EXHIBIT 4.16
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INTERCREDITOR AGREEMENT
Dated as of November 8, 2004
among
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
as Existing First Lien Collateral Agent,
BANK OF OKLAHOMA, N.A.,
as Existing First Lien Collateral Trustee,
BNY MIDWEST TRUST COMPANY,
as Existing Second Lien Collateral Trustee,
and
▇▇▇▇▇▇ CELLULAR SYSTEMS, INC.,
▇▇▇▇▇▇ COMMUNICATIONS CORPORATION,
▇▇▇▇▇▇ OPERATING CO., L.L.C.,
DOC LEASE CO., LLC,
as Credit Parties
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms...............................................................................2
ARTICLE II
LIEN PRIORITIES
SECTION 2.01. Relative Priorities................................................................................11
SECTION 2.02. Nature of First Lien Obligations, Second Lien Obligations and Third Lien Obligations...............12
SECTION 2.03. Agreements Regarding Actions to Perfect Liens......................................................13
SECTION 2.04. No New Liens.......................................................................................15
ARTICLE III
ENFORCEMENT RIGHTS
SECTION 3.01. Exclusive Enforcement..............................................................................16
SECTION 3.02. Standstill and Waivers.............................................................................17
SECTION 3.03. Judgment Creditors.................................................................................20
SECTION 3.04. Cooperation........................................................................................20
SECTION 3.05. No Additional Rights for the Credit Parties Hereunder..............................................20
SECTION 3.06. Actions upon Breach................................................................................20
SECTION 3.07. Right as Unsecured Creditors.......................................................................21
ARTICLE IV
APPLICATION OF PROCEEDS OF COLLATERAL; DISPOSITIONS AND RELEASES OF COLLATERAL; INSPECTION AND INSURANCE
SECTION 4.01. Application of Proceeds; Turnover Provisions.......................................................21
SECTION 4.02. Releases of Junior-Priority Lien...................................................................21
SECTION 4.03. Inspection Rights and Insurance....................................................................21
ARTICLE V
INSOLVENCY PROCEEDINGS
SECTION 5.01. Filing of Motions..................................................................................21
SECTION 5.02. Financing Matters..................................................................................21
SECTION 5.03. Relief from the Automatic Stay.....................................................................21
SECTION 5.04. Adequate Protection................................................................................21
SECTION 5.05. Avoidance Issues...................................................................................21
SECTION 5.06. Asset Dispositions in an Insolvency Proceeding.....................................................21
SECTION 5.07. Separate Grants of Security and Separate Classification............................................21
SECTION 5.08. No Waivers of Rights of First Lien Secured Parties, or Second Lien Secured Parties.................21
SECTION 5.09. Effectiveness in Insolvency Proceedings............................................................21
ARTICLE VI
FIRST LIEN COLLATERAL DOCUMENTS, SECOND LIEN COLLATERAL DOCUMENTS AND THIRD LIEN COLLATERAL DOCUMENTS
SECTION 6.01. Collateral Documents...............................................................................21
ARTICLE VII
RELIANCE; WAIVERS; ETC.
SECTION 7.01. Reliance...........................................................................................21
SECTION 7.02. No Warranties or Liability.........................................................................21
SECTION 7.03. No Waivers.........................................................................................21
ARTICLE VIII
OBLIGATIONS UNCONDITIONAL
SECTION 8.01. First Lien Obligations Unconditional...............................................................21
SECTION 8.02. Second Lien Obligations Unconditional..............................................................21
SECTION 8.03. Third Lien Obligations Unconditional...............................................................21
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Conflicts..........................................................................................21
SECTION 9.02. Continuing Nature of Provisions....................................................................21
SECTION 9.03. Amendments; Waivers................................................................................21
SECTION 9.04. Information Concerning Financial Condition of the Credit Parties...................................21
SECTION 9.05. Governing Law......................................................................................21
SECTION 9.06. Notices............................................................................................21
SECTION 9.07. Joinder............................................................................................21
SECTION 9.08. Successors and Assigns.............................................................................21
SECTION 9.09. Severability.......................................................................................21
SECTION 9.10. Counterparts; Integration; Effectiveness...........................................................21
SECTION 9.11. Incorporation by Reference.........................................................................21
INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT (this "AGREEMENT") dated as of November 8,
2004, among ▇▇▇▇▇▇ COMMERCIAL PAPER INC., as collateral agent (in such capacity,
with its successors and assigns, the "EXISTING FIRST LIEN COLLATERAL AGENT") for
the Existing First Lien Secured Parties (as hereinafter defined) party to the
Credit Agreement referred to below, BANK OF OKLAHOMA, N.A., as collateral
trustee (in such capacity, with its successors and assigns, the "EXISTING FIRST
LIEN COLLATERAL TRUSTEE") for the 2011 Holders (as hereinafter defined), BNY
MIDWEST TRUST COMPANY, as collateral trustee (in such capacity, with its
successors and assigns, the "EXISTING SECOND LIEN COLLATERAL TRUSTEE") for the
2012 Holders (as hereinafter defined), ▇▇▇▇▇▇ CELLULAR SYSTEMS, INC., an
Oklahoma corporation (the "BORROWER"), ▇▇▇▇▇▇ COMMUNICATIONS CORPORATION, an
Oklahoma corporation (the "PARENT"), ▇▇▇▇▇▇ OPERATING CO., L.L.C., an Oklahoma
limited liability company ("DOC") and DOC LEASE CO., LLC, an Oklahoma limited
liability company ("DOC LEASE").
PRELIMINARY STATEMENTS:
(1) The Borrower, Parent, DOC and the Existing First Lien Collateral
Agent and certain financial institutions are parties to a Credit Agreement dated
as of October 23, 2003 and amended by Amendment No. 1, dated as of March 19,
2004, Amendment No. 2, dated as of May 7, 2004, and Amendment No. 3 dated as of
November 8, 2004 (as so amended, and as may be amended, amended and restated,
supplemented, otherwise modified, replaced or refinanced from time to time, the
"CREDIT AGREEMENT"), pursuant to which such financial institutions have agreed
to make loans and extend other financial accommodations to the Borrower.
(2) The Credit Parties (as defined herein) have granted to the Existing
First Lien Collateral Agent, for the benefit of the Existing First Lien
Collateral Parties, security interests in the Collateral (as hereinafter
defined) as security for payment and performance of the Existing First Lien
Obligations (as hereinafter defined) arising under the Credit Agreement.
(3) The Credit Parties and the Existing First Lien Collateral Trustee
are entering into an indenture dated as of November 8, 2004 (as amended, amended
and restated, supplemented or otherwise modified from time to time, the "2011
INDENTURE") which will provide for the issuance of (i) 8 3/8% Fixed Rate Notes
due 2011 in an aggregate principal amount not to exceed $250 million and (ii)
Floating Rate Notes due 2011 in an aggregate principal amount not to exceed $250
million (collectively, the "2011 NOTES").
(4) The Credit Parties and the Existing Second Lien Collateral Trustee
are entering into an indenture dated as of November 8, 2004 (as amended, amended
and restated, supplemented or otherwise modified from time to time, the "2012
INDENTURE") which will provide for the issuance of 9 7/8% Fixed Rate Notes due
2012 in an aggregate principal amount not to exceed $325 million (the "2012
NOTES").
(5) It is a condition to the effectiveness of the 2011 Indenture that
the Credit Parties grant to the Existing First Lien Collateral Trustee for the
benefit of the holders from time to time of the 2011 Notes (collectively, the
"2011 HOLDERS"), security interests in the Collateral
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as security for payment and performance of any obligations arising in respect of
the 2011 Indenture and the 2011 Notes.
(6) It is a condition to the effectiveness of the 2012 Indenture that
the Credit Parties grant to the Existing Second Lien Collateral Trustee for the
benefit of the holders from time to time of the 2012 Notes (collectively, the
"2012 HOLDERS"), security interests in the Collateral as security for payment
and performance of any obligations arising in respect of the 2012 Indenture and
the 2012 Notes.
(7) The Existing First Lien Secured Parties party to the Credit
Agreement have agreed to permit the grant of such security interests on the
terms and conditions set forth in this Intercreditor Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreement contained herein, the parties hereto have agreed as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. References herein to defined terms
in the Indentures, the Credit Agreement or any other agreement or document shall
refer to such defined terms respectively contained in the Indentures, the Credit
Agreement or such other agreement or document (as applicable) as it is in effect
on the date hereof without giving effect to any subsequent amendment thereof or
modification thereto, unless such amendment or modification is consented to by
each of the parties to this Agreement.
The following terms, as used herein, have the following meanings:
"BANKRUPTCY CODE" means the United States Bankruptcy Code (11
U.S.C. Sections 101 et seq.), as amended from time to time.
"BANKRUPTCY LAW" means any law relating to any proceeding of the type
referred to in Section 9(f) of the Credit Agreement, Section 4.01(b) under the
Indentures or under the Bankruptcy Code, or any similar foreign, federal or
state law for the relief of debtors.
"BORROWER" has the meaning specified on the recital of parties to this
Agreement.
"COMPARABLE EXISTING FIRST LIEN COLLATERAL DOCUMENT" means, in relation
to any Primary Collateral subject to any "Security Document" as defined in the
Credit Agreement, that "Security Document" as defined in the 2011 Indenture that
creates a security interest in the same Collateral granted by the same grantor
thereunder.
"COMPARABLE SECOND LIEN COLLATERAL DOCUMENT" means, in relation to any
Collateral subject to any First Lien Collateral Document, that Second Lien
Collateral Document that creates a security interest in the same Collateral,
granted by the same grantor thereunder.
"COMPARABLE THIRD LIEN COLLATERAL DOCUMENT" means, in relation to any
Other Collateral subject to any First Lien Collateral Document or any Second
Lien Collateral
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Document, that Third Lien Collateral Document that creates a security interest
in the same Collateral, granted by the same grantor thereunder.
"COLLATERAL" has the meaning specified in the Credit Agreement and the
Indentures.
"CREDIT AGREEMENT" has the meaning specified in the preliminary
statements hereto.
"CREDIT PARTIES" means each of the Borrower, the Parent, DOC and DOC
Lease, and each other Subsidiary of Parent from time to time party to a First
Lien Collateral Document, a Second Lien Collateral Document or a Third Lien
Collateral Document.
"CURRENT ASSETS" means all present and future rights, title and
interests of the Credit Parties in each of the following:
(1) all Receivables;
(2) all Inventory;
(3) all General Intangibles to the extent evidencing Receivables;
(4) all Documents, Instruments and Chattel Paper to the extent
evidencing any of the foregoing;
(5) all Deposit Accounts to the extent containing Proceeds of
Receivables or Inventory;
(6) all Supporting Obligations relating to any of the foregoing;
(7) all books and records pertaining to any of the foregoing; and
(8) to the extent not otherwise included, all Proceeds of Receivables
and Inventory (including, without limitation, any such Proceeds constituting
Investment Property; provided that, for purposes of this definition, each
capitalized term set forth in clauses (1) through (8) of this definition and not
otherwise defined in this Agreement shall be defined as set forth in Article 9
of the UCC).
"DOC" has the meaning specified in the recital of parties to this
Agreement.
"DOC LEASE" has the meaning specified in the recital of parties to this
Agreement.
"ELIGIBLE FIRST LIEN COLLATERAL DOCUMENTS" means any agreement or other
document pursuant to which any Lien or security interest is created or granted
to secure Eligible First Lien Obligations.
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"ELIGIBLE FIRST LIEN DEBT" means any indebtedness and other obligations
secured on a pari passu basis with the Existing First Lien Obligations or any
other Eligible First Lien Obligations (on all or part of the Collateral) so long
as such indebtedness and pari passu Liens are permitted under the provisions of
the Credit Agreement and the Indentures (if in effect) and any other Eligible
First Lien Debt Agreements then in effect.
"ELIGIBLE FIRST LIEN DEBT AGREEMENTS" means any document, agreement or
instrument (including any Eligible First Lien Collateral Documents) pursuant to
which any Eligible First Lien Debt is incurred or issued and which governs any
Eligible First Lien Debt.
"ELIGIBLE FIRST LIEN DEBT HOLDERS" means, at any time, the holders of
Eligible First Lien Debt under the Eligible First Lien Debt Agreements.
"ELIGIBLE FIRST LIEN OBLIGATIONS" means all obligations under the
Eligible First Lien Debt Agreements that are permitted under the Credit
Agreement and the Indentures (if in effect) to be secured by the Liens and
security interests created under the Eligible First Lien Collateral Documents on
a pari passu basis (on all or part of the Collateral) with the Existing First
Lien Obligations or any other Eligible First Lien Obligations so long as the
property and assets covered by such Liens and security interests also secure the
Existing First Lien Obligations or any other Eligible First Lien Obligations,
and such obligations shall have been designated as "First Lien Obligations"
under the Indentures (if in effect).
"ELIGIBLE FIRST LIEN REPRESENTATIVES" means, collectively, the
representatives of the Eligible First Lien Debt Holders under the Eligible First
Lien Debt Agreements including the Eligible First Lien Secured Parties.
"ELIGIBLE FIRST LIEN SECURED PARTIES" means, collectively, any
trustees, agents or other Persons to whom Liens or security interests were
granted pursuant to any Eligible First Lien Collateral Documents for the benefit
of any Eligible First Lien Debt Holders.
"ELIGIBLE SECOND LIEN COLLATERAL DOCUMENTS" means any agreement or
other document pursuant to which any Lien or security interest is created or
granted to secure Eligible Second Lien Obligations.
"ELIGIBLE SECOND LIEN DEBT" means the indebtedness and other
obligations secured on a pari passu basis with the Existing Second Lien
Obligations or any other Eligible Second Lien Obligations (on all or part of the
Collateral) so long as such indebtedness and pari passu Liens are permitted
under the provisions of the Credit Agreement and the Indentures (if in effect)
and any Eligible First Lien Debt Agreements then in effect.
"ELIGIBLE SECOND LIEN DEBT AGREEMENTS" means any document, agreement or
instrument (including any Eligible Second Lien Collateral Documents) pursuant to
which any Eligible Second Lien Debt is incurred or issued and which governs any
Eligible Second Lien Debt.
"ELIGIBLE SECOND LIEN DEBT HOLDERS" means, at any time the holders of
Eligible Second Lien Debt under the Eligible Second Lien Debt Agreements.
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"ELIGIBLE SECOND LIEN OBLIGATIONS" means all obligations under the
Eligible Second Lien Debt Agreements that are permitted under the Credit
Agreement and the Indentures (if in effect) to be secured by the Liens and
security interests created under the Eligible Second Lien Collateral Documents
on a pari passu basis (on all or part of the Collateral) with the Existing
Second Lien Obligations or any other Eligible Second Lien Obligations so long as
the property and assets covered by such Liens and security interests also secure
the Existing Second Lien Obligations or any other Eligible Second Lien
Obligations, and such obligations shall have been designated as "Second Lien
Obligations" under the Indentures (if in effect).
"ELIGIBLE SECOND LIEN REPRESENTATIVES" means, collectively, the
representatives of the Eligible Second Lien Debt Holders under the Eligible
Second Lien Debt Agreements including the Eligible Second Lien Secured Parties.
"ELIGIBLE SECOND LIEN SECURED PARTIES" means, collectively, any
trustees, agents or other Persons to whom Liens or security interests were
granted pursuant to any Eligible Second Lien Collateral Documents for the
benefit of any Eligible Second Lien Debt Holders.
"ELIGIBLE THIRD LIEN COLLATERAL DOCUMENTS" means any agreement or other
document pursuant to which any Lien or security interest is created or granted
to secure Eligible Third Lien Obligations.
"ELIGIBLE THIRD LIEN DEBT" means the indebtedness and other obligations
secured on a pari passu basis with the Existing Third Lien Obligations or any
other Eligible Third Lien Obligations (on all or part of the Other Collateral)
so long as such indebtedness and pari passu Liens are permitted under the
provisions of the Credit Agreement and the Indentures (if in effect) and any
Eligible First Lien Debt Agreements and Eligible Second Lien Debt Agreements
then in effect.
"ELIGIBLE THIRD LIEN DEBT AGREEMENTS" means any document, agreement or
instrument (including any Eligible Third Lien Collateral Documents) pursuant to
which any Eligible Third Lien Debt is incurred or issued and which governs any
Eligible Third Lien Debt.
"ELIGIBLE THIRD LIEN DEBT HOLDERS" means, at any time, the holders of
Eligible Third Lien Debt under the Eligible Third Lien Debt Agreements.
"ELIGIBLE THIRD LIEN OBLIGATIONS" means all obligations under the
Eligible Third Lien Debt Agreements that are permitted under the Credit
Agreement and Indentures (if in effect) to be secured by the Liens and security
interests created under the Eligible Third Lien Collateral Documents on a pari
passu basis (on all or part of the Other Collateral) with the Existing Third
Lien Obligations or any other Eligible Third Lien Obligations so long as the
property and assets covered by such Liens and security interests also secure the
Existing Third Lien Obligations or any other Eligible Third Lien Obligations,
and such obligations shall have been designated as "Third Lien Obligations"
under the Indentures (if in effect).
"ELIGIBLE THIRD LIEN REPRESENTATIVES" means, collectively, the
representatives of the Eligible Third Lien Debt Holders under the Eligible Third
Lien Debt Agreements including the Eligible Third Lien Secured Parties.
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"ELIGIBLE THIRD LIEN SECURED PARTIES" means, collectively, any
trustees, agents or other Persons to whom Liens or security interests were
granted pursuant to any Eligible Third Lien Collateral Documents for the benefit
of any Eligible Third Lien Debt Holders.
"ENFORCEMENT ACTION" means, with respect to the First Lien Obligations,
the Second Lien Obligations or the Third Lien Obligations, the exercise of any
rights and remedies with respect to any Collateral securing such obligations or
the commencement or prosecution of enforcement of any of the rights and remedies
under, as applicable, the First Lien Collateral Documents, the Second Lien
Collateral Documents or the Third Lien Collateral Documents, or applicable law,
including without limitation the exercise of any rights of set-off or
recoupment, and the exercise of any rights or remedies of a secured creditor
under the UCC of any applicable jurisdiction or under Bankruptcy Law.
"EXISTING FIRST LIEN COLLATERAL AGENT" has the meaning specified in the
recital of parties to this Agreement.
"EXISTING FIRST LIEN COLLATERAL DOCUMENTS" means (i) in respect of the
Other Collateral, the "Security Documents" as defined in the Credit Agreement
and (ii) in respect of the Primary Collateral, the "Security Documents" as
defined in the Credit Agreement and in the 2011 Indenture and, in each case, to
the extent such Security Documents relate to the Existing First Lien
Obligations.
"EXISTING FIRST LIEN COLLATERAL REPRESENTATIVE" means (i) so long as
any Obligations under the Credit Agreement are outstanding, the Existing First
Lien Collateral Agent, and (ii) at any time thereafter, the Existing First Lien
Collateral Trustee.
"EXISTING FIRST LIEN COLLATERAL TRUSTEE" has the meaning specified in
the recital of parties to this Agreement.
"EXISTING FIRST LIEN OBLIGATIONS" means, collectively, (i) the
"Obligations" as defined in the Credit Agreement and (ii) the "First Lien
Obligations" as defined in the Indentures.
"EXISTING FIRST LIEN SECURED PARTIES" means (i) in respect of the Other
Collateral, the "Secured Parties" as such term is defined in the Credit
Agreement and (ii) in respect of the Primary Collateral, (x) the "Secured
Parties" as such term is defined in the Credit Agreement, (y) the Existing First
Lien Collateral Trustee and (z) the 2011 Holders.
"EXISTING SECOND LIEN COLLATERAL AGENT" has the meaning specified in
the recital of parties to this Agreement.
"EXISTING SECOND LIEN COLLATERAL DOCUMENTS" means (i) in respect of the
Other Collateral, the "Security Documents" as defined in the 2011 Indenture and
to the extent such Security Documents relate to the Existing Second Lien
Obligations and (ii) in respect of the Primary Collateral, the "Security
Documents" as defined in the 2012 Indenture and to the extent such Security
Documents relate to the Existing Second Lien Obligations.
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"EXISTING SECOND LIEN COLLATERAL REPRESENTATIVE" means (i) in respect
of the Other Collateral, so long as such Other Collateral secures the First Lien
Obligations, the Existing First Lien Collateral Trustee, and (ii) in respect of
the Primary Collateral, the Existing Second Lien Collateral Trustee.
"EXISTING SECOND LIEN COLLATERAL TRUSTEE" has the meaning specified in
the recital of parties to this Agreement.
"EXISTING SECOND LIEN OBLIGATIONS" means (i) in respect of the Other
Collateral, the 2011 Notes, the Note Guarantees with respect to the 2011 Notes
and the 2011 Note Obligations, and (ii) in respect of the Primary Collateral,
the 2012 Notes, the Note Guarantees with respect to the 2012 Notes and the 2012
Note Obligations.
"EXISTING SECOND LIEN SECURED PARTIES" means (i) in respect of the
Other Collateral, so long as such Other Collateral secures Existing First Lien
Obligations, the Existing First Lien Collateral Trustee and the 2011 Holders,
and (ii) in respect of the Primary Collateral, so long as such Primary
Collateral secures Existing First Lien Obligations, the Existing Second Lien
Collateral Trustee and the 2012 Holders.
"EXISTING THIRD LIEN COLLATERAL DOCUMENTS" means, in respect of the
Other Collateral, the "Security Documents" as defined in the 2012 Indenture and
to the extent such Security Documents relate to the Existing Third Lien
Obligations.
"EXISTING THIRD LIEN COLLATERAL REPRESENTATIVE" means, in respect of
the Other Collateral, the Existing Second Lien Collateral Trustee.
"EXISTING THIRD LIEN OBLIGATIONS" means, in respect of the Other
Collateral, the 2012 Notes, the Note Guarantees with respect to the 2012 Notes
and the 2012 Note Obligations.
"EXISTING THIRD LIEN SECURED PARTIES" means, in respect of the Other
Collateral, the Existing Second Lien Collateral Trustee and the 2012 Holders.
"FIRST LIEN COLLATERAL DOCUMENTS" means, collectively, the Existing
First Lien Collateral Documents and the Eligible First Lien Collateral
Documents.
"FIRST LIEN CONTROLLING COLLATERAL PARTIES" means (a) until the
Existing First Lien Obligations have been Paid in Full, the Existing First Lien
Collateral Representative, on behalf of itself and the other Existing First Lien
Secured Parties and (b) if the Existing First Lien Obligations have been Paid in
Full and any Eligible First Lien Obligations are outstanding, the Required
Eligible First Lien Secured Parties.
"FIRST LIEN OBLIGATIONS" means, collectively, the Existing First Lien
Obligations and the Eligible First Lien Obligations.
"FIRST LIEN REPRESENTATIVES" means, collectively, (a) the Existing
First Lien Collateral Representative and (b) the Eligible First Lien
Representatives.
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"FIRST LIEN SECURED PARTIES" means, collectively, the Existing First
Lien Secured Parties and the Eligible First Lien Secured Parties.
"INDENTURES" means, collectively, the 2011 Indenture and the 2012
Indenture.
"INSOLVENCY PROCEEDING" means any proceeding in respect of bankruptcy,
insolvency, winding up, receivership, dissolution or assignment for the benefit
of creditors, in each of the foregoing events whether under the Bankruptcy Code
or any other Bankruptcy Law.
"LIEN" has the meaning specified in the Credit Agreement and the
Indentures.
"NOTE GUARANTEES" has the meaning specified in the Indentures.
"NOTES" means, collectively, the 2011 Notes and the 2012 Notes.
"OTHER COLLATERAL" means the Current Assets.
"OTHER COLLATERAL STANDSTILL PERIOD" has the meaning specified in
Section 3.01(a). "PARENT" has the meaning specified in the recital of parties to
this Agreement.
"PAYMENT IN FULL" means (X) in respect of the First Lien Obligations,
(a) the payment in full in cash of (i) all principal and interest in respect of
the First Lien Obligations and (ii) all other valid First Lien Obligations that
are claimed within 90 days of the last date on which all principal and interest
in respect of the First Lien Obligations shall have been paid in full in cash,
(b) the termination in full of all commitments in respect of the First Lien
Obligations and (c) to the extent any First Lien Obligations shall consist of
letters of credit, the discharge and/or the cash collateralization in full of
such letters of credit, and (Y) in respect of the Second Lien Obligations, (a)
the payment in full in cash of (i) all principal and interest in respect of the
Second Lien Obligations and (ii) all other valid Second Lien Obligations that
are claimed within 90 days of the last date on which all principal and interest
in respect of the Second Lien Obligations shall have been paid in full in cash,
(b) the termination in full of all commitments in respect of the Second Lien
Obligations and (c) to the extent any Second Lien Obligations shall consist of
letters of credit, the discharge and/or the cash collateralization in full of
such letters of credit. "PAID IN FULL" shall have the correlative meaning. It is
being understood that any Notes defeased in accordance with the Indentures shall
be deemed Paid in Full for purposes of this Agreement.
"PERSON" has the meaning specified in the Credit Agreement and the
Indentures.
"POST-PETITION INTEREST" means any interest or entitlement to fees or
expenses that accrues after the commencement of any Insolvency Proceeding,
whether or not allowed or allowable in any such Insolvency Proceeding.
"PRIMARY COLLATERAL" means the Collateral, excluding the Other
Collateral.
"PRIMARY COLLATERAL STANDSTILL PERIOD" has the meaning specified in
Section 3.01(b).
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"RECEIVABLE" means any right to a monetary payment for goods which have
been sold, leased, licensed, assigned or otherwise disposed of, or for services
which have been rendered, whether or not such right is evidenced by an
Instrument or Chattel Paper and whether or not it has been earned by performance
(including, without limitation, any Account); provided that, for purposes of
this definition, each capitalized term not otherwise defined in this Agreement
shall be defined as set forth in Article 9 of the UCC.
"REQUIRED ELIGIBLE FIRST LIEN DEBT HOLDERS" means Eligible First Lien
Debt Holders that own or hold more than 50% of all outstanding Eligible First
Lien Debt.
"REQUIRED ELIGIBLE FIRST LIEN REPRESENTATIVES" means the agents,
trustees and other representatives representing the Required Eligible First Lien
Debt Holders.
"REQUIRED ELIGIBLE FIRST LIEN SECURED PARTIES" means the Required
Eligible First Lien Representatives or the Required Eligible First Lien Debt
Holders.
"REQUIRED ELIGIBLE SECOND LIEN DEBT HOLDERS" means Eligible Second Lien
Debt Holders that own or hold more than 50% of all outstanding Eligible Second
Lien Debt.
"REQUIRED ELIGIBLE SECOND LIEN REPRESENTATIVES" means the agents,
trustees and other representatives representing the Required Eligible Second
Lien Debt Holders.
"REQUIRED ELIGIBLE SECOND LIEN SECURED PARTIES" means the Required
Eligible Second Lien Representatives or the Required Eligible Second Lien Debt
Holders.
"REQUIRED ELIGIBLE THIRD LIEN DEBT HOLDERS" means Eligible Third Lien
Debt Holders that own or hold more than 50% of all outstanding Eligible Third
Lien Debt.
"REQUIRED ELIGIBLE THIRD LIEN REPRESENTATIVES" means the agents,
trustees and other representatives representing the Required Eligible Third Lien
Debt Holders.
"REQUIRED ELIGIBLE THIRD LIEN SECURED PARTIES" means the Required
Eligible Third Lien Representatives or the Required Eligible Third Lien Debt
Holders.
"SECOND LIEN COLLATERAL DOCUMENTS" means, collectively, the Existing
Second Lien Collateral Documents and the Eligible Second Lien Collateral
Documents.
"SECOND LIEN CONTROLLING COLLATERAL PARTIES" means (a) until the
Existing Second Lien Obligations have been Paid in Full, the Existing Second
Lien Collateral Representative, on behalf of itself and the other Existing
Second Lien Secured Parties and (b) if the Existing Second Lien Obligations have
been Paid in Full and any Eligible Second Lien Obligations are outstanding, the
Required Eligible Second Lien Secured Parties.
"SECOND LIEN OBLIGATIONS" means, collectively, the Existing Second Lien
Obligations and the Eligible Second Lien Obligations.
"SECOND LIEN REPRESENTATIVES" means, collectively, (a) the Existing
Second Lien Collateral Representative and (b) the Eligible Second Lien
Representatives.
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"SECOND LIEN SECURED PARTIES" means, collectively, the Existing Second
Lien Secured Parties and the Eligible Second Lien Secured Parties.
"SECURED PARTIES" means, collectively, the First Lien Secured Parties,
the Second Lien Secured Parties and the Third Lien Secured Parties.
"STANDSTILL PERIODS" means collectively, the Other Collateral
Standstill Period and the Primary Collateral Standstill Period.
"THIRD LIEN CONTROLLING COLLATERAL PARTIES" means (a) until the
Existing Third Lien Obligations have been Paid in Full, the Existing Third Lien
Collateral Representative, on behalf of itself and the other Existing Third Lien
Secured Parties and (b) if the Existing Third Lien Obligations have been Paid in
Full and any Eligible Third Lien Obligations are outstanding, the Required
Eligible Third Lien Secured Parties.
"THIRD LIEN COLLATERAL DOCUMENTS" means, collectively, the Existing
Third Lien Collateral Documents and the Eligible Third Lien Collateral
Documents.
"THIRD LIEN OBLIGATIONS" means, collectively, the Existing Third Lien
Obligations and the Eligible Third Lien Obligations.
"THIRD LIEN REPRESENTATIVES" means, collectively, the Existing Third
Lien Representatives and the Eligible Third Lien Representatives.
"THIRD LIEN SECURED PARTIES" means, collectively, the Existing Third
Lien Secured Parties and the Eligible Third Lien Secured Parties.
"2011 HOLDERS" has the meaning specified in the preliminary statements
to this Agreement.
"2011 INDENTURE" has the meaning specified in the preliminary
statements to this Agreement.
"2011 NOTE OBLIGATIONS" has the meaning specified in the 2011
Indenture.
"2011 NOTES" has the meaning specified in the preliminary statements to
this Agreement.
"2012 HOLDERS" has the meaning specified in the preliminary statements
to this Agreement.
"2012 INDENTURE" has the meaning specified in the preliminary
statements to this Agreement.
"2012 NOTE OBLIGATIONS" has the meaning specified in the 2012
Indenture.
"2012 NOTES" has the meaning specified in the preliminary statements to
this Agreement.
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"UCC" means the Uniform Commercial Code as in effect, from time to
time, in the State of New York; provided, that, if perfection or the effect of
perfection or non-perfection or the priority of any security interest in any
Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of New York, "UCC" means the Uniform
Commercial Code as in effect from time to time in such other jurisdiction for
purposes of the provisions hereof relating to such perfection, effect of
perfection or non-perfection or priority.
ARTICLE II
LIEN PRIORITIES
SECTION 2.01. Relative Priorities. (a) Any and all Liens now existing
or hereafter created or arising in favor of any Second Lien Secured Party on
Primary Collateral securing the Second Lien Obligations, regardless of how
acquired, whether by grant, statute, operation of law, 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 Lien Secured
Parties in respect of Primary Collateral securing the First Lien Obligations,
notwithstanding (i) anything to the contrary contained in any agreement or
filing to which any Second Lien 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 UCC or any applicable law or any First Lien Collateral Document
or Second Lien Collateral Document or any other circumstance whatsoever and
(iii) the fact that any such Liens in favor of any First Lien Secured Party
securing any of the First Lien Obligations are (x) subordinated to any Lien
securing any obligation of any of the Credit Parties other than the Second Lien
Obligations or (y) otherwise subordinated, voided, avoided, invalidated or
lapsed.
(b) Any and all Liens now existing or hereafter created or arising in
favor of any Second Lien Secured Party on Other Collateral securing the Second
Lien Obligations, regardless of how acquired, whether by grant, statute,
operation of law, 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 Lien Secured Parties in respect of Other
Collateral securing the First Lien Obligations, notwithstanding (i) anything to
the contrary contained in any agreement or filing to which any Second Lien
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 UCC or
any applicable law or any First Lien Collateral Document, Second Lien Collateral
Document or Third Lien Collateral Document or any other circumstance whatsoever
and (iii) the fact that any such Liens in favor of any First Lien Secured Party
securing any of the First Lien Obligations are (x) subordinated to any Lien
securing any obligation of any of the Credit Parties other than the Second Lien
Obligations and the Third Lien Obligations or (y) otherwise subordinated,
voided, avoided, invalidated or lapsed.
(c) Any and all Liens now existing or hereafter created or arising in
favor of any Third Lien Secured Party on Other Collateral securing the Third
Lien Obligations, regardless
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of how acquired, whether by grant, statute, operation of law, 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 Lien
Secured Parties and the Second Lien Secured Parties in respect of Other
Collateral securing, respectively, the First Lien Obligations and the Second
Lien Obligations, notwithstanding (i) anything to the contrary contained in any
agreement or filing to which any Third Lien 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 provisions of the UCC or any applicable law or any First
Lien Collateral Document, Second Lien Collateral Document or Third Lien
Collateral Document or any other circumstance whatsoever and (iii) the fact that
any such Liens in favor of any First Lien Secured Party or any Second Lien
Secured Party securing any of the First Lien Obligations or any of the Second
Lien Obligations are (x) subordinated to any Lien securing any obligation of any
of the Credit Parties other than the Second Lien Obligations and the Third Lien
Obligations or (y) otherwise subordinated, voided, avoided, invalidated or
lapsed.
(d) It is hereby expressly agreed for all purposes of this Agreement
that (i) in respect of Other Collateral, any obligations of the Credit Parties
arising under the Credit Agreement shall be deemed First Lien Obligations, any
obligations of the Credit Parties arising under the 2011 Indenture shall be
deemed Second Lien Obligations and any obligations of the Credit Parties arising
under the 2012 Indenture shall be deemed Third Lien Obligations, and (ii) in
respect of Primary Collateral, any obligations of the Credit Parties arising
under the Credit Agreement or the 2011 Indenture shall be deemed First Lien
Obligations secured by such Primary Collateral on a pari passu basis and any
obligations of the Credit Parties under the 2012 Indenture shall be deemed
Second Lien Obligations.
(e) No First Lien Secured Party, Second Lien Secured Party or Third
Lien Secured Party shall object to or contest, or support any other Person in
contesting or objecting to, in any proceeding (including without limitation, any
Insolvency Proceeding), the validity, extent, perfection, priority or
enforceability of any security interest in the Collateral granted to the other.
Notwithstanding any failure by any First Lien Secured Party, Second Lien Secured
Party or Third Lien Secured Party to perfect its security interests in the
Collateral or any avoidance, invalidation or subordination by any third party or
court of competent jurisdiction of the security interests in the Collateral
granted to the First Lien Secured Parties, the Second Lien Secured Parties or
the Third Lien Secured Parties, the priority and rights as between the First
Lien Secured Parties, the Second Lien Secured Parties and the Third Lien Secured
Parties with respect to the Collateral shall be as set forth herein.
SECTION 2.02. Nature of First Lien Obligations, Second Lien Obligations
and Third Lien Obligations. (a) Each Second Lien Representative on behalf of
itself and the Second Lien Secured Parties acknowledges that a portion of the
First Lien Obligations are 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 Lien Obligations
may be modified, extended or amended from time to time, and that the aggregate
amount of the First Lien Obligations may be increased, replaced or refinanced,
in each event, without notice to or consent by the Second Lien Secured Parties
and the Third Lien Secured
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Parties and without affecting the provisions hereof (subject, in each case, to
the provisions set forth in Section 11.1 of the Credit Agreement (if then in
effect), Article IX of the 2011 Indenture (if then in effect) and any similar
sections set forth in any Eligible First Lien Debt Agreements).
(b) Each Third Lien Representative on behalf of itself and the Third
Lien Secured Parties acknowledges that a portion of the First Lien Obligations
are 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 Lien Obligations and the Second Lien
Obligations may be modified, extended or amended from time to time, and that the
aggregate amount of the First Lien Obligations and the Second Lien Obligations
may be increased, replaced or refinanced, in each event, without notice to or
consent by the Third Lien Secured Parties and without affecting the provisions
hereof (subject, in each case, to the provisions set forth in Section 11.1 of
the Credit Agreement (if then in effect), Article IX of the 2011 Indenture (if
then in effect), Article IX of the 2012 Indenture (if then in effect) and any
similar sections set forth in any Eligible First Lien Debt Agreements and any
Eligible Second Lien Debt Agreements).
(c) The lien priorities provided in Section 2.01 shall not be altered
or otherwise affected by any such amendment, modification, supplement,
extension, repayment, reborrowing, increase, replacement, renewal, restatement
or refinancing of any of the First Lien Obligations, the Second Lien Obligations
or the Third Lien Obligations, or any portion of the foregoing.
SECTION 2.03. Agreements Regarding Actions to Perfect Liens. (a) Until
Payment in Full of all First Lien Obligations, each Second Lien Representative
on behalf of itself and the Second Lien Secured Parties and each Third Lien
Representative on behalf of itself and the Third Lien 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 such Second Lien
Representative, Second Lien Secured Party, Third Lien Representative or Third
Lien Secured Party, as applicable, shall be in form reasonably satisfactory to
the First Lien Controlling Collateral Parties. To the extent the First Lien
Obligations shall have been Paid in Full and so long as the Second Lien
Obligations shall not have been Paid in Full, each Third Lien Representative on
behalf of itself and the Third Lien 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 such Third Lien Representative
or such Third Lien Secured Party shall be in form reasonably satisfactory to the
Second Lien Controlling Collateral Parties.
(b) Without the prior written consent of the First Lien Controlling
Collateral Parties, no Second Lien Collateral Document or Third Lien Collateral
Document may be amended, supplemented or otherwise modified or entered into to
the extent such amendment, supplement or modification, or the terms of any new
Second Lien Collateral Document or any new Third Lien Collateral Document, would
be inconsistent with any of the terms of the First Lien Collateral Documents.
Upon Payment in Full of all First Lien Obligations, without the prior written
consent of the Second Lien Controlling Collateral Parties, no Third Lien
Collateral Document may be amended, supplemented or otherwise modified or
entered into to the extent such amendment, supplement or modification, or the
terms of any new Third Lien Collateral Document, would be inconsistent with any
of the terms of the Second Lien Collateral
14
Documents. Each Second Lien Representative on behalf of the Second Lien Secured
Parties and each Third Lien Representative on behalf of the Third Lien Secured
Parties agrees that, as applicable, each Second Lien Collateral Document and
each Third Lien Collateral Document shall include the following language:
"Notwithstanding anything herein to the contrary, the liens and
security interest granted to the [Second Lien Representative, for the benefit of
the Second Lien Secured Parties and/or Third Lien Representative, for the
benefit of the Third Lien Secured Parties,] pursuant to this [Agreement] and the
exercise of any right or remedy by such [Second Lien Representative, for the
benefit of the Second Lien Secured Parties and/or Third Lien Representative, for
the benefit of the Third Lien Secured Parties,] hereunder are subject to the
provisions of that certain Intercreditor Agreement, dated as of November 8, 2004
(the "INTERCREDITOR AGREEMENT"), among ▇▇▇▇▇▇ Commercial Paper Inc., as Existing
First Lien Collateral Agent, Bank of Oklahoma, N.A., as Existing First Lien
Collateral Trustee, BNY Midwest Trust Company, as Existing Second Lien
Collateral Trustee, ▇▇▇▇▇▇ Cellular Systems, Inc., an Oklahoma corporation,
▇▇▇▇▇▇ Communications Corporation, an Oklahoma corporation, ▇▇▇▇▇▇ Operating
Co., L.L.C., an Oklahoma limited liability company, and DOC Lease Co., LLC, an
Oklahoma limited liability company, and such other parties as may be added
thereto from time to time in accordance with Section 9.07 thereof. In the event
of any conflict between the terms of the Intercreditor Agreement and this
[Agreement], the terms of the Intercreditor Agreement shall govern."
(c) Each First Lien Secured Party hereby acknowledges that, to the
extent that it holds, or a third party holds on its behalf, physical possession
of or "control" (as defined in the UCC) over Collateral pursuant to any of the
First Lien Collateral Documents, such possession or control is also held as a
bailee for and for the benefit of (i) the Second Lien Representatives and the
other Second Lien Secured Parties and (ii) the Third Lien Representatives and
the other Third Lien Secured Parties (such bailment being intended, among other
things, to satisfy the requirements of Sections 8-301(a)(2) and 9-313(c) of the
UCC) and in each case solely to the extent required to perfect and enforce their
security interest in such Collateral. Nothing in the preceding sentence shall be
construed to impose any duty on any First Lien Secured Party (or any third party
acting on its behalf) with respect to such Collateral or provide (i) any Second
Lien Representative or any other Second Lien Secured Party or (ii) any Third
Lien Representative or any other Third Lien Secured Party with any rights with
respect to such Collateral beyond those specified in this Agreement, the Second
Lien Collateral Documents or the Third Lien Collateral Documents, provided that
subsequent to the Payment in Full of the First Lien Obligations, the applicable
First Lien Secured Party shall (x) deliver to the Second Lien Controlling
Collateral Parties, at the Credit Parties' sole cost and expense, the Collateral
in its possession or control together with any necessary endorsements to the
extent required by the Second Lien Collateral Documents or (y) direct and
deliver such Collateral as a court of competent jurisdiction otherwise directs.
(d) Each Second Lien Secured Party hereby acknowledges that, to the
extent that the First Lien Obligations shall have been Paid in Full and it
holds, or a third party holds on its behalf, physical possession of or "control"
(as defined in the UCC) over Collateral pursuant to any of the Second Lien
Collateral Documents, such possession or control is also held as a bailee for
and for the benefit of the Third Lien Representatives and the other Third Lien
Secured Parties (such bailment being intended, among other things, to satisfy
the requirements of Sections
15
8-301(a)(2) and 9-313(c) of the UCC) solely to the extent required to perfect
and enforce their security interest in such Collateral. Nothing in the preceding
sentence shall be construed to impose any duty on any Second Lien Secured Party
(or any third party acting on its behalf) with respect to such Collateral or
provide any Third Lien Representative or any other Third Lien Secured Party with
any rights with respect to such Collateral beyond those specified in this
Agreement or the Third Lien Collateral Documents, provided that subsequent to
the Payment in Full of the Second Lien Obligations, the applicable Second Lien
Secured Party shall (x) deliver to the Third Lien Controlling Collateral
Parties, at the Credit Parties' sole cost and expense, the Collateral in its
possession or control together with any necessary endorsements to the extent
required by the Third Lien Collateral Documents or (y) direct and deliver such
Collateral as a court of competent jurisdiction otherwise directs.
(e) It is understood by the parties hereto that the provisions of this
Agreement are intended solely to govern the respective Lien priorities as among
the First Lien Secured Parties, the Second Lien Secured Parties and the Third
Lien Secured Parties and shall not impose on the First Lien Secured Parties,
Second Lien Secured Parties or the Third Lien Secured Parties any obligations in
respect of the disposition of any 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.
SECTION 2.04. No New Liens. (a) So long as the First Lien Obligations
have not been Paid in Full, the parties hereto agree that if any Second Lien
Secured Party or any Third Lien Secured Party shall acquire or hold any Lien on
any assets of any of the Credit Parties securing any Second Lien Obligation or
any Third Lien Obligation, as applicable, which assets are not also subject to
the first-priority Lien of the First Lien Secured Parties under the First Lien
Collateral Documents, then the applicable Second Lien Representative or Third
Lien Representative, upon demand by any First Lien Secured Party, will without
the need for any further consent of any other Second Lien Secured Party or Third
Lien Secured Party, notwithstanding anything to the contrary in any other Second
Lien Collateral Document or Third Lien Collateral Document assign such Lien to
the First Lien Secured Parties as security for the First Lien Obligations (in
which case the Second Lien Secured Parties and Third Lien Secured Parties may
retain a junior lien on such assets subject to the terms hereof).
(b) To the extent the First Lien Obligations shall have been Paid in
Full and so long as the Second Lien Obligations shall not have been Paid in
Full, the parties hereto agree that if any Third Lien Secured Party shall
acquire or hold any Lien on any assets of any of the Credit Parties securing any
Third Lien Obligation which assets are not also subject to the second-priority
Lien of the Second Lien Secured Parties under the Second Lien Collateral
Documents, then the applicable Third Lien Representative, upon demand by any
Second Lien Secured Party, will without the need for any further consent of any
other Third Lien Secured Party, notwithstanding anything to the contrary in any
other Third Lien Collateral Document assign such Lien to the Second Lien Secured
Parties as security for the Second Lien Obligations (in which case the Third
Lien Secured Parties may retain a junior lien on such assets subject to the
terms hereof).
(c) So long as the Second Lien Obligations and the Third Lien
Obligations have not been Paid in Full, the parties hereto agree that if any
First Lien Secured Party shall
16
acquire or hold any Lien on any assets of any of the Credit Parties securing any
First Lien Obligation which assets are not also subject to the second-priority
Lien of the Second Lien Secured Parties under the Second Lien Collateral
Documents or the third-priority Lien of the Third Lien Secured Parties under the
Third Lien Collateral Documents, then upon demand by any Second Lien Secured
Party or any Third Lien Secured Party, the applicable Credit Party will, without
the need for any further consent of any First Lien Secured Party,
notwithstanding anything to the contrary in any other First Lien Collateral
Document, grant in favor of the Second Lien Secured Parties and the Third Lien
Secured Parties a Lien on such assets as security for the Second Lien
Obligations and the Third Lien Obligations subject to the terms hereof.
(d) To the extent the First Lien Obligations shall have been Paid in
Full and so long as the Second Lien Obligations shall not have been Paid in
Full, the parties hereto agree that if any Second Lien Secured Party shall
acquire or hold any Lien on any assets of any of the Credit Parties securing any
Second Lien Obligation which assets are not also subject to the third-priority
Lien of the Third Lien Secured Parties under the Third Lien Collateral
Documents, then upon demand by any Third Lien Secured Party, the applicable
Credit Party will, without the need for any further consent of any Second Lien
Secured Party, notwithstanding anything to the contrary in any other Second Lien
Collateral Document, grant in favor of the Third Lien Secured Parties a Lien on
such assets as security for the Third Lien Obligations subject to the terms
hereof.
ARTICLE III
ENFORCEMENT RIGHTS
SECTION 3.01. Exclusive Enforcement. (a) Until the First Lien
Obligations secured on a first priority basis by Other Collateral shall have
been Paid in Full, whether or not an Insolvency Proceeding has been commenced by
or against any of the Credit Parties, the applicable First Lien Controlling
Collateral Parties shall have the exclusive right to take and continue any
Enforcement Action with respect to the Other Collateral, without any
consultation with or consent of any Second Lien Secured Party or any Third Lien
Secured Party, but subject to the proviso set forth in Sections 5.01(a) and
5.01(b); provided, however, that notwithstanding anything to the contrary in
this Section 3.01(a), the applicable Second Lien Controlling Collateral Parties
may exercise any or all such rights and take or institute all such other actions
in respect of the Other Collateral and make such objections after the passage of
a period of 180 days (the "OTHER COLLATERAL STANDSTILL PERIOD") from the date of
delivery of a notice in writing to the applicable First Lien Controlling
Collateral Parties of their intention to exercise their right to take such
actions in respect of such Other Collateral, which notice may only be delivered
following the occurrence of and during the continuation of an event of default
in respect of a First Lien Obligation secured by the Other Collateral; provided
further, however, that notwithstanding anything herein to the contrary, in no
event shall the Second Lien Controlling Collateral Parties or any other Second
Lien Secured Parties exercise or continue to exercise any rights or remedies or
take such other actions with respect to the Other Collateral as aforesaid if,
notwithstanding the expiration of the Other Collateral Standstill Period, the
First Lien Controlling Collateral Parties or any other First Lien Secured
Parties shall have commenced and shall continue the exercise of any of their
rights or remedies with respect to the Other Collateral (prompt notice of such
exercise to be given to the applicable Second Lien Controlling Collateral
Parties). Upon the occurrence and during the continuance of a default or an
event of default in
17
respect of a First Lien Obligation secured by Other Collateral, the applicable
First Lien Controlling Collateral Parties may take and continue any Enforcement
Action with respect to the First Lien Obligations secured by Other Collateral
and with respect to the Other Collateral in such order and manner as they may
determine in their sole discretion.
(c) Until the First Lien Obligations secured by Primary Collateral have
been Paid in Full, whether or not an Insolvency Proceeding has been commenced by
or against any of the Credit Parties, the applicable First Lien Controlling
Collateral Parties shall have the exclusive right to take and continue any
Enforcement Action with respect to such Primary Collateral, without any
consultation with or consent of any Second Lien Secured Party, but subject to
the proviso set forth in Section 5.01(a); provided, however, that
notwithstanding anything to the contrary in this Section 3.01(b), the applicable
Second Lien Controlling Collateral Parties may exercise any or all such rights
and take or institute all such other actions in respect of the Primary
Collateral and make such objections after the passage of a period of 180 days
(the "PRIMARY COLLATERAL STANDSTILL PERIOD") from the date of delivery of a
notice in writing to the applicable First Lien Controlling Collateral Parties of
their intention to exercise their right to take such actions in respect of such
Primary Collateral, which notice may only be delivered following the occurrence
of and during the continuation of an event of default in respect of a First Lien
Obligation secured by the Primary Collateral and to the extent such First Lien
Obligations shall not exceed $100,000,000 (it being understood that the
applicable Second Lien Controlling Collateral Parties shall not be entitled to
exercise such rights or take or institute such claims in respect of the Primary
Collateral for as long as the First Lien Obligations in respect of the Credit
Agreement shall not have been Paid in Full); provided further, however, that
notwithstanding anything herein to the contrary, in no event shall the Second
Lien Controlling Collateral Parties or any other Second Lien Secured Party
exercise or continue to exercise any rights or remedies or take such other
actions with respect to the Primary Collateral as aforesaid if, notwithstanding
the expiration of the Primary Collateral Standstill Period, the First Lien
Controlling Collateral Parties or any other First Lien Secured Parties shall
have commenced and shall continue the exercise of any of their rights or
remedies with respect to the Primary Collateral (prompt notice of such exercise
to be given to the applicable Second Lien Controlling Collateral Parties). Upon
the occurrence and during the continuance of a default or an event of default in
respect of a First Lien Obligation secured by Primary Collateral, the applicable
First Lien Controlling Collateral Parties may take and continue any Enforcement
Action with respect to the First Lien Obligations secured by Primary Collateral
and with respect to the Primary Collateral in such order and manner as they may
determine in their sole discretion.
SECTION 3.02. Standstill and Waivers. (a) Each Second Lien
Representative, each Second Lien Secured Party, each Third Lien Representative
and each Third Lien Secured Party agrees that, until the First Lien Obligations
have been Paid in Full, subject to the provisos set forth in Sections 5.01(a)
and 5.01(b) and the Standstill Periods set forth above:
(i) 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 Lien
Obligation or any Third Lien Obligation pari passu with or senior to, or
to give any Second Lien Secured Party or any Third Lien Secured Party any
preference or priority relative to, the Liens with respect to the First
Lien Obligations or the First Lien Secured Parties with respect to any of
the Collateral;
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(ii) they will not oppose, object to, interfere with, hinder or delay,
in any manner, whether by judicial proceedings (including without
limitation the filing of an Insolvency Proceeding) or otherwise, any
foreclosure, sale, lease, exchange, transfer or other disposition of the
Collateral, in each case so long as permitted by the First Lien Collateral
Documents and this Agreement, by any First Lien Representative or any
other First Lien Secured Party, or any other Enforcement Action taken by
or on behalf of any First Lien Representative or any other First Lien
Secured Party or forbearance from taking any Enforcement Action in
accordance with the First Lien Collateral Documents and this Agreement;
(iii) they have no right to (x) direct either any First Lien
Representative or any other First Lien Secured Party to exercise any
right, remedy or power with respect to the Collateral or pursuant to the
First Lien Collateral Documents or (y) consent or object to the exercise
by any First Lien Representative or any other First Lien Secured Party of
any right, remedy or power with respect to the Collateral or pursuant to
the First Lien Collateral 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 (iii), whether as a junior
lien creditor or otherwise, they hereby irrevocably waive such right);
(iv) they will not institute any suit or other proceeding or assert in
any suit, Insolvency Proceeding or other proceeding any claim against
either any First Lien Representative or any other First Lien Secured Party
seeking damages from or other relief by way of specific performance,
instructions or otherwise, with respect to, and neither any First Lien
Representative nor any other First Lien Secured Party shall be liable for,
any action taken or omitted to be taken by any First Lien Representative
or any other First Lien Secured Party with respect to the Collateral or
pursuant to the First Lien Collateral Documents;
(v) they will not make any judicial or nonjudicial claim or demand or
commence any judicial or non-judicial proceedings against any Credit
Parties or any of their affiliates under or with respect to any Second
Lien Collateral Document or any Third Lien Collateral Document seeking
payment or damages from or other relief by way of specific performance,
instructions or otherwise under or with respect to any Second Lien
Collateral Document or any Third Lien Collateral Document (other than
filing a proof of claim) or exercise any right, remedy or power under or
with respect to, or otherwise take any action to enforce (other than
filing a proof of claim) any Second Lien Collateral Document or any Third
Lien Collateral Document;
(vi) 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, attempt any action to take
possession of any Collateral, exercise any right, remedy or power with
respect to, or otherwise take any action to enforce their interest in or
realize upon, the Collateral or pursuant to the Second Lien Collateral
Documents or the Third Lien Collateral Documents; and
(vii) they will not seek, and hereby waive any right, to have the
Collateral or any part thereof marshaled upon any foreclosure or other
disposition of the Collateral.
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(b) To the extent the First Lien Obligations shall have been Paid in
Full and so long as the Second Lien Obligations shall not have been Paid in
Full, each Third Lien Representative and each Third Lien Secured Party agrees
that, subject to the proviso set forth in Section 5.01(b):
(i) 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 Third Lien
Obligation pari passu with or senior to, or to give any Third Lien Secured
Party any preference or priority relative to, the Liens with respect to
the Second Lien Obligations or the Second Lien Secured Parties with
respect to any of the Collateral;
(ii) they will not oppose, object to, interfere with, hinder or delay,
in any manner, whether by judicial proceedings (including without
limitation the filing of an Insolvency Proceeding) or otherwise, any
foreclosure, sale, lease, exchange, transfer or other disposition of the
Collateral, in each case so long as permitted by the terms of the Second
Lien Collateral Documents and this Agreement, by any Second Lien
Representative or any other Second Lien Secured Party, or any other
Enforcement Action taken by or on behalf of any Second Lien Representative
or any other Second Lien Secured Party or forbearance from taking any
Enforcement Action in accordance with the Second Lien Collateral Documents
and this Agreement.
(iii) they have no right to (x) direct either any Second Lien
Representative or any other Second Lien Secured Party to exercise any
right, remedy or power with respect to the Collateral or pursuant to the
Second Lien Collateral Documents or (y) consent or object to the exercise
by any Second Lien Representative or any other Second Lien Secured Party
of any right, remedy or power with respect to the Collateral or pursuant
to the Second Lien Collateral 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 (iii), whether as a
junior lien creditor or otherwise, they hereby irrevocably waive such
right);
(iv) they will not institute any suit or other proceeding or assert in
any suit, Insolvency Proceeding or other proceeding any claim against
either any Second Lien Representative or any other Second Lien Secured
Party seeking damages from or other relief by way of specific performance,
instructions or otherwise, with respect to, and neither any Second Lien
Representative nor any other Second Lien Secured Party shall be liable
for, any action taken or omitted to be taken by any Second Lien
Representative or any other Second Lien Secured Party with respect to the
Collateral or pursuant to the Second Lien Collateral Documents;
(v) they will not make any judicial or non-judicial claim or demand or
commence any judicial or non-judicial proceedings against any Credit
Parties or any of their affiliates under or with respect to any Third Lien
Collateral Document seeking payment or damages from or other relief by way
of specific performance, instructions or otherwise under or with respect
to any Third Lien Collateral Document (other than filing a proof of claim)
or exercise any right, remedy or power under or with respect to, or
20
otherwise take any action to enforce (other than filing a proof of claim)
any Third Lien Collateral Document;
(vi) 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, attempt any action to take
possession of any Collateral, exercise any right, remedy or power with
respect to, or otherwise take any action to enforce their interest in or
realize upon, the Collateral or pursuant to the Third Lien Collateral
Documents; and
(vii) they will not seek, and hereby waive any right, to have the
Collateral or any part thereof marshaled upon any foreclosure or other
disposition of the Collateral.
SECTION 3.03. Judgment Creditors. In the event that any Second Lien
Secured Party or Third Lien Secured Party becomes a judgment lien creditor in
respect of Collateral as a result of its enforcement of its rights as an
unsecured creditor, such judgment lien shall be subject to the terms of this
Agreement for all purposes (including in relation to the First Lien Obligations
or the Second Lien Obligations, as applicable) and shall be subordinate to the
same extent as the other Liens securing the Second Lien Obligations (created
pursuant to the Second Lien Collateral Documents) or Third Lien Obligations
(created pursuant to the Third Lien Collateral Documents), as applicable,
subject to this Agreement.
SECTION 3.04. Cooperation. (a) Subject to the rights of the Second Lien
Controlling Collateral Parties after expiration of the Standstill Periods
pursuant to Section 3.01, each Second Lien Representative, on behalf of itself
and the other Second Lien Secured Parties and each Third Lien Representative, on
behalf of itself and the other Third Lien Secured Parties, agrees that until the
First Lien Obligations have been Paid in Full each of them shall take such
actions as the applicable First Lien Controlling Collateral Parties shall
request in connection with the exercise by the First Lien Secured Parties of
their rights set forth herein.
(b) To the extent the First Lien Obligations shall have been Paid in
Full and so long as the Second Lien Obligations shall not have been Paid in
Full, each Third Lien Representative, on behalf of itself and the other Third
Lien Secured Parties, agrees that until the Third Lien Obligations have been
Paid in Full each of them shall take such actions as the Second Lien Controlling
Collateral Parties shall request in connection with the exercise by the Second
Lien Secured Parties of their rights set forth herein.
SECTION 3.05. No Additional Rights for the Credit Parties Hereunder.
Except as provided in Section 3.06, if any First Lien Secured Party, Second Lien
Secured Party or Third Lien Secured Party shall enforce its rights or remedies
in violation of the terms of this Agreement, no Credit Party shall be entitled
to use such violation as a defense to any action by any First Lien Secured
Party, Second Lien Secured Party or Third Lien Secured Party, nor to assert such
violation as a counterclaim or basis for set off or recoupment against any First
Lien Secured Party, Second Lien Secured Party or Third Lien Secured Party.
SECTION 3.06. Actions upon Breach. (a) Should any Second Lien Secured
Party or Third Lien Secured Party, contrary to this Agreement, in any way take,
attempt to or threaten to take any action with respect to the Collateral
(including, without limitation, any
21
attempt to realize upon or enforce any remedy with respect to this Agreement),
or fail to take any action required by this Agreement, any First Lien Secured
Party may obtain relief against such Second Lien Secured Party or Third Lien
Secured Party, as applicable, by injunction, specific performance and/or other
appropriate equitable relief, it being understood and agreed by the Second Lien
Representatives on behalf of each Second Lien Secured Party and by the Third
Lien Representatives on behalf of each Third Lien Secured Party that (i) the
First Lien Secured Parties' damages from its actions may at that time be
difficult to ascertain and may be irreparable, and (ii) each Second Lien Secured
Party and each Third Lien Secured Party waives any defense that the Credit
Parties and/or the First Lien Secured Parties cannot demonstrate damages and/or
can be made whole by the awarding of damages.
(b) So long as the Second Lien Obligations shall not have been Paid in
Full, should any Third Lien Secured Party, contrary to this Agreement, in any
way take, attempt to or threaten to take any action with respect to the
Collateral (including, without limitation, any attempt to realize upon or
enforce any remedy with respect to this Agreement), or fail to take any action
required by this Agreement, any Second Lien Secured Party may obtain relief
against such Third Lien Secured Party by injunction, specific performance and/or
other appropriate equitable relief, it being understood and agreed by the Third
Lien Representatives on behalf of each Third Lien Secured Party that (i) the
Second Lien Secured Parties' damages from its actions may at that time be
difficult to ascertain and may be irreparable, and (ii) each Third Lien Secured
Party waives any defense that the Credit Parties and/or the Second Lien Secured
Parties cannot demonstrate damages and/or can be made whole by the awarding of
damages.
SECTION 3.07. Right as Unsecured Creditors. The Second Lien Secured
Parties and the Third Lien Secured Parties may exercise rights and remedies as
unsecured creditors against the Credit Parties or any other Person that has
guaranteed the Second Lien Obligations or the Third Lien Obligations. Nothing in
this Agreement shall prohibit the receipt by the Second Lien Secured Parties or
the Third Lien Secured Parties of the required payments of interest and
principal or any other amounts so long as such receipt is not the direct or
indirect result of the exercise by the Second Lien Secured Parties or the Third
Lien Secured Parties of rights or remedies as a secured creditor or enforcement
in contravention of this Agreement of any Lien held by any of them. Nothing in
this Section 3.07 impairs or otherwise adversely affects any rights or remedies
the First Lien Secured Parties may have with respect to the Collateral.
ARTICLE IV
APPLICATION OF PROCEEDS OF COLLATERAL; DISPOSITIONS AND RELEASES
OF COLLATERAL; INSPECTION AND INSURANCE
SECTION 4.01. Application of Proceeds; Turnover Provisions. (a) All
proceeds of Other Collateral (including without limitation any interest earned
thereon) resulting from the sale, collection or other disposition of Other
Collateral in connection with or resulting from any Enforcement Action, and
whether or not pursuant to a Insolvency Proceeding, shall be distributed as
follows: first to the applicable First Lien Representatives on a pro rata basis
for application to the First Lien Obligations, until the First Lien Obligations
have been Paid in Full, second, to the applicable Second Lien Representatives on
a pro rata basis for application to the Second Lien Obligations, until the
Second Lien Obligations have been Paid in Full, third, to the applicable Third
Lien Representatives on a pro rata basis for application to the Third Lien
22
Obligations and, thereafter, to the extent proceeds remain after the foregoing
applications, to the relevant Credit Party or to whomever may be lawfully
entitled to receive such surplus. Notwithstanding anything herein to the
contrary, this clause (a) shall not be applicable in respect of proceeds
resulting from the sale, collection or other disposition of Other Collateral
prior to the commencement of any Enforcement Action.
(b) All proceeds of Primary Collateral (including without limitation
any interest earned thereon) resulting from the sale, collection or other
disposition of Primary Collateral in connection with or resulting from any
Enforcement Action, and whether or not pursuant to an Insolvency Proceeding,
shall be distributed as follows: first, to the applicable First Lien
Representatives on a pro rata basis for application to the First Lien
Obligations until the First Lien Obligations have been Paid in Full, second, to
the Second Lien Representatives on a pro rata basis for application to the
Second Lien Obligations and, thereafter, to the extent proceeds remain after the
foregoing applications, to the relevant Credit Party or to whomever may be
lawfully entitled to receive such surplus. Notwithstanding anything herein to
the contrary, this clause (b) shall not be applicable in respect of proceeds
resulting from the sale, collection or other disposition of Primary Collateral
prior to the commencement of any Enforcement Action.
(c) Subject to the rights of the Credit Parties under the First Lien
Collateral Documents, until the Payment in Full of the First Lien Obligations,
any Collateral, including without limitation any such Collateral constituting
proceeds, that may be received by any Second Lien Secured Party or any Third
Lien Secured Party in violation of this Agreement shall be segregated and held
in trust and promptly paid over to the First Lien Controlling Collateral
Parties, for the benefit of the First Lien Secured Parties, in the same form as
received, with any necessary endorsements, and each Second Lien Secured Party
and each Third Lien Secured Party hereby authorizes the First Lien Controlling
Collateral Parties to make any such endorsements as agent for the Second Lien
Secured Parties and/or the Third Lien Secured Parties (which authorization,
being coupled with an interest, is irrevocable).
(d) Subject to the rights of the Credit Parties under the Second Lien
Collateral Documents, to the extent the First Lien Obligations shall have been
Paid in Full and so long as the Second Lien Obligations shall not have been Paid
in Full, any Collateral, including without limitation any such Collateral
constituting proceeds, that may be received by any Third Lien Secured Party in
violation of this Agreement shall be segregated and held in trust and promptly
paid over to the Second Lien Controlling Collateral Parties, for the benefit of
the Second Lien Secured Parties, in the same form as received, with any
necessary endorsements, and each Third Lien Secured Party hereby authorizes the
Second Lien Controlling Collateral Parties to make any such endorsements as
agent for the Third Lien Secured Parties (which authorization, being coupled
with an interest, is irrevocable).
SECTION 4.02. Releases of Junior-Priority Lien. (a) Other than in
connection with the Payment in Full of the First Lien Obligations (unless such
Payment in Full is made with proceeds from an Enforcement Action or other
dispositions of Collateral), upon any release, sale or disposition of Collateral
permitted pursuant to the terms of the First Lien Collateral Documents and any
agreements governing the First Lien Obligations that results in the release of
the first-priority Lien on any Collateral (including without limitation any sale
or other disposition
23
pursuant to any Enforcement Action), the junior-priority Lien on such Collateral
(but not on any proceeds of such Collateral not required to be paid to the First
Lien Secured Parties) shall be automatically and unconditionally released with
no further consent or action of any Person.
(b) Each Second Lien Representative, on behalf of itself and the other
Second Lien Secured Parties and each Third Lien Representative, on behalf of
itself and the other Third Lien Secured Parties, at the sole cost and expense of
the Credit Parties, shall promptly execute and deliver such release documents
and instruments and shall take such further actions as the First Lien
Controlling Collateral Parties shall request to evidence any release of the
junior-priority Lien described in paragraph (a) above. Each Second Lien
Representative, each other Second Lien Secured Party, each Third Lien
Representative and each other Third Lien Secured Party hereby appoints the First
Lien Controlling Collateral Parties and any officer or duly authorized person of
the First Lien Controlling Collateral Parties, 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 Lien Secured Parties and the Third Lien
Secured Parties and in the name of the Second Lien Secured Parties or the Third
Lien Secured Parties or in the First Lien Controlling Collateral Parties' own
name, from time to time, in the First Lien Controlling Collateral Parties' sole
discretion, for the purposes of carrying out the terms of this paragraph, 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 paragraph, including, without limitation, any financing
statements, endorsements, assignments, releases or other documents or
instruments of transfer (which appointment, being coupled with an interest, is
irrevocable).
(c) Other than in connection with the Payment in Full of the Second
Lien Obligations (unless such Payment in Full is made with proceeds from an
Enforcement Action or other dispositions of Collateral) and to the extent the
First Lien Obligations shall have been Paid in Full, upon any release, sale or
disposition of Collateral permitted pursuant to the terms of the Second Lien
Collateral Documents and any agreements governing the Second Lien Obligations
that results in the release of the first-priority Lien on any Collateral
(including without limitation any sale or other disposition pursuant to any
Enforcement Action), the junior-priority Lien on such Collateral (but not on any
proceeds of such Collateral not required to be paid to the Second Lien Secured
Parties) shall be automatically and unconditionally released with no further
consent or action of any Person.
(d) Each Third Lien Representative, on behalf of itself and the other
Third Lien Secured Parties, at the sole cost and expense of the Credit Parties,
shall promptly execute and deliver such release documents and instruments and
shall take such further actions as the Second Lien Controlling Collateral
Parties shall request to evidence any release of the junior-priority Lien
described in paragraph (c) above. Each Third Lien Representative and each other
Third Lien Secured Party hereby appoints the Second Lien Controlling Collateral
Parties and any officer or duly authorized person of the Second Lien Controlling
Collateral Parties, 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 Third Lien Secured Parties and in the name of the Third Lien Secured
Parties or in the Second Lien Controlling Collateral Parties' own name, from
time to time, in the Second Lien Controlling Collateral Parties' sole
discretion, for the purposes of carrying out the terms of this paragraph, to
take any and all appropriate action and to execute and
24
deliver any and all documents and instruments as may be necessary or desirable
to accomplish the purposes of this paragraph, including, without limitation, any
financing statements, endorsements, assignments, releases or other documents or
instruments of transfer (which appointment, being coupled with an interest, is
irrevocable).
SECTION 4.03. Inspection Rights and Insurance. (a) Until the First Lien
Obligations have been Paid in Full, upon a default in respect of any First Lien
Obligations, any First Lien Controlling Collateral Party and its representatives
and invitees may at any time inspect, repossess, remove and otherwise deal with
the Collateral, and the First Lien Controlling Collateral Parties may advertise
and conduct public auctions or private sales of the Collateral, in each case,
without the involvement of or interference by any Second Lien Secured Party or
any Third Lien Secured Party or liability to any Second Lien Secured Party or
any Third Lien Secured Party.
(b) To the extent the First Lien Obligations shall have been Paid in
Full and so long as the Second Lien Obligations shall not have been Paid in
Full, upon a default in respect of any Second Lien Obligations, any Second Lien
Controlling Collateral Party and its representatives and invitees may at any
time inspect, repossess, remove and otherwise deal with the Collateral, and the
Second Lien Controlling Collateral Parties may advertise and conduct public
auctions or private sales of the Collateral, in each case without notice to, the
involvement of or interference by any Third Lien Secured Party or liability to
any Third Lien Secured Party.
(c) Until the First Lien Obligations have been Paid in Full, and
subject to the rights of the Credit Parties under the First Lien Collateral
Documents, the First Lien Controlling Collateral Parties will have the sole and
exclusive right (i) to adjust or settle any insurance policy or claim covering
the Collateral in the event of any loss thereunder and (ii) to approve any award
granted in any condemnation or similar proceeding affecting the Collateral.
(d) To the extent the First Lien Obligations shall have been Paid in
Full and so long as the Second Lien Obligations shall not have been Paid in
Full, subject to the rights of the Credit Parties under the Second Lien
Collateral Documents, any Second Lien Controlling Collateral Parties will have
the sole and exclusive right (i) to adjust or settle any insurance policy or
claim covering the Collateral in the event of any loss thereunder and (ii) to
approve any award granted in any condemnation or similar proceeding affecting
the Collateral.
ARTICLE V
INSOLVENCY PROCEEDINGS
SECTION 5.01. Filing of Motions. (a) Until the First Lien Obligations
have been Paid in Full, each of the Second Lien Representatives agrees on behalf
of itself and the other Second Lien Secured Parties and each of the Third Lien
Representatives agrees on behalf of itself and the other Third Lien Secured
Parties that no Second Lien Secured Party and no Third Lien Secured Party, as
applicable, shall, in or in connection with any Insolvency Proceeding, file any
pleadings or motions, 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 Collateral (including not objecting to any adequate protection in favor
of the holders of the First Lien Obligations and not seeking or receiving such
adequate protection to the extent that adequate
25
protection is not also received by the holders of the First Lien Obligations in
respect thereof, it being understood that to the extent the holders of the First
Lien Obligations shall be permitted to receive adequate protection, the holders
of Second Lien Obligations may seek adequate protection under the conditions set
forth in Section 5.04), including, without limitation, with respect to the
determination of any Liens or claims held by the First Lien Representatives
(including the validity and enforceability thereof) or any other First Lien
Secured Party or the value of any claims of such parties under Section 506(a) of
the Bankruptcy Code or otherwise; provided that the Second Lien Representatives
and the Third Lien Representatives may file a proof of claim in an Insolvency
Proceeding, subject to the limitations contained in this Agreement and only if
consistent with the terms and the limitations on the Second Lien Representatives
and the Third Lien Representatives imposed hereby and may seek adequate
protection subject to the terms of Section 5.04 of this Agreement.
(b) To the extent the First Lien Obligations shall have been Paid in
Full and so long as the Second Lien Obligations shall not have been Paid in
Full, each of the Third Lien Representatives agrees on behalf of itself and the
other Third Lien Secured Parties that no Third Lien Secured Party shall, in or
in connection with any Insolvency Proceeding, file any pleadings or motions,
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 Collateral
(including not objecting to any adequate protection in favor of the holders of
the Second Lien Obligations and not seeking or receiving such adequate
protection to the extent such adequate protection is not also received by the
holders of the Second Lien Obligations in respect thereof, it being understood
that to the extent the holders of the Second Lien Obligations shall be permitted
to receive adequate protection, the holders of Third Lien Obligations may seek
adequate protection under the conditions set forth in Section 5.04), including,
without limitation, with respect to the determination of any Liens or claims
held by the Second Lien Representatives (including the validity and
enforceability thereof) or any other Second Lien Secured Party or the value of
any claims of such parties under Section 506(a) of the Bankruptcy Code or
otherwise; provided that the Third Lien Representatives may file a proof of
claim in an Insolvency Proceeding, subject to the limitations contained in this
Agreement and only if consistent with the terms and the limitations on the Third
Lien Representatives imposed hereby and may seek adequate protection subject to
the terms of Section 5.04 of this Agreement.
SECTION 5.02. Financing Matters. (a) If any of the Credit Parties
becomes subject to any Insolvency Proceeding, and if the First Lien Controlling
Collateral Parties or one or more of the other First Lien Secured Parties desire
to consent to the use of cash collateral under the Bankruptcy Code or to provide
financing, or to consent to the provision by any other Person of financing, to
the Credit Parties under the Bankruptcy Code ("DIP FINANCING"), then the Second
Lien Representatives and the Third Lien Representatives agree, on behalf of
themselves and, respectively, the other Second Lien Secured Parties and the
other Third Lien Secured Parties, that each Second Lien Secured Party or Third
Lien Secured Party, as applicable, (i) will be deemed to have consented to, will
raise no objection to, nor support any other Person objecting to, the use of
such cash collateral or to such DIP Financing, (ii) will not request or accept
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 5.04 below,
(iii) will subordinate (and will be deemed hereunder to have subordinated) the
second-priority Liens and third-priority Liens (x) to such DIP Financing on the
same terms as the first-priority Liens are subordinated thereto (and
26
such subordination will not alter in any manner the terms of this Agreement) and
(y) to any adequate protection provided to the First Lien Secured Parties and
(iv) agrees that notice received two calendar days prior to the entry of an
order approving such usage of cash collateral or approving such financing shall
be adequate notice.
(b) To the extent the First Lien Obligations shall have been Paid in
Full and so long as the Second Lien Obligations shall not have been Paid in
Full, if any of the Credit Parties becomes subject to any Insolvency Proceeding,
and if the Second Lien Controlling Collateral Parties or one or more of the
other Second Lien Secured Parties desire to consent to the use of cash
collateral under the Bankruptcy Code or to provide a DIP Financing, to consent
to the provision by any other Person of a DIP Financing, to the Credit Parties,
then the Third Lien Representatives agree, on behalf of themselves and the other
Third Lien Secured Parties, that each Third Lien Secured Party (i) will be
deemed to have consented to, will raise no objection to, nor support any other
Person objecting to, the use of such cash collateral or to such DIP Financing,
(ii) will not request or accept 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 5.04 below, (iii) will subordinate (and will be deemed
hereunder to have subordinated) the second-priority Liens (x) to such DIP
Financing on the same terms as the first-priority Liens are subordinated thereto
(and such subordination will not alter in any manner the terms of this
Agreement) and (y) to any adequate protection provided to the Second Lien
Secured Parties and (iv) agrees that notice received two calendar days prior to
the entry of an order approving such usage of cash collateral or approving such
financing shall be adequate notice.
SECTION 5.03. Relief from the Automatic Stay. (a) Each Second Lien
Representative and each Third Lien Representative agrees, on behalf of itself
and, respectively, the other Second Lien Secured Parties or Third Lien Secured
Parties, as applicable, that none of them will seek relief from the automatic
stay or from any other stay in any Insolvency Proceeding or take any action in
derogation thereof, in each case in respect of any Collateral, without the prior
written consent of the First Lien Controlling Collateral Parties.
(b) To the extent the First Lien Obligations shall have been Paid in
Full and so long as the Second Lien Obligations shall not have been Paid in
Full, each Third Lien Representative agrees, on behalf of itself and the other
Third Lien Secured Parties, that none of them will seek relief from the
automatic stay or from any other stay in any Insolvency Proceeding or take any
action in derogation thereof, in each case in respect of any Collateral, without
the prior written consent of the Second Lien Controlling Collateral Parties.
SECTION 5.04. Adequate Protection. (a) Each Second Lien Representative,
on behalf of itself and the other Second Lien Secured Parties and each Third
Lien Representative, on behalf of itself and the other Third Lien Secured
Parties, agrees that none of them shall object, contest, or support any other
Person objecting to or contesting, (i) any request by a First Lien
Representative or the First Lien Secured Parties for adequate protection or (ii)
any objection by a First Lien Representative or any other First Lien Secured
Parties to any motion, relief, action or proceeding based on a claim of a lack
of adequate protection or (iii) the payment of interest, fees, expenses or other
amounts to a First Lien Representative or any other First Lien Secured Party
under Section 506(b) or 506(c) of the Bankruptcy Code or otherwise.
Notwithstanding the foregoing, to the extent any First Lien Secured Parties
shall have received adequate protection in
27
the form of the payment of interest, fees, expenses or other amounts under
Section 506(b) or 506(c) of the Bankruptcy Code or otherwise, any other First
Lien Secured Parties shall be entitled to seek adequate protection in a similar
form. Notwithstanding anything contained in this Section and in Section 5.02, in
any Insolvency Proceeding, (x) if the First Lien Secured Parties (or any subset
thereof) are granted adequate protection in the form of additional collateral or
superpriority claims in connection with any DIP Financing or use of cash
collateral, then a Second Lien Representative, on behalf of itself and any of
the Second Lien Secured Parties and a Third Lien Representative, on behalf of
itself and any of the Third Lien Secured Parties, may seek or accept adequate
protection solely in the form of (A) a replacement Lien on such additional
collateral, subordinated to the Liens securing the First Lien Obligations and
such DIP Financing on the same basis as the other Liens securing the Second Lien
Obligations or the Third Lien Obligations, as applicable, are so subordinated to
the First Lien Obligations under this Agreement and (B) superpriority claims
junior in all respects to the superpriority claims granted to the First Lien
Secured Parties, and (y) in the event a Second Lien Representative, on behalf of
itself and the Second Lien Secured Parties or a Third Lien Representative, on
behalf of itself and the Third Lien Secured Parties, seeks or requests adequate
protection and such adequate protection is granted in the form of additional
collateral, then such Second Lien Representative, on behalf of itself or any of
the Second Lien Secured Parties or such Third Lien Representative, on behalf of
itself or any of the Third Lien Secured Parties, agrees that the First Lien
Representatives shall also be granted a senior Lien on such additional
collateral as security for the First Lien Obligations and any such DIP Financing
and that any Lien on such additional collateral securing the Second Lien
Obligations and the Third Lien Obligations shall be subordinated to the Liens on
such collateral securing the First Lien Obligations and any such DIP Financing
(and all Obligations relating thereto) and any other Liens granted to the First
Lien Secured Parties as adequate protection on the same basis as the other Liens
securing the Second Lien Obligations and the Third Lien Obligations are
subordinated to such First Lien Obligations under this Agreement.
Notwithstanding any of the foregoing, if the First Lien Secured Parties (or any
subset thereof) are granted adequate protection in respect of the Other
Collateral in the form of Post-Petition Interest, then a Second Lien
Representative in respect of such Other Collateral, on behalf of itself and any
of the Second Lien Secured Parties, may seek or accept adequate protection in
the form of Post-Petition Interest in respect of the Second Lien Obligations
secured by such Other Collateral.
(b) To the extent the First Lien Obligations shall have been Paid in
Full and so long as the Second Lien Obligations shall not have been Paid in
Full, each Third Lien Representative, on behalf of itself and the other Third
Lien Secured Parties, agrees that none of them shall object, contest, or support
any other Person objecting to or contesting, (i) any request by a Second Lien
Representative or the Second Lien Secured Parties for adequate protection or
(ii) any objection by a Second Lien Representative or any other Second Lien
Secured Parties to any motion, relief, action or proceeding based on a claim of
a lack of adequate protection or (iii) the payment of interest, fees, expenses
or other amounts to a Second Lien Representative or any other Second Lien
Secured Party under Section 506(b) or 506(c) of the Bankruptcy Code or
otherwise. Notwithstanding anything contained in this Section and in Section
5.02, in any Insolvency Proceeding, (x) if the Second Lien Secured Parties (or
any subset thereof) are granted adequate protection in the form of additional
collateral or superpriority claims in connection with any DIP Financing or use
of cash collateral, then a Third Lien Representative, on behalf of itself and
any of the Third Lien Secured Parties, may seek or accept adequate protection
solely in the
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form of (A) a replacement Lien on such additional collateral, subordinated to
the Liens securing the Second Lien Obligations and such DIP Financing on the
same basis as the other Liens securing the Third Lien Obligations are so
subordinated to the Second Lien Obligations under this Agreement and (B)
superpriority claims junior in all respects to the superpriority claims granted
to the Second Lien Secured Parties, and (y) in the event a Third Lien
Representative, on behalf of itself and the Third Lien Secured Parties, seeks or
requests adequate protection and such adequate protection is granted in the form
of additional collateral, then such Third Lien Representative, on behalf of
itself or any of the Third Lien Secured Parties, agrees that the Second Lien
Representatives shall also be granted a senior Lien on such additional
collateral as security for the Second Lien Obligations and any such DIP
Financing and that any Lien on such additional collateral securing the Third
Lien Obligations shall be subordinated to the Liens on such collateral securing
the Second Lien Obligations and any such DIP Financing (and all Obligations
relating thereto) and any other Liens granted to the Second Lien Secured Parties
as adequate protection on the same basis as the other Liens securing the Third
Lien Obligations are subordinated to such Second Lien Obligations under this
Agreement.
SECTION 5.05. Avoidance Issues. (a) If any First Lien Secured Party is
required in any Insolvency Proceeding or otherwise to disgorge, turn over or
otherwise pay to the estate of any of the Credit Parties, because such amount
was avoided or ordered to be paid or disgorged for any reason, including without
limitation 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 Lien 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 Lien Obligations shall be deemed not
to have been Paid in Full. If this Agreement shall have been terminated prior to
such Recovery, this Agreement shall be reinstated in full force and effect from
an after the date of such Recovery, and such prior termination shall not
diminish, release, discharge, impair or otherwise affect the obligations of the
parties hereto. The Second Lien Secured Parties and Third Lien 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 the benefit of such avoidance action otherwise
allocable to them from and after the date of such Recovery shall instead by
allocated and turned over for application in accordance with the priorities set
forth in this Agreement.
(b) To the extent the First Lien Obligation shall have been Paid in
Full and so long as the Second Lien Obligations shall not have been Paid in
Full, if any Second Lien Secured Party is required in any Insolvency Proceeding
or otherwise to disgorge, turn over or otherwise pay a Recovery, whether
received as proceeds of security, enforcement of any right of set-off or
otherwise, then the Second Lien Obligations shall be reinstated to the extent of
such Recovery and deemed to be outstanding as if such payment had not occurred
and the Second Lien Obligations shall be deemed not to have been Paid in Full.
If this Agreement shall have been terminated prior to such Recovery, this
Agreement shall be reinstated in full force and effect from and after the date
of such Recovery, and such prior termination shall not diminish, release,
discharge, impair or otherwise affect the obligations of the parties hereto. The
Third Lien 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 the benefit
29
of such avoidance action otherwise allocable to them from and after the date of
such Recovery shall instead by allocated and turned over for application in
accordance with the priorities set forth in this Agreement.
SECTION 5.06. Asset Dispositions in an Insolvency Proceeding. (a) None
of the Second Lien Representatives nor any other Second Lien Secured Party and
none of the Third Lien Representatives nor any Third Lien Secured Party shall,
in an Insolvency Proceeding or otherwise, oppose any sale or disposition of any
assets of any of the Credit Parties that is supported by the First Lien Secured
Parties, and each of the Second Lien Representatives, each other Second Lien
Secured Party, each of the Third Lien Representatives and each other Third Lien
Secured Party will be deemed to have consented under Section 363 of the
Bankruptcy Code (and otherwise) to any sale supported by the First Lien Secured
Parties and to have released their Liens in such assets so long as and to the
extent that (x) the First Lien Secured Parties shall have likewise released
their Liens and (y) the Liens of the First Lien Secured Parties, the Second Lien
Secured Parties and the Third Lien Secured Parties shall attach to the proceeds
of any Collateral sold or disposed of.
(b) To the extent the First Lien Obligations shall have been Paid in
Full and so long as the Second Lien Obligations shall not have been Paid in
Full, none of the Third Lien Representatives nor any other Third Lien Secured
Party shall, in an Insolvency Proceeding or otherwise, oppose any sale or
disposition of any assets of any of the Credit Parties that is supported by the
Second Lien Secured Parties, and each of the Third Lien Representatives and each
other Third Lien Secured Party will be deemed to have consented under Section
363 of the Bankruptcy Code (and otherwise) to any sale supported by the Second
Lien Secured Parties and to have released their Liens in such assets so long as
and to the extent that (x) the Second Lien Secured Parties shall have likewise
released their Liens and (y) the Liens of the Second Lien Secured Parties and
the Third Lien Secured Parties shall attach to the proceeds of any Collateral
sold or disposed of.
SECTION 5.07. Separate Grants of Security and Separate Classification.
Each Second Lien Secured Party and Third Lien Secured Party acknowledges and
agrees that (i) the grants of Liens pursuant to the First Lien Collateral
Documents, the Second Lien Collateral Documents and the Third Lien Collateral
Documents constitute three separate and distinct grants of Liens and (ii)
because of, among other things, their differing rights in the Collateral, the
First Lien Obligations, the Second Lien Obligations and the Third Lien
Obligations are fundamentally different from each other and must be separately
classified in any plan of reorganization proposed or adopted in an Insolvency
Proceeding. To further effectuate the intent of the parties as provided in the
immediately preceding sentence, if it is held that the claims against the First
Lien Secured Parties, the Second Lien Secured Parties and/or the Third Lien
Secured Parties in respect of the Collateral constitute only one secured claim
(rather than separate classes of senior and junior secured claims), then the
Second Lien Secured Parties and the Third Lien 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 any of the Credit
Parties in respect of any Collateral with the effect being that, to the extent
that the aggregate value of such Collateral is sufficient (for this purpose
ignoring all claims held by the Second Lien Secured Parties and the Third Lien
Secured Parties in respect thereof), the First Lien Secured Parties shall be
entitled to receive, in addition to amounts distributed to them in respect of
principal, pre-petition interest
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and other claims, all amounts owing in respect of Post-Petition Interest before
any distribution is made in respect of the claims held by the Second Lien
Secured Parties and the Third Lien Secured Parties, with the Second Lien Secured
Parties and the Third Lien Secured Parties hereby acknowledging and agreeing to
turn over to the First Lien Secured Parties amounts otherwise received or
receivable by them to the extent necessary to effectuate the intent of this
sentence. In addition, to the extent the First Lien Obligations shall have been
Paid in Full and so long as the Second Lien Obligations shall not have been Paid
in Full, if it is held that the claims against the Second Lien Secured Parties
and Third Lien Secured Parties in respect of the Collateral constitute only one
secured claim (rather than separate classes of senior and junior secured
claims), then the Third Lien 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 any of the Credit Parties in respect of any
Collateral (with the effect being that, to the extent that the aggregate value
of such Collateral is sufficient (for this purpose ignoring all claims held by
the Third Lien Secured Parties), the Second Lien 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 before any distribution is made in respect of the
claims held by the Second Lien Secured Parties, with the Third Lien Secured
Parties hereby acknowledging and agreeing to turn over to the Second Lien
Secured Parties amounts otherwise received or receivable by them to the extent
necessary to effectuate the intent of this sentence.
SECTION 5.08. No Waivers of Rights of First Lien Secured Parties, or
Second Lien Secured Parties. (a) Nothing contained herein shall prohibit or in
any way limit any First Lien Representative or any other First Lien Secured
Party from objecting in any Insolvency Proceeding or otherwise to any action
taken by any Second Lien Secured Party (other than the exercise by any Second
Lien Controlling Collateral Party of its right in respect of any Standstill
Periods under Section 3.01) or any Third Lien Secured Party, including the
seeking by any Second Lien Secured Party or any Third Lien Secured Party of
adequate protection or the asserting by any Second Lien Secured Party or any
Third Lien Secured Party of any of its rights and remedies under the Second Lien
Collateral Documents or Third Lien Collateral Documents, as applicable.
(b) Nothing contained herein shall, to the extent the First Lien
Obligations shall have been Paid in Full and so long as the Second Lien
Obligations shall not have been Paid in Full, prohibit or in any way limit any
Second Lien Representative or any other Second Lien Secured Party from objecting
in any Insolvency Proceeding or otherwise to any action taken by any Third Lien
Secured Party, including the seeking by any Third Lien Secured Party of adequate
protection or the asserting by any Third Lien Secured Party of any of its rights
and remedies under the Third Lien Collateral Documents or otherwise.
SECTION 5.09. Effectiveness in Insolvency Proceedings. This Agreement
shall be effective both before and after the commencement of an Insolvency
Proceeding. All references in this Agreement to any of the Credit Parties shall
include such Credit Party as a debtor-in-possession and any receiver or trustee
for in any Insolvency Proceeding.
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ARTICLE VI
FIRST LIEN COLLATERAL DOCUMENTS, SECOND LIEN COLLATERAL
DOCUMENTS AND THIRD LIEN COLLATERAL DOCUMENTS
SECTION 6.01. Collateral Documents. (a) Each of the Credit Parties and
each First Lien Representative, on behalf of itself and the First Lien Secured
Parties, agrees that it shall not at any time execute or deliver any amendment
or other modification to any of the First Lien Collateral Documents inconsistent
with or in violation of this Agreement.
(b) Each of the Credit Parties and each Second Lien Representative, on
behalf of itself and the Second Lien Secured Parties, agrees that it shall not
at any time execute or deliver any amendment or other modification to any of the
Second Lien Collateral Documents inconsistent with or in violation of this
Agreement.
(c) Each of the Credit Parties and each Third Lien Representative, on
behalf of itself and the Third Lien Secured Parties, agrees that it shall not at
any time execute or deliver any amendment or other modification to any of the
Third Lien Collateral Documents inconsistent with or in violation of this
Agreement.
(d) In the event any First Lien Representative enters into any
amendment, waiver or consent in respect of any of the First Lien Collateral
Documents for the purpose of adding to, or deleting from, or waiving or
consenting to any departures from any provisions of, any First Lien Collateral
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 Lien Collateral Documents and Comparable
Third Lien Collateral Documents without the consent of or action by any Second
Lien Secured Party or any Third Lien 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 Credit Agreement, the Indentures, the Second Lien
Collateral Documents and the Third Lien Collateral Documents), (A) no such
amendment, waiver or consent shall have the effect of removing assets subject to
the Lien of any Second Lien Collateral Document or any Third Lien Collateral
Document, except to the extent that a release of such Lien is permitted by
Section 4.02, (B) any such amendment, waiver or consent that materially and
adversely affects the rights of the Second Lien Secured Parties or the Third
Lien Secured Parties, and does not affect the First Lien Secured Parties in a
like or similar manner, shall not apply to the Second Lien Collateral Documents
without the consent of the Second Lien Controlling Collateral Parties or the
Third Lien Collateral Documents without the consent of the Third Lien
Controlling Collateral Parties, as applicable, and (C) notice of such amendment,
waiver or consent shall be given to the Second Lien Representatives and the
Third Lien Representatives no later than 30 days after its effectiveness,
provided that the failure to give such notice shall not affect the effectiveness
and validity thereof.
(e) To the extent the First Lien Obligations shall have been Paid in
Full and so long as the Second Lien Obligations shall not have been Paid in
Full, in the event any Second Lien Representative enters into any amendment,
waiver or consent in respect of any of the Second Lien Collateral Documents for
the purpose of adding to, or deleting from, or waiving or
32
consenting to any departures from any provisions of, any Second Lien Collateral
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 Third Lien Collateral Document without the consent
of or action by any Third Lien 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 Indentures and the Third Lien Collateral Documents),
(A) no such amendment, waiver or consent shall have the effect of removing
assets subject to the Lien of any Third Lien Collateral Document, except to the
extent that a release of such Lien is permitted by Section 4.02, (B) any such
amendment, waiver or consent that materially and adversely affects the rights of
the Third Lien Secured Parties and does not affect the Second Lien Secured
Parties in a like or similar manner shall not apply to the Third Lien Collateral
Documents without the consent of the Third Lien Controlling Collateral Parties
and (C) notice of such amendment, waiver or consent shall be given to the Third
Lien Representatives no later than 30 days after its effectiveness, provided
that the failure to give such notice shall not affect the effectiveness and
validity thereof.
(f) In the event the Existing First Lien Collateral Agent enters into
any amendment, waiver or consent in respect of any of the Existing First Lien
Collateral Documents related to the Primary Collateral for the purpose of adding
to, or deleting from, or waiving or consenting to any departures from any
provisions of, any Existing First Lien Collateral Document in respect of the
Primary Collateral or changing in any manner the rights of any parties
thereunder in respect of the Primary Collateral, then such amendment, waiver or
consent shall apply automatically to any comparable provision of the Comparable
Existing First Lien Collateral Documents without the consent of or action by any
other Existing First Lien Collateral Representative (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 Credit Agreement, the Indentures, the Second Lien
Collateral Documents and the Third Lien Collateral Documents), (A) no such
amendment, waiver or consent shall have the effect of removing assets subject to
the Lien of any Second Lien Collateral Document or any Third Lien Collateral
Document, except to the extent that a release of such Lien is permitted by
Section 4.02, (B) any such amendment, waiver or consent that materially and
adversely affects the rights of the Second Lien Secured Parties or the Third
Lien Secured Parties, and does not affect the First Lien Secured Parties in a
like or similar manner, shall not apply to the Second Lien Collateral Documents
without the consent of the Second Lien Controlling Collateral Parties or the
Third Lien Collateral Documents without the consent of the Third Lien
Controlling Collateral Parties, as applicable, and (C) notice of such amendment,
waiver or consent shall be given to the Second Lien Representatives and the
Third Lien Representatives no later than 30 days after its effectiveness,
provided that the failure to give such notice shall not affect the effectiveness
and validity thereof. It is understood that this Section 6.01(f) shall not be
applicable to any amendments, waivers or consents in respect of any of the
Existing First Lien Collateral Documents related to the Other Collateral.
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ARTICLE VII
RELIANCE; WAIVERS; ETC.
SECTION 7.01. Reliance. The First Lien Collateral Documents, the Credit
Agreement and the 2011 Indenture 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. Each Second Lien Representative, on
behalf of itself and the Second Lien Secured Parties, and each Third Lien
Representative, on behalf of itself and the Third Lien Secured Parties,
expressly waives all notice of the acceptance of and reliance on this Agreement
by the First Lien Secured Parties. The Second Lien Collateral Documents, the
2011 Indenture and the 2012 Indenture 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. Each First Lien Representative, on
behalf of itself and the First Lien Secured Parties, and each Third Lien
Representative, on behalf of itself and the Third Lien Secured Parties,
expressly waives all notices of the acceptance of and reliance by the Second
Lien Collateral Agent and the Second Lien Secured Parties. The Third Lien
Collateral Documents and the 2012 Indenture 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. Each First Lien Representative, on
behalf of itself and the First Lien Secured Parties and each Second Lien
Representative, on behalf of itself and the Second Lien Secured Parties,
expressly waives all notice of the acceptance of and reliance on this Agreement
by the Third Lien Secured Parties.
SECTION 7.02. No Warranties or Liability. The First Lien
Representatives, the Second Lien Representatives and the Third Lien
Representatives acknowledge and agree that none of them has made any
representation or warranty with respect to the execution, validity, legality,
completeness, collectibility or enforceability of any First Lien Collateral
Document, any Second Lien Collateral Document or any Third Lien Collateral
Document. Except as otherwise provided in this Agreement, the First Lien
Representatives, the Second Lien Representatives and the Third Lien
Representatives will be entitled to manage and supervise their respective
extensions of credit to the Credit Parties in accordance with law and their
usual practices, modified from time to time as they deem appropriate.
SECTION 7.03. 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 the Credit Parties with the terms and conditions of any of the First Lien
Collateral Documents, the Second Lien Collateral Documents or the Third Lien
Collateral Documents.
ARTICLE VIII
OBLIGATIONS UNCONDITIONAL
SECTION 8.01. First Lien Obligations Unconditional. All rights and
interests of the First Lien Representatives under this Agreement, and all
agreements and obligations of the Second Lien Representatives, the Third Lien
Representatives and the Credit Parties (to the extent applicable and subject to
the rights of the Credit Parties under the underlying debt agreements and
collateral documents) hereunder, shall remain in full force and effect
irrespective of:
34
(a) any lack of validity or enforceability of any First Lien Collateral
Document or any First Lien Obligations;
(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 Lien 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 Lien Collateral Document or the First Lien Obligations;
(c) prior to the Payment in Full of the First Lien Obligations, any
exchange, release, voiding, avoidance or non-perfection of any security
interest in any 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 Lien 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 Credit Party in respect of the First
Lien Obligations, or of any of the Second Lien Representatives, any of the
Third Lien Representatives or any of the Credit Parties, to the extent
applicable, in respect of this Agreement.
SECTION 8.02. Second Lien Obligations Unconditional. Subject to
compliance with the terms of this Agreement, all rights and interests of the
Second Lien Representatives under this Agreement, and all agreements and
obligations of the First Lien Representatives, the Third Lien Representatives
and the Credit Parties (to the extent applicable and subject to the rights of
the Credit Parties under the underlying debt agreements and collateral
documents) hereunder, shall remain in full force and effect irrespective of:
(a) any lack of validity or enforceability of any Second Lien
Collateral Document or the Second Lien Obligations;
(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 Lien 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 Lien Collateral Document or the Second Lien Obligations;
(c) any exchange, release, voiding, avoidance or non-perfection of any
security interest in any 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 Lien Obligations or any guarantee or guaranty thereof; or
(d) any other circumstances that otherwise might constitute a defense
available to, or a discharge of, the Credit Parties in respect of the
Second Lien Obligations, or of any of the First Lien Representatives, any
of the Third Lien Representatives or any of the Credit Parties, to the
extent applicable, in respect of this Agreement.
35
SECTION 8.03. Third Lien Obligations Unconditional. Subject to
compliance with the terms of this Agreement, all rights and interests of the
Third Lien Representatives under this Agreement, and all agreements and
obligations of the First Lien Representatives, the Second Lien Representatives
and the Credit Parties (to the extent applicable and subject to the rights of
the Credit Parties under the underlying debt agreements and collateral
documents) hereunder, shall remain in full force and effect irrespective of:
(a) any lack of validity or enforceability of any Third Lien Collateral
Document or the Third Lien Obligations;
(b) any change in the time, place or manner of payment of, or in any
other term of, all or any portion of the Third Lien Obligations, or any
amendment, waiver or other modification, whether by course of conduct or
otherwise, or any refinancing, replacement, refunding or restatement of
any Third Lien Collateral Document or the Credit Agreement;
(c) any exchange, release, voiding, avoidance or non-perfection of any
security interest in any 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 Third Lien 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 Credit Party in respect of the Third
Lien Obligations, or of any of the First Lien Representatives, the Second
Lien Representatives, or any of the Credit Parties, to the extent
applicable, in respect of this Agreement.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Conflicts. (a) In the event of any conflict between the
provisions of this Agreement any First Lien Collateral Document, any Second Lien
Collateral Document or any Third Lien Collateral Document, the provisions of
this Agreement shall govern.
(b) Notwithstanding any other provision of this Agreement,
(i) any Existing First Lien Collateral Representative shall, for
purposes of this Agreement, be required to act (x) in relation to the
Other Collateral, at the direction of the First Lien Secured Parties
that own or hold more than 50% of all First Lien Obligations in respect
of the Other Collateral and (y) in relation to the Primary Collateral,
at the direction of First Lien Secured Parties that hold more than 50%
of all First Lien Obligations in respect of the Primary Collateral, in
accordance with Section 2.01(d);
(ii) any Existing Second Lien Collateral Representative shall, for
purposes of this Agreement, be required to act at the direction of the
Second Lien
36
Secured Parties that own or hold more than 50% of all Second Lien
Obligations; and
(iii) any Existing Third Lien Collateral Representative shall, for
purposes of this Agreement, be required to act at the direction of the
Third Lien Secured Parties that own or hold more than 50% of all Third
Lien Obligations.
SECTION 9.02. Continuing Nature of Provisions. This Agreement shall
continue to be effective, and shall not be revocable by any party hereto, until
the First Lien Obligations and Second Lien Obligations shall be Paid in Full.
This is a continuing agreement and the First Lien Secured Parties, the Second
Lien Secured Parties and the Third Lien 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, Credit Parties on the faith hereof.
SECTION 9.03. Amendments; Waivers. 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 Lien Representatives, the Second Lien
Representatives, the Third Lien Representatives and, only if the rights or
duties of any of the Credit Parties are directly affected thereby, such Credit
Parties.
SECTION 9.04. Information Concerning Financial Condition of the Credit
Parties. Each of the First Lien Representatives, each of the Second Lien
Representatives and each of the Third Lien Representatives hereby assumes
responsibility for keeping itself informed of the financial condition of the
Credit Parties and all other circumstances bearing upon the risk of nonpayment
of the First Lien Obligations, the Second Lien Obligations or the Third Lien
Obligations. Each of the First Lien Representatives, each of the Second Lien
Representatives and each of the Third Lien Representatives hereby agrees 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 any of the
First Lien Representatives, any of the Second Lien Representatives or any of the
Third Lien Representatives, 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 information
to such other party or any other party on any subsequent occasion, (B) to
undertake any investigation not a part of its regular business routine, or (C)
to disclose any other information.
SECTION 9.05. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York.
SECTION 9.06. 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 (5) days after deposit in the United States mail (certified, with
postage prepaid and properly addressed). For the purposes hereof, the addresses
of the parties hereto (until notice of a change thereof is delivered as provided
in this Section) shall be if to any Credit Party, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
37
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇; if to the Existing First Lien
Collateral Agent, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇; if to the Existing First Lien
Collateral Trustee, ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇▇▇▇, Corporate Trust Group, Facsimile: (405)
936-3964; and if to the Existing Second Lien Collateral Trustee, BNY Midwest
Trust Company, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Administration, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇; 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.
SECTION 9.07. Joinder. Each Credit Party agrees that it shall not issue
or incur any Eligible First Lien Debt, any Eligible Second Lien Debt or any
Eligible Third Lien Debt unless each Eligible First Lien Secured Party, each
Eligible Second Lien Secured Party or each Eligible Third Lien Secured Party, as
the case may be, under the Eligible First Lien Debt Agreements, the Eligible
Second Lien Debt Agreements or the Eligible Third Lien Debt Agreements,
respectively, becomes a party to this Agreement and each of the Eligible First
Lien Representatives, the Eligible Second Lien Representatives or the Eligible
Third Lien Representatives, as the case may be, acknowledges and agrees thereto.
Such Eligible First Lien Secured Parties, Eligible Second Lien Secured Parties
or Eligible Third Lien Secured Parties shall become party hereto by executing a
signature page to this Agreement. Upon such Eligible First Lien Secured Parties,
such Eligible Second Lien Secured Parties or such Eligible Third Lien Secured
Parties becoming a party to this Agreement, each such Person shall have all the
rights and obligations of the Eligible First Lien Secured Parties, the Eligible
Second Lien Secured Parties or the Eligible Third Lien Secured Parties, as the
case may be, under this Agreement.
SECTION 9.08. 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 Lien Secured Parties, the Second Lien Secured Parties and the Third Lien
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 Collateral. All
references to any of the Credit Parties shall include any of such Credit Parties
as debtor-in-possession and any receiver or trustee for any such Credit Parties
in any Insolvency Proceeding.
SECTION 9.09. 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.
SECTION 9.10. 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 telecopy 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.
SECTION 9.11. Incorporation by Reference. In connection with its
appointment and acting hereunder (i) the Existing First Lien Collateral Trustee
is entitled to all rights,
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privileges, protections, immunities, benefits and indemnities provided to it
under the 2011 Indenture and (ii) the Existing Second Lien Collateral Trustee is
entitled to all rights, privileges, protections, immunities, benefits and
indemnities provided to it under the 2012 Indenture.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
▇▇▇▇▇▇ COMMERCIAL PAPER, INC., as
Existing First Lien Collateral Agent
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
BANK OF OKLAHOMA, N.A., as Existing First
Lien Collateral Trustee
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
BNY MIDWEST TRUST COMPANY, as Existing
Second Lien Collateral Trustee
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
40
▇▇▇▇▇▇ COMMUNICATIONS CORPORATION
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: Vice President
---------------------------------
▇▇▇▇▇▇ CELLULAR SYSTEMS, INC.
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: Vice President
---------------------------------
▇▇▇▇▇▇ OPERATING CO., L.L.C.,
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: Co-Manager
---------------------------------
DOC LEASE CO., LLC
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: Co-Manager
---------------------------------