agent, for itself and on behalf of the Second-Lien
Creditors, hereby irrevocably constitutes and appoints the First-Lien Collateral
Agent and any officer or agent of the First-Lien Collateral Agent, with full
power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of the Second-Lien
Collateral Agent or such holder or in the First-Lien Collateral Agent's own
name, from time to time in the First-Lien Collateral Agent's discretion, for the
purpose of carrying out the terms of this Section 5.1, to take any and all
appropriate action and to execute any and all documents and instruments which
may be necessary or desirable to accomplish the purposes of this Section 5.1,
including any endorsements or other instruments of transfer or release;
(ii) Until the Discharge of First-Lien Obligations occurs, the
Third-Lien Collateral Agent, for itself and on behalf of the Third-Lien
Creditors, hereby irrevocably constitutes and appoints the First-Lien Collateral
Agent and any officer or agent of the First-Lien Collateral Agent, with full
power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of the Third-Lien
Collateral Agent or such other Third-Lien Creditor or in the First-Lien
Collateral Agent's own name, from time to time in the First-Lien Collateral
Agent's discretion, for the purpose of carrying out the terms of this Section
5.1, to take any and all appropriate action and to execute any and all documents
and instruments which may be necessary or desirable to accomplish the purposes
of this Section 5.1, including, without limitation, any endorsements or other
instruments of transfer or release; and
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(iii) After the Discharge of the First-Lien Obligations occurs,
and until the Discharge of Second-Lien Obligations occurs, the Third-Lien
Collateral Agent, for itself and on behalf of the Third-Lien Creditors, hereby
irrevocably constitutes and appoints the Second-Lien Collateral Agent and any
officer or agent of the Second-Lien Collateral Agent, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of the Third-Lien Collateral Agent or
such other Third-Lien Creditor or in the Second-Lien Collateral Agent's own
name, from time to time in the Second-Lien Collateral Agent's discretion, for
the purpose of carrying out the terms of this Section 5.1, to take any and all
appropriate action and to execute any and all documents and instruments which
may be necessary or desirable to accomplish the purposes of this Section 5.1,
including, without limitation, any endorsements or other instruments of transfer
or release.
(d) (i) If, prior to the Discharge of First-Lien Obligations, a
subordination of the First-Lien Collateral Agent's Lien on any Collateral is
permitted (or in good faith believed by the First-Lien Collateral Agent to be
permitted) under the First-Lien Credit Agreement, to another Lien permitted
under the First-Lien Credit Agreement (a "Priority Lien"), then the First-Lien
Collateral Agent is authorized to execute and deliver a subordination agreement
with respect thereto in form and substance satisfactory to it, and (x) the
Second-Lien Collateral Agent, for itself and on behalf of the Second-Lien
Creditors and (y) the Third-Lien Collateral Agent, for itself and on behalf of
the Third-Lien Creditors, shall promptly execute and deliver to the First-Lien
Collateral Agent or the relevant Grantor an identical subordination agreement
subordinating the Liens of (x) the Second-Lien Collateral Agent for the benefit
of the Second-Lien Creditors or (y) the Third-Lien Collateral Agent for the
benefit of the Third-Lien Creditors, as the case may be, to such Priority Lien.
(ii) If, after the Discharge of First-Lien Obligations and
prior to the Discharge of the Second-Lien Obligations, a subordination of the
Second-Lien Collateral Agent's Lien on any Collateral is permitted (or in good
faith believed by the Second-Lien Collateral Agent to be permitted) under the
Second-Lien Note Indenture, to another Lien permitted under the Second-Lien Note
Indenture (a "Second-Lien Note Indenture Priority Lien"), then the Second-Lien
Collateral Agent is authorized to execute and deliver a subordination agreement
with respect thereto in form and substance satisfactory to it, and the
Third-Lien Collateral Agent, for itself and on behalf of the Third-Lien
Creditors, shall promptly execute and deliver to the Second-Lien Collateral
Agent or the relevant Grantor an identical subordination agreement subordinating
the Liens of the Third-Lien Collateral Agent for the benefit of the Third-Lien
Creditors to such Second-Lien Note Indenture Priority Lien.
5.2 Insurance. (i) Unless and until the Discharge of First-Lien
Obligations has occurred, the First-Lien Collateral Agent (acting at the
direction of the Required First-Lien Creditors) shall have the sole and
exclusive right, subject to the rights of the Grantors under the First-Lien
Credit Documents, to adjust settlement for any insurance policy covering the
Collateral in the event of any loss thereunder and to approve any award granted
in any condemnation or similar proceeding (or any deed in lieu of condemnation)
affecting the Collateral. Unless and until the Discharge of First-Lien
Obligations has occurred, and subject to the rights of the Grantors under the
First-Lien Security Documents, all proceeds of any such policy and any such
award (or any payments with respect to a deed in lieu of condemnation) in
respect to the Collateral shall be paid to the First-Lien Collateral Agent for
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the benefit of the First-Lien Creditors pursuant to the terms of the First-Lien
Credit Documents (including, without limitation, for purposes of cash
collateralization of First-Lien Obligations consisting of commitments, letters
of credit and Interest Rate Protection Agreements) and, after the Discharge of
First-Lien Obligations has occurred, to the Second-Lien Collateral Agent for the
benefit of the Second-Lien Creditors to the extent required under the
Second-Lien Security Documents and, after the Discharge of First-Lien
Obligations and the Discharge of Second-Lien Obligations has occurred, to the
Third-Lien Collateral Agent for the benefit of the Third-Lien Creditors to the
extent required under the Third-Lien Security Documents and then, to the extent
no Second-Lien Obligations and no Third-Lien Obligations are outstanding, to the
owner of the subject property, such other Person as may be entitled thereto or
as a court of competent jurisdiction may otherwise direct. If either the
Second-Lien Collateral Agent or any Second-Lien Creditors or the Third-Lien
Collateral Agent or any Third-Lien Creditors shall, at any time prior to the
Discharge of First-Lien Obligations, receive any proceeds of any such insurance
policy or any such award or payment in contravention of this Agreement, it shall
pay such proceeds over to the First-Lien Collateral Agent in accordance with the
terms of Section 4.2(a) of this Agreement.
(ii) After the Discharge of First-Lien Obligations has occurred
and until the Discharge of the Second-Lien Obligations has occurred, the
Second-Lien Collateral Agent (acting at the direction of the Required
Second-Lien Creditors) shall have the sole and exclusive right, subject to the
rights of the Grantors under the Second-Lien Note Documents, to adjust
settlement for any insurance policy covering the Collateral in the event of any
loss thereunder and to approve any award granted in any condemnation or similar
proceeding (or any deed in lieu of condemnation) affecting the Collateral. After
the Discharge of First-Lien Obligations has occurred and until the Discharge of
the Second-Lien Obligations has occurred, and subject to the rights of the
Grantors under the Second-Lien Security Documents, all proceeds of any such
policy and any such award (or any payments with respect to a deed in lieu of
condemnation) in respect to the Collateral shall be paid to the Second-Lien
Collateral Agent for the benefit of the Second-Lien Creditors pursuant to the
terms of the Second-Lien Note Documents and, after the Discharge of Second-Lien
Obligations has occurred, to the Third-Lien Collateral Agent for the benefit of
the Third-Lien Creditors to the extent required under the Third-Lien Security
Documents and then, to the extent no Third-Lien Obligations are outstanding, to
the owner of the subject property, such other Person as may be entitled thereto
or as a court of competent jurisdiction may otherwise direct. If the Third-Lien
Collateral Agent or any Third-Lien Creditors shall, at any time after the
Discharge of First-Lien Obligations, receive any proceeds of any such insurance
policy or any such award or payment in contravention of this Agreement, it shall
pay such proceeds over to the Second-Lien Collateral Agent in accordance with
the terms of Section 4.2(b) of this Agreement.
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5.3 Amendments to Second-Lien Security Documents and Third-Lien
Security Documents. (a) (i) Without the prior written consent of the First-Lien
Collateral Agent (acting at the direction of the Required First-Lien Creditors),
no Second-Lien Security Document or Third-Lien Security Document may be amended,
supplemented or otherwise modified or entered into to the extent such amendment,
supplement or modification, or the terms of any new Second-Lien Security
Document or Third-Lien Security Document, would contravene the provisions of
this Agreement or any First-Lien Credit Document.
(ii) Without the prior written consent of the Second-Lien
Collateral Agent (acting at the direction of the Required Second-Lien
Creditors), no Third-Lien Security Document may be amended, supplemented or
otherwise modified or entered into to the extent such amendment, supplement or
modification, or the terms of any new Third-Lien Security Document, would
contravene the provisions of this Agreement or any Second-Lien Note Document.
(iii) Each Grantor and each Second-Lien Creditor agrees that
each Second-Lien Security Document shall include the following language (or
language to similar effect approved by the First-Lien Collateral Agent).
"Notwithstanding anything herein to the contrary, the lien and
security interest granted to the Second-Lien Collateral Agent pursuant
to this Agreement and the exercise of any right or remedy by the
Second-Lien Collateral Agent hereunder are subject to the provisions
of the Intercreditor Agreement, dated as of December 21, 2004 (as
amended, restated, supplemented or otherwise modified from time to
time in accordance with the terms thereof, the "Intercreditor
Agreement"), among RCN Corporation, Deutsche Bank AG Cayman Islands
Branch, HSBC Bank USA, National Association, and certain other persons
party or that may become party thereto from time to time. In the event
of any conflict between the terms of the Intercreditor Agreement and
this Agreement, the terms of the Intercreditor Agreement shall govern
and control."
In addition, the Borrower agrees that each Second-Lien Mortgage covering any
Collateral shall contain such other language as the First-Lien Collateral
Agent may reasonably request to reflect the subordination of such Second-Lien
Mortgage to the First-Lien Security Document covering such Collateral.
(iv) Each Grantor and each Third-Lien Creditor agrees that each
Third-Lien Security Document shall include the following language (or language
to similar effect approved by the First-Lien Collateral Agent).
"Notwithstanding anything herein to the contrary, the lien and
security interest granted to the Third-Lien Collateral Agent pursuant
to this Agreement and the exercise of any right or remedy by the
Third-Lien Collateral Agent hereunder are subject to the provisions of
the Intercreditor Agreement, dated as of December 21, 2004 (as
amended, restated, supplemented or otherwise modified from time to
time in accordance with the terms thereof, the "Intercreditor
Agreement"), among RCN Corporation, Deutsche Bank AG Cayman Islands
Branch, HSBC Bank USA, National Association, and certain other persons
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party or that may become party thereto from time to time. In the event
of any conflict between the terms of the Intercreditor Agreement and
this Agreement, the terms of the Intercreditor Agreement shall govern
and control."
In addition, the Borrower agrees that each Third-Lien Mortgage covering any
Collateral shall contain such other language as the First-Lien Collateral
Agent may reasonably request to reflect the subordination of such Third-Lien
Mortgage to the First-Lien Security Document and the Second-Lien Security
Document covering such Collateral.
(b) (i) In the event that, at any time prior to the Discharge of
First-Lien Obligations, the First-Lien Collateral Agent or the First-Lien
Creditors and the relevant Grantor(s) enter into any amendment, waiver or
consent in respect of any of the First-Lien Security Documents for the purpose
of adding to, or deleting from, or waiving or consenting to any departures from
any provisions of, any First-Lien Security Document or changing in any manner
the rights of the First-Lien Collateral Agent, the First-Lien Creditors, the
Borrower or any other Grantor thereunder, then such amendment, waiver or consent
shall apply automatically to any comparable provision of (x) the Second-Lien
Note Indenture and the Comparable Second-Lien Security Document without the
consent of the Second-Lien Collateral Agent or the Second-Lien Creditors and
without any action by the Second-Lien Collateral Agent, the Borrower or any
other Grantor and (y) the Third-Lien Credit Agreement and the Comparable
Third-Lien Security Document without the consent of the Third-Lien Collateral
Agent or the Third-Lien Creditors and without any action by the Third-Lien
Collateral Agent, the Borrower or any other Grantor, provided, that (A) no such
amendment, waiver or consent shall have the effect of (i) removing assets
subject to the Lien of the Second-Lien Security Documents or the Third-Lien
Security Documents, except to the extent that a release of such Lien is
permitted by Section 5.1 of this Agreement, (ii) imposing additional duties on
the Second-Lien Collateral Agent without its consent or on the Third-Lien
Collateral Agent without its consent, or (iii) permitting other liens on the
Collateral not permitted under the terms of the Second-Lien Note Documents, or
Section 6 hereof and (B) notice of such amendment, waiver or consent shall have
been given to the Second-Lien Collateral Agent and the Third-Lien Collateral
Agent (although the failure to give any such notice shall in no way affect the
effectiveness of any such amendment, waiver or consent). Nothing in this clause
(b) shall affect the amount of the Obligations or Hedging Obligations that shall
constitute First-Lien Obligations.
(ii) In the event that, at any time after the Discharge of
First-Lien Obligations, the Second-Lien Collateral Agent or the Second-Lien
Creditors and the relevant Grantor(s) enter into any amendment, waiver or
consent in respect of any of the Second-Lien Security Documents for the purpose
of adding to, or deleting from, or waiving or consenting to any departures from
any provisions of, any Second-Lien Security Document or changing in any manner
the rights of the Second-Lien Collateral Agent, the Second-Lien Creditors, the
Borrower or any other Grantor thereunder, then such amendment, waiver or consent
shall apply automatically to any comparable provision of the Third-Lien Credit
Agreement and the Comparable Third-Lien Security Document without the consent of
the Third-Lien Collateral Agent or the Third-Lien Creditors and without any
action by the Third-Lien Collateral Agent, the Borrower or any other Grantor,
provided, that (A) no such amendment, waiver or consent shall have the effect of
(i) removing assets subject to the Lien of the Third-Lien Security Documents,
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except to the extent that a release of such Lien is permitted by Section 5.1 of
this Agreement, (ii) imposing additional duties on the Third-Lien Collateral
Agent without its consent, or (iii) permitting other liens on the Collateral not
permitted under the terms of the Section 6 hereof and (B) notice of such
amendment, waiver or consent shall have been given to the Third-Lien Collateral
Agent (although the failure to give any such notice shall in no way affect the
effectiveness of any such amendment, waiver or consent). Nothing in this clause
(b)(ii) shall affect the amount of the Obligations that shall constitute
Second-Lien Obligations.
5.4 Rights As Unsecured Creditors. Except as otherwise set forth in
this Agreement, the Second-Lien Collateral Agent, the Second-Lien Creditors, the
Third-Lien Collateral Agent and the Third-Lien Creditors may exercise rights and
remedies as unsecured creditors against the Borrower or any Subsidiary Guarantor
that has guaranteed (x) the Second-Lien Obligations in accordance with the terms
of the Second-Lien Note Documents and applicable law or, as the case may be, (y)
the Third-Lien Obligations in accordance with the terms of the Third-Lien Credit
Documents and applicable law. Except as otherwise set forth in this Agreement
nothing in this Agreement shall prohibit the receipt by either (x) the
Second-Lien Collateral Agent or any Second-Lien Creditors of the required
payments of interest and principal on the Second-Lien Obligations or (y) the
Third-Lien Collateral Agent or any Third-Lien Creditors of the required payments
of interest and principal on the Third-Lien Obligations so long as such receipt
is not the direct or indirect result of the exercise by the Second-Lien
Collateral Agent or any Second-Lien Creditor or the Third-Lien Collateral Agent
or any Third-Lien Creditor of rights or remedies as a secured creditor
(including set-off) or enforcement in contravention of this Agreement of any
Lien held by any of them. In the event the Second-Lien Collateral Agent or any
Second-Lien Creditor or the Third-Lien Collateral Agent or any Third-Lien
Creditor becomes a judgment lien creditor in respect of Collateral as a result
of its enforcement of its rights as an unsecured creditor, such judgment lien
shall be subordinated to the Liens securing First-Lien Obligations (and in the
case of any such judgment lien in favor of the Third-Lien Collateral Agent or
any Third-Lien Creditors, same shall also be subordinated to the Liens securing
the Second-Lien Obligations) on the same basis as the other Liens securing the
Second-Lien Obligations or the Third-Lien Obligations, as the case may be, are
so subordinated to the First-Lien Obligations (and the Second-Lien Obligations
in the case of a judgment lien in favor of the Third-Lien Collateral Agent or
any Third-Lien Creditors) under this Agreement. Nothing in this Agreement
impairs or otherwise adversely affects any rights or remedies the First-Lien
Collateral Agent or the First-Lien Creditors may have with respect to the
First-Lien Collateral.
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5.5 Bailee for Perfection. (a) The First-Lien Collateral Agent
agrees to acquire and acknowledges it holds any Pledged Collateral or other
Collateral actually in its possession or control (or in the possession or
control of its agents or bailees) on behalf of itself and the Second-Lien
Collateral Agent and any assignee and, to the extent the Collateral constitutes
assets of the Borrower, the Third-Lien Collateral Agent and any assignee solely
for the purpose of perfecting the security interest granted under the First-Lien
Credit Documents, the Second-Lien Note Documents and the Third-Lien Credit
Documents, subject to the terms and conditions of this Section 5.5. Upon the
Discharge of the First-Lien Obligations, the Second-Lien Collateral Agent agrees
to acquire and acknowledges that it will hold any Pledged Collateral or other
Collateral (to the extent the Collateral constitutes assets of the Borrower)
actually in its possession or control (or on the possession or control of its
agents or bailees) on behalf of itself and the Third-Lien Collateral Agent and
any assignee, subject to the terms and conditions of this Section 5.5. To the
extent any other Collateral Agent holds any Pledged Collateral or other
Collateral is actually in its possession or control (or in the possession or
control of its agents or bailees), then it acknowledges that it holds such
Pledged Collateral or Collateral on behalf of itself and the other Collateral
Agents (other than the Third-Lien Collateral Agent, except to the extent
constituting assets of the Borrower) solely for the purpose of perfecting the
security interests granted under the First-Lien Credit Documents, the
Second-Lien Note Documents and the Third-Lien Credit Documents, subject to the
terms and conditions of this Section 5.5.
(b) Until the Discharge of First-Lien Obligations has occurred, the
First-Lien Collateral Agent shall be entitled to deal with the Pledged
Collateral in accordance with the terms of the First-Lien Credit Documents as if
the Liens of the Second-Lien Collateral Agent under the Second-Lien Security
Documents and the Third-Lien Collateral Agent under the Third-Lien Security
Documents did not exist. After the Discharge of First-Lien Obligations has
occurred and until the Discharge of Second-Lien Obligations has occurred, the
Second-Lien Collateral Agent shall be entitled to deal with the Pledged
Collateral in accordance with the terms of the Second-Lien Note Documents as if
the Liens of the Third-Lien Collateral Agent under the Third-Lien Security
Documents did not exist. The rights of the Second-Lien Collateral Agent and the
Third-Lien Collateral Agent shall at all times be subject to the terms of this
Agreement, to the First-Lien Collateral Agent's rights under the First-Lien
Credit Documents and, in the case of the Third-Lien Collateral Agent, to the
Second-Lien Collateral Agent's rights under the Second-Lien Note Documents.
(c) (i) The First-Lien Collateral Agent shall have no obligation
whatsoever to the First-Lien Creditors, the Second-Lien Collateral Agent, any
Second-Lien Creditor, the Third-Lien Collateral Agent or any Third-Lien Creditor
to assure that the Pledged Collateral is genuine or owned by any of the Grantors
or to preserve any rights or benefits of any Person except as expressly set
forth in this Section 5.5. The duties or responsibilities of the First-Lien
Collateral Agent under this Section 5.5 shall be limited solely to holding any
Pledged Collateral actually in its possession or control as bailee in accordance
with this Section 5.5.
(ii) After the Discharge of First-Lien Obligations has
occurred, the Second-Lien Collateral Agent shall have no obligations whatsoever
to the Second-Lien Creditors, the Third-Lien Collateral Agent or any Third-Lien
Creditor to assure that the Pledged Collateral is genuine or owned by any of the
Subsidiary Guarantors or to preserve any rights or benefits of any Person except
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as expressly set forth in this Section 5.5. The duties or responsibilities of
the Second-Lien Collateral Agent under this Section 5.5 shall be limited solely
to holding any Pledged Collateral actually in its possession or control as
bailee in accordance with this Section 5.5.
(d) No Collateral Agent acting pursuant to this Section 5.5 shall
have by reason of the First-Lien Security Documents, the Second-Lien Security
Documents, the Third-Lien Security Documents, this Agreement or any other
document a fiduciary relationship in respect of the any other Collateral Agent,
the First-Lien Creditors, the Second-Lien Creditors or the Third-Lien Creditors.
(e) (i) Upon the Discharge of First-Lien Obligations, the First-
Lien Collateral Agent shall deliver the remaining Pledged Collateral (if any)
(or proceeds thereof) in its possession, together with any necessary
endorsements, (i), to the Second-Lien Collateral Agent, unless the Discharge of
Second-Lien Obligations has occurred, (ii) if preceding clause (i) does not
apply, to the Third-Lien Collateral Agent (to the extent constituting assets of
the Borrower) unless the Discharge of Third-Lien Obligations has occurred, and
(iii) if (or to the extent) preceding clauses (i) and (ii) are inapplicable, to
the Borrower or the relevant Grantor (in each case, so as to allow such Person
to obtain control of such Pledged Collateral). The First-Lien Collateral Agent
further agrees to take all other action reasonably requested by such Person in
connection with such Person's obtaining a first-priority interest in the
Collateral or as a court of competent jurisdiction may otherwise direct.
(ii) Upon the Discharge of First-Lien Obligations and the
Discharge of Second-Lien Obligations, the Second-Lien Collateral Agent shall
deliver the remaining Pledged Collateral (if any) (or proceeds thereof) in its
possession together with any necessary endorsements, (i) to the Third-Lien
Collateral Agent (to the extent constituting assets of the Borrower), unless the
Discharge of Third-Lien Obligations shall have occurred and (ii) if (or to the
extent) preceding clause (i) is not applicable, to the Borrower or relevant
Subsidiary Guarantor (in each case, so as to allow such Person to obtain control
of such Pledged Collateral). The Second-Lien Collateral Agent further agrees to
take all other action reasonably requested by such Person in connection with
such Person's obtaining a first-priority interest in the Collateral or as a
court of competent jurisdiction may otherwise direct.
5.6 When Discharge of First-Lien Obligations or Second-Lien
Obligations Deemed to Not Have Occurred. (a) If at any time after the Discharge
of First-Lien Obligations has occurred, the Borrower immediately thereafter
enters into any Refinancing of any First-Lien Credit Document evidencing a
First-Lien Obligation which Refinancing is permitted hereby, then such Discharge
of First-Lien Obligations shall automatically be deemed not to have occurred for
all purposes of this Agreement, and the obligations under such Refinancing
First-Lien Credit Document shall automatically be treated as First-Lien
Obligations for all purposes of this Agreement, including for purposes of the
Lien priorities and rights in respect of Collateral set forth herein, and the
collateral agent under such First-Lien Credit Documents shall be the First-Lien
Collateral Agent for all purposes of this Agreement. Upon receipt of a notice
stating that the Borrower has entered into a new First-Lien Credit Document
(which notice shall include the identity of the new agent, such agent, the "New
Agent"), the Second-Lien Collateral Agent and the Third-Lien Collateral Agent
shall promptly enter into such documents and agreements (including amendments or
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supplements to this Agreement) as the Borrower or such New Agent may reasonably
request in order to provide to the New Agent the rights contemplated hereby, in
each case consistent in all material respects with the terms of this Agreement.
In addition, a Discharge of First-Lien Obligations shall be deemed not to have
occurred in the circumstances described in Section 6.5.
(b) If at any time after the Discharge of Second-Lien Obligations
has occurred, the Borrower immediately thereafter enters into any Refinancing of
any Second-Lien Note Document evidencing a Second-Lien Obligation which
Refinancing is permitted hereby (and by the terms of any First-Lien Credit
Documents then in effect), then such Discharge of Second-Lien Obligations shall
automatically be deemed not to have occurred for all purposes of this Agreement,
and the obligations under such Refinancing Second-Lien Note Document shall
automatically be treated as Second-Lien Obligations for all purposes of this
Agreement, including for purposes of the Lien priorities and rights in respect
of Collateral set forth herein, and the collateral agent under such Second-Lien
Note Documents shall be the Second-Lien Collateral Agent for all purposes of
this Agreement. Upon receipt of a notice stating that the Borrower has entered
into a new Second-Lien Note Document in accordance with the foregoing
requirements (which notice shall include the identity of the new agent, such
agent, the "New Second-Lien Agent"), the First-Lien Collateral Agent and the
Third-Lien Collateral Agent shall promptly enter into such documents and
agreements (including amendments or supplements to this Agreement) as the
Borrower or such New Second-Lien Agent may reasonably request in order to
provide to the New Second-Lien Agent the rights contemplated hereby, in each
case consistent in all material respects with the terms of this Agreement.
5.7 Option to Purchase First-Lien Debt. (a) Without prejudice to the
enforcement of remedies by the First-Lien Creditors, so long as the Discharge of
Second-Lien Obligations has not occurred, any Person or Persons (in each case
who must meet all eligibility standards contained in all relevant First-Lien
Credit Documents) at any time or from time to time designated by the holders of
more than 50% in outstanding principal amount of the Second-Lien Obligations as
entitled to exercise all default purchase options as to the Second-Lien
Obligations then outstanding (an "Eligible Purchaser") shall have the right to
purchase by way of assignment (and shall thereby also assume all commitments and
duties of the First-Lien Creditors), at any time during the exercise period
described in clause (c) below, all, but not less than all, of the First-Lien
Obligations, including all principal of and interest and fees on and all
prepayment or acceleration penalties and premiums in respect of all First-Lien
Obligations, outstanding at the time of purchase; provided that at time of (and
as a condition to) any purchase pursuant to this Section 5.7, all commitments
pursuant to any then outstanding First-Lien Credit Agreement shall have
terminated and all Interest Rate Protection Agreements constituting First-Lien
Credit Documents shall also have been terminated in accordance with their terms.
Any purchase pursuant to this Section 5.7(a) shall be made as follows:
(1) for (x) a purchase price equal to the sum of (A) in the case of
all loans, advances or other similar extensions of credit that constitute
First-Lien Obligations (including unreimbursed amounts drawn in respect of
Letters of Credit, but excluding the undrawn amount of then outstanding
Letters of Credit), 100% of the principal amount thereof and all accrued
and unpaid interest thereon through the date of purchase, (B) in the case
of any Interest Rate Protection Agreement, the aggregate amount then owing
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to each Hedging Creditor thereunder pursuant to the terms of the respective
Interest Rate Protection Agreement, including without limitation all
amounts owing to such Hedging Creditor as a result of the termination (or
early termination) thereof plus (C) all unpaid fees, expenses, indemnities
and other amounts which are then due and payable to the various First-Lien
Creditors, pursuant to the terms of the various First-Lien Credit
Documents; and (y) an obligation on the part of the respective Eligible
Purchasers (which shall be expressly provided in the assignment
documentation described below) to reimburse each issuing lender (or any
First-Lien Creditor required to pay same) for all amounts thereafter drawn
with respect to any Letters of Credit constituting First-Lien Obligations
which remain outstanding after the date of any purchase pursuant to this
Section 5.7, together with all facing fees and other amounts which may at
any future time be owing to the respective issuing lender with respect to
such Letters of Credit;
(2) with the purchase price described in preceding clause (a)(1)(x)
payable in cash on the date of purchase against transfer to the respective
Eligible Purchaser or Eligible Purchasers (without recourse and without any
representation or warranty whatsoever, whether as to the enforceability of
any First-Lien Obligation or the validity, enforceability, perfection,
priority or sufficiency of any Lien securing or guarantee or other
supporting obligation for any First-Lien Obligation or as to any other
matter whatsoever, except only the representation and warranty that the
transferor owns free and clear of all Liens and encumbrances (other than
participation interests not prohibited by the First-Lien Credit Agreement,
in which case the purchase price described in preceding clause (a)(1)(x)
shall be appropriately adjusted so that the Eligible Purchaser does not pay
amounts represented by any participation interest which remains in effect),
and has the right to convey, whatever claims and interests it may have in
respect of the First-Lien Obligations); provided that the purchase price in
respect of any outstanding Letter of Credit that remains undrawn on the
date of purchase shall be payable as and when such Letter of Credit is
drawn upon (i) first, from the cash collateral account described in clause
(a)(3) below, until the amounts contained therein have been exhausted, and
(ii) thereafter, directly by the purchaser;
(3) with such purchase accompanied by a deposit of cash collateral
under the sole dominion and control of the First-Lien Collateral Agent or
its designee in an amount equal to 110% of the sum of the aggregate undrawn
amount of all then outstanding Letters of Credit pursuant to the First-Lien
Credit Documents and the aggregate facing and similar fees which will
accrue thereon through the stated maturity of the Letters of Credit
(assuming no drawings thereon before stated maturity), as security for the
purchaser's obligation to pay amounts as provided in preceding clause
(a)(1)(y) , it being understood and agreed that (x) at the time any facing
or similar fees are owing to an issuer with respect to any Letter of
Credit, the First-Lien Collateral Agent may apply amounts deposited with it
as described above to pay same and (y) upon any drawing under any Letter of
Credit, the First-Lien Collateral Agent shall apply amounts deposited with
it as described above to repay the respective unpaid drawing. After giving
effect to any payment made as described above in this clause (3), those
amounts (if any) then on deposit with the First-Lien Collateral Agent as
described in this item (3) which exceed 110% of the sum of the aggregate
undrawn amount of all then outstanding Letters of Credit and the aggregate
facing and similar fees (to the respective issuers) which will accrue
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thereon through the stated maturity of the then outstanding Letters of
Credit (assuming no drawings thereon before stated maturity), shall be
returned to the respective Eligible Purchaser or Eligible Purchasers (as
their interests appear). Furthermore, at such time as all Letters of Credit
have been cancelled, expired or been fully drawn, as the case may be, and
after all applications described above have been made, any excess cash
collateral deposited as described above in this clause (iii) (and not
previously applied or released as provided above) shall be returned to the
respective Eligible Purchaser or Eligible Purchasers, as their interests
appear;
(4) with the purchase price described in preceding clause (a)(1)(x)
accompanied by (i) a release in favor of the First-Lien Collateral Agent
and the First-Lien Creditors from all the Grantors and the Eligible
Purchaser or Eligible Purchasers, in form and substance reasonably
satisfactory to the First-Lien Collateral Agent, of all obligations and
liabilities of the First-Lien Collateral Agent, the First-Lien Creditors
and their respective affiliates, officers, directors, employees and agents
and (ii) a waiver by the Second-Lien Collateral Agent (on behalf of itself
and the other Second-Lien Creditors) of all claims arising out of this
Agreement and the transactions contemplated hereby as a result of
exercising the purchase option contemplated by this Section 5.7;
(5) with all amounts payable to the various First-Lien Creditors in
respect of the assignments described above to be distributed to them by the
First-Lien Collateral Agent in accordance with their respective holdings of
the various First-Lien Obligations; and
(6) with such purchase to be made pursuant to assignment
documentation in form and substance reasonably satisfactory to, and
prepared by counsel for, the First-Lien Collateral Agent (with the cost of
such counsel to be paid by the Grantors or, if the Grantors do not make
such payment, by the respective Eligible Purchaser or Eligible Purchasers,
who shall have the right to obtain reimbursement of same from the
Grantors); it being understood and agreed that the First-Lien Collateral
Agent and each other First-Lien Creditor shall retain all rights to
indemnification as provided in the relevant First-Lien Credit Documents for
all periods prior to any assignment by them pursuant to the provisions of
this Section 5.7. The relevant assignment documentation shall also provide
that, if for any reason (other than the gross negligence or willful
misconduct of the First-Lien Collateral Agent), the amount of cash
collateral held by the First-Lien Collateral Agent or its designee pursuant
to preceding item (a)(3) is at any time less than the full amounts owing
with respect to any Letter of Credit described above (including facing and
similar fees) then the respective Eligible Purchaser or Eligible Purchasers
shall promptly reimburse the First-Lien Collateral Agent (who shall pay the
respective issuing bank) the amount of deficiency.
(b) The right to exercise the purchase option described in Section
5.7(a) shall be exercisable and legally enforceable upon at least fifteen
Business Days' prior written notice of exercise (which notice, once given, shall
be irrevocable and fully finding on the respective, Eligible Purchaser) given to
the First-Lien Collateral Agent by an Eligible Purchaser. Neither the First-Lien
Collateral Agent or any other First-Lien Creditor shall have any disclosure
obligation to any Eligible Purchaser, the Second-Lien Collateral Agent, any
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other Second-Lien Creditor, the Third-Lien Collateral Agent or any other
Third-Lien Creditor in connection with any exercise of such purchase option.
(c) The right to purchase the First-Lien Obligations as described in
this Section 5.7 may be exercised (by giving the irrevocable written notice
described in preceding clause (b)) during the period that (1) begins on the date
occurring 10 Business Days after the first to occur of (x) the date of the
acceleration of the final maturity of the Loans under the First-Lien Credit
Agreement or (y) the occurrence of the final maturity of the Loans under the
First-Lien Agreement (in each case, so long as the acceleration or failure to
pay amounts due at final maturity has not been rescinded or cured within such 10
Business Day Period, and so long as any unpaid amounts constituting First-Lien
Obligations remain owing); provided that if there is any failure to meet the
condition described in the proviso immediately preceding clause (a)(1) hereof,
the aforementioned date shall be extended until the first date upon which such
condition is satisfied, and (2) ends on the 90th day after the start of the
period described above.
(d) The obligations of the First-Lien Creditors to sell their
respective First-Lien Obligations under this Section 5.7 are several and not
joint and several. To the extent any First-Lien Creditor (a "Defaulting
Creditor") breaches its obligation to sell its First-Lien Obligations under this
Section 5.7, nothing in this Section 5.7 shall be deemed to require the
First-Lien Collateral Agent or any other First-Lien Creditor to purchase such
Defaulting Creditor's First-Lien Obligations for resale to the holders of
Second-Lien Obligations and in all cases, the First-Lien Collateral Agent and
each First-Lien Creditor complying with the terms of this Section 5.7 shall not
be deemed to be in default of this Agreement or otherwise be deemed liable for
any action or inaction of any Defaulting Creditor; provided that nothing in this
clause (d) shall require any Eligible Purchaser to purchase less than all of the
First-Lien Obligations.
(e) Each Grantor irrevocably consents to any assignment effected to
one or more Eligible Purchasers (so long as they meet all eligibility standards
contained in all relevant First-Lien Credit Documents, other than obtaining the
consent of any Grantor to an assignment) for purposes of all First-Lien Credit
Documents and hereby agree that no further consent from them shall be required.
5.8 Special Agreements Relating to Subsidiary Guaranties. (a) It is
understood and agreed that various Subsidiaries of the Borrower shall from time
to time guaranty the First-Lien Obligations pursuant to a "Subsidiaries
Guaranty". Each Subsidiary which so guaranties the First-Lien Obligations will
also guaranty the Second-Lien Obligations. The guaranties described above shall
be in substantially identical form, except that (i) the fraudulent conveyance
paragraph contained in each such guaranty of First-Lien Obligations shall be in
substantially the form set forth below:
Each Subsidiary Guarantor and each Secured Creditor (by its acceptance of
the benefits of this Guaranty) hereby confirms that it is its intention
that this Guaranty not constitute a fraudulent transfer or conveyance for
purposes of the Bankruptcy Code, the Uniform Fraudulent Conveyance Act or
any similar Federal or state law. To effectuate the foregoing intention,
each Subsidiary Guarantor and each Secured Creditor (by its acceptance of
the benefits of this Guaranty) hereby irrevocably agrees that the
Guaranteed Obligations guaranteed by such Subsidiary Guarantor shall be
limited to such amount as will, after giving effect to such maximum amount
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and all other (contingent or otherwise) liabilities of such Subsidiary
Guarantor that are relevant under such laws (it being understood that it is
the intention of the parties to this Guaranty and the parties to any
guaranty of the Second-Lien Note Indenture that, to the maximum extent
permitted under applicable laws, the liabilities in respect of the
guarantees of the Second-Lien Note Indenture shall not be included for the
foregoing purposes and that, if any reduction is required to the amount
guaranteed by any Subsidiary Guarantor hereunder and with respect to the
Second-Lien Note Indenture that its guarantee of amounts owing in respect
of the Second-Lien Note Indenture shall first be reduced) and after giving
effect to any rights to contribution pursuant to any agreement providing
for an equitable contribution among such Subsidiary Guarantor and the other
Subsidiary Guarantors, result in the Guaranteed Obligations of such
Subsidiary Guarantor in respect of such maximum amount not constituting a
fraudulent transfer or conveyance.
and (ii) the fraudulent conveyance paragraph in each such guaranty of
Second-Lien Obligations shall be in substantially the form set forth below:
Each Subsidiary Guarantor and each Secured Creditor (by its acceptance of
the benefits of this Guaranty) hereby confirms that it is its intention
that this Guaranty not constitute a fraudulent transfer or conveyance for
purposes of the Bankruptcy Code, the Uniform Fraudulent Conveyance Act of
any similar Federal or state law. To effectuate the foregoing intention,
each Subsidiary Guarantor and each Secured Creditor (by its acceptance of
the benefits of this Guaranty) hereby irrevocably agrees that the
Guaranteed Obligations guaranteed by such Subsidiary Guarantor shall be
limited to such amount as will, after giving effect to such maximum amount
and all other (contingent or otherwise) liabilities of such Subsidiary
Guarantor that are relevant under such laws (it being understood that it is
the intention of the parties to this Guaranty and the parties to any
guaranty of the First-Lien Obligations that, to the maximum extent
permitted under applicable laws, the liabilities in respect of the
guarantees of the First-Lien Obligations shall not be included for the
foregoing purposes and that, if any reduction is required to the amount
guaranteed by any Subsidiary Guarantor hereunder and with respect to the
First-Lien Obligations that its guarantee of amounts owing in respect of
the Second-Lien Note Indenture shall first be reduced) and after giving
effect to any rights to contribution pursuant to any agreement providing
for an equitable contribution among such Subsidiary Guarantor and the other
Subsidiary Guarantors, result in the Guaranteed Obligations of such
Subsidiary Guarantor in respect of such maximum amount not constituting a
fraudulent transfer or conveyance.
(b) Notwithstanding anything to the contrary contained above, it is
acknowledged and agreed that, with respect to any guaranty of Second-Lien
Obligations provided by RCN International, which is the Subsidiary of the
Borrower which owns the equity interests owned by the Borrower and its
Subsidiaries in the Megacable Entities, that such guaranty shall be subordinated
in right of payment to RCN International's guaranty of First-Lien Obligations on
terms (typical for high-yield subordinated debt securities) to be agreed by the
First-Lien Collateral Agent and Second-Lien Collateral Agent, and contained in
the respective such guaranty as executed by RCN International on (or about) the
date hereof. Furthermore, and without limiting the foregoing, any RCN
International guaranty shall contain express provisions that upon any
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substantive consolidation of the assets of RCN International with the Borrower
and/or one or more of its other Subsidiaries, the benefits of such subordination
shall be preserved with respect to the assets of RCN International (specifically
including all equity interests in the Megacable Entities) before giving effect
to the respective such substantive consolidation.
SECTION 6. Insolvency or Liquidation Proceedings.
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6.1 Finance and Sale Issues. (a) If the Borrower or any other
Grantor shall be subject to any Insolvency or Liquidation Proceeding and the
First-Lien Collateral Agent (acting at the direction of the Required First-Lien
Creditors) shall desire to permit the use of Cash Collateral (as defined in
Section 363(a) of the Bankruptcy Code) on which the First-Lien Collateral Agent
or any other creditor of the Borrower or any other Grantor has a Lien or to
permit the Borrower or any other Grantor to obtain financing (including on a
priming basis), whether from the First-Lien Creditors or any other third party
under Section 362, 363 or 364 of the Bankruptcy Code or any other Bankruptcy Law
(each, a "Post-Petition Financing"), then (x) the Second-Lien Collateral Agent,
on behalf of itself and the Second-Lien Creditors, and each other Second-Lien
Creditor (by its acceptance of the benefits of the Second-Lien Note Documents),
and (y) the Third-Lien Collateral Agent, on behalf of itself and the Third-Lien
Creditors, and each other Third-Lien Creditor (by its acceptance of the benefits
of the Third-Lien Credit Documents), each agree that it will not oppose or raise
any objection to or contest (or join with or support any third party opposing,
objecting to or contesting), such use of Cash Collateral or Post-Petition
Financing and will not request adequate protection or any other relief in
connection therewith (except as expressly agreed in writing by the First-Lien
Collateral Agent or to the extent permitted by Section 6.3) and, to the extent
the Liens securing the First-Lien Obligations are subordinated to or pari passu
with such Post-Petition Financing, its Liens on the Collateral shall be deemed
to be subordinated, without any further action on the part of any Person, to the
Liens securing such Post-Petition Financing (and all Obligations relating
thereto), and the Liens securing the Second-Lien Obligations and the Third-Lien
Obligations shall have the same priority with respect to the Collateral relative
to the Liens securing the First-Lien Obligations as if such Post-Petition
Financing had not occurred. Neither the Third-Lien Collateral Agent nor any
Third-Lien Creditor shall object to any Post-Petition Financing for any reason,
or on any basis, whatsoever. Neither the Second-Lien Collateral Agent nor any
Second-Lien Creditor shall object to any Post-Petition Financing for any reason,
or on any basis, whatsoever, so long as the aggregate principal amount of
financing to be provided pursuant thereto, when added (without duplication of
amounts) to any principal amount (for this purpose, including the maximum
undrawn amounts of any then outstanding Letters of Credit) which would at the
same time be outstanding pursuant to any First-Lien Credit Agreement then in
effect (thereby permitting, without limitation, a "roll-up" of any prepetition
First-Lien Obligations into a Post-Petition Financing), would not exceed the
Maximum First-Lien Credit Documents Principal Amount at such time. Furthermore,
and notwithstanding anything to the contrary contained above in this Section
6.1, the Second-Lien Collateral Agent and the Second-Lien Creditors (but not the
Third-Lien Collateral Agent and not the Third-Lien Creditors) may object to any
Post-Petition Financing which is in excess of the amount described in the
immediately preceding sentence, but solely on grounds which general unsecured
creditors in the Insolvency or Liquidation Proceeding would have standing to
raise (without regard to whether there actually are general unsecured creditors
in the Insolvency or Liquidation Proceeding, or whether any such creditors
actually oppose the respective Post-Petition Financing) and for the avoidance of
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doubt, not on the basis of lack of adequate protection or other grounds
applicable solely to a secured party.
(b) The Second-Lien Collateral Agent, on behalf of itself and the
other Second-Lien Creditors, and each other Second-Lien Creditor (by its
acceptance of the benefits of the Second-Lien Note Documents), and the
Third-Lien Collateral Agent, on behalf of itself and the other Third-Lien
Creditors, and each other Third-Lien Creditor (by its acceptance of the benefits
of the Third-Lien Credit Documents), each agree that it will raise no objection
to, oppose or contest (or join with or support any third party opposing,
objecting to or contesting), a sale or other disposition of any Collateral in
the context of an Insolvency or Liquidation Proceeding free and clear of its
Liens or other claims under Section 363 of the Bankruptcy Code if the First-Lien
Creditors (or, in the case of the Third-Lien Collateral Agent and any other
Third-Lien Creditor, if the First-Lien Creditors or the Second-Lien Creditors)
have consented to such sale or disposition of such assets; provided, however,
that, in the case of the agreements of the Second-Lien Collateral Agent and
Second-Lien Creditors only (with this proviso being inapplicable to the
Third-Lien Collateral Agent and the Third-Lien Creditors), any such sale or
disposition must be approved by the bankruptcy court with jurisdiction over the
sale (the "Bankruptcy Court") by an order that: (a) contains a specific finding
that the sale or disposition being approved is commercially reasonable; and (b)
provides that any consideration received in connection with such sale or
disposition that exceeds the amount of the First-Lien Obligations shall be used
to satisfy the Second-Lien Obligations, or shall remain encumbered by the
Second-Lien Obligations, with the same priority and subject to the same
limitations set forth herein with respect to their Liens on the Collateral. The
Second-Lien Collateral Agent and the Second-Lien Creditors (but not the
Third-Lien Collateral Agent and not the Third-Lien Creditors) shall be entitled
to object to any proposed form of order that does not contain the foregoing
provisions.
(c) If (x) the Discharge of First-Lien Obligations shall have
occurred prior to the Borrower or any other Grantor being subject to any
Insolvency or Liquidation Proceeding, (y) the Borrower or any other Grantor
shall be subject to any Insolvency or Liquidation Proceeding and (z) the
Second-Lien Collateral Agent (acting at the direction of the Second-Lien
Creditors) shall desire to permit the use of cash collateral on which the
Second-Lien Collateral Agent or any other Second-Lien Creditor has a Lien or to
permit the Borrower or any other Grantor to obtain financing (including, without
limitation, on a priming basis), whether from the Second-Lien Creditors or any
other third party under Section 362, 363 or 364 of Title 11 of the United States
Code or any similar Bankruptcy Law (each, a "Second-Lien Post-Petition
Financing"), then the Third-Lien Collateral Agent, on behalf of itself and the
other Third-Lien Creditors, and each other Third-Lien Creditor (by its
acceptance of the benefits of the Third-Lien Credit Documents), each agree that
it will not oppose or raise any objection to such use of cash collateral or
Second-Lien Post-Petition Financing and will not request adequate protection or
any other relief in connection therewith (except to the extent permitted by
Section 6.3) and, to the extent the Liens securing the Second-Lien Obligations
are subordinated to or pari passu with such Second-Lien Post-Petition Financing,
its Liens on the Collateral shall be deemed to be subordinated without any
further action on the part of any Person to the Liens securing such Second-Lien
Post-Petition Financing (and all obligations relating thereto) and the Liens
securing the Third-Lien Obligations shall have the same priority with respect to
the Collateral relative to the Liens securing the Second-Lien Obligations as if
such Second-Lien Post-Petition Financing had not occurred. Neither the
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Third-Lien Collateral Agent nor any Third-Lien Creditor shall object to any
Second-Lien Post-Petition Financing for any reason, or on any basis, whatsoever.
6.2 Relief from the Automatic Stay. Until (x) the Discharge of
First-Lien Obligations has occurred, the Second-Lien Collateral Agent, on behalf
of itself and the Second-Lien Creditors, and each other Second-Lien Creditor (by
its acceptance of the benefits of the Second-Lien Note Documents), and (y) the
Discharge of First-Lien Obligations and the Discharge of Second-Lien Obligations
have each occurred, the Third-Lien Collateral Agent, on behalf of itself and the
Third-Lien Creditors, and each other Third-Lien Creditor (by its acceptance of
the benefits of the Third-Lien Credit Documents), in each case agree that none
of them shall seek relief, pursuant to Section 362(d) of the Bankruptcy Code or
otherwise, from the automatic stay of Section 362(a) of the Bankruptcy Code or
from any other stay in any Insolvency or Liquidation Proceeding in respect of
the Collateral, without the prior written consent of the First-Lien Collateral
Agent (or, in the case of preceding clause (y), if the Discharge of First-Lien
Obligations has occurred, without the prior written consent of the Second-Lien
Collateral Agent).
6.3 Adequate Protection. (a) The Second-Lien Collateral Agent, on
behalf of itself and the Second-Lien Creditors, and each other Second-Lien
Creditor (by its acceptance of the benefits of the Second-Lien Note Documents)
and the Third-Lien Collateral Agent, on behalf of itself and the Third-Lien
Creditors, and each other Third-Lien Creditor (by its acceptance of the benefits
of the Third-Lien Credit Documents), each agree that, until the Discharge of
First-Lien Obligations has occurred, none of them shall (i) oppose, object to or
contest (or join with or support any third party opposing, objecting to or
contesting) (a) any request by the First-Lien Collateral Agent or the First-Lien
Creditors for adequate protection in any Insolvency or Liquidation Proceeding
(or any granting of such request) or (b) any objection by the First-Lien
Collateral Agent or the First-Lien Creditors to any motion, relief, action or
proceeding based on the First-Lien Collateral Agent or the First-Lien Creditors
claiming a lack of adequate protection or (ii) seek or accept any form of
adequate protection under any of Sections 362, 363 and/or 364 of the Bankruptcy
Code with respect to the Collateral, except to the extent that, in the
reasonable discretion of the First-Lien Creditors, the receipt by the
Second-Lien Creditors or the Third-Lien Creditors of any such adequate
protection would not reduce (or would not have the effect of reducing) or
adversely affect the adequate protection that the First-Lien Creditors otherwise
would be entitled to receive (it being understood that, in any event, (A) no
adequate protection shall be requested or accepted by (x) the Second-Lien
Creditors or by the Second-Lien Collateral Agent on their behalf or (y) by the
Third-Lien Creditors or by the Third-Lien Collateral Agent on their behalf
unless the First-Lien Creditors are satisfied in their reasonable discretion
with the adequate protection afforded to the First-Lien Creditors, and (B) any
such adequate protection is in the form of a replacement Lien on the Grantors'
assets, which Lien will be subordinated to the Liens securing the First-Lien
Obligations (including any replacement Liens granted in respect of the
First-Lien Obligations) and any Post-Petition Financing (and all Obligations
relating thereto) on the same basis as the other Liens securing the Second-Lien
Obligations are so subordinated to the First-Lien Obligations under this
Agreement.
(b) The Third-Lien Collateral Agent, on behalf of itself and the
Third-Lien Creditors, and each other Third-Lien Creditor (by its acceptance of
the benefits of the Third-Lien Credit Documents), each agree that, after the
Discharge of First-Lien Obligations has occurred, none of them shall (i) oppose,
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object to or contest (or join with or support any third party opposing,
objecting to or contesting) (a) any request by the Second-Lien Collateral Agent
or the Second-Lien Creditors for adequate protection in any Insolvency or
Liquidation Proceeding (or any granting of such request) or (b) any objection by
the Second-Lien Collateral Agent or the Second-Lien Creditors to any motion,
relief, action or proceeding based on the Second-Lien Collateral Agent or the
Second-Lien Creditors claiming a lack of adequate protection or (ii) seek or
accept any form of adequate protection under any of Sections 362, 363 and/or 364
of the Bankruptcy Code with respect to the Collateral, except to the extent
that, in the reasonable discretion of the Second-Lien Creditors, the receipt by
the Third-Lien Creditors of any such adequate protection would not reduce (or
would not have the effect of reducing) or adversely affect the adequate
protection that the Second-Lien Creditors otherwise would be entitled to receive
(it being understood that, in any event, (A) no adequate protection shall be
requested or accepted by the Third-Lien Creditors or by the Third-Lien
Collateral Agent on their behalf unless the Second-Lien Creditors are satisfied
in their reasonable discretion with the adequate protection afforded to the
Second-Lien Creditors, and (B) any such adequate protection is in the form of a
replacement Lien on the Grantors' assets, which Lien will be subordinated to the
Liens securing the Second-Lien Obligations (including any replacement Liens
granted in respect of the Second-Lien Obligations) and any Post-Petition
Financing (and all Obligations relating thereto) on the same basis as the other
Liens securing the Third-Lien Obligations are so subordinated to the Second-Lien
Obligations under this Agreement.
6.4 No Waiver; Voting Rights. (a) Nothing contained herein shall
prohibit or in any way limit the First-Lien Collateral Agent or any First-Lien
Creditor from objecting on any basis in any Insolvency or Liquidation Proceeding
or otherwise to any action taken by (x) the Second-Lien Collateral Agent or any
Second-Lien Creditor and/or (y) the Third-Lien Collateral Agent or any
Third-Lien Creditor, including the seeking by (x) the Second-Lien Collateral
Agent or any Second-Lien Creditor and/or (y) the Third-Lien Collateral Agent or
any Third-Lien Creditor of adequate protection or the assertion by (x) the
Second-Lien Collateral Agent or any Second-Lien Creditor and/or (y) the
Third-Lien Collateral Agent or any Third-Lien Creditor of any of its rights and
remedies under the Second-Lien Note Documents, the Third-Lien Credit Documents
or otherwise. In any Insolvency or Liquidation Proceeding, neither (x) the
Second-Lien Collateral Agent nor any other Second-Lien Creditor nor (y) the
Third-Lien Collateral Agent nor any Third-Lien Creditor shall propose or support
any plan of reorganization or disclosure statement, or join with or support any
third party in doing so, to the extent the terms of such plan or disclosure
statement does not provide: (i) for the payment in full in cash of all
First-Lien Obligations (including all post-petition interest, fees and expenses
as provided in Section 6.6) on the effective date of such plan of
reorganization, or (ii) for the retention by the First-Lien Collateral Agent,
for the benefit of the First-Lien Creditors, of the Liens on the Collateral
securing the First-Lien Obligations, and on all proceeds thereof, and provides
that any Liens retained by, or granted to, the Second-Lien Collateral Agent
and/or the Third-Lien Collateral Agent are only on assets or property securing
the First-Lien Obligations and shall have the same relative priority and rights
with respect to the Collateral or other assets or property, respectively, as
provided in this Agreement with respect to the Collateral (and with the
First-Lien Collateral Agent and First-Lien Creditors to have the benefits of
this Agreement or a successor agreement which provides them substantially the
same rights and protections as are provided herein), and to the extent such plan
provides for deferred cash payments, or for the distribution of any other
property of any kind or nature, on account of the First-Lien Obligations, the
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Second-Lien Obligations and/or the Third-Lien Obligations, that any such
deferred cash payments or other distributions in respect of the Second-Lien
Obligations and/or the Third-Lien Obligations shall be delivered to the
First-Lien Collateral Agent and distributed in accordance with the priorities
provided in Section 4.1(a).
(b) Nothing contained herein shall prohibit or in any way limit the
Second-Lien Collateral Agent or any Second-Lien Creditor from: (i) objecting on
any basis in any Insolvency or Liquidation Proceeding or otherwise to any action
taken by the Third-Lien Collateral Agent or any Third-Lien Creditor, including
the seeking by the Third-Lien Collateral Agent or any Third-Lien Creditor of
adequate protection or the assertion by the Third-Lien Collateral Agent or any
Third-Lien Creditor of any of its rights and remedies under the Third-Lien
Credit Documents or otherwise; or (ii) objecting to, voting against, or
otherwise opposing any proposed plan of reorganization or liquidation in any
Insolvency or Liquidation Proceeding.
(c) Nothing contained herein shall prohibit or in any way limit the
Third-Lien Collateral Agent or any Third-Lien Creditor from objecting to, voting
against, or otherwise opposing any proposed plan of reorganization or
liquidation in any Insolvency or Liquidation Proceeding.
6.5 Preference Issues. (a) If any First-Lien Creditor is required in
any Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise
pay to the estate of the Borrower or any other Grantor any amount (a
"Recovery"), then the First-Lien Obligations shall be reinstated to the extent
of such Recovery and the First-Lien Creditors shall be entitled to a
reinstatement of First-Lien Obligations with respect to all such recovered
amounts. In such event, any Discharge of First-Lien Obligations for all purposes
of this Agreement shall be deemed to have not occurred (unless and until same
subsequently occurs with respect to the First-Lien Obligations after giving
effect to the provisions to this Section 6.5(a)). If this Agreement shall have
been terminated prior to such Recovery, this Agreement shall be reinstated in
full force and effect (and any prior Discharge of First-Lien Obligations shall
be deemed not to have occurred), and such prior termination shall not diminish,
release, discharge, impair or otherwise affect the obligations of the parties
hereto from such date of reinstatement. Any amounts received by the Second-Lien
Collateral Agent or any Second-Lien Creditor on account of the Second-Lien
Obligations, or by the Third-Lien Collateral Agent or any Third-Lien Creditor on
account of the Third-Lien Obligations, after the termination of this Agreement
(or any prior Discharge of First-Lien Obligations) shall, in the event of a
reinstatement pursuant to this Section 6.5(a), be held in trust for and paid
over to the First-Lien Collateral Agent for the benefit of the First-Lien
Creditors, for application to the reinstated First-Lien Obligations.
(b) If any Second-Lien Creditor is required in any Insolvency or
Liquidation Proceeding or otherwise to turn over or otherwise pay to the estate
of the Borrower or any other Grantor any amount (a "Second-Lien Recovery"), then
the Second-Lien Obligations shall be reinstated to the extent of such
Second-Lien Recovery and the Second-Lien Creditors shall be entitled to a
reinstatement of Second-Lien Obligations with respect to all such recovered
amounts. In such event, any Discharge of Second-Lien Obligations for all
purposes of this Agreement shall be deemed to have not occurred (unless and
until same subsequently occurs with respect to the Second-Lien Obligations after
giving effect to the provisions to this Section 6.5(b)). If this Agreement shall
have been terminated prior to such Second-Lien Recovery, this Agreement shall be
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reinstated in full force and effect (and any prior Discharge of Second-Lien
Obligations shall be deemed not to have occurred), and such prior termination
shall not diminish, release, discharge, impair or otherwise affect the
obligations of the parties hereto from such date of reinstatement. Any amounts
received by the Third-Lien Collateral Agent or any Third-Lien Creditor on
account of the Third-Lien Obligations, after the termination of this Agreement
(or any prior Discharge of Second-Lien Obligations) shall, in the event of a
reinstatement pursuant to this Section 6.5(b), be held in trust for and paid
over to the Second-Lien Collateral Agent for the benefit of the Second-Lien
Creditors, for application to the reinstated Second-Lien Obligations.
(c) This Section 6.5 shall survive termination of this Agreement.
6.6 Post-Petition Interest. (a) Neither (x) the Second-Lien
Collateral Agent nor any Second-Lien Creditor nor (y) the Third-Lien Collateral
Agent nor any Third-Lien Creditor shall oppose or seek to challenge any claim by
the First-Lien Collateral Agent or any First-Lien Creditor for allowance in any
Insolvency or Liquidation Proceeding of First-Lien Obligations consisting of
post-petition interest, fees or expenses. Regardless of whether any such claim
for post-petition interest, fees or expenses is allowed or allowable, and
without limiting the generality of the other provisions of this Agreement, this
Agreement expressly is intended to include and does include the "rule of
explicitness" in that this Agreement expressly entitles the First-Lien
Creditors, and is intended to provide the First-Lien Creditors with the right,
to receive payment of all post-petition interest, fees or expenses through
distributions made pursuant to the provisions of this Agreement even though such
interest, fees and expenses are not allowed or allowable against the bankruptcy
estate of the Borrower or any other Grantor under Section 502(b)(2) or Section
506(b) of the Bankruptcy Code or under any other provision of the Bankruptcy
Code or any other Bankruptcy Law.
(b) Neither the Third-Lien Collateral Agent nor any Third-Lien
Creditor shall oppose or seek to challenge any claim by the Second-Lien
Collateral Agent or any Second-Lien Creditor for allowance in any Insolvency or
Liquidation Proceeding of Second-Lien Obligations consisting of post-petition
interest, fees or expenses. Regardless of whether any such claim for
post-petition interest, fees or expenses is allowed or allowable, and without
limiting the generality of the other provisions of this Agreement, this
Agreement expressly is intended to include and does include the "rule of
explicitness" in that this Agreement expressly entitles the Second-Lien
Creditors (after the Discharge of First-Lien Obligations has occurred, including
as to amounts described in preceding clause (a)), and is intended to provide the
Second-Lien Creditors (after the Discharge of First-Lien Obligations has
occurred, including as to amounts described in preceding clause (a)) with the
right, to receive payment of all post-petition interest, fees or expenses
through distributions made pursuant to the provisions of this Agreement even
though such interest, fees and expenses are not allowed or allowable against the
bankruptcy estate of the Borrower or any other Grantor under Section 502(b)(2)
or Section 506(b) of the Bankruptcy Code or under any other provision of the
Bankruptcy Code or any other Bankruptcy Law.
(c) Without limiting the foregoing, it is the intention of the
parties hereto that (and to the maximum extent permitted by law the parties
hereto agree that) (x) the First-Lien Obligations (and the security therefor)
constitute a separate and distinct class (and separate and distinct claims) from
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the Second-Lien Obligations (and the security therefor) and the Third-Lien
Obligations (and the security therefor), (y) the Second-Lien Obligations (and
the security therefor) constitute a separate and distinct class (and separate
and distinct claims) from the First-Lien Obligations (and the security therefor)
and the Third-Lien Obligations (and the security therefor) and (z) the
Third-Lien Obligations (and the security therefor) constitute a separate and
distinct class (and separate and distinct claims) from the First-Lien
Obligations (and the security therefor) and the Second-Lien Obligations (and the
security therefor).
6.7 Waiver. (a) Each of the Second-Lien Collateral Agent, for itself
and on behalf of the other Second-Lien Creditors, and the Third-Lien Collateral
Agent, for itself and on behalf of the other Third-Lien Creditors, waives any
claim it may hereafter have against any First-Lien Creditor arising out of the
election by any First-Lien Creditor of the application to the claims of any
First-Lien Creditor of Section 1111(b)(2) of the Bankruptcy Code, and/or out of
any Cash Collateral or Post-Petition Financing arrangement or out of any grant
of a security interest in connection with the Collateral in any Insolvency or
Liquidation Proceeding.
(b) Each of the Third-Lien Collateral Agent, for itself and on
behalf of the other Third-Lien Creditors, waives any claim it may hereafter have
against any Second-Lien Creditor arising out of the election by any Second-Lien
Creditor of the application to the claims of any Second-Lien Creditor of Section
1111(b)(2) of the Bankruptcy Code, and/or out of any Cash Collateral or
Second-Lien Post-Petition Financing arrangement or out of any grant of a
security interest in connection with the Collateral in any Insolvency or
Liquidation Proceeding.
6.8 Limitations. (a) So long as the Discharge of First-Lien
Obligations has not occurred, without the express written consent of the
First-Lien Collateral Agent, none of the Second-Lien Creditors and/or the
Third-Lien Creditors shall (or shall join with or support any third party
making, opposing, objecting or contesting, as the case may be), in any
Insolvency or Liquidation Proceeding involving any Grantor, (i) make an election
for application to its claims of Section 1111(b)(2) of the Bankruptcy Code, (ii)
oppose, object to or contest the determination of the extent of any Liens held
by any of the First-Lien Creditors or the value of any claims of First-Lien
Creditors under Section 506(a) of the Bankruptcy Code or (iii) oppose, object to
or contest the payment to the First-Lien Creditors of interest, fees or expenses
under Section 506(b) of the Bankruptcy Code.
(b) So long as the Discharge of First-Lien Obligations has occurred
and the Discharge of Second-Lien Obligations has not occurred, without the
express written consent of the Second-Lien Collateral Agent, none of the
Third-Lien Creditors shall (or shall join with or support any third party
making, opposing, objecting or contesting, as the case may be), in any
Insolvency or Liquidation Proceeding involving any Grantor, (i) make an election
for application to its claims of Section 1111(b)(2) of the Bankruptcy Code, (ii)
oppose, object to or contest the determination of the extent of any Liens held
by any of the Second-Lien Creditors or the value of any claims of Second-Lien
Creditors under Section 506(a) of the Bankruptcy Code or (iii) oppose, object to
or contest the payment to the Second-Lien Creditors of interest, fees or
expenses under Section 506(b) of the Bankruptcy Code.
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SECTION 7. Reliance; Waivers; Etc.
-----------------------
7.1 Reliance. Other than any reliance on the terms of this
Agreement, the First-Lien Collateral Agent, on behalf of itself and the
First-Lien Creditors under its First-Lien Credit Documents, acknowledges that it
and such First-Lien Creditors have, independently and without reliance on the
Second-Lien Collateral Agent, any Second-Lien Creditor, the Third-Lien
Collateral Agent or any Third-Lien Creditor, and based on documents and
information deemed by them appropriate, made their own credit analysis and
decision to enter into such First-Lien Credit Documents and be bound by the
terms of this Agreement and they will continue to make their own credit decision
in taking or not taking any action under the First-Lien Credit Agreement or this
Agreement. The Second-Lien Collateral Agent, on behalf of itself and the
Second-Lien Creditors, acknowledges that it and the Second-Lien Creditors have,
independently and without reliance on the First-Lien Collateral Agent, any
First-Lien Creditor, the Third-Lien Collateral Agent or any Third-Lien Creditor,
and based on documents and information deemed by them appropriate, made their
own credit analysis and decision to enter into each of the Second-Lien Note
Documents and be bound by the terms of this Agreement and they will continue to
make their own credit decision in taking or not taking any action under the
Second-Lien Note Documents or this Agreement. The Third-Lien Collateral Agent,
on behalf of itself and the Third-Lien Creditors, acknowledges that it and the
Third-Lien Creditors have, independently and without reliance on the First-Lien
Collateral Agent, any First-Lien Creditor, the Second-Lien Collateral Agent or
any Second-Lien Creditor, and based on documents and information deemed by them
appropriate, made their own credit analysis and decision to enter into each of
the Third-Lien Credit Documents and be bound by the terms of this Agreement and
they will continue to make their own credit decision in taking or not taking any
action under the Third-Lien Credit Documents or this Agreement.
7.2 No Warranties or Liability. Each of (x) the First-Lien
Collateral Agent, on behalf of itself and the First-Lien Creditors under its
First-Lien Credit Documents, and (y) the Third-Lien Collateral Agent, on behalf
of itself and the Third-Lien Creditors under its Third-Lien Credit Documents,
acknowledge and agree that each of the Second-Lien Collateral Agent and the
Second-Lien Creditors have made no express or implied representation or
warranty, including with respect to the execution, validity, legality,
completeness, collectibility or enforceability of any of the Second-Lien Note
Documents, the ownership of any Collateral or the perfection or priority of any
Liens thereon. The Second-Lien Creditors will be entitled to manage and
supervise their respective loans and extensions of credit under the Second-Lien
Note Documents in accordance with law and as they may otherwise, in their sole
discretion, deem appropriate. Each of (x) the Second-Lien Collateral Agent, on
behalf of itself and the Second-Lien Creditors under its Second-Lien Credit
Documents, and (y) the Third-Lien Collateral Agent, on behalf of itself and the
Third-Lien Creditors under its Third-Lien Credit Documents, acknowledge and
agree that each of the First-Lien Collateral Agent and the First-Lien Creditors
have made no express or implied representation or warranty, including with
respect to the execution, validity, legality, completeness, collectibility or
enforceability of any of the First-Lien Documents, the ownership of any
Collateral or the perfection or priority of any Liens thereon. The First-Lien
Creditors will be entitled to manage and supervise their respective loans and
extensions of credit under their respective First-Lien Documents in accordance
with law and as they may otherwise, in their sole discretion, deem appropriate.
Each of (x) the First-Lien Collateral Agent, on behalf of itself and the
First-Lien Creditors under its First-Lien Credit Documents, and (y) the
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Second-Lien Collateral Agent, on behalf of itself and the Second-Lien Creditors
under its Second-Lien Credit Documents, acknowledge and agree that each of the
Third-Lien Collateral Agent and the Third-Lien Creditors have made no express or
implied representation or warranty, including with respect to the execution,
validity, legality, completeness, collectibility or enforceability of any of the
Third-Lien Credit Documents, the ownership of any Collateral or the perfection
or priority of any Liens thereon. The Third-Lien Creditors will be entitled to
manage and supervise their respective loans and extensions of credit under the
Third-Lien Credit Documents in accordance with law and as they may otherwise, in
their sole discretion, deem appropriate. The Second-Lien Collateral Agent, the
Second-Lien Creditors, the Third-Lien Collateral Agent and the Third-Lien
Creditors shall have no duty to the First-Lien Collateral Agent or any of the
First-Lien Creditors, to act or refrain from acting in a manner which allows, or
results in, the occurrence or continuance of an event of default or default
under any agreements with the Borrower or any Subsidiary Guarantor (including
the First-Lien Credit Documents, the Second-Lien Note Documents and the
Third-Lien Credit Documents), regardless of any knowledge thereof which they may
have or be charged with. The First-Lien Collateral Agent, the First-Lien
Creditors, the Third-Lien Collateral Agent and the Third-Lien Creditors shall
have no duty to the Second-Lien Collateral Agent or any of the Second-Lien
Creditors, to act or refrain from acting in a manner which allows, or results
in, the occurrence or continuance of an event of default or default under any
agreements with the Borrower or any Subsidiary Guarantor (including the
First-Lien Credit Documents, the Second-Lien Note Documents and the Third-Lien
Credit Documents), regardless of any knowledge thereof which they may have or be
charged with. The First-Lien Collateral Agent, the First-Lien Creditors, the
Second-Lien Collateral Agent and the Second-Lien Creditors shall have no duty to
the Third-Lien Collateral Agent or any of the Third-Lien Creditors, to act or
refrain from acting in a manner which allows, or results in, the occurrence or
continuance of an event of default or default under any agreements with the
Borrower or any Subsidiary Guarantor (including the First-Lien Credit Documents,
the Second-Lien Note Documents and the Third-Lien Credit Documents), regardless
of any knowledge thereof which they may have or be charged with.
7.3 No Waiver of Lien Priorities.
----------------------------
(a) (i) No right of the First-Lien Creditors, the First-Lien
Collateral Agent or any of them to enforce any provision of this Agreement or
any First-Lien Credit Document shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Borrower or any other
Grantor or by any act or failure to act by any First-Lien Creditor or the
First-Lien Collateral Agent, or by any noncompliance by any Person with the
terms, provisions and covenants of this Agreement, any of the First-Lien Credit
Documents, any of the Second-Lien Note Documents or any of the Third-Lien Credit
Documents, regardless of any knowledge thereof which the First-Lien Collateral
Agent or the First-Lien Creditors, or any of them, may have or be otherwise
charged with.
(ii) No right of the Second-Lien Creditors, the Second-Lien
Collateral Agent or any of them to enforce any provision of this
Agreement or any Second-Lien Note Document (subject to the provisions
of this Agreement) shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Borrower or
any other Grantor or by any act or failure to act by any Second-Lien
Creditor or the Second-Lien Collateral Agent, or by any noncompliance
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by any Person with the terms, provisions and covenants of this
Agreement, any of the Second-Lien Note Documents or any of the
Third-Lien Credit Documents, regardless of any knowledge thereof which
the Second-Lien Collateral Agent or the Second-Lien Creditors, or any
of them, may have or be otherwise charged with.
(iii) No right of the Third-Lien Creditors, the Third-Lien
Collateral Agent or any of them to enforce any provision of this
Agreement or any Third-Lien Credit Document (subject to the provisions
of this Agreement) shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Borrower or
any other Grantor or by any act or failure to act by any Third-Lien
Creditor or the Third-Lien Collateral Agent, or by any noncompliance by
any Person with the terms, provisions and covenants of this Agreement,
any of the Third-Lien Credit Documents, regardless of any knowledge
thereof which the Third-Lien Collateral Agent or the Third-Lien
Creditors, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing
paragraph (but subject to the rights of the Borrower and the other Grantors
under the First-Lien Credit Documents), the First-Lien Creditors, the First-Lien
Collateral Agent and any of them may, at any time and from time to time in
accordance with the First-Lien Credit Documents and/or applicable law, without
the consent of, or notice to, the Second-Lien Collateral Agent, any other
Second-Lien Creditor, the Third-Lien Collateral Agent or any Third-Lien Creditor
without incurring any liabilities to the Second-Lien Collateral Agent, any other
Second-Lien Creditor, the Third-Lien Collateral Agent or any Third-Lien Creditor
and without impairing or releasing the Lien priorities and other benefits
provided in this Agreement (even if any right of subrogation or other right or
remedy of the Second-Lien Collateral Agent, any Second-Lien Creditor, the
Third-Lien Collateral Agent or any Third-Lien Creditor is affected, impaired or
extinguished thereby) do any one or more of the following:
(i) make loans and advances to any Grantor or issue, guaranty
or obtain letters of credit for account of any Grantor or otherwise
extend credit to any Grantor, in any amount and on any terms, whether
pursuant to a commitment or as a discretionary advance and whether or
not any default or event of default or failure of condition is then
continuing;
(ii) change the manner, place or terms of payment or change or
extend the time of payment of, or amend, renew, exchange, increase or
alter, the terms of any of the First-Lien Obligations or any Lien on
any First-Lien Collateral or guaranty thereof or any liability of the
Borrower or any other Grantor, or any liability incurred directly or
indirectly in respect thereof (including any increase in or extension
of the First-Lien Obligations, without any restriction as to the
amount, tenor or terms of any such increase or extension) or otherwise
amend, renew, exchange, extend, modify or supplement in any manner any
Liens held by the First-Lien Collateral Agent or any of the First-Lien
Creditors, the First-Lien Obligations or any of the First-Lien Credit
Documents;
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(iii) sell, exchange, release, surrender, realize upon, enforce
or otherwise deal with in any manner and in any order any part of the
First-Lien Collateral or any liability of the Borrower or any other
Grantor to the First-Lien Creditors or the First-Lien Collateral Agent,
or any liability incurred directly or indirectly in respect thereof;
(iv) settle or compromise any First-Lien Obligation or any
other liability of the Borrower or any other Grantor or any security
therefor or any liability incurred directly or indirectly in respect
thereof and apply any sums by whomsoever paid and however realized to
any liability (including the First-Lien Obligations) in any manner or
order;
(v) exercise or delay in or refrain from exercising any right
or remedy against the Borrower or any other Grantor or any other Person
or with respect to any security, elect any remedy and otherwise deal
freely with the Borrower, any other Grantor or any First-Lien
Collateral and any security and any guarantor or any liability of the
Borrower or any other Grantor to the First-Lien Creditors or any
liability incurred directly or indirectly in respect thereof; and
(vi) release or discharge any First-Lien Obligation or any
guaranty thereof or any agreement or obligation of any Grantor or any
other Person with respect thereto.
Nothing in this Section 7.3, however, shall affect the amount of
Obligations or Hedging Obligations which shall constitute First-Lien Obligations
and/or Second-Lien Obligations.
(c) (i) The Second-Lien Collateral Agent, on behalf of itself and
the Second-Lien Creditors, and each other Second-Lien Creditor (by its
acceptance of the benefits of the Second-Lien Note Documents), agrees not to
assert and hereby waives, to the fullest extent permitted by law, any right to
demand, request, plead or otherwise assert or otherwise claim the benefit of,
any marshalling, appraisal, valuation or other similar right that may otherwise
be available under applicable law with respect to the Collateral or any other
similar rights a junior secured creditor may have under applicable law.
(ii) The Third-Lien Collateral Agent, on behalf of itself and
the Third-Lien Creditors, and each other Third-Lien Creditor (by its acceptance
of the benefits of the Third-Lien Credit Documents), agrees not to assert and
hereby waives, to the fullest extent permitted by law, any right to demand,
request, plead or otherwise assert or otherwise claim the benefit of, any
marshalling, appraisal, valuation or other similar right that may otherwise be
available under applicable law with respect to the Collateral or any other
similar rights a junior secured creditor may have under applicable law.
7.4 Waiver of Liability; Indemnity. (a) The Second-Lien Collateral
Agent, on behalf of itself and the Second-Lien Creditors, and each other
Second-Lien Creditor (by its acceptance of the benefits of the Second-Lien Note
Documents), and the Third-Lien Collateral Agent, on behalf of itself and the
Third-Lien Creditors, and each other Third-Lien Creditor (by its acceptance of
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the benefits of the Third-Lien Credit Documents), each also agree that the
First-Lien Creditors and the First-Lien Collateral Agent shall have no liability
to any of the Second-Lien Collateral Agent, any Second-Lien Creditors, the
Third-Lien Collateral Agent or any Third-Lien Creditors; and the Second-Lien
Collateral Agent, on behalf of itself and the Second-Lien Creditors, and each
other Second-Lien Creditor (by its acceptance of the benefits of the Second-Lien
Note Documents), and the Third-Lien Collateral Agent, on behalf of itself and
the Third-Lien Creditors, and each other Third-Lien Creditor (by its acceptance
of the benefits of the Third-Lien Credit Documents) each hereby waive any claim
against any First-Lien Creditor or the First-Lien Collateral Agent, arising out
of any and all actions which the First-Lien Creditors or the First-Lien
Collateral Agent may take or permit or omit to take with respect to: (i) the
First-Lien Credit Documents (including, without limitation, any failure to
perfect or obtain perfected security interests in the First-Lien Collateral),
(ii) the collection of the First-Lien Obligations or (iii) the foreclosure upon,
or sale, liquidation or other disposition of, any First-Lien Collateral. The
Second-Lien Collateral Agent, on behalf of itself and the Second-Lien Creditors
and each other Second-Lien Creditor (by its acceptance of the benefits of the
Second-Lien Note Documents), and the Third-Lien Collateral Agent, on behalf of
itself and the Third-Lien Creditors, and each other Third-Lien Creditor (by its
acceptance of the benefits of the Third-Lien Credit Documents), each agree that
the First-Lien Creditors and the First-Lien Collateral Agent have no duty,
express or implied, fiduciary or otherwise, to any of them in respect of the
maintenance or preservation of the First-Lien Collateral, the First-Lien
Obligations or otherwise. Neither the First-Lien Collateral Agent nor any other
First-Lien Creditor nor any of their respective directors, officers, employees
or agents will be liable for failure to demand, collect or realize upon any of
the Collateral or for any delay in doing so, or will be under any obligation to
sell or otherwise dispose of any Collateral upon the request of any other
Grantor or upon the request of the Second-Lien Collateral Agent, the Third-Lien
Collateral Agent, any other holder of Second-Lien Obligations, any other holder
of Third-Lien Obligations or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof. Without limiting
the foregoing, the Second-Lien Collateral Agent, on behalf of itself and the
Second-Lien Creditors, and each Second-Lien Creditor (by its acceptance of the
benefits of the Second-Lien Note Documents) and the Third-Lien Collateral Agent,
on behalf of itself and the Third-Lien Creditors, and each Third-Lien Creditor
(by its acceptance of the benefits of the Third-Lien Credit Documents), each
agree that neither the First-Lien Collateral Agent nor any other First-Lien
Creditor (in directing the Collateral Agent to take any action with respect to
the Collateral) shall have any duty or obligation to realize first upon any type
of Collateral or to sell, dispose of or otherwise liquidate all or any portion
of the Collateral in any manner, including as a result of the application of the
principles of marshaling or otherwise, that would maximize the return to any
class of Creditors holding Obligations of any type (whether First-Lien
Obligations, Second-Lien Obligations or Third-Lien Obligations), notwithstanding
that the order and timing of any such realization, sale, disposition or
liquidation may affect the amount of proceeds actually received by such class of
Creditors from such realization, sale, disposition or liquidation.
(b) After the Discharge of the First-Lien Obligations occurs, the
Third-Lien Collateral Agent, on behalf of itself and the Third-Lien Creditors,
and each other Third-Lien Creditor (by its acceptance of the benefits of the
Third-Lien Credit Documents), each also agree that the Second-Lien Creditors and
the Second-Lien Collateral Agent shall have no liability to any of the
Third-Lien Collateral Agent or any Third-Lien Creditors; and the Third-Lien
Collateral Agent, on behalf of itself and the Third-Lien Creditors, and each
other Third-Lien Creditor (by its acceptance of the benefits of the Third-Lien
Credit Documents), each hereby waive any claim against any Second-Lien Creditor
or the Second-Lien Collateral Agent, arising out of any and all actions which
the Second-Lien Creditors or the Second-Lien Collateral Agent may take or permit
or omit to take with respect to: (i) the Second-Lien Note Documents (including,
without limitation, any failure to perfect or obtain perfected security
interests in the Second-Lien Collateral), (ii) the collection of the Second-Lien
Obligations or (iii) the foreclosure upon, or sale, liquidation or other
disposition of, any Second-Lien Collateral. The Third-Lien Collateral Agent, on
behalf of itself and the Third-Lien Creditors and each other Third-Lien Creditor
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(by its acceptance of the benefits of the Third-Lien Credit Documents), each
agree that the Second-Lien Creditors and the Second-Lien Collateral Agent have
no duty, express or implied, fiduciary or otherwise, to any of them in respect
of the maintenance or preservation of the Second-Lien Collateral, the
Second-Lien Obligations or otherwise. With respect to the Third-Lien Collateral
Agent and the Third-Lien Creditors, neither the Second-Lien Collateral Agent nor
any other Second-Lien Creditor nor any of their respective directors, officers,
employees or agents will be liable for failure to demand, collect or realize
upon any of the Collateral or for any delay in doing so, or will be under any
obligation to sell or otherwise dispose of any Collateral upon the request of
any other Grantor or upon the request of the Third-Lien Collateral Agent, or any
other holder of Third-Lien Obligations or to take any other action whatsoever
with regard to the Collateral or any part thereof. Without limiting the
foregoing, the Third-Lien Collateral Agent, on behalf of itself and the
Third-Lien Creditors, and each Third-Lien Creditor (by its acceptance of the
benefits of the Third-Lien Credit Documents), each agree that neither the
Second-Lien Collateral Agent nor any other Second-Lien Creditor (in directing
any Collateral Agent to take any action with respect to the Collateral) shall
have any duty or obligation to realize first upon any type of Collateral or to
sell, dispose of or otherwise liquidate all or any portion of the Collateral in
any manner, including as a result of the application of the principles of
marshaling or otherwise, that would maximize the return to any class of
Creditors holding Obligations of any type (whether Second-Lien Obligations or
Third-Lien Obligations), notwithstanding that the order and timing of any such
realization, sale, disposition or liquidation may affect the amount of proceeds
actually received by such class of Creditors from such realization, sale,
disposition or liquidation.
(c) With respect to its share of the Obligations, any Collateral
Agent which is independently a Creditor shall have and may exercise the same
rights and powers hereunder as, and shall be subject to the same obligations and
liabilities as and to the extent set forth herein for, any other Creditor, all
as if such Collateral Agent were not a Collateral Agent. The term "Creditors" or
any similar term shall, unless the context clearly otherwise indicates, include
any Collateral Agent in its individual capacity as a Creditor. Each Collateral
Agent and its affiliates may lend money to, and generally engage in any kind of
business with, the Grantors or any of their Affiliates as if such Collateral
Agent were not acting as a Collateral Agent and without any duty to account
therefor to any other Creditor.
7.5 Obligations Unconditional. All rights, interests, agreements and
obligations of the First-Lien Collateral Agent and the First-Lien Creditors, the
Second-Lien Collateral Agent and the Second-Lien Creditors, and the Third-Lien
Collateral Agent and the Third-Lien Creditors, respectively, hereunder
(including the Lien priorities established hereby) shall remain in full force
and effect irrespective of:
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(a) any lack of validity or enforceability of any First-Lien
Credit Document, any Second-Lien Note Document or any Third-Lien Credit
Document;
(b) any change in the time, manner or place of payment of, or
in any other terms of, all or any of the First-Lien Obligations or
Second-Lien Obligations or Third-Lien Obligations, or any amendment or
waiver or other modification, including any increase in the amount
thereof, whether by course of conduct or otherwise, of the terms of any
First-Lien Credit Document, any Second-Lien Note Document or any
Third-Lien Credit Document;
(c) any exchange of any security interest in any Collateral or
any other collateral, or any amendment, waiver or other modification,
whether in writing or by course of conduct or otherwise, of all or any
of the First-Lien Obligations, Second-Lien Obligations or Third-Lien
Obligations or any guarantee thereof;
(d) the commencement of any Insolvency or Liquidation
Proceeding in respect of the Borrower or any other Grantor; or
(e) any other circumstances which otherwise might constitute a
defense available to, or a discharge of, the Borrower or any other
Grantor in respect of any of the First-Lien Obligations, or of the
Second-Lien Collateral Agent or any Second-Lien Creditor in respect of
this Agreement, or of the Third-Lien Collateral Agent or any Third-Lien
Creditor in respect of this Agreement.
SECTION 8. Miscellaneous.
-------------
8.1 Conflicts. In the event of any conflict between the provisions
of this Agreement and the provisions of the First-Lien Credit Documents, the
Second-Lien Note Documents or the Third-Lien Credit Documents, the provisions of
this Agreement shall govern and control.
8.2 Effectiveness; Continuing Nature of this Agreement;
Severability. This Agreement shall become effective when executed and delivered
by the parties hereto. This is a continuing agreement of lien subordination and
the First-Lien Creditors may continue, at any time and without notice to the
Second-Lien Collateral Agent or any Second-Lien Creditor or the Third-Lien
Collateral Agent or any Third-Lien Creditor, to extend credit and other
financial accommodations and lend monies to or for the benefit of the Borrower
or any Grantor constituting First-Lien Obligations in reliance hereof. The
First-Lien Collateral Agent, on behalf of itself and the First-Lien Creditors,
and each other First-Lien Creditor (by its acceptance of the benefits of the
First-Lien Documents), the Second-Lien Collateral Agent, on behalf of itself and
the Second-Lien Creditors, and each other Second-Lien Creditor (by its
acceptance of the benefits of the Second-Lien Note Documents), and the
Third-Lien Collateral Agent, on behalf of itself and the Third-Lien Creditors,
and each other Third-Lien Creditor (by its acceptance of the benefits of the
Third-Lien Credit Documents), hereby waives any right it may have under
applicable law to revoke this Agreement or any of the provisions of this
Agreement. The terms of this Agreement shall survive, and shall continue in full
force and effect, in any Insolvency or Liquidation Proceeding. Without limiting
the generality of the foregoing, this Agreement is intended to constitute and
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shall be deemed to constitute a "subordination agreement" within the meaning of
Section 510(a) of the Bankruptcy Code and is intended to be and shall be
interpreted to be enforceable to the maximum extent permitted pursuant to
applicable nonbankruptcy law. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall not invalidate the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. All references to the Borrower or any other Grantor shall
include the Borrower or such Grantor as debtor and debtor-in-possession and any
receiver or trustee for the Borrower or any other Grantor (as the case may be)
in any Insolvency or Liquidation Proceeding. This Agreement shall terminate and
be of no further force and effect, (i) with respect to the Second-Lien
Collateral Agent, the Second-Lien Creditors and the Second-Lien Obligations,
upon the Discharge of Second-Lien Obligations (in a manner which is not in
contravention of the terms of this Agreement), subject to the rights of the
First-Lien Creditors and the Second-Lien Creditors under Section 6.5, (ii) with
respect to the First-Lien Collateral Agent, the First-Lien Creditors and the
First-Lien Obligations, the date of the Discharge of First-Lien Obligations,
subject to the rights of the First-Lien Creditors under Section 6.5(c), and
(iii) with respect to the Third-Lien Collateral Agent, the Third-Lien Creditors
and the Third-Lien Obligations, upon the Discharge of Third-Lien Obligations (in
a manner not in contravention of the terms of this Agreement), subject to the
rights of the First-Lien Creditors and the Second-Lien Creditors under Section
6.5.
8.3 Amendments; Waivers. No amendment, modification or waiver of any
of the provisions of this Agreement by the First-Lien Collateral Agent, the
Second-Lien Collateral Agent or the Third-Lien Collateral Agent shall be made
unless the same shall be in writing signed on behalf of each party hereto;
provided that (x) the First-Lien Collateral Agent (at the direction of the
Required First-Lien Creditors) may, without the written consent of any other
Creditor, agree to modifications of this Agreement for the purpose of securing
additional extensions of credit (including pursuant to the First-Lien Credit
Agreement or any Refinancing or extension thereof) and adding new creditors as
"First-Lien Creditors" and "Creditors" hereunder, so long as such extensions
(and resulting additions) do not otherwise give rise to a violation of the
express terms of the First-Lien Credit Agreement and, without the prior written
consent of the Second-Lien Collateral Agent and Third-Lien Collateral Agent,
would not cause the Maximum First-Lien Credit Documents Principal Amount and/or
Maximum Hedging Obligations Notional Amount (as relevant) to be exceeded as a
result of the inclusion of such extensions of credit, and (y) additional
Grantors may be added as parties hereto in accordance with the provisions of
Section 8.18 of this Agreement. Each waiver of the terms of this Agreement, if
any, shall be a waiver only with respect to the specific instance involved and
shall not impair the rights of the parties making such waiver or the obligations
of the other parties to such party in any other respect or at any other time.
Notwithstanding the foregoing, no Grantor shall have any right to consent to or
approve any amendment, modification or waiver of any provision of this Agreement
except to the extent its rights, interests, liabilities or privileges are
directly affected.
8.4 Information Concerning Financial Condition of the Borrower and
its Subsidiaries. The First-Lien Collateral Agent and the First-Lien Creditors,
the Second-Lien Collateral Agent and the Second-Lien Creditors, and the
Third-Lien Collateral Agent and the Third-Lien Creditors, shall each be
responsible for keeping themselves informed of (a) the financial condition of
the Borrower and its Subsidiaries and all endorsers and/or guarantors of the
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First-Lien Obligations, the Second-Lien Obligations or the Third-Lien
Obligations and (b) all other circumstances bearing upon the risk of nonpayment
of the First-Lien Obligations, the Second-Lien Obligations or the Third-Lien
Obligations. Except as otherwise set forth herein, none of the Collateral Agents
nor any Creditor shall have any duty to advise any of the other Collateral
Agents, or any other Creditor, of information known to it or them regarding such
condition or any such circumstances or otherwise. In the event the First-Lien
Collateral Agent or any of the First-Lien Creditors, in its or their sole
discretion, undertakes at any time or from time to time to provide any such
information to the Second-Lien Collateral Agent, any Second-Lien Creditor, the
Third-Lien Collateral Agent or any Third-Lien Creditor, it or they shall be
under no obligation (w) to make, and the First-Lien Collateral Agent and the
First-Lien Creditors shall not make, any express or implied representation or
warranty, including with respect to the accuracy, completeness, truthfulness or
validity of any such information so provided, (x) to provide any additional
information or to provide any such information on any subsequent occasion, (y)
to undertake any investigation or (z) to disclose any information which,
pursuant to accepted or reasonable commercial finance practices, such party
wishes to maintain confidential or is otherwise required to maintain
confidential.
8.5 Subrogation. Subject to the Discharge of First-Lien Obligations,
with respect to the value of any payments or distributions in cash, property or
other assets that any of (x) the Second-Lien Creditors, the Second-Lien
Collateral Agent, the Third-Lien Creditors or the Third-Lien Collateral Agent
pay over to the First-Lien Collateral Agent or First-Lien Creditors under the
terms of this Agreement or (y) the Third-Lien Collateral Agent or the Third-Lien
Creditors pay over to the Second-Lien Collateral Agent or Second-Lien Creditors
under the terms of this Agreement, the respective paying Creditors shall be
subrogated to the rights of the payee Creditors; provided that, the Second-Lien
Collateral Agent, on behalf of itself and the Second-Lien Creditors, and each
other Second-Lien Creditor (by its acceptance of the benefits of the Second-Lien
Note Documents), and the Third-Lien Collateral Agent, on behalf of itself and
the Third-Lien Creditors, and each other Third-Lien Creditor (by its acceptance
of the benefits of the Third-Lien Credit Documents), hereby agree not to assert
or enforce all such rights of subrogation it may acquire as a result of any
payment hereunder until (x) in the case of the Second-Lien Collateral Agent and
Second-Lien Creditors, the Discharge of First-Lien Obligations has occurred and
(y) in the case of the Third-Lien Collateral Agent and Third-Lien Creditors, the
Discharge of First-Lien Obligations and the Discharge of Second-Lien Obligations
have each occurred. The Borrower acknowledges and agrees that the value of any
payments or distributions in cash, property or other assets (x) received by any
of the Second-Lien Collateral Agent, the Second-Lien Creditors, the Third-Lien
Collateral Agent or the Third-Lien Creditors and paid over to the First-Lien
Collateral Agent or the First-Lien Creditors pursuant to, and applied in
accordance with this Agreement, shall not relieve or reduce any of the
Obligations owed by the Borrower under the Second-Lien Note Documents or the
Third-Lien Credit Documents and (y) received by any of the Third-Lien Collateral
Agent or the Third-Lien Creditors and paid over to the Second-Lien Collateral
Agent or the Second-Lien Creditors pursuant to, and applied in accordance with
this Agreement, shall not relieve or reduce any of the Obligations owed by the
Borrower under the Third-Lien Credit Documents.
8.6 Application of Payments. All payments received by the First-Lien
Collateral Agent or the First-Lien Creditors may be applied, reversed and
reapplied, in whole or in part, to such part of the First-Lien Obligations as
the First-Lien Creditors, in their sole discretion, deem appropriate. The
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Second-Lien Collateral Agent, on behalf of itself and the Second-Lien Creditors,
and each other Second-Lien Creditor (by its acceptance of the benefits of the
Second-Lien Note Documents), and the Third-Lien Collateral Agent, on behalf of
itself and the Third-Lien Creditors, and each other Third-Lien Creditor (by its
acceptance of the benefits of the Third-Lien Credit Documents), assent to any
extension or postponement of the time of payment of the First-Lien Obligations
or any part thereof and to any other indulgence with respect thereto, to any
substitution, exchange or release of any security which may at any time secure
any part of the First-Lien Obligations and to the addition or release of any
other Person primarily or secondarily liable therefor.
8.7 SUBMISSION TO JURISDICTION; WAIVERS. (a) THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY SUBMIT TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN, CITY OF NEW
YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR FOR RECOGNITION OR ENFORCEMENT
OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT
A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW.
(b) THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH EACH MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT IN ANY COURT REFERRED TO IN SECTION 8.7(a). EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF
SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(c) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE LOAN DOCUMENTS BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
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8.8 Notices. All notices to the First-Lien Creditors, the Second-
Lien Creditors or the Third-Lien Creditors permitted or required under this
Agreement may be sent, respectively, to the First-Lien Collateral Agent, the
Second-Lien Collateral Agent or the Third-Lien Collateral Agent. Unless
otherwise specifically provided herein, any notice or other communication herein
required or permitted to be given shall be in writing and may be personally
served, electronically mailed or sent by courier service or U.S. mail and shall
be deemed to have been given when delivered in person or by courier service,
upon receipt of electronic mail or four Business Days after deposit in the U.S.
mail (registered or certified, with postage prepaid and properly addressed). For
the purposes hereof, the addresses of the parties hereto shall be as set forth
below each party's name on the signature pages hereto, or, as to each party, at
such other address as may be designated by such party in a written notice to all
of the other parties.
8.9 Further Assurances. Each of the First-Lien Collateral Agent, on
behalf of itself and the First-Lien Creditors, the Second-Lien Collateral Agent,
on behalf of itself and the Second-Lien Creditors, the Third-Lien Collateral
Agent, on behalf of itself and the Third-Lien Creditors, and the Borrower, agree
that each of them shall take such further action and shall execute and deliver
such additional documents and instruments (in recordable form, if requested) as
any of the First-Lien Collateral Agent, the Second-Lien Collateral Agent and/or
the Third-Lien Collateral Agent may reasonably request to effectuate the terms
of and the lien priorities contemplated by this Agreement. Each Second-Lien
Creditor, by its acceptance of the benefits of the Second-Lien Note Documents,
agrees to be bound by the agreements herein made by it and the Second-Lien
Collateral Agent, on its behalf. Each Third-Lien Creditor, by its acceptance of
the benefits of the Third-Lien Credit Documents, agrees to be bound by the
agreements herein made by it and the Third-Lien Collateral Agent, on its behalf.
8.10 APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
INCLUDING GENERAL OBLIGATIONS LAW 5-1401.
8.11 Binding on Successors and Assigns. This Agreement shall be
binding upon First-Lien Collateral Agent, the First-Lien Creditors, the
Second-Lien Collateral Agent, the Second-Lien Creditors, the Third-Lien
Collateral Agent, the Third-Lien Creditors and their respective successors and
assigns, including without limitation any successor or assign to all or a
portion of the duties of any Collateral Agent (or any sub-agent or
sub-collateral agent appointed by it).
8.12 Specific Performance. Each of the First-Lien Collateral Agent,
the Second-Lien Collateral Agent and the Third-Lien Collateral Agent may demand
specific performance of this Agreement. Each of the First-Lien Collateral Agent,
on behalf of itself and the First-Lien Creditors, the Second-Lien Collateral
Agent, on behalf of itself and the Second-Lien Creditors, and the Third-Lien
Collateral Agent, on behalf of itself and the Third-Lien Creditors, hereby
irrevocably waives any defense based on the adequacy of a remedy at law and any
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other defense which might be asserted to bar the remedy of specific performance
in any action which may be brought by the First-Lien Collateral Agent, the
Second-Lien Collateral Agent or the Third-Lien Collateral Agent, as the case may
be.
8.13 Headings. Section headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
8.14 Counterparts. This Agreement may be executed in counterparts
(and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. Delivery of an executed counterpart of a signature page of this
Agreement or any document or instrument delivered in connection herewith by
telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement or such other document or instrument, as applicable.
8.15 Authorization. By its signature, each Person executing this
Agreement on behalf of a party hereto represents and warrants to the other
parties hereto that it is duly authorized to execute this Agreement. Each
Second-Lien Creditor, by its acceptance of the benefits of the Second-Lien Note
Documents, and each Third-Lien Creditor, by its acceptance of the benefits of
the Third-Lien Credit Documents, agrees to be bound by the agreements made
herein.
8.16 No Third Party Beneficiaries; Effect of Agreement. This
Agreement and the rights and benefits hereof shall inure to the benefit of each
of the parties hereto and its respective successors and assigns and shall inure
to the benefit of each of the First-Lien Creditors, the Second-Lien Creditors
and the Third-Lien Creditors. No other Person shall have or be entitled to
assert rights or benefits hereunder. Nothing in this Agreement shall impair, as
between the Borrower and the First-Lien Collateral Agent and the First-Lien
Creditors, the Borrower and the Second-Lien Collateral Agent and the Second-Lien
Creditors, or the Borrower and the Third-Lien Collateral Agent and the
Third-Lien Creditors, the obligations of the Borrower to pay principal,
interest, fees and other amounts as provided in the First-Lien Credit Documents,
the Second-Lien Note Documents and the Third-Lien Credit Documents,
respectively.
8.17 Provisions Solely to Define Relative Rights. The provisions of
this Agreement are and are intended solely for the purpose of defining the
relative rights of the First-Lien Creditors and the First-Lien Collateral Agent,
the Second-Lien Creditors and the Second-Lien Collateral Agent, and the
Third-Lien Creditors and the Third-Lien Collateral Agent. None of the Borrower,
any other Grantor or any other creditor thereof shall have any rights hereunder.
Nothing in this Agreement is intended to or shall impair the obligations of the
Borrower or any other Grantor, which are absolute and unconditional, to pay the
First-Lien Obligations, the Second-Lien Obligations and the Third-Lien
Obligations as and when the same shall become due and payable in accordance with
their terms.
8.18 Grantors; Additional Grantors. It is understood and agreed that
the Borrower and each Subsidiary Guarantor on the date of this Agreement shall
constitute the original Grantors party hereto. The original Grantors hereby
covenant and agree to cause each Subsidiary of the Borrower which becomes a
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Subsidiary Guarantor after the date hereof to contemporaneously become a party
hereto (as a Grantor) by executing and delivering a counterpart hereof to the
First-Lien Collateral Agent or by executing and delivering an assumption
agreement in form and substance reasonably satisfactory to the First-Lien
Collateral Agent. The parties hereto further agree that, notwithstanding any
failure to take the actions required by the immediately preceding sentence, each
Person which becomes a Subsidiary Guarantor at any time (and any security
granted by any such Person) shall be subject to the provisions hereof as fully
as if same constituted a Grantor party hereto and had complied with the
requirements of the immediately preceding sentence.
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IN WITNESS WHEREOF, the parties hereto have executed this Intercreditor
Agreement as of the date first written above.
First-Lien Collateral Agent
Notice Address: DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH,
-------------- in its capacities as First-Lien
Administrative Agent and First-Lien
00 Xxxx Xxxxxx Xxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000 By: /s/ Xxxxxxxxx Xxxxxxx
Attention: Xxxxxxxxx Xxxxxxx -------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
Second-Lien Collateral Agent
Notice Address: HSBC BANK USA, NATIONAL ASSOCIATION,
-------------- in its capacities as Second-Lien
Trustee and Second-Lien Collateral Agent
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000 By: /s/ Xxxxxxx Xxxxxxx
Attention: Corporate Trust -------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
Third-Lien Collateral Agent
Notice Address: HSBC BANK USA, NATIONAL ASSOCIATION,
-------------- in its capacities as Third-Lien
Administrative Agent and Third-Lien
Issuer Services: Collateral Agent
Telephone: (000) 000-0000
Telecopier: (000) 000-0000 By: /s/ Xxxxx X. Xxxxxx
Attention: Xxxxx X. Xxxxxx -------------------------------------
Name: Xxxxx X. Xxxxxx
Mailing Address: Title: Vice President
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Delivery Address:
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Notice Address: RCN CORPORATION
--------------
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ------------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Notice Address: BRAINSTORM NETWORKS, INC.,
-------------- as a Subsidiary Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ------------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Notice Address: HOT SPOTS PRODUCTIONS, INC.,
-------------- as a Subsidiary Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ------------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Notice Address: ON TV, INC., as a Subsidiary Guarantor
--------------
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ------------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Notice Address: RCN-BECOCOM, LLC, as a Subsidiary
-------------- Guarantor
105 Carnegie Center By: RCN Telecom Services of
Xxxxxxxxx, XX 00000 Massachusetts, Inc., its managing
Telephone: (000) 000-0000 member
Telecopier: (000) 000-0000
Attention: Chief Financial Officer By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial
Officer
Notice Address: RCN CABLE TV OF CHICAGO, INC.,
-------------- as a Subsidiary Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ------------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Notice Address: RCN ENTERTAINMENT, INC.,
-------------- as a Subsidiary Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ------------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Notice Address: RCN FINANCE, LLC, as a Subsidiary
-------------- Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ------------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Notice Address: RCN FINANCIAL MANAGEMENT, INC., as a
-------------- Subsidiary Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ------------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Notice Address: RCN INTERNATIONAL HOLDINGS, INC.,
-------------- as a Subsidiary Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ------------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Notice Address: RCN INTERNET SERVICES, INC.,
-------------- as a Subsidiary Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ------------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Notice Address: RCN TELECOM SERVICES, INC.,
-------------- as a Subsidiary Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ------------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Notice Address: RCN TELECOM SERVICES OF ILLINOIS, LLC,
-------------- as a Subsidiary Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ------------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Notice Address: RCN TELECOM SERVICES OF MASSACHUSETTS,
-------------- INC., as a Subsidiary Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ------------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Notice Address: RCN TELECOM SERVICES OF PHILADELPHIA,
-------------- INC., as a Subsidiary Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ------------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Notice Address: RCN TELECOM SERVICES OF VIRGINIA, INC.,
-------------- as a Subsidiary Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ------------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Notice Address: RCN TELECOM SERVICES OF WASHINGTON
-------------- D.C., INC., as a Subsidiary Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ------------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Notice Address: RFM 2, LLC, as a Subsidiary Guarantor
--------------
By: RCN Corporation, its managing
member
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 --------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial
Officer
Notice Address: RLH PROPERTY CORPORATION,
-------------- as a Subsidiary Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ------------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Notice Address: TEC AIR, INC., as a Subsidiary
-------------- Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ------------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Notice Address: 21ST CENTURY TELECOM SERVICES, INC., as
-------------- a Subsidiary Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ------------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Notice Address: UNET HOLDING, INC., as a Subsidiary
-------------- Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ------------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: STARPOWER COMMUNICATIONS, LLC,
------- as a Subsidiary Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ------------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Manager
