Exhibit 4.3
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT, dated as of April 23, 2004, is among CREDIT
SUISSE FIRST BOSTON, acting through its Cayman Islands Branch ("CSFB"), in its
capacity as Administrative Agent under the Credit Agreement (as defined below)
(in such capacity, the "Administrative Agent"), LAW DEBENTURE TRUST COMPANY OF
NEW YORK, as trustee and collateral agent under the Indenture referred to below
(in its capacity as collateral agent, the "Trustee"), ▇▇▇▇▇▇▇ GROUP, INC., a
Delaware corporation (the "Company") and each other Obligor (as defined below)
party hereto.
W I T N E S S E T H:
WHEREAS, the Company, proposes to enter into a Second Amended and Restated
Credit Agreement, dated as of the Effective Date (as amended, supplemented,
amended and restated or otherwise modified from time to time, the "Credit
Agreement"), among the Company, the various financial institutions and other
Persons from time to time party thereto as lenders (the "Lenders"), Credit
Suisse First Boston, acting through its Cayman Island Branch, as Administrative
Agent for the Lenders, and JPMorganChase Bank and Deutsche Bank Securities,
Inc., as Syndication Agents for the Lenders, amending and restating in its
entirety the Amended and Restated Credit Agreement, dated as of June 24, 2002
(as amended or otherwise modified prior to the Effective Date, the "Existing
Credit Agreement"), among the Company, the various financial institutions and
other Persons from time to time parties thereto as lenders, Bank One, NA, as
the administrative agent for the lenders, CSFB, as the syndication agent for
the lenders, and Bayerische Hypo-und Vereinsbank AG, New York Branch, as the
documentation agent for the lenders;
WHEREAS, the Company proposes to enter into an Indenture, dated as of the
Effective Date (as amended, supplemented, amended and restated or otherwise
modified from time to time, the "Indenture") with the Trustee governing the
rights and duties of the Company under the second priority senior secured
floating rate notes due 2011 issued by the Company in an aggregate principal
amount of $100,000,000 (together with any additional notes issued under such
Indenture, the "Notes");
WHEREAS, it is a condition precedent to the effectiveness of the Credit
Agreement that the Administrative Agent (for itself and for the benefit of the
Secured Parties), the Trustee (for itself and for the benefit of the
Noteholders, as defined below) and the Obligors party hereto enter into this
Agreement;
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and obligations herein set forth and for other good and valuable consideration,
the adequacy and receipt of which are hereby acknowledged, and in reliance upon
the representations, warranties and covenants herein contained, the parties
hereto, intending to be legally bound, hereby agree as follows:
SECTION 1. Definitions. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and the plural
form of the terms indicated) and capitalized terms defined in the Credit
Agreement used (but not otherwise defined) herein shall have the meanings
ascribed to them in the Credit Agreement:
"Administrative Agent" means, in addition to the Administrative Agent
defined in the preamble, the then acting agent for the Secured Parties under
the Loan Documents and any successor thereto exercising substantially the same
rights and powers.
"Agreement" means this Intercreditor Agreement, as amended, supplemented,
amended and restated or otherwise modified from time to time in accordance with
the terms hereof.
"Bankruptcy Code" means title 11 of the United States Code (11 U.S.C. 101
et seq.), as in effect from time to time and any successor statute.
"Common Collateral" means all of the assets of the Obligors constituting
both Lender Collateral and Noteholder Collateral.
"Company" is defined in the preamble.
"Comparable Noteholder Collateral Document" means, in relation to any
Common Collateral subject to any Obligor Pledge Agreement, that Noteholder
Collateral Document which creates a security interest in the same Common
Collateral, granted by the same Obligor, as applicable.
"Credit Agreement" is defined in the first recital; provided that (i) the
term Credit Agreement shall (x) also include any renewal, extension, refunding,
restructuring, replacement or refinancing thereof (whether with the original
administrative agent and lenders or another administrative agent or agents or
other lenders, whether provided under the original Credit Agreement or any
other credit or other agreement or indenture and whether entered into
concurrently with or subsequent to the termination of the prior Credit
Agreement); provided that any such renewal, extension, refunding,
restructuring, replacement or refinancing does not increase the principal
amount thereof beyond the limit set forth in the Indenture or any other
Noteholder Document and (y) exclude the Notes and other Noteholder Documents
and (ii) if at any time a Discharge of Lender Claims occurs with respect to the
Credit Agreement (without giving effect to Section 5.6), then, to the extent
provided in Section 5.6, the term "Credit Agreement" shall mean the Future
First-Lien Credit Facility designated by the Company in accordance with the
terms of such section. The Credit Agreement, as in effect on the Effective
Date, is attached hereto as Annex A.
"Discharge of Lender Claims" means, except to the extent otherwise
provided in Sections 5.6 and 6.5, the payment in full in cash of all
Obligations, the expiration, termination or cash collateralization of all
Letters of Credit, pursuant (for purposes of cash collateralization) to the
terms thereof and the Credit Agreement and any Future First-Lien Credit
Facility, the termination of all commitments to extend credit under the Credit
Agreement and any Future First-Lien Credit Facility and all Rate Protection
Agreements and the payment in full in cash of all other Lender Claims, other
than those that constitute Unasserted Contingent Obligations.
"Effective Date" means April 23, 2004.
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"Existing Credit Agreement" is defined in the first recital.
"Future First-Lien Credit Facility" shall mean the Credit Agreement and
any Credit Facility (as defined in the Indenture or any other Noteholder
Document) that is designated by the Company as a "Credit Facility" which is
permitted to be secured by a first lien on the Common Collateral for purposes
of the Indenture or any other Noteholder Document; provided that the Secured
Parties under any Credit Agreement then in effect have consented to such
designation.
"Indenture" is defined in the second recital.
"Insolvency or Liquidation Proceeding" means (a) any voluntary or
involuntary case or proceeding under the Bankruptcy Code with respect to any
Obligor as a debtor, (b) any other voluntary or involuntary insolvency,
reorganization or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding with respect to
any Obligor as a debtor or with respect to any substantial part its assets, (c)
any liquidation, dissolution, reorganization or winding up of any Obligor
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy or (d) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of any Obligor.
"Lender Claims" means (a) all Indebtedness outstanding under one or more
of the Loan Documents or the Future First-Lien Credit Facilities and (b) all
other Obligations (as defined in the Credit Agreement or any Future First-Lien
Facility), in each case including all claims under the Loan Documents for
interest, fees, expense reimbursements, indemnification and other similar
claims. Lender Claims shall include all interest accrued or accruing (or which
would, absent the commencement of an Insolvency or Liquidation Proceeding,
accrue) after the commencement of an Insolvency or Liquidation Proceeding in
accordance with and at the rate specified in the applicable Loan Document
whether or not the claim for such interest is allowed as a claim in such
Insolvency or Liquidation Proceeding. To the extent any payment with respect to
the Lender Claims (whether by or on behalf of any Obligor, as proceeds of
security, enforcement of any right of setoff or otherwise) is declared to be
fraudulent or preferential in any respect, set aside or required to be paid to
a debtor in possession, trustee, receiver or similar Person, then the
Obligation (as defined in the Credit Agreement or any Future First-Lien
Facility) or part thereof originally intended to be satisfied shall be deemed
to be reinstated and outstanding as if such payment had not occurred.
"Lender Collateral" means any of the assets of the Obligors (as defined in
the Credit Agreement) whether real, personal or mixed, in which the Secured
Parties or any of them now or hereafter holds a Lien as security for any Lender
Claim (regardless of the effect of the application of any laws relating to
fraudulent transfers or conveyances).
"Lender Liens" means Liens on Common Collateral or Lender Collateral in
favor of the Administrative Agent on behalf of the Secured Parties created as
collateral security for the Lender Claims.
"Loan Documents" means the Credit Agreement, the Loan Documents (as
defined in the Credit Agreement), and all documents and instruments evidencing
any obligation under any Future First-Lien Credit Facility, and any other
related document or instrument executed or
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delivered pursuant to any Loan Document or Future First-Lien Credit Facility at
any time or otherwise evidencing any Lender Claims, as any such document or
instrument may from time to time be amended, supplemented, amended and restated
or otherwise modified from time to time; provided that any such modification
does not increase the principal amount thereof beyond the limit set forth in
the Indenture or any other Noteholder Document.
"Noteholder Claims" means all Indebtedness, Obligations and other
liabilities (contingent or otherwise) arising under or with respect to the
Noteholder Documents or any of them.
"Noteholder Collateral" means any of the assets of the Obligors, whether
real, personal or mixed, in which the Noteholders or the Trustee or any of them
now or hereafter holds a Lien as security for any Noteholder Claim (regardless
of the effect of the application of any laws relating to fraudulent transfers
or conveyances).
"Noteholder Collateral Documents" means, collectively, the Noteholder
Security Agreements, and any document or instrument executed and delivered
pursuant to any Noteholder Document at any time or otherwise pursuant to which
a Lien is granted by an Obligor to secure the Noteholder Claims or under which
rights or remedies with respect to any such Lien are governed, as the same may
be amended, supplemented, amended and restated or otherwise modified from time
to time.
"Noteholder Documents" means, collectively, the Indenture, the Notes, the
Noteholder Collateral Documents, any other Permitted Senior Secured Debt
Documents, and any other related document or instrument executed and delivered
pursuant to any Noteholder Document at any time or otherwise evidencing any
Noteholder Claims, as the same may be amended, supplemented, amended and
restated or otherwise modified from time to time.
"Noteholders" means the Persons holding Noteholder Claims, including,
without limitation, holders of Permitted Senior Secured Debt.
"Noteholder Security Agreements" means (i) the Issuer Pledge and Security
Agreement, dated as of the Effective Date, between the Company and the Trustee
and (ii) the Subsidiary Pledge and Security Agreement dated as of the Effective
Date among the Obligors (other than the Company) and the Trustee, in each case
as the same may be amended, supplemented, amended and restated or otherwise
modified from time to time.
"Notes" is defined in the second recital.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness (including, with respect to the
Lender Claims, "Obligations" (as defined in the Credit Agreement) and any
obligation to post cash collateral in respect of letters of credit and any
other obligations).
"Obligor Pledge Agreements" means the Borrower Pledge and Security
Agreement, the Subsidiary Pledge and Security Agreement and any and all
Mortgages.
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"Obligors" means the Company and each of its Restricted Subsidiaries that
grants a Lien on its property in favor of the Trustee.
"Permitted Senior Secured Debt" means any Permitted Senior Debt that is
secured by a Lien on the Common Collateral.
"Permitted Senior Secured Debt Documents" means all Permitted Senior Debt
Documents that relate to any Permitted Senior Secured Debt.
"Pledged Collateral" means the certificated securities constituting
"Collateral" (as defined in the Obligor Pledge Agreements), the "Intercompany
Notes" (as defined in the Obligor Pledge Agreements), any other tangible
property in the possession of the Administrative Agent (or its agents or
bailees) in which a security interest is perfected by such possession or any
investment property or deposit account as to which the Administrative Agent (or
its agents or bailees) have control and in which a security interest is
perfected by such control.
"Recovery" shall have the meaning set forth in Section 6.5 hereof.
"Required Lenders" shall mean, with respect to any amendment or
modification of the Credit Agreement or Future First-Lien Facility, or any
termination or waiver of any provision of the Credit Agreement or Future
First-Lien Facility, or any consent or departure by the Company therefrom,
those Secured Parties, the approval of which is required to approve such
amendment or modification, termination or waiver or consent or departure.
"Secured Parties" shall mean the "Secured Parties" (as defined in the
Credit Agreement) and any other Persons holding Lender Claims, including the
Administrative Agent.
"Trustee" shall include, in addition to the Trustee defined in the
preamble, (i) the then acting collateral agent under the Indenture and any
successor thereto exercising substantially the same rights and powers and (ii)
any representative of any then outstanding Noteholder Claims under any
Permitted Senior Secured Debt Documents other than Noteholder Claims under the
Indenture, the Notes and any other Noteholder Document related thereto.
"Unasserted Contingent Obligations" shall mean, at any time, Obligations
for taxes, costs, indemnifications, reimbursements, damages and other
liabilities (except for (i) the principal of and interest and premium (if any)
on, and fees relating to, any Indebtedness and (ii) contingent reimbursement
obligations in respect of amounts that may be drawn under letters of credit) in
respect of which no claim or demand for payment has been made (or, in the case
of Obligations for indemnification, no notice for indemnification has been
issued by the indemnitee) at such time.
SECTION 2. Lien Priorities.
SECTION 2.1 Priority. Notwithstanding the date, manner or order of grant,
attachment or perfection of any Liens granted to the Trustee or the Noteholders
on the Common Collateral or of any Liens granted to the Secured Parties on the
Common Collateral and notwithstanding any provision of the UCC, or any
applicable law, the avoidance or setting aside of any Lien granted to the
Secured Parties in the Common Collateral, or the Noteholder Documents or the
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Loan Documents or any other circumstance whatsoever, the Trustee, on behalf of
itself and the Noteholders, hereby agrees that: (i) any Lien on the Common
Collateral securing the Lender Claims now or hereafter held by the Secured
Parties shall be first in priority to any Lien on the Common Collateral
securing the Noteholder Claims; and (ii) any Lien on the Common Collateral now
or hereafter held by the Trustee or the Noteholders regardless of how acquired,
whether by grant, statute, operation of law, subrogation or otherwise, shall be
second in priority in all respects to all Liens on the Common Collateral
securing the Lender Claims. All Liens on the Common Collateral securing the
Lender Claims shall be and remain first in priority to all Liens on the Common
Collateral securing the Noteholder Claims for all purposes, whether or not such
Lender Liens are subordinated to any Lien securing any other obligation of any
Obligor.
SECTION 2.2 Prohibition on Contesting Liens. Each of the Trustee, for
itself and on behalf of each Noteholder, and the Administrative Agent, for
itself and on behalf of each other Secured Party, agrees that it shall not (and
hereby waives any right to) contest or support any other Person in contesting,
in any proceeding (including any Insolvency or Liquidation Proceeding), the
priority, validity or enforceability of a Lien held by the Secured Parties in
the Lender Collateral or by the Noteholders in the Common Collateral, as the
case may be.
SECTION 2.3 No New Liens. So long as the Discharge of Lender Claims has
not occurred, (a) the parties hereto agree that, (i) neither the Trustee nor
any Noteholder shall acquire any security interest in and shall have no
interest in (including following avoidance of any Lender Liens) any property,
real or otherwise, of Holdings or any proceeds thereof and (ii) after the date
hereof, if the Trustee shall hold any Lien on any assets of any Obligor
securing the Noteholder Claims that are not also subject to the prior Lien of
the Secured Parties under the Loan Documents, the Trustee will notify the
Administrative Agent in writing and, upon demand by the Administrative Agent,
shall, either release such Lien or assign it to the Secured Parties as security
for the Lender Claims (unless the applicable Obligor shall promptly grant a
similar Lien on such assets in favor of such Secured Parties and such lien
shall be prior to the Lien of the Trustee on such assets) and (b) each Obligor
agrees it will not grant, and the Company agrees it will not permit its
Subsidiaries to grant, any Lien on any of its assets, in favor of the Trustee
or the Noteholders unless such Obligor has granted a similar perfected prior
Lien on such assets in favor of the Secured Parties.
SECTION 3. Enforcement.
SECTION 3.1 Exercise of Remedies. (a) So long as the Discharge of Lender
Claims has not occurred, whether or not any Insolvency or Liquidation
Proceeding has been commenced by or against any Obligor, (i) the Trustee and
the Noteholders will not exercise or seek to exercise any rights or remedies
(including by way of setoff) with respect to any Common Collateral, institute
any action or proceeding with respect to such rights or remedies, including any
action of foreclosure, or contest, protest or object to any foreclosure
proceeding or action brought by the Administrative Agent or any other Secured
Party, any exercise of any right under any control agreement in respect of a
deposit account or securities entitlement constituting Common Collateral, or
any bailee's letter or similar agreement or arrangement to which the Trustee or
any Noteholder is a party, or any other exercise by any such party, of any
rights and remedies relating to the Common Collateral under the Loan Documents
or otherwise, or object to the forbearance by the Secured Parties from bringing
or pursuing any foreclosure proceeding or
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action or any other exercise of any rights or remedies relating to the Common
Collateral and (ii) the Administrative Agent and the other Secured Parties
shall have the exclusive right to enforce rights, exercise remedies (including
by way of setoff and the right to credit bid their debt), refrain from
enforcing or exercising remedies, and make determinations regarding release,
disposition, or restrictions with respect to the Common Collateral without any
consultation with or the consent of the Trustee or any Noteholder, all as if
the Lien of the Trustee under the Noteholder Collateral Documents did not
exist; provided that (A) in any Insolvency or Liquidation Proceeding commenced
by or against any Obligor, the Trustee or any Noteholder may file a claim or
statement of interest with respect to the Noteholder Claims, (B) the Trustee or
any Noteholder may take any action not adverse to the Liens on the Common
Collateral securing the Lender Claims in order to establish, preserve, perfect
or protect its rights in the Common Collateral, (C) solely to the extent it
would not prevent, restrict or otherwise limit any rights granted or created
hereunder or under any Loan Document in favor of the Administrative Agent or
any other Secured Party in respect of the Common Collateral, the Trustee or any
Noteholder shall be entitled to file any necessary responsive or defensive
pleadings in opposition to any motion, claim, adversary proceeding or other
pleadings made by any person objecting to or otherwise seeking the disallowance
of the Noteholder Claims, including without limitation any claims secured by
the Common Collateral, if any, in each case in accordance with the terms of
this Agreement, or (D) the Trustee or any Noteholder shall be entitled to file
any pleadings, objections, motions or agreements which assert rights or
interests available to unsecured creditors of the Obligors arising under either
the Bankruptcy Code or applicable non-bankruptcy law, in each case in
accordance with the terms of this Agreement. In exercising rights and remedies
with respect to the Common Collateral, the Administrative Agent or any other
Secured Parties may enforce the provisions of the Loan Documents and exercise
remedies thereunder, all in such order and in such manner as it may determine
in the exercise of its sole discretion. Such exercise and enforcement shall
include the rights of an agent appointed by the Administrative Agent and the
other Secured Parties to sell or otherwise dispose of Common Collateral upon
foreclosure, to incur expenses in connection with such sale or disposition, and
to exercise all the rights and remedies of a secured party under the UCC of any
applicable jurisdiction and of a secured creditor under bankruptcy or similar
laws of any applicable jurisdiction.
(b) The Trustee, on behalf of itself and the Noteholders, agrees that it
will not, in connection with the exercise of any right or remedy (including by
way of setoff) with respect to any Common Collateral, take or receive any
Common Collateral or any proceeds of Common Collateral unless and until the
Discharge of Lender Claims has occurred. In the event any such proceeds are
received by the Trustee in violation of this Agreement, such proceeds shall be
segregated and held in trust for the benefit of the Secured Parties in the same
form as received, and shall not be applied to the satisfaction of any
Noteholder Claims unless and until the Discharge of the Lender Claims has
occurred. Without limiting the generality of the foregoing, unless and until
the Discharge of Lender Claims has occurred, except as expressly provided in
the proviso in clause (a)(ii) of Section 3.1, the sole right of the Trustee and
the Noteholders as secured parties with respect to the Common Collateral is to
hold a perfected Lien on the Common Collateral pursuant to the Noteholder
Documents for the period and to the extent granted therein and to receive a
share of the proceeds thereof, if any, after the Discharge of the Lender Claims
has occurred.
(c) [Intentionally Omitted]
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(d) Subject to the proviso in clause (a)(ii) of Section 3.1, (i) the
Trustee, for itself and on behalf of the Noteholders, agrees that the Trustee
and the Noteholders will not take any action that would hinder or cause to
delay any exercise of remedies undertaken by the Administrative Agent or any
other Secured Party under the Loan Documents as secured parties in respect of
any Common Collateral, including any sale, lease, exchange, transfer or other
disposition of the Common Collateral, whether by foreclosure or otherwise, and
(ii) the Trustee, for itself and on behalf of the Noteholders, hereby waives
any and all rights it or the Noteholders may have as a junior lien creditor or
otherwise (whether arising under the UCC or any other law) to object to the
manner in which the Administrative Agent or the other Secured Parties seek to
enforce the Liens granted in any of the Lender Collateral.
(e) The Trustee hereby acknowledges and agrees that no covenant, agreement
or restriction contained in the Noteholder Collateral Documents or any other
Noteholder Document shall be deemed to restrict in any way the rights and
remedies of the Administrative Agent or the Secured Parties with respect to the
Common Collateral as set forth in this Agreement and the Loan Documents.
SECTION 3.2 Cooperation. Subject to the proviso in clause (a)(ii) of
Section 3.1, the Trustee, on behalf of itself and the Noteholders, agrees that,
unless and until the Discharge of Lender Claims has occurred, it will not
commence, or join with any Person (other than the Secured Parties upon the
request thereof) in commencing, any enforcement, collection, execution, levy or
foreclosure action or proceeding with respect to any Lien held by it under any
of the Noteholder Documents.
SECTION 4. Application of Proceeds. As long as the Discharge of Lender
Claims has not occurred, the cash proceeds of Common Collateral received in
connection with the sale of, or collection on, such Common Collateral upon the
exercise of remedies, shall be applied by the Administrative Agent to the
Lender Claims in such order as specified in the Credit Agreement and any Future
First-Lien Credit Facility until the Discharge of Lender Claims has occurred.
Upon the Discharge of the Lender Claims, the Administrative Agent shall deliver
to the Trustee (for application in such order as specified in the Indenture and
the other applicable Noteholder Documents) any proceeds of Common Collateral
held by it in the same form as received, with any necessary endorsements or as
a court of competent jurisdiction may otherwise direct.
SECTION 5. Other Agreements.
SECTION 5.1 Releases.
(a) At such time as:
(i) the Discharge of the Lender Claims; or
(ii) the Secured Parties have released the Lender Liens on all or any
portion of the Common Collateral,
the Liens granted to the Trustee or the Noteholders on the Common Collateral
(or, in the case of a release of the Lender Liens referred to in clause (a)(ii)
on only a portion of the Common Collateral, the portion of the Common
Collateral in respect of which the Lender Liens were
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released) shall be automatically, unconditionally and simultaneously released
and the Trustee, for itself and on behalf of the Noteholders, promptly shall
execute and deliver to the Administrative Agent and the Company such
termination statements, releases and other documents as the Administrative
Agent and the Company may request to effectively confirm such release; provided
that, (A) in the case of clause (a)(i), in the event that an event of default
under the Indenture or any other Noteholder Document has occurred and is
continuing as of the date on which the Discharge of Lender Claims occurs, the
Liens granted to the Trustee or the Noteholders on the Common Collateral will
not be released, except to the extent that the Common Collateral, or any
portion thereof, was disposed of in order to repay the Lender Claims, and
thereafter, the Trustee (acting at the direction of the Noteholders) will have
the right to exercise remedies with respect to the Common Collateral (but in
such event, the Liens granted to the Trustee or the Noteholders on the Common
Collateral shall be released when such event of default (and all other events
of default under the Indenture or any other Noteholder Document) cease to
exist), and (B) in the case of clause (a)(ii), if the Lender Claims (or any
portion thereof) are thereafter secured by assets that would constitute Common
Collateral, the Noteholder Claims shall then be secured by a second priority
Lien on such Common Collateral, to the same extent provided pursuant to the
Noteholder Collateral Documents.
(b) The Trustee, for itself and on behalf of the Noteholders, hereby
irrevocably constitutes and appoints the Administrative Agent and any officer
or agent of the Administrative Agent, with full power of substitution, as its
true and lawful attorney-in-fact with full irrevocable power and authority in
the place and stead of the Trustee or such Noteholder or in the Administrative
Agent's own name, from time to time in the Administrative Agent's discretion,
for the purpose of carrying out the terms of this Section 5.1, to take any and
all appropriate action and to execute any and all releases, documents and
instruments which may be necessary or desirable to accomplish the purposes of
this Section 5.1, including any financing statements, mortgage releases,
intellectual property releases, endorsements or other instruments or transfer
or release.
SECTION 5.2 Insurance. Unless and until the Discharge of Lender Claims has
occurred, the Administrative Agent and the other Secured Parties shall have the
sole and exclusive right, subject to the rights of the Obligors under the Loan
Documents, to adjust settlement for any insurance policy covering the Common
Collateral in the event of any loss thereunder and to approve any award granted
in any condemnation or similar proceeding affecting the Common Collateral.
Unless and until the Discharge of Lender Claims has occurred (and whether or
not the Revolving Loan Commitment Termination Date has occurred), all proceeds
of any such policy and any such award if in respect to the Common Collateral
shall be paid to the Administrative Agent for the benefit of the Secured
Parties to the extent required under the Credit Agreement and any Future
First-Lien Credit Facility and thereafter to the Trustee for the benefit of the
Noteholders to the extent required under the applicable Noteholder Documents
and then to the owner of the subject property or as a court of competent
jurisdiction may otherwise direct.
SECTION 5.3 Amendments to Noteholder Collateral Documents.
(a) Unless and until the Discharge of Lender Claims has occurred, without
the prior written consent of the Administrative Agent and the Required Lenders,
no Noteholder Document
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may be amended, supplemented or otherwise modified or entered into to the
extent such amendment, supplement or modification, or the terms of any new
Noteholder Document, would be inconsistent with any of the terms of this
Agreement or the Loan Documents. The Trustee agrees that each Noteholder
Collateral Document to which the Trustee is a party shall include the following
language:
"Notwithstanding anything herein to the contrary, the lien and
security interest granted to the Trustee pursuant to this Agreement and
the exercise of any right or remedy by the Trustee hereunder are subject
to the provisions of the Intercreditor Agreement, dated as of April 23,
2004 (as amended, supplemented, amended and restated or otherwise modified
from time to time, the "Intercreditor Agreement") among Credit Suisse
First Boston, acting through its Cayman Islands Branch, as Administrative
Agent, Law Debenture Trust Company of New York, as Trustee, ▇▇▇▇▇▇▇ Group,
Inc., and the other Obligors party thereto, including any grantor of a
security interest pursuant to this Agreement, named therein. In the event
of any conflict between the terms of the Intercreditor Agreement and this
Agreement, the terms of the Intercreditor Agreement shall govern."
(b) In the event the Administrative Agent enters into any amendment,
waiver or consent in respect of any of the Obligor Pledge Agreements for the
purpose of adding to, or deleting from, or waiving or consenting to any
departures from any provisions of, any Obligor Pledge Agreement or changing in
any manner the rights of the Administrative Agent, the Secured Parties or the
Obligors thereunder, then such amendment, waiver or consent shall apply
automatically to any comparable provision of the Comparable Noteholder
Collateral Document without the consent of the Trustee or the Noteholders and
without any action by the Trustee or any Obligor; provided that (A) no such
amendment, waiver or consent shall have the effect of removing assets subject
to the Lien of the Noteholder Collateral Documents, except to the extent that a
release of such Lien is permitted by Section 5.1, (B) any such amendment,
waiver or consent that materially and adversely affects the rights of the
Trustee and the Noteholders (and not the holders of the Lender Liens in a like
or similar manner) shall not apply to the Noteholder Collateral Documents
without the consent of the Trustee (acting at the direction of the holders of a
majority of the aggregate principal amount of the applicable Noteholder Claims)
and (C) notice of such amendment, waiver or consent shall have been given to
the Trustee; provided, further, that (x) nothing contained in this clause (b)
shall impair the rights of the Administrative Agent and the holders of Lender
Claims, or the obligations and agreements of the Trustee and Noteholders, under
Sections 3 and 5.1 hereof and (y) the Obligor Pledge Agreements and Noteholder
Security Documents may, without the consent of the Trustee or the Noteholders,
be amended or modified pursuant to this Section 5.3(b) to secure additional
extensions of credit and add additional secured creditors as long as such
amendments or modifications do not violate the express provisions of the
Indenture or any other Noteholder Document.
SECTION 5.4 Rights As Unsecured Creditors. Notwithstanding anything to the
contrary in this Agreement, the Trustee and the Noteholders may exercise rights
and remedies as an unsecured creditor against the Obligors in accordance with
the terms of the Noteholder
10
Documents and applicable law. Nothing in this Agreement shall prohibit the
receipt by the Trustee or any Noteholders of the required payments of interest
and principal on the Notes so long as such receipt is not the direct or
indirect result of the exercise by the Trustee or any Noteholder of rights and
remedies as a secured creditor or enforcement of any Lien held by any of them
in contravention of this Agreement. In the event that the Trustee or any
Noteholder becomes a judgment lien creditor in respect of Common 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 Lender Liens and the Lender Claims) as the other
Liens securing the Noteholder Claims (created pursuant to the Noteholder
Collateral Documents) subject to this Agreement. Nothing in this Agreement
modifies any rights or remedies the Secured Parties may have with respect to
the Lender Collateral.
SECTION 5.5 Bailee for Perfection.
(a) Solely for the purpose of perfecting the security interest granted in
such Pledged Collateral pursuant to the Noteholder Collateral Documents, and
subject to the terms and conditions of this Section 5.5, the Administrative
Agent agrees: (i) to hold the Pledged Collateral that is part of the Common
Collateral in its possession or control (or in the possession or control of its
agents or bailees) as bailee for the Trustee and any assignee, (ii) with
respect to any securities accounts included in the Collateral, it has "control"
within the meaning of Section 8-106(d)(3) of such securities accounts on behalf
of the Trustee and any assignee and (iii) with respect to any deposit accounts
included in the Collateral, it is acting as agent for the Trustee and any
assignee.
(b) The rights of the Trustee shall at all times be subject to the terms
of this Agreement and to the Administrative Agent's rights under the Loan
Documents.
(c) The Administrative Agent shall have no obligation whatsoever to the
Trustee or any Noteholder to assure that the Pledged Collateral is genuine or
owned by any Obligor or to preserve rights or benefits of any Person except as
expressly set forth in this Section 5.5. The duties or responsibilities of the
Administrative Agent under this Section 5.5 shall be limited solely to holding
the Pledged Collateral as bailee or agent for the Trustee for purposes of
perfecting the Lien held by the Trustee.
(d) The Administrative Agent shall not have by reason of the Noteholder
Collateral Documents or this Agreement or any other document a fiduciary
relationship in respect of the Trustee or any Noteholder.
(e) Upon the Discharge of Lender Claims, the Administrative Agent shall
deliver to the Trustee, at the sole cost and expense of the Company, the
Pledged Collateral in its possession together with any necessary endorsements
(or otherwise allow the Trustee to obtain control of such Pledged Collateral)
to the extent required by the Noteholder Documents or as a court of competent
jurisdiction may otherwise direct.
SECTION 5.6 When Discharge of Lender Claims Deemed to Not Have Occurred.
If at any time after the Discharge of Lender Claims has occurred the Company
designates any Future First-Lien Credit Facility to be the "Credit Agreement"
hereunder, then such Discharge of
11
Lender Claims shall automatically be deemed not to have occurred for all
purposes of this Agreement (other than with respect to any actions taken prior
to the date of such designation as a result of the occurrence of such first
Discharge of Lender Claims), and such Future First-Lien Credit Facility shall
automatically be treated as the Credit Agreement for all purposes of this
Agreement, including without limitation for purposes of the Lien priorities and
rights in respect of Collateral set forth herein; provided, however, that no
designation of any Future First-Lien Credit Facility shall apply retroactively
and the Trustee and the Noteholders shall be entitled to retain any collateral
proceeds or other payments or property received by them prior to the
designation of such Future First-Lien Credit Facility. Upon receipt of notice
of such designation (including the identity of the new Administrative Agent),
the Trustee shall promptly deliver to the Administrative Agent the Pledged
Collateral together with any necessary endorsements (or otherwise allow such
Administrative Agent to obtain control of such Pledged Collateral). If the
Obligations under a Future First-Lien Credit Facility are secured by assets of
the Obligors of the type constituting Common Collateral that do not also secure
the Noteholder Claims, then the Notes shall be secured at such time by a second
priority Lien on such assets to the same extent provided in the Noteholder
Collateral Documents.
SECTION 6. Insolvency or Liquidation Proceedings.
SECTION 6.1 Sale Issues. If any Obligor shall be subject to any Insolvency
or Liquidation Proceeding and the Administrative Agent shall desire to permit
the use of cash collateral or to permit the Company to obtain financing under
section 363 or section 364 of the Bankruptcy Code ("DIP Financing"), then the
Trustee, on behalf of itself and the Noteholders, agrees that it will raise no
objection to such use or DIP Financing and will not request adequate protection
or any other relief in connection therewith (except to the extent permitted by
Section 6.3) and, to the extent the Lender Liens are junior in priority or pari
passu with such DIP Financing, will maintain the priority of its Liens in the
Common Collateral as junior in priority to such Lender Liens on the same basis
as the other Liens securing the Noteholder Claims are second in priority to
Lender Claims under this Agreement.
SECTION 6.2 Relief from the Automatic Stay. While any amounts are
outstanding under the Loan Documents or any commitment under any DIP Financing
provided by any Secured Party is in effect, the Trustee, on behalf of itself
and the Noteholders, agrees that none of them shall seek relief from the
automatic stay or any other stay in any Insolvency or Liquidation Proceeding in
respect of the Common Collateral, without the prior written consent of the
Administrative Agent and the Required Lenders.
SECTION 6.3 Adequate Protection. The Trustee, on behalf of itself and the
Noteholders, agrees that none of them shall contest (or support any other
Person contesting) (a) any request by the Administrative Agent or the other
Secured Parties for adequate protection or (b) any objection by the
Administrative Agent or the other Secured Parties to any motion, relief, action
or proceeding which objection is based on the Administrative Agent or the other
Secured Parties claiming a lack of adequate protection. Notwithstanding the
foregoing contained in this Section 6.3, in any Insolvency or Liquidation
Proceeding, (i) if the Secured Parties (or any subset thereof) are granted
adequate protection in the form of additional collateral in connection with any
DIP Financing or use of their cash collateral under section 363 or section 364
of the Bankruptcy Code, then the Trustee, on behalf of itself or any of the
Noteholders, may seek or
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request adequate protection in the form of a replacement Lien on such
additional collateral, which Lien is junior in priority to the Lender Liens and
such DIP Financing (and all Obligations relating thereto) on the same basis as
the other Liens securing the Noteholder Claims are junior in priority to the
Lender Claims and Lenders Liens under this Agreement, and (ii) in the event the
Trustee, on behalf of itself and the Noteholders, seeks or requests adequate
protection and such adequate protection is granted in the form of additional
collateral, then the Trustee, on behalf of itself or any of the Noteholders,
agrees that the Secured Parties shall also be granted a Lien on such additional
collateral as security for the Lender Claims and any such DIP Financing and
that any Lien on such additional collateral securing the Noteholder Claims
shall be junior in priority to the Liens on such collateral securing the Lender
Claims and any such DIP Financing (and all Obligations relating thereto) and
any other Liens granted to the Secured Parties as adequate protection on the
same basis as the other Liens securing the Noteholder Claims are junior in
priority to such Lender Claims under this Agreement.
SECTION 6.4 No Waiver; Voting Rights. Nothing contained herein shall
prohibit or in any way limit the Administrative Agent or any other Secured
Party from objecting in any Insolvency or Liquidation Proceeding or otherwise
to any action taken by the Trustee or any of the Noteholders, including the
seeking by the Trustee or any Noteholder of adequate protection or the
asserting by the Trustee or any Noteholder of any of its rights and remedies
under the Noteholder Documents or otherwise. In any Insolvency or Liquidation
Proceeding, neither the Trustee nor any Noteholder shall vote any Noteholder
Claim for any plan of reorganization of any Obligor unless (i) such plan
provides for the payment in full in cash of all Lender Claims on the effective
date of such plan of reorganization, (ii) such plan provides for treatment of
the Lender Claims in a manner that would result in such Lender Claims having
relative lien (or, if the obligations, property or assets to be distributed in
respect of the Lender Claims under such plan are unsecured, other) priority
over the Noteholder Claims to at least the same extent as if such obligations,
property or assets were secured by Liens and subject to Section 6.6, whether or
not such obligations, property or assets are, in fact, secured by any such
Liens, and (iii) the plan otherwise provides treatment of the Lender Claims in
a manner approved by the Administrative Agent and the Required Lenders.
SECTION 6.5 Preference Issues. If any Secured Party is required in any
Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay
to the estate of any Obligor any amount as a preference (a "Recovery"), then
the Lender Claims shall be reinstated to the extent of such Recovery and the
Secured Parties shall be entitled to a Discharge of Lender Claims with respect
to all such recovered amounts. If this Agreement shall have been terminated
prior to such Recovery, this Agreement shall be reinstated in full force and
effect, and such prior termination shall not diminish, release, discharge,
impair or otherwise affect the obligations of the parties hereto from such date
of reinstatement.
SECTION 6.6 Reorganization Securities. If, in any Liquidation or
Insolvency Proceeding, debt obligations of the reorganized debtor secured by
Liens upon any property of the reorganized debtor are distributed, pursuant to
a plan of reorganization or similar dispositive restructuring plan, both on
account of Lender Claims and on account of Noteholder Claims, then, to the
extent the debt obligations distributed on account of the Lender Claims and on
account of the Noteholder Claims are secured by Liens upon the same property,
the provisions of this
13
Agreement will survive the distribution of such debt obligations pursuant to
such plan and will apply with like effect to the Liens securing such debt
obligations.
SECTION 6.7 Expense Claims. Neither the Trustee nor any Noteholder will
assert or enforce, at any time prior to the Discharge of Lender Claims, any
claim under ss.506(c) of the Bankruptcy Code senior to or on a parity with the
Lender Liens for costs or expenses of preserving or disposing of any Common
Collateral.
SECTION 6.8 Post-Petition Claims. (a) Neither the Trustee nor any
Noteholder shall oppose or seek to challenge any claim by the Administrative
Agent or any other Secured Party for allowance in any Insolvency or Liquidation
Proceeding of Lender Claims consisting of post-petition interest, fees or
expenses to the extent of the value of the Lender Lien, without regard to the
existence of the Lien of the Trustee on behalf of the Noteholders on the Common
Collateral.
(b) Neither the Administrative Agent nor any other Secured Party shall
oppose or seek to challenge any claim by the Trustee or any Noteholder for
allowance in any Insolvency or Liquidation Proceeding of Noteholder Claims
consisting of post-petition interest, fees or expenses to the extent of the
value of the Lien of the Trustee on behalf of the Noteholders on the Common
Collateral (after taking into account the Lender Liens).
SECTION 7. Reliance; Waivers; etc.
SECTION 7.1 Reliance. The consent by the Secured Parties to the execution
and delivery of the Noteholder Documents and the grant to the Trustee, on
behalf of the Noteholders, of a Lien on the Common Collateral and all loans and
other extensions of credit continued, made or deemed made on and after the date
hereof by the Secured Parties to the Company shall be deemed to have been given
and continued or made in reliance upon this Agreement. The Trustee, on behalf
of itself and the Noteholders, acknowledges that it and the Noteholders have,
independently and without reliance on the Administrative Agent or any other
Secured Party, and based on documents and information deemed by them
appropriate, made their own credit analysis and decision to enter into the
Indenture or any other applicable Noteholder Document, this Agreement and the
transactions contemplated hereby and thereby and they will continue to make
their own credit decisions in taking or not taking any action under the
Indenture, any such other Noteholder Document or this Agreement.
SECTION 7.2 No Warranties or Liability. The Trustee, on behalf of itself
and Noteholders, acknowledges and agrees that each of the Administrative Agent
and the other Secured Parties have made no express or implied representation or
warranty, including with respect to the execution, validity, legality,
completeness, collectibility or enforceability of any of the Loan Documents.
The Secured Parties will be entitled to manage and supervise their respective
loans and extensions of credit to the Company in accordance with law and as
they may otherwise, in their sole discretion, deem appropriate, and the Secured
Parties may manage their loans and extensions of credit without regard to any
rights or interests that the Trustee or any of the Noteholders have in the
Common Collateral or otherwise, except as otherwise provided in this Agreement.
Neither the Administrative Agent nor any Secured Party shall have any duty to
the Trustee or any of the Noteholders to act or refrain from acting in a manner
which allows, or results in, the occurrence or continuance of an event of
default or default under any
14
agreements with any the Company (including the Noteholder Documents),
regardless of any knowledge thereof which they may have or be charged with.
SECTION 7.3 No Waiver of Lien Priorities.
(a) To the fullest extent permitted under applicable law, no right of the
Secured Parties, the Administrative Agent or any of them to enforce any
provision of this Agreement shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of any Obligor or by any act
or failure to act by any Secured Party, or by any noncompliance by any Person
with the terms, provisions and covenants of this Agreement, any of the Loan
Documents or any of the Noteholder Documents, regardless of any knowledge
thereof which the Administrative Agent or the other Secured Parties, or any of
them, may have or be otherwise charged with;
(b) Without in any way limiting the generality of the foregoing paragraph
(but subject to the rights of the Obligors under the Loan Documents), the
Secured Parties and any of them, may, to the fullest extent permitted under
applicable law, at any time and from time to time, without the consent of, or
notice to, the Trustee or any Noteholder, without incurring any liabilities to
the Trustee or any Noteholder and without impairing or releasing the lien
priorities and other benefits provided in this Agreement (even if any right of
subrogation or other right or remedy of the Trustee or any Noteholder is
affected, impaired or extinguished thereby) do any one or more of the
following:
(i) make loans and advances to any Obligor or issue, guaranty or
obtain letters of credit for the account of any Obligor or otherwise
extend credit to any Obligor, in any amount (subject to the limits set
forth in the Indenture or any other Noteholder Document) and on any terms,
whether pursuant to a commitment or as a discretionary advance and whether
or not any default or event of default or failure of condition is then
continuing;
(ii) change the manner, place or terms of payment or change or extend
the time of payment of, or renew, exchange, amend, increase (subject to
the limits set forth in the Indenture or any other Noteholder Document) or
alter, the terms of any of the Lender Claims or any Lien on any Lender
Collateral or guaranty thereof or any liability of the Obligors, or any
liability incurred directly or indirectly in respect thereof (including
any increase in (subject to the limits set forth in the Indenture or any
other Noteholder Document) or extension of the Lender Claims, without any
restriction as to the amount, tenor or terms of any such increase (subject
to the limits set forth in the Indenture or any other Noteholder Document)
or extension) or otherwise amend, renew, exchange, extend, modify or
supplement in any manner any Liens held by the Secured Parties, the Lender
Claims or any of the Loan Documents;
(iii) subject, in the case of Pledged Collateral, to Section 5.5,
sell, exchange, release, surrender, realize upon, enforce or otherwise
deal with in any manner and in any order any part of the Lender Collateral
or any liability of any Obligor to the Secured Parties, or any liability
incurred directly or indirectly in respect thereof;
15
(iv) settle or compromise any Lender Claim or any other liability of
any Obligor or any security therefor or any liability incurred directly or
indirectly in respect thereof and apply any sums by whomsoever paid and
however realized to any liability (including the Lender Claims) in any
manner or order;
(v) exercise or delay in or refrain from exercising any right or
remedy against any Obligor or any security or any other Person, elect any
remedy and otherwise deal freely with the Obligors and the Lender
Collateral and any security or any liability of any Obligor to the Secured
Parties or any liability incurred directly or indirectly in respect
thereof;
(vi) release or discharge any Lender Claims or any guaranty thereof
or any agreement or obligation of any Obligor or any other person or
entity with respect thereto;
(vii) take or fail to take any Lender Lien or any other collateral
security for any Lender Claims or take or fail to take any action which
may be necessary or appropriate to ensure that any Lender Lien or any
other Lien upon any property is duly enforceable or perfected or entitled
to priority as against any other Lien or to ensure that any proceeds of
any property subject to any Lien are applied to the payment of any Lender
Claim or any other obligation secured thereby; or
(viii) release, discharge or permit the lapse of any or all Lender
Liens or any other Liens upon any property at any time securing any Lender
Claims;
(c) The Trustee, on behalf of itself and the Noteholders, also agrees, to
the fullest extent permitted under applicable law, that no Secured Party shall
have any liability to the Trustee or any Noteholder, and the Trustee, on behalf
of itself and the Noteholders, to the fullest extent permitted under applicable
law, hereby waives any claim against any Secured Party, arising out of any and
all actions which such Secured Parties may take or permit or omit to take with
respect to: (i) the Loan Documents, (ii) the collection of the Lender Claims or
(iii) the foreclosure upon, or sale, liquidation or other disposition of, the
Lender Collateral. The Trustee, on behalf of itself and the Noteholders, agrees
that neither the Administrative Agent (except as expressly set forth in Section
5.5) nor any other Secured Party shall have any duty to them, express or
implied, fiduciary or otherwise, in respect of the maintenance or preservation
of the Lender Collateral, the Lender Claims or otherwise; and
(d) The Trustee, on behalf of itself and the Noteholders, agrees not to
assert and hereby waives, to the fullest extent permitted by law, any right to
demand, request, plead or otherwise assert or otherwise claim the benefit of,
any marshalling, appraisal, valuation or other similar right that may otherwise
be available under applicable law or any other similar rights a junior secured
creditor may have under applicable law.
SECTION 7.4 Obligations Unconditional. All rights, interests, agreements
and obligations of the Administrative Agent and the other Secured Parties and
the Trustee and the Noteholders, respectively, hereunder shall remain in full
force and effect irrespective of:
(a) any lack of validity or enforceability of any Loan Documents or any
Noteholder Documents or any setting aside or avoidance of any Lender Lien;
16
(b) any change in the time, manner or place of payment of, or in any other
terms of, all or any of the Lender Claims or Noteholder Claims, or any
amendment or waiver or other modification, including any increase in the amount
thereof, whether by course of conduct or otherwise, of the terms of the Credit
Agreement or any other Loan Document or of the terms of the Indenture or any
other Noteholder Document;
(c) any exchange of any security interest in any Common Collateral or any
other collateral, or any amendment, waiver or other modification, whether in
writing or by course of conduct or otherwise, of all or any of the Lender
Claims or Noteholder Claims or any guarantee thereof;
(d) the commencement of any Insolvency or Liquidation Proceeding in
respect of any Obligor; or
(e) any other circumstances which otherwise might constitute a defense
available to, or a discharge of, any Obligor in respect of the Lender Claims,
or of the Trustee, any Noteholder, the Administrative Agent or any other
Secured Party in respect of this Agreement.
SECTION 8. Miscellaneous.
SECTION 8.1 Conflicts. In the event of any conflict between the provisions
of this Agreement and the provisions of the Loan Documents or the Noteholder
Documents, the provisions of this Agreement shall govern.
SECTION 8.2 Continuing Nature of this Agreement. This Agreement shall
continue to be effective until the Discharge of Lender Claims shall have
occurred. This is a continuing agreement of lien priority. The Trustee, on
behalf of itself and the Noteholders, hereby waives any right it may have under
applicable law to revoke this Agreement or any of the provisions of this
Agreement. The terms of this Agreement shall survive, and shall continue in
full force and effect, in any Insolvency or Liquidation Proceeding.
SECTION 8.3 Amendments; Waivers. No amendment, modification or waiver of
any of the provisions of this Agreement shall be deemed to be made unless the
same shall be in writing signed by the Trustee, the Administrative Agent and
the Company and each waiver, if any, shall be a waiver only with respect to the
specific instance involved and shall in no way impair the rights of the parties
making such waiver or the obligations of the other parties to such party in any
other respect or at any other time.
SECTION 8.4 Information Concerning Financial Condition of the Company and
its Subsidiaries. The Administrative Agent and the other Secured Parties, on
the one hand, and the Trustee and the Noteholders, on the other hand, shall
each be responsible for keeping themselves informed of (a) the financial
condition of the Company and its Subsidiaries and all endorsers and/or
guarantors of the Noteholder Claims or the Lender Claims and (b) all other
circumstances bearing upon the risk of nonpayment of the Noteholder Claims or
the Lender Claims. Neither the Administrative Agent nor any other Secured Party
shall have any duty to advise the Trustee or any Noteholder of information
known to it or them regarding such condition or any such circumstances or
otherwise. In the event the Administrative Agent or any other Secured Party, in
its sole discretion, undertakes at any time or from time to time to provide any
such information to
17
the Trustee or any Noteholder, it or they shall be under no obligation (x) to
provide any additional information or to provide any such information on any
subsequent occasion, (y) to undertake any investigation or (z) to disclose any
information which, pursuant to accepted or reasonable commercial finance
practices, such party wishes to maintain confidential.
SECTION 8.5 Successor Trustee. Each successor Trustee under the Indenture
or any other Noteholder Document shall execute and deliver a counterpart of and
become a party to this Agreement, and no replacement or resignation of the
Trustee shall be effective until its successor shall have executed and
delivered a counterpart of this Agreement.
SECTION 8.6 Application of Payments. All payments received by the Secured
Parties may be applied, reversed and reapplied, in whole or in part, to such
part of the Lender Claims as the Secured Parties, in their sole discretion,
deem appropriate.
SECTION 8.7 Forum Selection and Consent to Jurisdiction. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO RELATING
THERETO MAY BE BROUGHT AND MAINTAINED (TO THE EXTENT PERMITTED UNDER APPLICABLE
LAW) IN THE COURTS OF THE STATE OF NEW YORK, NEW YORK COUNTY, OR IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER,
THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY
BE BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH OF THE
PARTIES HERETO HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF
THE COURTS OF THE STATE OF NEW YORK, NEW YORK COUNTY, AND OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY
SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY
JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. EACH OF THE
PARTIES HERETO IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED
MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF
NEW YORK. EACH OF THE PARTIES HERETO HEREBY EXPRESSLY AND IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR
HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY
SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
SECTION 8.8 Waiver of Jury Trial. THE PARTIES HERETO HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR NOTEHOLDER
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
18
ORAL OR WRITTEN) OR ACTIONS OF SUCH PARTIES RELATING THERETO. EACH OF THE
PARTIES HERETO ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN
DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE PARTIES HERETO ENTERING INTO THIS AGREEMENT AND EACH SUCH
OTHER LOAN DOCUMENT OR NOTEHOLDER DOCUMENT.
SECTION 8.9 Notice Obligations. The Company shall provide prompt written
notice to the Trustee of (i) any Discharge of Lender Claims or (ii) any
amendment to the definitions in the Credit Agreement that are incorporated by
reference herein; provided that any filing by the Company with the United
States Securities Exchange Commission related to any such amendment shall be
deemed to be effective notice for purposes of this clause (ii).
SECTION 8.10 Notices. All notices to the Noteholders and the Secured
Parties permitted or required under this Agreement may be sent to the Trustee
and the Administrative Agent, respectively. 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,
electronically mailed or sent by courier service or U.S. mail and shall be
deemed to have been given when delivered in person or by courier service, upon
receipt of a telecopy or electronic mail or four (4) Business Days after
deposit in the U.S. mail (registered or certified, with postage prepaid and
properly addressed). For the purposes hereof, the addresses of the parties
hereto shall be as set forth below each party's name on the signature pages
hereto (other than the Obligors, which shall be sent care of the Company at the
address set forth, or provided for, in the Credit Agreement), 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 8.11 Further Assurances. The Trustee agrees that it shall take
such further action and shall execute and deliver to the Administrative Agent
and the other Secured Parties such additional documents and instruments (in
recordable form, if requested) as the Administrative Agent or the other Secured
Parties may reasonably request to effectuate the terms of and the lien
priorities contemplated by this Agreement.
SECTION 8.12 Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING FOR SUCH PURPOSES SECTION 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK).
SECTION 8.13 Binding on Successors and Assigns; No Third Party
Beneficiaries. This Agreement shall be binding upon and inure to the benefit of
the Administrative Agent, the other Secured Parties, the Trustee, the
Noteholders and their respective successors and assigns. No other Person shall
have or be entitled to assert rights or benefits hereunder. This Agreement
shall be binding upon the Obligors and their successors and assigns; provided
that no Obligor or any successor or assign thereof shall be entitled to enforce
any provision of this Agreement (other than any provision hereof expressly
preserving any right of any Obligor under any Loan Document or Noteholder
Document).
19
SECTION 8.14 Specific Performance. Each of the Administrative Agent and
the Trustee may demand specific performance of this Agreement; provided that
the Trustee may not demand specific performance from any Obligor unless and
until the Discharge of the Lender Claims has occurred. The Trustee, on behalf
of itself and the Noteholders hereby irrevocably waives any defense based on
the adequacy of a remedy at law and any other defense which might be asserted
to bar the remedy of specific performance in any action which may be brought by
the Administrative Agent.
SECTION 8.15 Section Titles; Time Periods. The section titles contained in
this Agreement are and shall be without substantive meaning or content of any
kind whatsoever and are not a part of this Agreement.
SECTION 8.16 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original and all of which shall
together constitute one and the same document. Delivery of an executed
counterpart of a signature page to this Agreement by facsimile shall be
effective as delivery of a manually executed counterpart of this Agreement.
SECTION 8.17 Authorization. By its signature, each Person executing this
Agreement on behalf of a party hereto represents and warrants to the other
parties hereto that it is duly authorized to execute this Agreement.
SECTION 8.18 Effectiveness. This Agreement shall become effective when
executed and delivered by the parties listed below. This Agreement shall be
effective both before and after the commencement of any Insolvency or
Liquidation Proceeding. All references to any Obligor shall include any Obligor
as debtor and debtor-in-possession and any receiver or trustee for such Obligor
(as the case may be) in any Insolvency or Liquidation Proceeding.
SECTION 8.19 Additional Noteholder Claims and Trustees. Any Noteholder or
Trustee in respect of any Noteholder Claims arising under any Permitted Senior
Secured Debt Documents may become a party hereto and a Noteholder or Trustee
hereunder by executing and delivering a counterpart hereof to the Company, the
Administrative Agent and the Trustee. Subject to compliance with any applicable
provision of any Loan Document or Noteholder Document, any holder of any Lender
Claim, or any representative of any holder or holders of Lender Claims, arising
under any Future First-Lien Credit Facility may become a party hereto and a
Secured Party hereunder by executing and delivering a counterpart hereof to the
Company, the Administrative Agent and the Trustee.
20
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
Administrative Agent:
--------------------
CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands Branch,
as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇
-------------------------------------
Title:
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Title: Associate
Address:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇'▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
21
Trustee:
-------
LAW DEBENTURE TRUST COMPANY OF NEW YORK,
as Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Title: Senior Vice President
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
22
Obligors:
--------
▇▇▇▇▇▇▇ GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
Title: Chief Financial Officer and Secretary
ANVIL INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
Title: Chief Financial Officer and Secretary
ANVILSTAR LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
Title: Chief Financial Officer and Secretary
▇▇▇▇▇▇ METERS CO.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
Title: Chief Financial Officer and Secretary
▇▇▇▇▇ ▇▇▇▇▇ COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
Title: Chief Financial Officer and Secretary
23
▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
Title: Chief Financial Officer and Secretary
HYDRO GATE ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
Title: Chief Financial Officer and Secretary
▇▇▇▇▇ ▇▇▇▇▇ COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
Title: Chief Financial Officer and Secretary
▇.▇. ▇▇▇▇▇ MFG CO.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
Title: Chief Financial Officer and Secretary
▇▇▇▇▇▇▇▇ ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
Title: Chief Financial Officer and Secretary
▇▇▇▇▇▇▇ CO.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
Title: Chief Financial Officer and Secretary
24
▇▇▇▇▇▇▇ INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Title: Vice President and General Counsel
▇▇▇▇▇▇▇ INTERNATIONAL, L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Title: Vice President and General Counsel
▇▇▇▇▇▇▇ INTERNATIONAL FINANCE, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Title: Vice President and General Counsel
▇▇▇▇▇▇▇ INTERNATIONAL FINANCE, L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Title: Vice President and General Counsel
▇▇▇▇▇▇▇ SERVICE CO.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
Title: Chief Financial Officer and Secretary
25
