INTERCREDITOR AGREEMENT dated as of December 9, 2010, among CLEARWIRE COMMUNICATIONS LLC, CLEARWIRE FINANCE, INC., the other GRANTORS party hereto, WILMINGTON TRUST FSB, as Existing First-Priority Collateral Agent, WILMINGTON TRUST FSB, as November...
Exhibit 4.10
dated as of December 9, 2010,
among
CLEARWIRE COMMUNICATIONS LLC,
CLEARWIRE FINANCE, INC.,
CLEARWIRE FINANCE, INC.,
the other GRANTORS party hereto,
WILMINGTON TRUST FSB,
as Existing First-Priority Collateral Agent,
as Existing First-Priority Collateral Agent,
WILMINGTON TRUST FSB,
as November 2009 Trustee,
as November 2009 Trustee,
WILMINGTON TRUST FSB,
as December 2009 Trustee,
as December 2009 Trustee,
WILMINGTON TRUST FSB,
as Second-Priority Trustee and Existing Second-Priority Collateral Agent,
as Second-Priority Trustee and Existing Second-Priority Collateral Agent,
and
each ADDITIONAL COLLATERAL AGENT from time to time party hereto
Intercreditor Agreement (this “Agreement”), dated as of December 9, 2010 among
Wilmington Trust FSB, as trustee (in such capacity, the “November 2009 Trustee”) and
collateral agent (in such capacity, the “Existing First-Priority Collateral Agent”) for the
holders of the November 2009 Notes (such term, and other capitalized terms used herein but not
otherwise defined, having the meaning set forth in Section 1.1 below) and the December 2009 Notes,
Wilmington Trust FSB, as trustee (in such capacity, the “December 2009 Trustee”) for the
holders of the December 2009 Notes, Wilmington Trust FSB, as trustee (in such capacity, the
“Second-Priority Trustee”) and collateral agent for the holders of the Second-Priority
Notes (in such capacity, the “Existing Second-Priority Collateral Agent”), Clearwire
Communications LLC, a Delaware corporation (the “Company”), Clearwire Finance, Inc.
(“FinanceCo,” and together with the Company, the “Issuers”) and each of the other
Grantors party hereto.
WHEREAS, the Issuers, the guarantors party thereto and the November 2009 Trustee are parties
to the Indenture dated as of November 24, 2009 (the “November 2009 Indenture”), pursuant to
which the Issuers have issued the November 2009 Notes;
WHEREAS, the Issuers, the guarantors party thereto and the December 2009 Trustee are parties
to the Indenture dated as of December 9, 2009 (the “December 2009 Indenture”), pursuant to
which the Issuers have issued the December 2009 Notes;
WHEREAS, the Issuers, the guarantors party thereto and the Second-Priority Trustee are parties
to the Indenture dated as of December 9, 2010 (the “Second-Priority Indenture”), pursuant
to which the Issuers have issued the Second-Priority Notes;
WHEREAS, the Issuers and the other Grantors have granted to the Existing First-Priority
Collateral Agent security interests in the Common Collateral as security for payment and
performance of the First-Priority Obligations;
WHEREAS, the Issuers and the other Grantors propose to grant to the Existing Second-Priority
Collateral Agent junior security interests in the Common Collateral as security for payment and
performance of the Second-Priority Obligations; and
WHEREAS, it is a condition to the grant of such junior security interests that this Agreement
be executed and delivered by the parties hereto to set forth the respective rights of the
First-Priority Secured Parties, on the one hand, and the Second-Priority Secured Parties, on the
other hand, and the application of any proceeds and certain other matters;
NOW THEREFORE, in consideration of the foregoing and the mutual covenants herein contained and
other good and valuable consideration, the existence and sufficiency of which is expressly
recognized by all of the parties hereto, the parties agree as follows:
Section 1. Definitions.
1.1. Defined Terms. The following terms, as used herein, have the following
meanings:
“Additional Debt” has the meaning set forth in Section 9.3(b).
“Additional First-Priority Agreement” means any agreement designated as such in
writing (including by addendum to this Agreement) by the Company; provided that the Company
shall have delivered to each Collateral Agent (i) true and complete copies of such agreement and
security documents relating to such agreement, certified as being true and correct by an
authorized officer of the Company and (ii) a certificate of an authorized officer describing the
obligations incurred pursuant to such agreement to
be designated as First-Priority Obligations and
the initial aggregate principal amount or face amount thereof and certifying that such obligations
are permitted to be incurred and secured on a pari passu basis with the then extant First-Priority
Obligations by the terms of each then extant First-Priority Agreement and Second-Priority
Agreement.
“Additional First-Priority Collateral Agent” means any collateral agent under any
Additional First-Priority Agreement.
“Additional Second-Priority Agreement” means any agreement designated as such in
writing (including by addendum to this Agreement) by the Company; provided that the Company
shall have delivered to each Collateral Agent (i) true and complete copies of such agreement and
security documents relating to such agreement, certified as being true and correct by an
authorized officer of the Company and (ii) a certificate of an authorized officer describing the
obligations incurred pursuant to such agreement to be designated as Second-Priority Obligations and
the initial aggregate principal amount or face amount thereof and certifying that such obligations
are permitted to be incurred and secured on a pari passu basis with the then extant Second-Priority
Obligations by the terms of each then extant First-Priority Agreement and Second-Priority
Agreement.
“Additional Second-Priority Collateral Agent” means any collateral agent under any
Additional Second-Priority Agreement.
“Affiliate” of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person.
For purposes of this definition, “control” (including, with correlative meanings, the terms
“controlling,” “controlled by” and “under common control with”), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise.
“Agreement” has the meaning assigned to such term in the preamble hereto.
“Bankruptcy Code” means the United States Bankruptcy Code (11 U.S.C. §101 et seq.), as
amended from time to time.
“Bankruptcy Law” means each of the Bankruptcy Code and any similar federal, state or
foreign bankruptcy, insolvency, reorganization, receivership or similar law.
“Collateral Agent” means each First-Priority Collateral Agent and Second-Priority
Collateral Agent.
“Common Collateral” means all assets that are both First-Priority Collateral and
Second-Priority Collateral.
“Company” has the meaning assigned to such term in the preamble hereto.
“Comparable Second-Priority Security Document” means, in relation to any Common
Collateral subject to any First-Priority Security Document, that Second-Priority Security Document
that creates a security interest in the same Common Collateral, granted by the same Grantor, as
applicable.
“December 2009 Indenture” has the meaning assigned to such term in the recitals
hereto.
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“December 2009 Notes” means the 12% Senior Secured Notes due 2015 of the Issuers
issued pursuant to the December 2009 Indenture.
“December 2009 Trustee” has meaning assigned to such term in the preamble hereto.
“DIP Financing” has the meaning assigned to such term in Section 5.2.
“Enforcement Action” means, with respect to the First-Priority Obligations or the
Second-Priority Obligations, any demand for acceleration or payment thereof, the exercise of any
rights and remedies with respect to any Common Collateral securing such obligations or the
commencement or prosecution of enforcement of any of the rights and remedies as a secured creditor
under, as applicable, the First-Priority Documents or the Second-Priority Documents, or applicable
law, including, without limitation, the exercise of any rights of set-off or recoupment and rights
to credit bid debt, and the exercise of any rights or remedies of a secured creditor under the
Uniform Commercial Code of any applicable jurisdiction or under the Bankruptcy Code.
“Existing First-Priority Agreement” is a collective reference to the November 0000
Xxxxxxxxx and the December 2009 Indenture.
“Existing First-Priority Collateral Agent” has the meaning assigned to such term in
the preamble.
“Existing Second-Priority Collateral Agent” has the meaning assigned to such term in
the preamble.
“FinanceCo” has the meaning assigned to such term in the preamble.
“First-Priority Agreement” means the collective reference to (a) the Existing
First-Priority Agreement, (b) any Additional First-Priority Agreement and (c) any other credit
agreement, loan agreement, note agreement, promissory note, indenture or other agreement or
instrument evidencing or governing the terms of any indebtedness or other financial accommodation
that has been incurred to extend, replace, refinance or refund in whole or in part the indebtedness
and other obligations outstanding under the Existing First-Priority Agreement, any Additional
First-Priority Agreement or any other agreement or instrument referred to in this clause (c);
provided that the Company shall have delivered to each Collateral Agent (i) true and
complete copies of such agreement and security documents relating to such agreement, certified as
being true and correct by an authorized officer of the Company and (ii) a certificate of an
authorized officer describing the obligations incurred pursuant to such agreement to be designated
as First-Priority Obligations and the initial aggregate principal amount or face amount thereof and
certifying that such obligations are permitted to be incurred and secured on a pari passu basis
with the then extant First-Priority Obligations by the terms of each then extant First-Priority
Agreement and Second-Priority Agreement. Any reference to the First-Priority Agreement hereunder
shall be deemed a reference to any First-Priority Agreement then extant.
“First-Priority Collateral” means all assets, whether now owned or hereafter acquired
by either of the Issuers or any other Grantor, in which a Lien is granted or purported to be
granted to (i) any First-Priority Secured Party as security for any First-Priority Obligations or
(ii) any Lien assigned to the First-Priority Representative pursuant to Section 2.4.
“First-Priority Collateral Agent” means the Existing First-Priority Collateral Agent
and any Additional First-Priority Collateral Agent.
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“First-Priority Creditors” means (i) the November 2009 Trustee, the December 2009
Trustee, the First-Priority Collateral Agent, each “Holder” as defined in the November 2009
Indenture and each “Holder” as defined in the December 2009 Indenture and (ii) any Persons that are
designated under the First-Priority Documents as creditors entitled to benefit from the Liens on
the First-Priority Collateral under the First-Priority Security Documents.
“First-Priority Documents” means the November 2009 Indenture, the December 2009
Indenture, each First-Priority Security Document, each First-Priority Guarantee and each of the
other agreements, documents, and instruments providing for the evidencing of any other
First-Priority Obligation and any other document or instrument executed or delivered at any time in
connection with any First-Priority Obligation (including any intercreditor or joinder agreement
among holders of First-Priority Obligations), to the extent such are effective at the relevant
time, as each may be amended, modified, restated, supplemented, replaced or refinanced from time to
time.
“First-Priority Guarantee” means any guarantee by any Grantor of any or all of the
First-Priority Obligations.
“First-Priority Lien” means any Lien created by the First-Priority Security Documents.
“First-Priority Obligations” (i) all Obligations incurred under the November 0000
Xxxxxxxxx and the December 2009 Indenture and (ii) all Obligations under any other First-Priority
Agreement which are secured by a Lien on the Common Collateral that has Pari Passu Lien Priority
with respect to the Lien securing the Obligations under the First-Priority Indenture and the
December 2009 Indenture, the First-Priority Notes and the December 2009 Notes. “First-Priority
Obligations” shall in any event include (a) all interest accrued or accruing, or which would
accrue, absent commencement of an Insolvency or Liquidation Proceeding (and the effect of
provisions such as Section 502(b)(2) of the Bankruptcy Code), on or after the commencement of an
Insolvency or Liquidation Proceeding in accordance with the rate specified in the relevant document
or instrument governing such First-Priority Obligations, whether or not the claim for such interest
is allowed or allowable 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-Priority Representative and the holders of such First-Priority Obligations on or after
the commencement of an Insolvency or Liquidation Proceeding, whether or not the claim for fees and
expenses is allowed or allowable under Section 502 or 506(b) of the Bankruptcy Code or any other
provision of the Bankruptcy Law as a claim in such Insolvency or Liquidation Proceeding, and
(c) all obligations and liabilities of the Issuers and each other Grantor under each document or
instrument governing First-Priority Obligations to which it is a party which, but for the automatic
stay under Section 362(a) of the Bankruptcy Code, would become due and payable.
“First-Priority Obligations Payment Date” means the first date on which (A) (i)
(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 at the rate provided for in the
respective document or instrument governing such First-Priority Obligations, whether or not such
interest would be allowed in any such Insolvency or Liquidation Proceeding) and premium, if any, on
all Indebtedness under the documents and instruments governing such First-Priority Obligations
(including any obligations replacing, renewing or refinancing any previously existing First
Priority Obligations, but other than those that constitute Unasserted Contingent Obligations) and
termination of all commitments to lend or otherwise extend credit under the documents and
instruments governing such First-Priority Obligations , (b) payment in full in cash of all other
First-Priority Obligations that are due and payable or otherwise accrued and owing at or prior to
the time such principal, interest, and premium are paid (including any obligations replacing,
renewing or refinancing any previously existing First Priority Obligations, but other than those
that constitute Unasserted Contingent Obligations) or (ii) all Liens and security interests
securing First-
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Priority Obligations are released with respect to all First-Priority Collateral and
(B) each First-Priority Collateral Agent has delivered a written notice to each Second-Priority
Collateral Agent stating that the events described in clauses (ii)(a) and (b) or in clause (ii)
have occurred, such notice not to be unreasonably withheld.
“First-Priority Representative” means, as between First-Priority Collateral Agents
representing different series of First-Priority Obligations, the First-Priority Collateral Agent
representing the series of First-Priority Obligations with the greatest outstanding principal
amount.
“First-Priority Secured Party” means the First-Priority Creditors and any other holder
of First-Priority Obligations.
“First-Priority Security Documents” means the security agreements, pledge agreements,
deeds to secure debt, collateral assignments and related agreements (including, without limitation,
finance statements under the Uniform Commercial Code of the relevant states), as amended,
supplemented, restated, renewed, refunded, replaced, restructured, repaid, refinanced or otherwise
modified from time to time, creating the security interests in the Common Collateral as
contemplated by the November 0000 Xxxxxxxxx and the December 2009 Indenture and any other documents
that are designated under the First-Priority Agreement as “First-Priority Security Documents” for
purposes of this Agreement; provided that no document that is not entered into pursuant to
the Existing First-Priority Agreement will constitute a First-Priority Security Document unless the
treatment of such document as a First-Priority Security Document is permitted under each
First-Priority Agreement then extant, including, as of the date hereof and any other date if then
extant, the Existing First-Priority Agreement.
“Governmental Authority” means any federal, state, local or foreign court or
governmental agency, authority, instrumentality or regulatory body.
“Grantor” means (a) the Issuers, (b) each direct or indirect subsidiary of the Company
and (c) any other Person in which the Company or any of its subsidiaries holds an ownership
interest, in each case (a) through (c), that is, at any time of determination, a party to any
First-Priority Security Document or Second-Priority Security Document. All references in this
Agreement to any Grantor shall include such Grantor as a debtor-in-possession and any receiver or
trustee for such Grantor in any Insolvency or Liquidation Proceeding.
“Indebtedness” means, with respect to any Person, (a) any indebtedness (including
principal and premium) of such Person, whether or not contingent (1) in respect of borrowed money,
(2) evidenced by bonds, notes, debentures or similar instruments or letters of credit or bankers’
acceptances (or, without double counting, reimbursement agreements in respect thereof),
(3) representing the deferred and unpaid balance of the purchase price of any property (including
Capitalized Lease Obligations), except any such balance that constitutes a trade payable or similar
obligation to a trade creditor, in each case accrued in the ordinary course of business, or
(4) representing any interest rate Hedging Obligations, if and to the extent that any of the
foregoing Indebtedness (other than letters of credit and Hedging Obligations) would appear as a
liability upon a balance sheet (excluding the footnotes thereto) of such Person prepared in
accordance with GAAP, (b) to the extent not otherwise included, any obligation by such Person to be
liable for, or to pay, as obligor, guarantor or otherwise, on the Indebtedness of another Person,
other than by endorsement of negotiable instruments for collection in the ordinary course of
business, and (c) to the extent not otherwise included, Indebtedness of another Person secured by a
Lien on any asset owned by such Person (other than a Lien on Capital Stock of an Unrestricted
Subsidiary), whether or not such Indebtedness is assumed by such Person; provided, however, that
(x) Contingent Obligations incurred in the ordinary course of business, (y) Spectrum Leases or any
guarantee of obligations under Spectrum Leases or FCC License Rights and (z) and obligations under
or in respect of Receivables Facilities shall be
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deemed not to constitute Indebtedness.
Capitalized terms used in this definition but not defined in this Agreement shall have the meanings
assigned to them in the Second-Priority Indenture.
“Insolvency or Liquidation Proceeding” means (a) any voluntary or involuntary case or
proceeding under the Bankruptcy Code with respect to either of the Issuers or any other 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 either of the Issuers or any other Grantor or with respect to a material portion of its
respective assets, (c) any liquidation, dissolution, reorganization or winding up of either of the
Issuers or any other 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 either of the Issuers or any other Grantor.
“Issuers” has the meaning assigned to such term in the preamble hereto.
“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or
otherwise perfected under applicable law, including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement to sell or give a
security interest in and any filing of or agreement to give any financing statement under the
Uniform Commercial Code (or equivalent statutes) of any jurisdiction; provided that in no event
shall an operating lease be deemed to constitute a Lien.
“November 2009 Indenture” has the meaning assigned to such term in the recitals
hereto.
“November 2009 Notes” means the 12% Senior Secured Notes due 2015 of the Issuers
issued pursuant to the November 2009 Indenture.
“November 2009 Trustee” has the meaning assigned to such term in the preamble.
“Obligations” means any principal, interest (including any interest accruing
subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the
rate provided for in the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable state, federal or foreign law), penalties, fees, indemnifications,
reimbursements (including, without limitation, reimbursement obligations with respect to letters of
credit and banker’s acceptances), damages and other liabilities, and guarantees of payment of such
principal, interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities, payable under the documentation governing any Indebtedness.
“Pari Passu Lien Priority” means, relative to specified indebtedness, having equal
Lien priority on specified collateral.
“Person” means any natural person, corporation, business trust, joint venture,
association, unincorporated organization, association, estate, company, partnership, individual or
family trust, limited liability company or Governmental Authority or any agency or political
subdivision thereof.
“Post-Petition Interest” means any interest or entitlement to fees or expenses or
other charges that accrues after the commencement of any Insolvency or Liquidation Proceeding,
whether or not allowed or allowable as a claim in any such Insolvency or Liquidation Proceeding.
“Recovery” has the meaning assigned to such term in Section 5.5.
“Reorganization Securities” has the meaning set forth in Section 5.12.
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“Second-Priority Agreement” means the collective reference to (a) the Second-Priority
Indenture, (b) any Additional Second-Priority Agreement and (c) any other credit agreement, loan
agreement, note agreement, promissory note, indenture, or other agreement or instrument evidencing
or governing the terms of any indebtedness or other financial accommodation that has been incurred
to extend, replace, refinance or refund in whole or in part the indebtedness and other obligations
outstanding under the Second-Priority Indenture, any Additional Second-Priority Agreement or any
other agreement or instrument referred to in this clause (c); provided that the Company
shall have delivered to each Collateral Agent (i) true and complete copies of such agreement and
security documents relating to such agreement, certified as being true and correct by an
authorized officer of the Company and (ii) a certificate of an authorized officer describing the
obligations incurred pursuant to such agreement to be designated as Second-Priority Obligations and
the initial aggregate principal amount or face amount thereof and certifying that such obligations
are permitted to be incurred and secured on a pari passu basis with the then extant Second-Priority
Obligations by the terms of each then extant First-Priority Agreement and Second-Priority
Agreement. Any reference to the First-Priority Agreement hereunder shall be deemed a reference to
any First-Priority Agreement then extant. Any reference to the Second-Priority Agreement hereunder
shall be deemed a reference to any Second-Priority Agreement then extant.
“Second-Priority Collateral” means all assets, whether now owned or hereafter acquired
by either of the Issuers or any other Grantor, in which a Lien is granted or purported to be
granted to any Second-Priority Secured Party as security for any Second-Priority Obligation.
“Second-Priority Collateral Agent” means the Existing Second-Priority Collateral Agent
and any Additional First-Priority Collateral Agent.
“Second-Priority Creditors” means the Second-Priority Trustee, the Second-Priority
Collateral Agent and the “Holders” (as defined in the Second-Priority Indenture), or any Persons
that are designated under the Second-Priority Documents as creditors entitled to benefit from the
Liens on the Second-Priority Collateral under the Second-Priority Security Documents.
“Second-Priority Documents” means each Second-Priority Agreement, each Second-Priority
Security Document and each Second-Priority Guarantee.
“Second-Priority Guarantee” means any guarantee by any Grantor of any or all of the
Second-Priority Obligations.
“Second-Priority Indenture” has meaning assigned to such term in the recitals hereto.
“Second-Priority Lien” means any Lien created by the Second-Priority Security
Documents.
“Second-Priority Notes” means the 12% Second-Priority Secured Notes due 2017 issued
pursuant to the Second-Priority Indenture.
“Second-Priority Obligations” (i) all Obligations under the Second-Priority Indenture
and (ii) all Obligations under any other Second-Priority Agreement which are secured by a Lien on
the Common Collateral that has Pari Passu Lien Priority with respect to the Lien securing the
Obligations under the Second-Priority Indenture and the Second-Priority Notes. “Second-Priority
Obligations” shall in any event include (a) all interest accrued or accruing, or which would
accrue, absent commencement of an Insolvency or Liquidation Proceeding (and the effect of
provisions such as Section 502(b)(2) of the Bankruptcy Code), on or after the commencement of an
Insolvency or Liquidation Proceeding in accordance with the rate specified in the relevant document
or instrument governing such Second-Priority Obligations, whether or not the claim for such
interest is allowed or allowable as a claim in such Insolvency or
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Liquidation Proceeding, (b) any
and all fees and expenses (including attorneys’ and/or financial consultants’ fees and expenses)
incurred by the Second-Priority Representative and the holders of such Second-Priority Obligations
on or after the commencement of an Insolvency or Liquidation Proceeding, whether or not the claim
for fees and expenses is allowed or allowable under Section 502 or 506(b) of the Bankruptcy Code or
any other provision of the Bankruptcy Law as a claim in such Insolvency or Liquidation Proceeding,
and (c) all obligations and liabilities of the Issuers and each other Grantor under each document
or instrument governing Second-Priority Obligations to which it is a party which, but for the
automatic stay under Section 362(a) of the Bankruptcy Code, would become due and payable.
“Second-Priority Representative” means, as between collateral agents representing
different series of Second-Priority Obligations, the collateral agent representing the series of
Second-Priority Obligations with the greatest outstanding principal amount.
“Second-Priority Secured Party” means the Second-Priority Representative, the
Second-Priority Creditors and any other holders of the Second-Priority Obligations.
“Second-Priority Security Documents” means the security agreements, pledge agreements,
deeds to secure debt, collateral assignments and related agreements (including, without limitation,
finance statements under the Uniform Commercial Code of the relevant states), as amended,
supplemented, restated, renewed, refunded, replaced, restructured, repaid, refinanced or otherwise
modified from time to time, creating the security interests in the Common Collateral as
contemplated by the Second-Priority Indenture and any other documents that are designated under the
Second-Priority Agreement as “Second-Priority Security Documents” for purposes of this Agreement;
provided that no document that is not entered into pursuant to the November 2009 Indenture,
the December 2009 Indenture and the Second-Priority Indenture will constitute a Second-Priority
Security Document unless the treatment of such document as a Second-Priority Security Document is
permitted under each First-Priority Agreement and Second-Priority Agreement then extant, including,
as of the date hereof and any other date if then extant, the November 2009 Indenture, the December
2009 Indenture and the Second-Priority Indenture.
“Second-Priority Trustee” has the meaning assigned to such term in the preamble.
“Secured Parties” means the First-Priority Secured Parties and the Second-Priority
Secured Parties.
“subsidiary” has the meaning specified in the Existing First-Priority Agreement.
“Unasserted Contingent Obligations” means, at any time, First-Priority Obligations for
taxes, costs, indemnifications, reimbursements, damages and other liabilities (excluding (a) the
principal of, and interest and premium (if any) on, and fees and expenses relating to, any
First-Priority Obligation and (b) contingent reimbursement obligations in respect of amounts that
may be drawn under outstanding letters of credit or similar instruments) in respect of which no
assertion of liability (whether oral or written) and no claim or demand for payment (whether oral
or written) has been made (and, in the case of First-Priority Obligations for indemnification, no
notice for indemnification has been issued by the indemnitee) at such time.
“Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to
time in the applicable jurisdiction.
1.2. Amended Agreements. All references in this Agreement to agreements or other
contractual obligations shall, unless otherwise specified, be deemed to refer to such agreements or
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contractual obligations as amended, amended and restated, supplemented, restated or otherwise
modified from time to time in accordance with the terms of this Agreement, if applicable.
1.3. Terms Generally. The definitions in this Section shall apply equally to both
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”. All
references herein to Sections shall be deemed references to Sections of this Agreement unless the
context shall otherwise require.
Section 2. Lien Priorities.
2.1. Subordination of Liens.
(a) Any and all Liens in the Common Collateral now existing or hereafter created or
arising in favor of any Second-Priority Secured Party securing the Second-Priority Obligations,
regardless of how acquired, whether by grant, statute, operation of law, judgment rendered in any
judicial proceeding, subrogation or otherwise, are expressly junior in priority, operation and
effect to any and all Liens now existing or hereafter created or arising in favor of the
First-Priority Secured Parties securing the First-Priority Obligations, notwithstanding (i)
anything to the contrary contained in any agreement or filing to which any Second-Priority Secured
Party may now or hereafter be a party, and regardless of the time, order or method of grant,
attachment, recording or perfection of any financing statements or other security interests,
assignments, pledges, deeds, mortgages and other Liens, charges or encumbrances or any defect or
deficiency or alleged defect or deficiency in any of the foregoing, (ii) any provision of the
Uniform Commercial Code or any other applicable law or any First-Priority Document or
Second-Priority Document or any other circumstance whatsoever and (iii) the fact that any such
Liens in favor of any First-Priority Secured Party securing any of the First-Priority Obligations
are (x) subordinated to any Lien securing any obligation of any Grantor other than the
Second-Priority Obligations or (y) otherwise subordinated, voided, avoided, invalidated or lapsed.
(b) No Second-Priority Secured Party shall object to or contest, or support any other
Person in objecting to or contesting, in any proceeding (including, without limitation, any
Insolvency or Liquidation Proceeding), the validity, extent, perfection, priority or enforceability
of any Lien on the First-Priority Collateral granted to any First-Priority Creditor.
Notwithstanding any failure by any First-Priority Secured Party to perfect its Lien on the
First-Priority Collateral granted to such First-Priority Secured Party or any avoidance,
invalidation or subordination by any third party or court of competent jurisdiction of the Lien on
the First-Priority Collateral granted to the First-Priority Secured Parties, the priority and
rights as between the First-Priority Secured Parties, on the one hand, and the Second-Priority
Secured Parties, on the other hand, with respect to the Common Collateral shall be as set forth
herein.
2.2. Nature of First-Priority Obligations. The Second-Priority Representative on
behalf of itself and the other Second-Priority Secured Parties acknowledges that a portion of the
First-Priority Obligations represents debt that is revolving in nature and that the amount thereof
that may be outstanding at any time or from time to time may be increased or reduced and
subsequently reborrowed, and that the terms of the First-Priority Obligations may be modified,
extended or amended from time to time, and that the aggregate amount of the First-Priority
Obligations may be increased, replaced or refinanced, in each event, without notice to or consent
by the Second-Priority Secured Parties and without affecting the provisions hereof. The lien
priorities provided in Section 2.1 shall not be altered or otherwise affected by any such
amendment, modification, supplement, extension, repayment, reborrowing, increase, replacement,
renewal, restatement or refinancing of the First-Priority Obligations, or any portion thereof, or
by any amendment, modification, supplement, extension, repayment, reborrowing, increase,
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replacement, renewal, restatement or refinancing of the Second-Priority Obligations, or any portion
thereof.
2.3. Agreements Regarding Actions to Perfect Liens.
(a) The Second-Priority Representative on behalf of itself and the other Second-Priority
Secured Parties agrees that UCC-1 financing statements, patent, trademark or copyright filings or
other filings or recordings filed or recorded by or on behalf of the Second-Priority Representative
shall be in form satisfactory to the First-Priority Representative.
(b) The Issuers hereby agree, and the Second-Priority Representative acknowledges on
behalf of itself and the other Second-Priority Secured Parties, that all Second-Priority Security
Documents entered into on or about the date hereof shall contain the following notation: “The lien
and security interest created by [this Agreement] on the property described herein is junior and
subordinate, in accordance with the provisions of the Intercreditor Agreement dated as of December
9, 2010, among Wilmington Trust FSB, in its capacity as First-Priority Collateral Agent, November
2009 Trustee and First-Priority Representative, Wilmington Trust FSB, in its capacity as December
2009 Trustee, Wilmington Trust FSB, in its capacity as Second-Priority Collateral Agent,
Second-Priority Trustee and Second-Priority Representative, Clearwire Communications LLC, Clearwire
Finance, Inc. and the other Grantors referred to therein, as amended from time to time, to the
liens and security interests on such property created by any similar instrument now or hereafter
granted to Wilmington Trust FSB, as First-Priority Collateral Agent and November 2009 Trustee, and
Wilmington Trust FSB, as December 2009 Trustee, under the First-Priority Documents, and each of
their successors and assigns, in such property.” The Second-Priority Representative agrees on
behalf of itself and the other Second-Priority Secured Parties that all other Second-Priority
Security Documents shall bear an identical or, in the event that the Existing First-Priority
Agreement is no longer extant or Wilmington Trust FSB (in its capacity as First-Priority Collateral
Agent or November 2009 Trustee) or Wilmington Trust FSB (in its capacity as December 2009 Trustee),
as applicable, shall cease to be the First-Priority Representative, a substantially similar
notation.
(c) The First-Priority Representative hereby agrees that, to the extent that it holds, or
a third party holds on its behalf, physical possession of or “control” (as defined in the Uniform
Commercial Code) (or any similar concept under foreign law) over Common Collateral pursuant to the
First-Priority Security Documents, such possession or control is also for the benefit of the
Second-Priority Representative and the other Second-Priority Secured Parties solely to the extent
required to perfect their security interest in such Common Collateral (such bailment being
intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and
9-313(c) of the Uniform Commercial Code). Nothing in the preceding sentence shall be construed to
impose any duty on the First-Priority Representative (or any third party acting on its behalf) with
respect to such Common Collateral or provide the Second-Priority Representative or any other
Second-Priority Secured Party with any rights with respect to such Common Collateral beyond those
specified in this Agreement and the Second-Priority Security Documents; provided that
subsequent to the occurrence of the First-Priority Obligations Payment Date, the First-Priority
Representative shall (i) deliver to the Second-Priority Representative, at the Issuers’ sole cost
and expense, the Common Collateral in its possession or control together with any necessary
endorsements to the extent required by the Second-Priority Documents or (ii) direct and deliver
such Common Collateral as a court of competent jurisdiction otherwise directs; provided,
however, that the provisions of this Agreement are intended solely to govern the respective
Lien priorities as between the First-Priority Secured Parties and the Second-Priority Secured
Parties and shall not impose on the First-Priority Secured Parties any obligations in respect of
the disposition of any Common Collateral (or any proceeds thereof) that would conflict with prior
perfected Liens or any claims thereon in favor of any other Person that is not a Secured Party.
Notwithstanding the foregoing, in the event that all of the First-Priority
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Obligations and
Second-Priority Obligations have been satisfied, such Common Collateral shall be delivered as
directed by the Issuers.
2.4. No New Liens. So long as the First-Priority Obligations Payment Date has not
occurred, the parties hereto agree that (a) there shall be no Lien, and no Grantor shall have any
right to create any Lien, on any assets of any Grantor securing any Second-Priority Obligation if
those same assets are not subject to, and do not become subject to, a Lien securing the
First-Priority Obligations and (b) if any Second-Priority Secured Party shall acquire or hold any
Lien on any assets of any Grantor securing any Second-Priority Obligation which assets are not also
subject to the Lien of the First-Priority Representative under the First-Priority Documents, then
the Second-Priority Representative, shall be deemed to also hold and have held such Lien for the
benefit of the First-Priority Secured Parties and shall promptly notify the First-Priority
Representative of the existence of such Lien and, upon demand by the First-Priority Representative,
will without the need for any further consent of any other Second-Priority Secured Party,
notwithstanding anything to the contrary in any other Second-Priority Document, either (i) release
such Lien or (ii) assign it to the First-Priority Representative as security for the First-Priority
Obligations (in which case the Second-Priority Representative may retain a junior lien on such
assets subject to the terms hereof). To the extent that the foregoing provisions are not complied
with for any reason, without limiting any other rights and remedies available to the First-Priority
Secured Parties, the Second-Priority Representative and the other Second-Priority Secured Parties
agree that any amounts received by or distributed to any of them pursuant to or as a result of
Liens granted in contravention of this Section 2.4 shall be subject to Section 4.1.
2.5. Further Assurances. Each of the First-Priority Representative, for itself
and on behalf of the other First-Priority Secured Parties, and the Second-Priority Representative,
for itself and on behalf of the other Second-Priority Secured Parties, and each Grantor party
hereto, for itself and on behalf of its subsidiaries, agrees that it will execute, or will cause to
be executed, any and all further documents, agreements and instruments, and take all such further
actions, as may be required under any applicable law, or which the First-Priority Representative or
the Second-Priority Representative may reasonably request, to effectuate the terms of this
Agreement, including the relative Lien priorities provided for herein.
Section 3. Enforcement Rights.
3.1. Exclusive Enforcement. Until the First-Priority Obligations Payment Date has
occurred, whether or not an Insolvency or Liquidation Proceeding has been commenced by or against
any Grantor, the First-Priority Representative on behalf of the First-Priority Secured Parties
shall have the exclusive right to take and continue any Enforcement Action and make determinations
regarding the release, dispositions or restrictions with respect to the Common Collateral, without
any consultation with or consent of any Second-Priority Secured Party, but subject to the proviso
set forth in Section 5.1. In exercising rights and remedies with respect to the Common Collateral,
the First-Priority Secured Parties may enforce the provisions of the First-Priority 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 any of them to sell or otherwise dispose of the Common Collateral upon
foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all
rights and remedies of a secured creditor under the Uniform Commercial Code and of a secured
creditor under the Bankruptcy Law of any applicable jurisdiction.
3.2. Standstill and Waivers. The Second-Priority Representative, on behalf of
itself and the other Second-Priority Secured Parties, agrees that, until the First-Priority
Obligations Payment Date has occurred, subject to the proviso set forth in Section 5.1:
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(a) they will not take or cause to be taken any action, the purpose or effect of
which is to make any Lien in respect of any Second-Priority Obligation pari passu with or
senior to, or to give any Second-Priority Secured Party any preference or priority relative
to, the Liens with respect to the First-Priority Obligations or the First-Priority Secured
Parties with respect to any of the Common Collateral;
(b) they will not contest, oppose, object to, interfere with, hinder or delay, in
any manner, whether by judicial proceedings (including the filing of an Insolvency or
Liquidation Proceeding) or otherwise, any foreclosure, sale, lease, exchange, transfer or
other disposition of the Common Collateral or any other First-Priority Collateral by any
First-Priority Secured Party or any other Enforcement Action taken (or any forbearance from
taking any Enforcement Action) by or on behalf of any First-Priority Secured Party;
(c) they have no right to (i) direct either the First-Priority Representative or
any other First-Priority Secured Party to exercise any right, remedy or power with respect
to the Common Collateral or pursuant to the First-Priority Security Documents or (ii)
consent or object to the exercise by the First-Priority Representative or any other
First-Priority Secured Party of any right, remedy or power with respect to the Common
Collateral or pursuant to the First-Priority Security Documents or to the timing or manner
in which any such right is exercised or not exercised (or, to the extent they may have any
such right described in this clause (c), whether as a junior lien creditor or otherwise,
they hereby irrevocably waive such right);
(d) they will not institute any suit or other proceeding or assert in any suit,
Insolvency or Liquidation Proceeding or other proceeding any claim against any
First-Priority Secured Party seeking damages from or other relief by way of specific
performance, instructions or otherwise, with respect to, and no First-Priority Secured Party
shall be liable for, any action taken or omitted to be taken by any First-Priority Secured
Party with respect to the Common Collateral or pursuant to the First-Priority Documents;
(e) they will not make any judicial or nonjudicial claim or demand or commence any
judicial or non-judicial proceedings against any Grantor or any of its subsidiaries or
affiliates under or with respect to any Second-Priority Security Document seeking payment or
damages from or other relief by way of specific performance, instructions or otherwise under
or with respect to any Second-Priority Security Document or exercise any right, remedy or
power under or with respect to, or otherwise take any action to enforce, any Second-Priority
Security Document;
(f) they will not commence judicial or nonjudicial foreclosure proceedings with
respect to, seek to have a trustee, receiver, liquidator or similar official appointed for
or over, or attempt any action to take possession of any Common Collateral, or exercise any
right, remedy or power with respect to, or otherwise take any action to enforce their
interest in or realize upon, the Common Collateral or pursuant to the Second-Priority
Security Documents;
(g) they will not seek, and hereby waive any right, to have the Common Collateral
or any part thereof marshaled upon any foreclosure or other disposition of the Common
Collateral and hereby waive, to the fullest extent permitted by law, any right to demand,
request, plead or otherwise assert or claim the benefit of, any marshalling, appraisal,
valuation or other similar right that may otherwise be available under applicable law with
respect to the Common Collateral or any other similar rights a junior secured creditor may
have under applicable law; and
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(h) they will not object to the forbearance by the First-Priority Secured Parties
from bringing or pursuing any foreclosure proceeding or action or any other exercise of any
rights or remedies relating to the Common Collateral or any other First-Priority Collateral.
3.3. Judgment Creditors. In the event that any Second-Priority Secured Party
becomes a judgment lien creditor as a result of its enforcement of its rights as an unsecured
creditor, such judgment lien shall be subject to the terms of this Agreement for all purposes
(including in relation to the First-Priority Liens and the First-Priority Obligations) to the same
extent as all other Liens securing the Second-Priority Obligations are subject to the terms of this
Agreement.
3.4. Cooperation. The Second-Priority Agent, on behalf of itself and the other
Second-Priority Secured Parties, agrees that each of them shall take such actions as the
First-Priority Representative shall request in connection with the exercise by the First-Priority
Secured Parties of their rights set forth herein.
3.5. No Additional Rights For the Grantors Hereunder. Except as provided in
Section 3.6, if any First-Priority Secured Party or Second-Priority Secured Party shall enforce its
rights or remedies in violation of the terms of this Agreement, no Grantor shall be entitled to use
such violation as a defense to any action by any First-Priority Secured Party or Second-Priority
Secured Party, or to assert such violation as a counterclaim or basis for set off or recoupment
against any First-Priority Secured Party or Second-Priority Secured Party.
3.6. Actions Upon Breach.
(a) If any Second-Priority Secured Party, contrary to this Agreement, commences or
participates in any action or proceeding against any Grantor or the Common Collateral, such
Grantor, with the prior written consent of the First-Priority Representative, may interpose as a
defense or dilatory plea the making of this Agreement, and any First-Priority Secured Party may
intervene and interpose such defense or plea in its or their name or in the name of such Grantor.
(b) Should any Second-Priority Secured Party, contrary to this Agreement, in any way take,
attempt to take or threaten to take any action with respect to the Common Collateral (including any
attempt to realize upon or enforce any remedy with respect to this Agreement), or take any other
action in violation of this Agreement, or fail to take any action required by this Agreement, this
Agreement shall create an irrebuttable presumption and admission by such Second-Priority Secured
Party that any First-Priority Secured Party (in its own name or in the name of the relevant
Grantor) or the relevant Grantor may obtain relief against such Second-Priority Secured Party by
injunction, specific performance and/or other appropriate equitable relief, it being understood and
agreed by the Second-Priority Representative on behalf of each Second-Priority Secured Party that
(i) the First-Priority Secured Parties’ damages from such actions of any Second-Priority Secured
Party may at that time be difficult to ascertain and may be irreparable and the harm to the
First-Priority Secured Parties may not be adequately compensated in damages and (ii) each
Second-Priority Secured Party waives any defense that the Grantors and/or the First-Priority
Secured Parties cannot demonstrate damage and/or be made whole by the awarding of damages.
Section 4. Application Of Proceeds Of Common Collateral; Dispositions And Releases Of
Common Collateral; Inspection and Insurance.
4.1. Application of Proceeds; Turnover Provisions. All proceeds of Common
Collateral (including any interest earned thereon) resulting from the sale, collection or other
disposition of Common Collateral resulting from any Enforcement Action or that occurs after any
Event of Default (as defined in the First-Priority Documents), whether or not pursuant to an
Insolvency or Liquidation Proceeding, or
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during the pendency of any Insolvency or Liquidation
Proceeding shall be distributed as follows: first to the First-Priority Representative for
application to the First-Priority Obligations in accordance with the terms of the First-Priority
Documents, until the First-Priority Obligations Payment Date has occurred and thereafter,
to the Second-Priority Representative for application in accordance with the terms of the
Second-Priority Documents. Until the occurrence of the First-Priority Obligations Payment Date,
any Common Collateral, including any Common Collateral constituting proceeds, that may be received
by any Second-Priority Secured Party in violation of this Agreement shall be segregated and held in
trust and promptly paid over to the First-Priority Representative, for the benefit of the
First-Priority Secured Parties, in the same form as received, with any necessary endorsements, and
each Second-Priority Secured Party hereby authorizes the First-Priority Representative to make any
such endorsements as agent for the Second-Priority Representative (which authorization, being
coupled with an interest, is irrevocable).
4.2. Releases of Second-Priority Lien.
(a) Upon (i) any sale or other disposition of Common Collateral permitted pursuant to the
terms of the First-Priority Documents that results in the release of the First-Priority Lien on any
Common Collateral (including any sale or other disposition pursuant to any Enforcement Action) or
(ii) any other release of Common Collateral from the Lien under the First-Priority Security
Documents that is permitted pursuant to the terms of the First-Priority Documents, the
Second-Priority Lien on such Common Collateral (excluding any portion of the proceeds of such
Common Collateral remaining after the First-Priority Obligations Payment Date occurs) shall be
automatically and unconditionally released with no further consent or action of any Person.
(b) The Second-Priority Representative shall promptly execute and deliver such release
documents and instruments and shall take such further actions as the First-Priority Representative
shall request to evidence any release of the Second-Priority Lien described in paragraph (a) of
this Section 4.2. The Second-Priority Representative hereby appoints the First-Priority
Representative and any officer or duly authorized person of the First-Priority Representative, with
full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of
attorney in the place and stead of the Second-Priority Representative and in the name of the
Second-Priority Representative or in the First-Priority Representative’s own name, from time to
time, in the First-Priority Representative’s sole discretion, for the purposes of carrying out the
terms of this Section 4.2, to take any and all appropriate action and to execute and deliver any
and all documents and instruments as may be necessary or desirable to accomplish the purposes of
this Section 4.2, including any financing statements, endorsements, assignments, releases or other
documents or instruments of transfer (which appointment, being coupled with an interest, is
irrevocable).
4.3. Inspection Rights and Insurance.
(a) As between any First-Priority Secured Party and any Second-Priority Secured Party and
subject to the terms of any First-Priority Agreement, any First-Priority Secured Party and its
representatives and invitees may at any time inspect, repossess, remove and otherwise deal with the
Common Collateral, and the First-Priority Representative may advertise and conduct public auctions
or private sales of the Common Collateral, in each case without notice to, the involvement of or
interference by any Second-Priority Secured Party or liability to any Second-Priority Secured
Party.
(b) Until the First-Priority Obligations Payment Date has occurred, the First-Priority
Representative will have the sole and exclusive right (i) to be named as additional insured and
loss payee under any insurance policies maintained from time to time by any Grantor (except that
the Second-Priority Representative shall have the right to be named as additional insured and loss
payee so long as its Second-
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Priority status is identified in a manner satisfactory to the
First-Priority Representative), (ii) to adjust or settle any insurance policy or claim covering the
Common Collateral in the event of any loss thereunder and (iii) to approve any award granted in any
condemnation or similar proceeding affecting the Common Collateral.
4.4. Rights as Unsecured Creditors. Subject to the term of the Second-Priority
Indenture, the Second-Priority Representative and the other Second-Priority Secured Parties may
exercise rights and remedies as unsecured creditors against the Issuers or any other Grantor that
has guaranteed the Second-Priority Obligations in accordance with the terms of the Second-Priority
Documents, including the acceleration of any Indebtedness or other obligations owing under the
Second-Priority Documents or the demand for payment under the guarantee in respect thereof, in each
case in accordance with the terms of the applicable Second-Priority Documents and applicable law
and not otherwise inconsistent with the terms of this Agreement. Subject to the term of the
Second-Priority Indenture, nothing in this Agreement shall prohibit the receipt by any
Second-Priority Representative or any other Second-Priority Secured Party of the required payments
of interest and principal so long as such receipt is not the direct or indirect result of (a) the
exercise by any Second-Priority Representative or any other Second-Priority Secured Party of rights
or remedies as a secured creditor in respect of Common Collateral or other collateral or (b) the
enforcement in contravention of this Agreement of any Lien in respect of Second-Priority Liens held
by any of them. Nothing in this Agreement impairs or otherwise adversely affects any rights or
remedies the First-Priority Representative or the other First-Priority Secured Parties may have
with respect to the First-Priority Collateral. Notwithstanding anything herein to the contrary,
nothing in this Agreement shall impair or otherwise adversely affect the rights or remedies the
First-Priority Representative or the other First-Priority Secured Parties may have pursuant to the
subordination provisions in the Second-Priority Indenture or any other Second-Priority Document.
In the event of any conflict between this Agreement and such subordination provisions, any such
conflict shall be interpreted in favor of the First-Priority Secured Parties as granting them the
maximum rights and recovery available under such subordination provisions and this Agreement.
Section 5. Insolvency or Liquidation Proceedings.
5.1. Filing of Motions. Until the First-Priority Obligations Payment Date has
occurred, the Second-Priority Representative agrees on behalf of itself and the other
Second-Priority Secured Parties that, with the prior written consent of the First-Priority
Representative, no Second-Priority Secured Party shall, in or in connection with any Insolvency or
Liquidation Proceeding, file any pleading or motion, take any position at any hearing or proceeding
of any nature, or otherwise take any action whatsoever, in each case in respect of any of the
Common Collateral, including with respect to the determination of any Liens or claims (including
the validity and enforceability thereof) held by the First-Priority Representative or any other
First-Priority Secured Party or the value of any claims of such parties under Section 506(a) of the
Bankruptcy Code or otherwise; provided that notwithstanding anything herein to the
contrary, (a) in any Insolvency or Liquidation Proceeding, the Second-Priority Representative may
file a proof of claim or statement of interest with respect to the applicable Second-Priority Liens
and (b) the Second-Priority Representative may (i) take any such action (not adverse to the
First-Priority Liens on the Common Collateral securing the First-Priority Obligations, or the
rights of either the First-Priority Representative or the other First-Priority Secured Parties to
exercise remedies in respect thereof) to the extent required to create, prove, perfect, preserve or
protect (but not enforce) its rights in, and perfection and priority of its Liens on, the Common
Collateral, or (ii) otherwise file any necessary responsive or defensive pleadings in opposition to
any motion, claim, adversary proceeding, or other pleading made by any person objecting to or
otherwise seeking the disallowance of its claims, in each case of (a) and (b) above, to the extent
such action is not inconsistent with, and could not result in a resolution inconsistent with, the
terms of this Agreement.
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5.2. Financing Matters. If any Grantor becomes subject to any Insolvency or
Liquidation Proceeding, and if the First-Priority Representative (acting at the direction of the
requisite First-Priority Secured Parties) desires to consent (or not object) to the use of cash
collateral under the Bankruptcy Code or any other Bankruptcy Law or to provide financing to any
Grantor under Section 363 or Section 364 of the Bankruptcy Code or any other similar provision in
any Bankruptcy Law or to consent (or not object) to the provision of such financing (including
financing that primes or takes priority over existing Liens) to any Grantor by any third party (any
such financing, “DIP Financing”), then the Second-Priority Representative agrees, on behalf of
itself and the other Second-Priority Secured Parties, that each Second-Priority Secured Party (a)
will be deemed to have consented to, will raise no objection to, and will not support any other
Person objecting to, the use of such cash collateral or to such DIP Financing, provided that such
parties receive adequate protection in a manner otherwise consistent with the terms of this
Agreement, (b) will not request adequate protection or any other relief in connection with the use
of such cash collateral or such DIP Financing except as set forth in Section 5.4, (c) will
subordinate (and will be deemed hereunder to have subordinated) the Second-Priority Liens or claims
(i) to any additional or replacement Liens, cash payments, or claims provided as adequate
protection to the First-Priority Secured Parties on the same terms as the Second-Priority Liens,
right to cash payments, or claims are subordinated to the First-Priority Liens, right to cash
payments, or claims under this Agreement and (ii)(x) to the Liens, right to cash payments, or
claims securing such DIP Financing (and the Liens securing the Second-Priority Obligations shall
have the same priority with respect to the Common Collateral relative to the Liens securing the
First-Priority Obligations as if such DIP Financing had not occurred), (y) to any “carve-out”
agreed to by the First-Priority Representative or the other First-Priority Secured Parties and (z)
in the case of any Insolvency or Liquidation Proceeding outside the United States, to any
administrative or other charges granted in such Insolvency or Liquidation Proceeding that are
similar in nature to a “carve-out” and agreed to by the First-Priority Representative or the other
First-Priority Secured Parties, in the case of each of clauses (ii) (x), (y) and (z), with such
subordination to be on the same terms as the First-Priority Liens or claims are subordinated
thereto (and such subordination will not alter in any manner the terms of this Agreement), (d) will
be deemed to have consented to, and will raise no objection to, and will not support any other
Person objecting to (i) any motion for relief from the automatic stay or from any injunction
against foreclosure or enforcement in respect of the First-Priority Obligations made by the
First-Priority Representative or any First-Priority Secured Party, (ii) any lawful exercise by the
First-Priority Representative or any other First-Priority Secured Party of the right to credit bid
any First-Priority Obligations at any sale in foreclosure of First-Priority Collateral or (iii) any
other request for judicial relief made in any court by the First-Priority Representative or any
other First-Priority Secured Party relating to the lawful enforcement of any First-Priority Lien.
5.3. Relief From the Automatic Stay. The Second-Priority Representative agrees,
on behalf of itself and the other Second-Priority Secured Parties, that none of them will seek
relief from the automatic stay or from any other stay in any Insolvency or Liquidation Proceeding
or take any action in derogation thereof, in each case in respect of any Common Collateral, without
the prior written consent of the First-Priority Representative.
5.4. Adequate Protection. The Second-Priority Representative, on behalf of itself
and the other Second-Priority Secured Parties, agrees that none of them shall object to, contest,
or support any other Person objecting to or contesting (a) any request by the First-Priority
Representative or the other First-Priority Secured Parties for adequate protection or any adequate
protection provided to the First-Priority Representative or the other First-Priority Secured
Parties or (b) any objection by the First-Priority Representative or any other First-Priority
Secured Parties to any motion, relief, action or proceeding based on a claim of a lack of adequate
protection or (c) the payment of interest, fees, expenses, costs, charges or other amounts to the
First-Priority Representative or any other First-Priority Secured Party under Section 506(b) or
506(c) of the Bankruptcy Code or otherwise. Notwithstanding anything contained in this Section and
in Section 5.2(b) (but subject to all other provisions of this Agreement,
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including Sections 5.2(a)
and 5.3), in any Insolvency or Liquidation Proceeding, (i) if the First-Priority Secured Parties
(or any subset thereof) are granted adequate protection that includes additional or replacement
collateral (with replacement Liens on such additional collateral), cash payments, or claims in
connection with any DIP Financing or use of cash collateral, then in connection with any such DIP
Financing or use of cash collateral the Second-Priority Representative, on behalf of itself and any
of the other Second-Priority Secured Parties, may seek adequate protection consisting of an
additional or replacement Lien on the same collateral, cash payment, or claim (as applicable),
subordinated to the Liens, cash payments, or claims (as applicable) securing (1) such DIP Financing
on the same terms as the First-Priority Liens or claims are subordinated thereto (and such
subordination will not alter in any manner the terms of this Agreement), and (2) the First-Priority
Obligations on the same basis as the other Liens, cash payments, or claims (as applicable) securing
the Second-Priority Obligations are so subordinated to the First-Priority Obligations under this
Agreement and (ii) in the event the Second-Priority Representative, on behalf of itself and the
other Second-Priority Secured Parties, seeks or accepts adequate protection in accordance with
clause (i) above in the form of additional or replacement collateral, cash payments, or claims,
then the Second-Priority Representative, on behalf of itself or any of the other Second-Priority
Secured Parties, agrees that the First-Priority Representative shall also be granted a senior Lien
on such collateral, right to cash payment, or claims (as applicable) as security for the
First-Priority Obligations and any such DIP Financing and that any Lien, cash payment, or claim (as
applicable) on such collateral securing the Second-Priority Obligations shall be subordinated to
(A) the Liens on such collateral securing the First-Priority Obligations and any other Liens, cash
payment, or claims granted to the First-Priority Secured Parties as adequate protection on the same
terms that the Liens, right to cash payment, or claims securing the Second-Priority Obligations are
subordinated to such First-Priority Obligations under this Agreement and (B) (x) the Liens or
claims on such collateral securing such DIP Financing (and all obligations relating thereto), (y)
any “carve-out” agreed to by the First-Priority Representative or the other First-Priority Secured
Parties and (z) in the case of any Insolvency or Liquidation Proceeding outside the United States,
any administrative or other charges granted in any Insolvency or Liquidation Proceeding that are
similar in nature to a “carve-out” and agreed to by the First-Priority Representative or the other
First-Priority Secured Parties, in the case of each of clauses (B) (x), (y) and (z), with such
subordination to be on the same terms as the Liens or claims securing the First-Priority
Obligations are subordinated thereto (and such subordination will not alter in any manner the terms
of this Agreement). The Second-Priority Representative, on behalf of itself and the other
Second-Priority Secured Parties, agrees that except as expressly set forth in this Section 5.4, and
except for adequate protection in the form of access to information to the extent such access is
also made available to the First-Priority Representative on behalf of itself and the other
First-Priority Secured Parties, none of them shall seek adequate protection without the prior
written consent of the First-Priority Representative.
5.5. Avoidance Issues. If any First-Priority Secured Party is required in any
Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay to the
bankruptcy trustee or the estate of any Grantor, because such amount was avoided or ordered to be
paid or disgorged for any reason, including because it was found to be a fraudulent or preferential
transfer, any amount (a “Recovery”), whether received as proceeds of security, enforcement
of any right of set-off or otherwise, then the First-Priority Obligations shall be reinstated to
the extent of such Recovery and deemed to be outstanding as if such payment had not occurred and
the First-Priority Obligations Payment Date, if it shall otherwise have occurred, shall be deemed
not to have occurred. If this Agreement shall have been terminated prior to such Recovery, this
Agreement shall be reinstated in full force and effect, and such prior termination shall not
diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto.
The Second-Priority Secured Parties agree that none of them shall be entitled to benefit from any
avoidance action affecting or otherwise relating to any distribution or allocation made in
accordance with this Agreement, whether by preference or otherwise, it being understood and agreed
that
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the benefit of such avoidance action otherwise allocable to them shall instead be allocated
and turned over for application in accordance with the priorities set forth in this Agreement.
5.6. Asset Dispositions in an Insolvency or Liquidation Proceeding. Neither the
Second-Priority Representative nor any other Second-Priority Secured Party shall, in an Insolvency
or Liquidation Proceeding or otherwise, oppose any sale or other disposition of any assets of any
Grantor that is supported by the First-Priority Secured Parties, and the Second-Priority
Representative and each other Second-Priority Secured Party will be deemed to have consented under
Section 363 of the Bankruptcy Code (and otherwise) to any such sale or other disposition of assets
supported by the First-Priority Secured Parties and to have released their Liens on such assets;
provided, to the extent such sale is to be free and clear of Liens, that the Liens securing
the First-Priority Obligations and the Second-Priority Obligations will attach to the proceeds of
the sale on the same basis of priority as the Liens released on the assets sold and further
provided that they may assert any such objection that could be asserted by an unsecured creditor
(without limiting the foregoing, neither the Second-Priority Representative nor any other
Second-Priority Secured Party may raise any objections based on rights afforded by Sections 363(e)
and (f) of the Bankruptcy Code to secured creditors (or any comparable provision of any other
Bankruptcy Law) with respect to the Liens granted to such person in respect of such assets).
5.7. Separate Grants of Security and Separate Classification. Each
Second-Priority Secured Party acknowledges and agrees that (a) the grants of Liens pursuant to the
First-Priority Security Documents and the Second-Priority Security Documents constitute two
separate and distinct grants of Liens and (b) because of, among other things, their differing
rights in the Common Collateral, the Second-Priority Obligations are fundamentally different from
the First-Priority Obligations and must be separately classified in any plan of reorganization
proposed or adopted in an Insolvency or Liquidation Proceeding. To further effectuate the intent
of the parties as provided in the immediately preceding sentence, if it is held that the claims of
the First-Priority Secured Parties and Second-Priority Secured Parties in respect of the Common
Collateral constitute only one class of secured claims (rather than separate classes of senior and
junior secured claims), then the Second-Priority Secured Parties hereby acknowledge and agree that
all distributions shall be made as if there were separate classes of senior and junior secured
claims against the Grantors in respect of the Common Collateral (with the effect being that, to the
extent that the aggregate value of the Common Collateral is sufficient (for this purpose ignoring
all claims held by the Second-Priority Secured Parties), the First-Priority Secured Parties shall
be entitled to receive, in addition to amounts distributed to them in respect of principal,
pre-petition interest and other claims, all amounts owing in respect of Post-Petition Interest
(whether or not such Post-Petition interest is allowed or would be allowable in whole or in part in
any such Insolvency or Liquidation Proceeding) before any distribution is made in respect of the
claims held by the Second-Priority Secured Parties, with the Second-Priority Secured Parties hereby
acknowledging and agreeing to turn over to the First-Priority Secured Parties amounts otherwise
received or receivable by them to the extent necessary to effectuate the intent of this sentence,
even if such turnover has the effect of reducing the claim or recovery of the Second-Priority
Secured Parties), and that, until turned over to the First-Priority Secured Parties, such amounts
will be held in trust for the First-Priority Secured Parties.
5.8. No Waivers of Rights of First-Priority Secured Parties. Nothing contained
herein shall prohibit or in any way limit the First-Priority Representative or any other
First-Priority Secured Party from objecting in any Insolvency or Liquidation Proceeding or
otherwise to any action taken by any Second-Priority Secured Party not expressly permitted
hereunder, including the seeking by any Second-Priority Secured Party of adequate protection
(except as provided in Section 5.4) or the asserting by any Second-Priority Secured Party of any of
its rights and remedies under the Second-Priority Documents or otherwise.
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5.9. Plans of Reorganization. No Second-Priority Secured Party shall support or
vote in favor of any plan of reorganization (and each shall be deemed to have voted to reject any
plan of reorganization) unless such plan (a) pays off, in cash in full, all First-Priority
Obligations or (b) is accepted by the class of holders of First-Priority Obligations voting thereon
under section 1126 of the Bankruptcy Code.
5.10. [Reserved].
5.11. Effectiveness in Insolvency or Liquidation Proceedings. This Agreement,
which the parties hereto expressly acknowledge is a “subordination agreement” under section 510(a)
of the Bankruptcy Code, shall be effective before, during and after the commencement of an
Insolvency or Liquidation Proceeding. All references to any of the Issuers or any Grantor herein
shall apply to any trustee for such Person and such Person as debtor in possession. The relative
rights as to the Common Collateral and other collateral and proceeds thereof shall continue after
the filing thereof on the same basis as prior to the date of the petition, subject to any court
order approving the financing of, or use of cash collateral by, any such Person.
5.12. Reorganization Securities. If, in any Insolvency or Liquidation Proceeding,
debt obligations of the reorganized debtor secured by Liens upon any property of the reorganized
debtor (“Reorganization Securities”) are distributed, pursuant to a plan of reorganization
or similar dispositive restructuring plan, on account of the Second-Priority Obligations, then the
provisions of this Agreement will survive the distribution of such debt obligations pursuant to
such plan and will apply with like effect to the Liens securing such debt obligations. In no event
shall the Second-Priority Creditors be required to turn over to the First-Priority Representative
or any other First-Priority Secured Party any Reorganization Securities to the extent the same are
subject to this Section 5.12.
5.13. Post-Petition Claims. None of the Second-Priority Representative, the
Second-Priority Trustee or any Second-Priority Secured Party shall oppose or seek to challenge any
claim by the First-Priority Representative or any other First-Priority Secured Party for allowance
in any Insolvency or Liquidation Proceeding of First-Priority Obligations consisting of
Post-Petition Interest or indemnities to the extent of the value of the Liens in favor of the
First-Priority Representative and the other First-Priority Secured Parties, without regard to the
existence of the Liens of the Second-Priority Representative on behalf of the Second-Priority
Secured Parties on the Common Collateral. The Second-Priority Representative, the Second-Priority
Trustee or any Second-Priority Secured Party may, with the prior written consent of the
First-Priority Representative, seek to assert a claim for allowance in any Insolvency or
Liquidation Proceeding of Second-Priority Obligations consisting of Post-Petition Interest or
indemnities.
5.14. Waivers. Until the First-Priority Obligations Payment Date, the
Second-Priority Representative, on behalf of itself and each Second-Priority Secured Party, agrees
that (a) it will not assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior
to or on a parity with the Liens securing the First-Priority Obligations for costs or expenses of
preserving or disposing of any Common Collateral or other collateral and (b) waives any claim it
may now or hereafter have arising out of the election by any First-Priority Creditor of the
application of Section 1111(b)(2) of the Bankruptcy Code.
Section 6. Second-Priority Documents and First-Priority Documents.
(a) Each Grantor and the Second-Priority Representative, on behalf of itself and the other
Second-Priority Secured Parties, agrees that it shall not at any time execute or deliver any
amendment or other modification to any of the Second-Priority Documents in violation of this
Agreement.
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(b) Each Grantor and the First-Priority Representative, on behalf of itself and the
other First-Priority Secured Parties, agrees that it shall not at any time execute or deliver any
amendment or other modification to any of the First-Priority Documents in violation of this
Agreement.
(c) In the event the First-Priority Representative enters into any amendment, waiver or
consent in respect of any of the First-Priority Security Documents for the purpose of adding to, or
deleting from, or waiving or consenting to any departures from any provisions of, any
First-Priority Security Document or changing in any manner the rights of any parties thereunder,
then such amendment, waiver or consent shall apply automatically to any comparable provision of the
Comparable Second-Priority Security Document without the consent of or action by any
Second-Priority Secured Party (with all such amendments, waivers and modifications subject to the
terms hereof); provided that (other than with respect to amendments, modifications or
waivers that secure additional extensions of credit and add additional secured creditors and do not
violate the express provisions of the Second-Priority Agreements), (i) no such amendment, waiver or
consent shall have the effect of removing assets subject to the Lien of any Second-Priority
Security Document, except to the extent that a release of such Lien is permitted by Section 4.2,
(ii) any such amendment, waiver or consent that materially and adversely affects the rights of the
Second-Priority Secured Parties and does not affect the First-Priority Secured Parties in a like or
similar manner shall not apply to the Second-Priority Security Documents without the consent of the
Second-Priority Representative and (iii) notice of such amendment, waiver or consent shall be given
to the Second-Priority Representative no later than 15 days after its effectiveness; provided that
the failure to give such notice shall not affect the effectiveness and validity thereof.
Section 7. Reliance; Waivers; etc.
7.1. Reliance. The First-Priority Documents are deemed to have been executed and
delivered, and all extensions of credit thereunder are deemed to have been made or incurred, in
reliance upon this Agreement. The Second-Priority Representative, on behalf of it itself and the
other Second-Priority Secured Parties, expressly waives all notice of the acceptance of and
reliance on this Agreement by the First-Priority Secured Parties. The Second-Priority Documents
are deemed to have been executed and delivered and all issuances of debt and other extensions of
credit thereunder are deemed to have been made or incurred, in reliance upon this Agreement. The
First-Priority Representative expressly waives, on behalf of itself and all the other
First-Priority Secured Parties, all notices of the acceptance of and reliance by the
Second-Priority Representative and the other Second-Priority Secured Parties.
7.2. No Warranties or Liability. The Second-Priority Representative and the
First-Priority Representative acknowledge and agree that neither has made any representation or
warranty with respect to the execution, validity, legality, completeness, collectability or
enforceability of any other First-Priority Document or any Second-Priority Document. Except as
otherwise provided in this Agreement, the Second-Priority Representative and the First-Priority
Representative will be entitled to manage and supervise their respective extensions of credit to
any Grantor in accordance with law and their usual practices, modified from time to time as they
deem appropriate.
7.3. No Waivers. No right or benefit of any party hereunder shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of such party or any other
party hereto or by any noncompliance by any Grantor with the terms and conditions of any of the
First-Priority Documents or the Second-Priority Documents.
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Section 8. Obligations Unconditional.
8.1. First-Priority Obligations Unconditional. All rights and interests of the
First-Priority Secured Parties hereunder, and all agreements and obligations of the Second-Priority
Secured Parties (and, to the extent applicable, the Grantors) hereunder, shall remain in full force
and effect irrespective of:
(a) any lack of validity or enforceability of any First-Priority Document;
(b) any change in the time, place or manner of payment of, or in any other term of, all
or any portion of the First-Priority Obligations, or any amendment, waiver or other
modification, whether by course of conduct or otherwise, or any refinancing, replacement,
refunding or restatement of any First-Priority Document;
(c) prior to the First-Priority Obligations Payment Date, any exchange, release,
voiding, avoidance or non-perfection of any security interest in any Common Collateral or
any other collateral, or any release, amendment, waiver or other modification, whether by
course of conduct or otherwise, or any refinancing, replacement, refunding or restatement of
all or any portion of the First-Priority Obligations or any guarantee or guaranty thereof;
or
(d) any other circumstances that otherwise might constitute a defense available to, or
a discharge of, any Grantor in respect of the First-Priority Obligations, or of any
Second-Priority Secured Party, or any Grantor, to the extent applicable, in respect of this
Agreement.
8.2. Second-Priority Obligations Unconditional. All rights and interests of the
Second-Priority Secured Parties hereunder, and all agreements and obligations of the First-Priority
Secured Parties (and, to the extent applicable, the Grantors) hereunder, shall remain in full force
and effect irrespective of:
(a) any lack of validity or enforceability of any Second-Priority Document;
(b) any change in the time, place or manner of payment of, or in any other term of, all
or any portion of the Second Priority Obligations, or any amendment, waiver or other
modification, whether by course of conduct or otherwise, or any refinancing, replacement,
refunding or restatement of any Second-Priority Document;
(c) any exchange, release, voiding, avoidance or non-perfection of any security
interest in any Common Collateral or any other collateral, or any release, amendment, waiver
or other modification, whether by course of conduct or otherwise, or any refinancing,
replacement, refunding or restatement of all or any portion of the Second-Priority
Obligations or any guarantee or guaranty thereof; or
(d) any other circumstances that otherwise might constitute a defense available to, or
a discharge of, any Grantor in respect of the Second Priority Obligations, or of any
First-Priority Secured Party, or any Grantor, to the extent applicable, in respect of this
Agreement.
Section 9. Miscellaneous.
9.1. Conflicts. In the event of any conflict between the provisions of this Agreement
and the provisions of any First-Priority Document or any Second-Priority Document, the provisions
of this Agreement shall govern.
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9.2. Continuing Nature of Provisions. This Agreement shall continue to be effective,
and shall not be revocable by any party hereto, until the First-Priority Obligations Payment Date
shall have occurred, subject to Section 5.5. This is a continuing agreement and the First-Priority
Secured Parties and the Second-Priority Secured Parties may continue, at any time and without
notice to the other parties hereto, to extend credit and other financial accommodations, lend
monies and provide indebtedness to, or for the benefit of, any Issuer or any other Grantor on the
faith hereof.
9.3. Amendments; Waivers. i) No amendment or modification of any of the provisions
of this Agreement shall be effective unless the same shall be in writing and signed by the
First-Priority Representative and the Second-Priority Representative, and, in the case of
amendments or modifications of Sections 3.5, 3.6, 9.5 or 9.6 that directly affect the rights or
obligations of any Grantor, such Grantor.
(a) It is understood that the First-Priority Representative and the Second-Priority
Representative, without the consent of each other or any other First-Priority Secured Party or
Second-Priority Secured Party may in their discretion determine that a supplemental agreement
(which may take the form of an amendment and restatement of this Agreement) is necessary or
appropriate to facilitate having additional indebtedness or other obligations (“Additional
Debt”) of any of the Grantors become First-Priority Obligations or Second-Priority Obligations,
as the case may be, under this Agreement, which supplemental agreement shall specify whether such
Additional Debt constitutes First-Priority Obligations or Second-Priority Obligations;
provided that, such Additional Debt is permitted to be incurred by the First-Priority
Agreement and Second-Priority Agreement then extant, and is permitted by said Agreements to be
subject to the provisions of this Agreement as First-Priority Obligations or Second-Priority
Obligations, as applicable.
(b) In addition, at the request of the Issuers, the November 2009 Trustee, the First-Priority
Collateral Agent, the December 2009 Trustee, the Second-Priority Trustee and the Second-Priority
Collateral Agent agree to enter into any amendment to this Agreement or any new intercreditor
agreement in order to (1) facilitate Additional Debt becoming First-Priority Obligations or
Second-Priority Obligations to the extent such Obligations are permitted by the First-Priority
Agreement and the Second-Priority Agreement, with the Lien priority contemplated by such amendment,
(2) document the relationship among Second-Priority Creditors pursuant to different Second-Priority
Agreements, including, to the extent permitted under each extant First-Priority Agreement and
Second-Priority Agreement, the treatment of the Liens securing Second-Priority Obligations under
any Additional Second-Priority Agreement as equal and ratable with the Liens securing the
Second-Priority Obligations under the Second-Priority Indenture or any other Additional
Second-Priority Agreement and (3) document the relationship between the First-Priority Creditors
and the Second-Priority Creditors in case any then existing First-Priority Agreement or
Second-Priority Agreement is refinanced or replaced or the November 2009 Trustee, the
First-Priority Collateral Agent, the December 2009 Trustee, the Second-Priority Trustee or the
Second-Priority Collateral Agent is replaced; provided, that, in any case, the terms of
such amendment or new agreement will contain terms substantially the same as the terms contained in
this Agreement.
9.4. Information Concerning Financial Condition of the Issuers and the other Grantors.
Each of the Second-Priority Creditors and the First-Priority Creditors shall be responsible for
keeping itself informed of the financial condition of the Issuers and each of the other Grantors
and all other circumstances bearing upon the risk of nonpayment of the First-Priority Obligations
or the Second-Priority Obligations. The Second-Priority Representative and the First-Priority
Representative hereby agree that no party shall have any duty to advise any other party of
information known to it regarding such condition or any such circumstances. In the event the
Second-Priority Representative or the First-Priority Representative, in its sole discretion,
undertakes at any time or from time to time to provide any information to any other party to this
Agreement, it shall be under no obligation (a) to provide any such
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information to such other party or any other party on any subsequent occasion, (b) to
undertake any investigation, or (c) to disclose any other information.
9.5. Governing Law. This Agreement shall be construed in accordance with and governed
by the law of the State of New York, except as otherwise required by mandatory provisions of law
and except to the extent that remedies provided by the laws of any jurisdiction other than the
State of New York are governed by the laws of such jurisdiction.
9.6. Submission to Jurisdiction.
(a) Each First-Priority Secured Party, each Second-Priority Secured Party and each Grantor
hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the
United States District Court of 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 pursuant to any such action or proceeding, and each such
party hereby 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 or, to the extent permitted by
law, in such Federal court. Each such party 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. Nothing in this Agreement shall affect any right that any
First-Priority Secured Party or Second-Priority Secured Party may otherwise have to bring any
action or proceeding against any Grantor or its properties in the courts of any jurisdiction.
(b) Each First-Priority Secured Party, each Second-Priority Secured Party and each Grantor
hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively
do so, (i) any objection it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to in paragraph (a)
of this Section and (ii) the defense of an inconvenient forum to the maintenance of such action or
proceeding.
(c) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.7. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
9.7. Notices. 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, telecopied, or sent by overnight express courier service or United States mail and shall be
deemed to have been given when delivered in person or by courier service, upon receipt of a
telecopy or five days after deposit in the United States mail (certified, with postage prepaid and
properly addressed). For the purposes hereof, the address of (a) each of the Issuers, the November
2009 Trustee, December 2009 Trustee and the Second-Priority Trustee shall be as set forth in the
November 2009 Indenture, December 2009 Indenture and the Second-Priority Indenture, as applicable,
and (b) any other party shall be in care of the Issuers as so set forth in clause (a), 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.
9.8. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of each of the parties hereto and each of the First-Priority Secured Parties and
Second-Priority Secured Parties and their respective successors and assigns, and nothing herein is
intended, or shall be construed, to give any other Person any right, remedy or claim under, to or
in respect of this Agreement or any Common Collateral.
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9.9. Headings. Section headings used herein are for convenience of reference only,
are not part of this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
9.10. Severability. Any provision of this Agreement held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
9.11. Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto on 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 by facsimile or other
electronic transmission shall be effective as delivery of a manually executed counterpart of this
Agreement. This Agreement shall become effective when it shall have been executed by each party
hereto.
9.12. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY
COUNTERCLAIM THEREIN.
9.13. Additional Grantors. The Issuers shall cause each Person that becomes a Grantor
after the date hereof (other than any such Grantor that does not grant any Liens to secure any of
the Second-Priority Obligations, until such time as such Grantor does grant any such Liens) to
become a party to this Agreement by executing and delivering a supplement to this Agreement in form
and substance reasonably satisfactory to the First-Priority Representative and the Second-Priority
Representative.
9.14. Representatives.
(a) It is understood and agreed that the First-Priority Collateral Agent, the November 2009
Trustee and the December 2009 Trustee are entering into this Agreement in their capacity as trustee
and collateral agent under the November 0000 Xxxxxxxxx and the December 2009 Indenture, as
applicable, and the provisions of Article Six and Article Fourteen of the November 2009 Indenture
and Article Six and Article Fourteen of the December 2009 Indenture applicable to the
First-Priority Collateral Agent, the November 2009 Trustee and the December 2009 Trustee, as
trustee and collateral agent thereunder as applicable, shall also apply to the First-Priority
Collateral Agent if it serves as First-Priority Representative hereunder.
(b) It is understood and agreed that the Second-Priority Collateral Agent and the
Second-Priority Trustee are entering into this Agreement in their capacity as trustee and
collateral agent under the Second-Priority Indenture, and the provisions of Article Six and Article
Fourteen of the Second-Priority Indenture applicable to the Second-Priority Collateral Agent and
the Second-Priority Trustee, as trustee and collateral agent thereunder, shall also apply to the
Second-Priority Collateral Agent if it serves as First-Priority Representative hereunder.
(c) In connection with its execution of this Agreement and its actions hereunder, each of the
First-Priority Representative and the Second-Priority Representative shall be entitled to all
rights, privileges, benefits, protections, immunities and indemnities provided to it as trustee and
collateral agent under the First-Priority Documents and as trustee and collateral agent under the
Second-Priority Documents, respectively.
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9.15. Subrogation. The Second-Priority Representative, for itself and on behalf of
the other Second-Priority Secured Parties, hereby waives any rights of subrogation it or they may
acquire as a result of any payment hereunder until the First-Priority Obligations Payment Date has
occurred; provided, however, that, as between the Issuers and the other Grantors,
on the one hand, and the Second-Priority Secured Parties, on the other hand, any such payment that
is paid over to the First-Priority Representative pursuant to this Agreement shall be deemed not to
reduce any of the Second-Priority Obligations unless and until (and then only to the extent that)
the First-Priority Obligations Payment Date has occurred and the First-Priority Representative
delivers any such payment to the Second-Priority Representative.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.
| WILLMINGTON TRUST FSB, as November 2009 Trustee, December 2009 Trustee and Existing First-Priority Collateral Agent on behalf of the First-Priority Secured Parties |
||||
| By: | /s/ Xxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Vice President | |||
[Signature Page to Intercreditor Agreement]
WILLMINGTON TRUST FSB, as Second-Priority Trustee and Existing Second-Priority Collateral Agent on behalf of the Second-Priority Secured Parties |
||||
| By: | /s/ Xxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Vice President | |||
[Signature Page to Intercreditor Agreement]
| CLEARWIRE COMMUNICATIONS LLC |
||||
| By: | /s/ Hope X. Xxxxxxx | |||
| Name: | Hope X. Xxxxxxx | |||
| Title: | Senior Vice President, Finance & Treasurer | |||
| CLEARWIRE FINANCE, INC. |
||||
| By: | /s/ Hope X. Xxxxxxx | |||
| Name: | Hope X. Xxxxxxx | |||
| Title: | Senior Vice President, Finance & Treasurer | |||
| GUARANTORS: CLEARWIRE LEGACY LLC and CLEARWIRE XOHM LLC |
||||
| By: | Clearwire Communications, LLC, as manager | |||
| By: | /s/ Hope X. Xxxxxxx | |||
| Name: | Hope X. Xxxxxxx | |||
| Title: | Senior Vice President, Finance & Treasurer | |||
| CLEAR WIRELESS, LLC, CLEARWIRE
SPECTRUM HOLDINGS III LLC, CLEARWIRE US LLC and CLEAR MANAGEMENT SERVICES LLC |
||||
| By: | Clearwire Communications, LLC, as member | |||
| By: | /s/ Hope X. Xxxxxxx | |||
| Name: | Hope X. Xxxxxxx | |||
| Title: | Senior Vice President, Finance & Treasurer | |||
| CLEAR GLOBAL SERVICES LLC and CLEAR PARTNER HOLDINGS LLC |
||||
| By: | Clear Wireless LLC, as member | |||
| By: | /s/ Hope X. Xxxxxxx | |||
| Name: | Hope X. Xxxxxxx | |||
| Title: | Senior Vice President, Finance & Treasurer | |||
[Signature Page to Intercreditor Agreement]
| BILLING LEGACY LLC, CLEARWIRE TELECOMMUNICATIONS SERVICES, LLC, CLEARMEDIA, LLC, FIXED WIRELESS HOLDINGS, LLC, CLEARWIRE SPECTRUM HOLDINGS II LLC and CLEARWIRE SPECTRUM HOLDINGS LLC |
||||
| By: | Clearwire Legacy LLC, as member | |||
| By: | /s/ Hope X. Xxxxxxx | |||
| Name: | Hope X. Xxxxxxx | |||
| Title: | Senior Vice President, Finance & Treasurer | |||
| WINBEAM LLC |
||||
| By: | Clearwire US LLC, as member | |||
| By: | /s/ Hope X. Xxxxxxx | |||
| Name: | Hope X. Xxxxxxx | |||
| Title: | Senior Vice President, Finance & Treasurer | |||
| AMERICAN TELECASTING DEVELOPMENT, LLC, AMERICAN TELECASTING OF ANCHORAGE, LLC, AMERICAN TELECASTING OF BEND, LLC, FRESNO MMDS ASSOCIATES, LLC, AMERICAN TELECASTING OF COLUMBUS, LLC, AMERICAN TELECASTING OF DENVER, LLC, AMERICAN TELECASTING OF FORT XXXXX, LLC, AMERICAN TELECASTING OF FT. XXXXXXX, LLC, AMERICAN TELECASTING OF GREEN BAY, LLC, AMERICAN TELECASTING OF LANSING, LLC, AMERICAN TELECASTING OF LINCOLN, LLC, AMERICAN TELECASTING LITTLE ROCK, LLC, AMERICAN TELECASTING OF LOUISVILLE, LLC, AMERICAN TELECASTING OF MEDFORD, LLC, AMERICAN TELECASTING OF MICHIANA, LLC, AMERICAN TELECASTING OF MONTEREY, LLC, AMERICAN TELECASTING OF XXXXXXX, LLC, |
[Signature Page to Intercreditor Agreement]
| AMERICAN TELECASTING OF SANTA XXXXXXX, LLC, AMERICAN TELECASTING OF SEATTLE, LLC, AMERICAN TELECASTING OF SHERIDAN, LLC, AMERICAN TELECASTING OF YUBA CITY, LLC, ATI OF SANTA XXXX, LLC, ATI SUB, LLC, NSAC, LLC, XXXX WIRELESS HOLDINGS, LLC, PCTV GOLD II, LLC, PCTV OF SALT LAKE CITY, LLC, PCTV SUB, LLC, PEOPLE’S CHOICE TV OF ALBUQUERQUE, LLC, PEOPLE’S CHOICE TV OF HOUSTON, LLC, PEOPLE’S CHOICE TV OF ST. LOUIS, LLC, SPEEDCHOICE OF DETROIT, LLC, SPEEDCHOICE OF PHOENIX, LLC, ATL MDS, LLC, BAY AREA CABLEVISION, LLC, BROADCAST CABLE, LLC, SCC X, LLC, SPRINT (BAY AREA), LLC, TDI ACQUISITION SUB, LLC, TRANSWORLD TELECOM II, LLC, WAVEPATH SUB, LLC, WBS OF AMERICA, LLC, WBS OF SACRAMENTO, LLC, WBSY LICENSING, LLC, WBSFP LICENSING, LLC, WCOF, LLC, WIRELESS BROADBAND SERVICES OF AMERICA, LLC and KENNEWICK LICENSING, LLC |
| By: | Clearwire XOHM LLC, as manager | |||
| By: | /s/ Hope X. Xxxxxxx | |||
| Name: | Hope X. Xxxxxxx | |||
| Title: | Senior Vice President, Finance & Treasurer | |||
[Signature Page to Intercreditor Agreement]
