Exhibit 4.4


 


Execution Copy


 


THIS SUPPLEMENTAL INDENTURE, AND THE RIGHTS OF THE PARTIES HEREUNDER,
ARE SUBJECT TO THE  PROVISIONS OF THE
OMNIBUS INTERCREDITOR AGREEMENT, DATED AS OF DECEMBER 7, 2009, BETWEEN THE
TRUSTEE AND THE OTHER CREDITORS PARTY THERETO FROM TIME TO TIME, AND THE
COMPANY AND THE GUARANTORS, AS AMENDED OR OTHERWISE MODIFIED FROM TIME TO TIME
IN ACCORDANCE WITH THE PROVISIONS THEREOF


 




 





 


FIBERTOWER CORPORATION,


 


as the Company,


 


 


the Guarantor parties named herein


 


 


and


 


 


WELLS FARGO BANK, NATIONAL ASSOCIATION,


 


as the Trustee


 


 


FIRST SUPPLEMENTAL INDENTURE


 


 


Dated as of December 7, 2009


 


 


to


 


INDENTURE


 


Dated as of November 9, 2006


 


 


9.00% Convertible Senior Secured Notes due 2012


 




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  1 Relation to Indenture; Definitions

  	
   

  	
  1

  
	
  SECTION 1.01. Relation to
  Indenture

  	
   

  	
  1

  
	
  SECTION 1.02. Definitions

  	
   

  	
  2

  
	
  SECTION 1.03. General
  References

  	
   

  	
  2

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  2 Amendments to Indenture

  	
   

  	
  2

  
	
  SECTION 2.01. Amendments

  	
   

  	
  2

  
	
  SECTION 2.02. Deleted Defined
  Terms; Cross-References

  	
   

  	
  5

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  3 Amendments to Collateral Documents

  	
   

  	
  5

  
	
  SECTION 3.01. Amendments to
  Collateral Documents

  	
   

  	
  5

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  4 Miscellaneous

  	
   

  	
  5

  
	
  SECTION 4.01. Certain Trustee
  Matters

  	
   

  	
  5

  
	
  SECTION 4.02. Continued Effect

  	
   

  	
  6

  
	
  SECTION 4.03. Governing Law

  	
   

  	
  6

  
	
  SECTION 4.04. Counterparts

  	
   

  	
  6

  
	
  SECTION 4.05. Intercreditor
  Agreement

  	
   

  	
  6

  



 

















 


FIRST SUPPLEMENTAL INDENTURE, dated as of December 7,
2009 (this “Supplemental Indenture”), among FIBERTOWER CORPORATION, a Delaware corporation (the “Company”), the
Guarantor parties named on the signature pages hereto (collectively, the “Guarantors”), and WELLS FARGO BANK, NATIONAL
ASSOCIATION, as trustee under the Indenture referred to below (in
such capacity, the “Trustee”).


 


RECITALS


 


WHEREAS, the Company, the Guarantors and the Trustee are parties to an
Indenture, dated as of November 9, 2006 (the “Original Indenture”), such Original
Indenture, as amended and supplemented from time to time (including without
limitation pursuant to this Supplemental Indenture), being referred to herein
as the “Indenture”; and


 


WHEREAS, pursuant to Section 10.02 of the Indenture, the Company,
the Guarantors and the Trustee may amend or supplement the Indenture with the
consent of the Holders of at least a majority in aggregate principal amount of
the outstanding Notes (including consents obtained in connection with a tender
offer or exchange offer for, or purchase of, the Notes); and


 


WHEREAS, the Company has obtained written consents from the Holders of
at least a majority in aggregate principal amount of the outstanding Notes with
respect to (a) the amendments to the Indenture set forth herein, (b) the
amendments to the Collateral Agreements set forth in the documents described in
Schedule I to this Supplemental Indenture, and (c) the amendments to the
Intercreditor Agreement set forth in the Omnibus Intercreditor Agreement
attached as Exhibit G to this Supplemental Indenture; and


 


WHEREAS, among other things, it is a condition to the effectiveness of
this Supplemental Indenture that the Company has irrevocably accepted for
exchange all Notes validly tendered (other than those Notes that have been
validly withdrawn) in the Company’s exchange offer and consent solicitation in
respect of the Notes pursuant to the Company’s Offering Memorandum and Consent
Solicitation Statement dated October 26, 2009, as amended, and such
condition has been satisfied;


 


WHEREAS, accordingly, this Supplemental Indenture and the amendments
set forth herein are authorized pursuant to Section 10.02 of the
Indenture; and


 


WHEREAS, the execution and delivery of this Supplemental Indenture have
been duly authorized by the parties hereto, and all other acts necessary to
make this Supplemental Indenture a valid and binding supplement to the
Indenture effectively amending the Indenture as set forth herein have been duly
taken; and


 


NOW, THEREFORE, in consideration of the premises, agreements and
obligations set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree, for the equal and proportionate benefit of all Holders of the
Notes, as follows:


 


ARTICLE 1

RELATION TO INDENTURE; DEFINITIONS


 


SECTION 1.01.  Relation to Indenture.


 


With
respect to the Notes, this Supplemental Indenture constitutes an integral part
of the Indenture.


 

















 


SECTION 1.02.  Definitions.


 


For
all purposes of this Supplemental Indenture, except as otherwise expressly
provided herein, capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned thereto in the Original Indenture.


 


SECTION 1.03.  General References.


 


All
references in this Supplemental Indenture to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and Sections of this
Supplemental Indenture; and the terms “herein”, “hereof”, “hereunder” and
any other word of similar import refers to this Supplemental Indenture.


 


ARTICLE 2

AMENDMENTS TO INDENTURE


 


SECTION 2.01.  Amendments.


 


Effective
upon the date hereof, with respect to all outstanding Notes:


 


(a)                                  The definition
of “Unrestricted Subsidiary” set forth in Section 1.01 of the Indenture is
hereby amended and restated to read, in its entirety, as follows:


 


“‘Unrestricted Subsidiary’ means any
Subsidiary of the Company that is designated by the Board of Directors of the
Company as an Unrestricted Subsidiary pursuant to a Board Resolution.”


 


(b)                                 Section 1.02
of the Indenture is hereby amended by the addition of the following, in the
appropriate alphabetical order:


 


	
  “ ‘Interim
  Notes Indenture’

  	
  5.24”

  
	
   

  	
   

  
	
  “ ‘New Notes Indenture’

  	
  5.24”

  



 


(c)                                  Sections 3.08,
3.09, 5.04(b), 5.04(c), 5.05, 5.06, 5.07, 5.08, 5.09, 5.10, 5.11, 5.12, 5.13,
5.15, 5.16, 5.17, 5.18, 5.19, 5.20, 5.21, 5.22 and 5.23 of the Indenture are
hereby deleted and the Company and the Guarantors are hereby released from
their respective obligations thereunder.


 


(d)                                 Any failure by
the Company or any Guarantor to comply with the terms of any of the provisions
of the Indenture described in Section 2.01(c) of this Supplemental
Indenture (whether before or after the execution of this Supplemental
Indenture) shall no longer constitute a Default or an Event of Default under
the Indenture and shall no longer have any other consequence under the
Indenture.


 


(e)                                  Section 5.03
of the Indenture is hereby amended and restated to read, in its entirety, as
follows:


 


“SECTION 5.03              Reports.


 


The Company and each Guarantor (to the extent that such Guarantor is so
required under the TIA) shall at all times comply with Section 314(a) of
the TIA.”


 


(f)                                    There is hereby added to the Indenture a
new Section 5.24, as follows:


 


“SECTION 5.24              Subordinated Guarantee of New License Subsidiary.


 


2

















 


Reference is
hereby made to the indenture (the “Interim Notes Indenture”), entered into on
or about the date of this Supplemental Indenture, by and among the Company, the
guarantors thereunder, and the Trustee, relating to the Company’s 9.00%
Mandatorily Redeemable Convertible Senior Secured Notes due 2012 issued by the
Company, and to the indenture (the “New Notes Indenture”) attached as Exhibit H
to the Interim Notes Indenture.  Pursuant
to Section 5.23 of the Interim Notes Indenture and the New Notes
Indenture, the Company is obligated to form or cause to be formed the “New
License Subsidiary” (as such term is defined in the Interim Notes Indenture and
the New Notes Indenture, and which term shall have the meaning herein that is
provided in the Interim Notes Indenture and the New Notes Indenture), and to
provide a guarantee under such Interim Notes Indenture and New Notes Indenture
of such New License Subsidiary.  Upon the
provision of the guarantee by the New License Subsidiary under the Interim
Notes Indenture or, if sooner, under the New Notes Indenture, the Company shall
cause such New License Subsidiary to execute and deliver to the Trustee a
supplemental indenture in form and substance reasonably satisfactory to the
Trustee pursuant to which such New License Subsidiary shall unconditionally
guarantee on a subordinated unsecured basis, as set forth in Section 12.05
hereof, all of the Company’s obligations under the Notes and this Indenture.”


 


(g)                                 Article 6
of the Indenture is hereby amended and restated to read, in its entirety, as
follows:


 


“ARTICLE 6

SUCCESSORS


 


SECTION 6.01                    Merger,
Consolidation, or Sale of Assets.


 


The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly:


 


(1)         consolidate or merge with or
into another Person (whether or not the Company or such Restricted Subsidiary
is the surviving entity); or


 


(2)         sell, assign, transfer,
convey or otherwise dispose of all or substantially all of the properties or
assets of the Company and its Restricted Subsidiaries taken as a whole, in one
or more related transactions, to another Person, unless:


 


A.           if the Company or such
Restricted Subsidiary is a party to such transaction, either (i) the
Company or such Restricted Subsidiary is the surviving entity or (ii) the
Person formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, assignment, transfer, conveyance or other
disposition has been made is a corporation, limited liability company, limited
partnership or other legal entity organized or existing under the laws of the
United States, any state of the United States or the District of Columbia; and


 


B.             if the Company or such
Restricted Subsidiary is a party to such transaction, the Person formed by or
surviving any such consolidation or merger (if other than the Company or such
Restricted Subsidiary) or the Person to which such sale, assignment, transfer,
conveyance or other disposition has been made assumes all the obligations of
the Company or such Restricted Subsidiary under the Notes and this Indenture
pursuant to agreements reasonably satisfactory to the Trustee.


 


This Section 6.01 will not apply to:


 


3

















 


(1)         a merger of the Company or a
Restricted Subsidiary of the Company with an Affiliate solely for the purpose
of reorganizing the Company in another jurisdiction; or


 


(2)         any consolidation or merger,
or any sale, assignment, transfer, conveyance, lease or other disposition of
assets between or among the Company and its Restricted Subsidiaries that are
Guarantors.


 


SECTION 6.02                    Successor
Person Substituted.


 


Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the
assets of the Company or any of its Restricted Subsidiaries in accordance with Section 6.01
hereof, the successor Person formed by such consolidation or into or with which
the Company or such Restricted Subsidiary is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, assignment, transfer, lease, conveyance or other
disposition, the provisions of this Indenture referring to the “Company” or to
a “Restricted Subsidiary” or “Guarantor” shall refer instead to the successor
Person and not to the Company or such Restricted Subsidiary or Guarantor, as
the case may be), and may exercise every right and power of the Company or such
Restricted Subsidiary or Guarantor under this Indenture with the same effect as
if such successor Person had been named as the Company or a Restricted
Subsidiary or Guarantor herein; provided, however, that the predecessor Person shall not be relieved
from the obligation to pay the principal of and interest on the Notes, except
in the case of a sale of all or substantially all assets that meets the
requirements of Section 6.01 hereof.”


 


(h)                                 Clauses (4),
(6), (7), (8), (9), (10), (11), (12) and (13) of Section 7.01 of the
Indenture are hereby deleted, and the events described therein shall no longer
constitute Events of Default under the Indenture.


 


(i)                                     There is hereby added to the Indenture a
new Section 12.05, as follows:


 


“SECTION 12.05        Subordination of Guarantee of New License
Subsidiary.


 


Notwithstanding
anything in this Indenture to the contrary, any Note Guarantee provided by the
New License Subsidiary pursuant to Section 5.24 hereof shall be
subordinated in right of payment, as set forth in this Section 12.05, to
the prior payment in full in cash of all Senior Obligations (as defined
below).  The New License Subsidiary may
not make any payment on or in respect of its Note Guarantee hereunder until all
Senior Obligations have been paid in full in cash.  In addition, until all Senior Obligations
have been paid in full in cash, no Holder, nor any person acting on behalf of
the Holders, nor any other person entitled to the benefits of the New License
Subsidiary’s Note Guarantee, may take any action, directly or indirectly, to
enforce its rights with respect to the New License Subsidiary’s Note Guarantee,
or commence, or join with any other person in commencing, any assignment for
the benefit of creditors or any proceeding against the New License Subsidiary,
its successors or assigns or any other person with respect to the New License
Subsidiary’s Note Guarantee under any bankruptcy, reorganization, readjustment
of debt, dissolution, receivership, liquidation or insolvency law or statue now
or hereafter in effect in any jurisdiction (provided that each Holder or other
such person shall be entitled to file a proof of claim in respect of such Note
Guarantee in any such proceeding so long as such proof of claim shall state
that such claim is subordinated to the extent and in the manner set forth
herein).  If a Holder or any person
acting on behalf of the Holders receives any distribution (including, without
limitation, any distribution in any insolvency proceeding of any nature) on the
New License Subsidiary’s Note Guarantee that because of this subordination 


 


4

















 


should not have been made to them, such person who receives such
distribution shall hold it in trust, segregated from such person’s other funds
and assets, for the holders of Senior Obligations, and shall promptly pay such
distribution over, in the form received, to such holders of Senior Obligations
as are entitled to such distribution.  As
used herein, “Senior Obligations” means all “Note Obligations” (as defined in
the Interim Notes Indenture; such obligations, the “Interim Notes Obligations”),
all “Note Obligations” (as defined in the New Notes Indenture; such
obligations, the “New Notes Obligations”), and any other Indebtedness of the
Company or any guarantor of any Senior Obligations that is not contractually
subordinated in right of payment to the Interim Notes Obligations or the New
Notes Obligations.  The subordination set
forth herein is for the benefit of and may be enforced by the holders of any
Senior Obligations.  The notation of any
Note Guarantee of the New License Subsidiary required by Section 12.03
hereof shall reflect such subordination.”


 


(j)                                     Exhibit G to the Indenture is hereby
amended and restated to read, in its entirety, as set forth in Exhibit G
to this Supplemental Indenture.


 


SECTION 2.02.  Deleted Defined Terms;
Cross-References.


 


The
Indenture is hereby amended by deleting any definitions from the Indenture with
respect to which references would be eliminated as a result of the amendments
of the Indenture pursuant to Section 2.01 hereof.  Notwithstanding any provision in the
Indenture to the contrary, each cross-reference to any section of the Indenture
that is eliminated as a result of the amendments set forth in Article 2 of
this Supplemental Indenture, as in effect immediately prior to this Supplemental
Indenture becoming operative, shall be of no further force or effect.


 


ARTICLE 3

AMENDMENTS TO COLLATERAL DOCUMENTS


 


SECTION 3.01.  Amendments to Collateral Documents.


 


The Company represents
that it has obtained written consents of at least a majority in aggregate
principal amount of the outstanding Notes with respect to the amendments to (a) the
Pledge and Security Agreement, dated November 9, 2006, made by FiberTower
Corporation, FiberTower Network Services Corp., ART Leasing, Inc.,
Teligent Services Acquisition, Inc., ART Licensing Corp., FiberTower
Solutions Corporation and the other Grantors from time to time party thereto in
favor of Wells Fargo Bank, National Association, as Collateral Agent, (b) the
Intellectual Property Security Agreement, dated November 9, 2006, made by
FiberTower Solutions Corporation in favor of Wells Fargo Bank, National
Association, as Collateral Agent, (c) the Control Agreement, dated November 9,
2006, among FiberTower Corporation, SunTrust Banks, Inc. and Wells Fargo
Bank, National Association, as Collateral Agent, and (d) the Control
Agreement, dated November 9, 2006, among FiberTower Network Services
Corp., SunTrust Banks, Inc. and Wells Fargo Bank, National Association, as
Collateral Agent, set forth in Schedule I hereto.  Such amendments shall become effective upon
execution thereof by the parties thereto, which execution shall occur
concurrently with the execution and delivery of this Supplemental Indenture.


 


ARTICLE 4

MISCELLANEOUS


 


SECTION 4.01.  Certain Trustee Matters.


 


The
recitals contained herein shall be taken as the statements of the Company and
the Guarantors, and the Trustee assumes no responsibility for their
correctness.


 


5
















 


The
Trustee makes no representations as to the validity or sufficiency of this
Supplemental Indenture or the proper authorization or due execution thereof by
the Company or the Guarantors.


 


Except
as otherwise expressly provided herein, no duties, responsibilities or
liabilities are assumed, or should be construed to be assumed, by the Trustee
by reason if this Supplemental Indenture.


 


SECTION 4.02.  Continued Effect.


 


Except
as expressly supplemented and amended by this Supplemental Indenture, the
Original Indenture (as supplemented and amended to date) shall continue in full
force and effect in accordance with the provisions thereof, and the Original
Indenture (as so supplemented and amended, and as further supplemented and
amended by this Supplemental Indenture) is in all respects hereby ratified and
confirmed.  This Supplemental Indenture
and all its provisions shall be deemed a part of the Original Indenture in the
manner and to the extent herein and therein provided.


 


SECTION 4.03.  Governing Law.


 


This
Supplemental Indenture shall be governed by and construed in accordance with
the laws of the State of New York.


 


SECTION 4.04.  Counterparts.


 


This
instrument may be executed in any number of counterparts, each of which shall
be deemed to be an original, but all such counterparts shall together
constitute but one and the same instrument.


 


SECTION 4.05.  Intercreditor Agreement.


 


The
Holders hereby irrevocably authorize and direct the Trustee to enter into the
Omnibus Intercreditor Agreement on behalf of the Trustee and the Holders, and
agree to be bound by the provisions thereof as if they were direct signatories
thereof, and to take all actions required to be taken by them in accordance
with the provisions thereof, and to otherwise comply therewith, and irrevocably
authorize and direct the Trustee to take all actions on its or the Holders’
behalf as are necessary to comply with the provisions thereof.  The rights and remedies of the Trustee, on
behalf of the Holders, under the Indenture shall be subject to the Omnibus
Intercreditor Agreement as in effect from time to time.  In the event of any conflict between the
terms of the Omnibus Intercreditor Agreement and the Indenture, the terms of
the Omnibus Intercreditor Agreement shall govern and control.


 


(Signature Pages Follow)


 


6

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to
be duly executed and delivered, all as of the day and year first above written.


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FIBERTOWER
  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas A. Scott

  
	
   

  	
  Name:
  Thomas A. Scott

  
	
   

  	
  Title:
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GUARANTORS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FIBERTOWER
  NETWORK SERVICES CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas A. Scott

  
	
   

  	
  Name:
  Thomas A. Scott

  
	
   

  	
  Title:
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FIBERTOWER
  SOLUTIONS CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas A. Scott

  
	
   

  	
  Name:
  Thomas A. Scott

  
	
   

  	
  Title:
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ART
  LICENSING CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas A. Scott

  
	
   

  	
  Name:
  Thomas A. Scott

  
	
   

  	
  Title:
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ART
  LEASING, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas A. Scott

  
	
   

  	
  Name:
  Thomas A. Scott

  
	
   

  	
  Title:
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TELIGENT
  SERVICES ACQUISITION, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas A. Scott

  
	
   

  	
  Name:
  Thomas A. Scott

  
	
   

  	
  Title:
  Chief Financial Officer

  



 


SIGNATURE PAGE TO
SUPPLEMENTAL INDENTURE


 

















 


	
   

  	
  TRUSTEE:

  
	
   

  	
   

  
	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION,

  
	
   

  	
  as
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Patrick T. Giordano

  
	
   

  	
   

  	
  Authorized Signatory

  



 


SIGNATURE PAGE TO
SUPPLEMENTAL INDENTURE


 

















 


SCHEDULE I


 


DOCUMENTS AMENDING
COLLATERAL AGREEMENTS


 


1.                                       First Amendment
to Pledge and Security Agreement, dated as of December 7, 2009, made by
Fibertower Corporation, Fibertower Network Services Corp., ART Leasing, Inc.,
Teligent Services Acquisition, Inc., ART Licensing Corp., Fibertower
Solutions Corporation in favor of Wells Fargo Bank, National Association, as
Collateral Agent.


 


2.                                       First Amendment
to Intellectual Property Security Agreement, dated as of December 7, 2009,
made by Fibertower Solutions Corporation in favor of Wells Fargo Bank, National
Association, as Collateral Agent.


 


3.                                       First Amendment
to Control Agreements, dated as of December 7, 2009, among FiberTower
Corporation, Fibertower Network Services Corp., Wells Fargo Bank, National
Association, as Collateral Agent, and Suntrust Banks.


 

















 


EXHIBIT G


 


FORM OF


 


OMNIBUS INTERCREDITOR
AGREEMENT


 


(See attached)


 
















 


Execution Copy


 


OMNIBUS INTERCREDITOR AGREEMENT


 


This OMNIBUS INTERCREDITOR
AGREEMENT, dated as of December 7, 2009 (as may be amended, modified,
supplemented, or restated from time to time, this “Omnibus  Agreement”),
is entered into by and among (a) WELLS FARGO BANK, NATIONAL ASSOCIATION, a
national banking association, in its capacity as trustee pursuant to the
Existing Notes Indenture (as hereinafter defined) for the Existing Notes
Noteholders (as hereinafter defined) (in such capacity, together with its
successors and assigns in such capacity, the “Existing Notes Trustee”); (b) WELLS
FARGO BANK, NATIONAL ASSOCIATION, a national banking association, in its
capacity as collateral agent pursuant to the Existing Notes Collateral
Agreements (as hereinafter defined) for the benefit of the Existing Notes
Trustee and the Existing Notes Noteholders (in such capacity, together with its
successors and assigns in such capacity, the “Existing Notes Collateral
Agent”); (c) WELLS FARGO BANK, NATIONAL ASSOCIATION, a national
banking association, in its capacity as trustee pursuant to the Interim Notes
Indenture (as hereinafter defined) for the Interim Notes Noteholders (as
hereinafter defined) (in such capacity, together with its successors and
assigns in such capacity, the “Interim Notes Trustee”); (d) WELLS
FARGO BANK, NATIONAL ASSOCIATION, a national banking association, in its
capacity as collateral agent pursuant to the Interim Notes Collateral
Agreements (as hereinafter defined) for the benefit of the Interim Notes Trustee
and the Interim Notes Noteholders (in such capacity, together with its
successors and assigns in such capacity, the “Interim Notes Collateral Agent”);
(e) WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association
or such other entity designated to act as trustee pursuant to the New Notes
Indenture (as hereinafter defined) for the New Notes Noteholders (as
hereinafter defined) (in such capacity, together with its successors and
assigns in such capacity, the “New Notes Trustee”) which shall become a
party to this Omnibus Agreement as of the Transition Effective Date (as
hereinafter defined);  (f) WELLS
FARGO BANK, NATIONAL ASSOCIATION, a national banking association or such other
entity designated to act as collateral agent under the New Notes Indenture for
the benefit of the New Notes Trustee and the New Notes Noteholders (in such
capacity, together with its successors and assigns in such capacity, the “New
Notes Collateral Agent”) which shall become a party to this Omnibus
Agreement as of the Transition Effective Date (as hereinafter defined); (g) each
additional Person from time to time  party hereto
acting as authorized representative for the Additional Secured Parties of the Series of
Secured Debt with respect to which it is acting in such capacity; and (h) FIBERTOWER
CORPORATION, a Delaware corporation (the “Company”), FIBERTOWER NETWORK
SERVICES CORP., a Delaware corporation, ART LEASING, INC., a Delaware
corporation, TELIGENT SERVICES ACQUISITION, INC., a Delaware corporation, ART
LICENSING CORP., a Delaware corporation, and FIBERTOWER SOLUTIONS CORPORATION,
a Delaware corporation.


 


W I T N E S S E T H:


 


WHEREAS, the Company, the
Guarantors named therein, and the Existing Notes Trustee have entered into the
Indenture, dated as of November 9, 2006, (as such Indenture may be
amended, modified, supplemented, extended, renewed, restated or refinanced, the
“Existing Notes Indenture”) governing the 9.00% Convertible Senior
Secured Notes due 2012 (such notes, the “Existing Notes”) issued by the
Company to the Existing Notes Noteholders;


 

















 


WHEREAS, on the date hereof
the Company, the Guarantors named therein (the “Guarantors”), and the
Interim Notes Trustee have entered into the Indenture, dated as of December 7,
2009, (as such Indenture may be amended, modified, supplemented, extended,
renewed, restated or refinanced, the “Interim Notes Indenture”)
governing the 9.00% Mandatorily Redeemable Convertible Senior Secured Notes due
2012 (such notes, including the Initial Notes and any Additional Notes (each as
defined in the Interim Notes Indenture), the “Interim Notes”) issued by
the Company to the Interim Notes Noteholders (as defined in the Interim ICA
defined below);


 


WHEREAS, after the date
hereof the Company and the Guarantors may, subject to the terms of the Secured
Indebtedness Documents (as defined in the Interim Notes Indenture), and upon
the mandatory redemption of the Interim Notes, enter into an Indenture (as such
Indenture may be amended, modified, supplemented, extended, renewed, restated
or refinanced, the “New Notes Indenture” and together with the Interim
Notes Indenture, the “Indentures”) governing certain 9.00% Senior
Secured Notes (such notes, including the Initial Notes and any Additional Notes
(each, as defined in the New Notes Indenture), the “New Notes”) issued
by the Company to the New Notes Noteholders (as defined in the New ICA defined
below);


 


WHEREAS, after the date
hereof, the Company and the Guarantors named in each Indenture, as applicable,
may, subject to the terms of the “Secured Indebtedness Documents” as defined in
the applicable Indentures, enter into a “Working Capital Facility” as defined
in the applicable Indentures (as such agreement may be amended, modified,
supplemented, extended, renewed, restated or refinanced, the “Working
Capital Facility Agreement”) under agreements evidencing such “Working
Capital Facility Indebtedness” as defined in the applicable Indentures, which
the Company desires to secure on a senior basis to the Interim Notes Liens (as
defined in the Interim ICA defined below) and the Pari Passu Indebtedness Liens
(as defined in the Interim ICA defined below), and on a partially senior basis
to and partially pari passu basis with the Note Liens (as defined in the New
Notes Indenture), such that the Working Capital Facility Indebtedness as
defined in the applicable Indenture shall be permitted to be secured by the
Working Capital Facility Collateral (as defined in the applicable Indenture) if
(x) the Secured Indebtedness Documents as defined in the applicable
Indenture, do not prohibit such Working Capital Facility Indebtedness from
being secured by the Working Capital Facility Collateral and (y) the
Working Capital Facility Collateral Agent as defined in the applicable
Indenture, for itself and on behalf of the lenders party to such Working
Capital Facility Agreement, executes and delivers a joinder hereto and becomes
a party to this Omnibus Agreement in accordance with Section 2.3
hereof.


 


WHEREAS, after the date
hereof, the Company may, subject to the terms and conditions of the Secured
Indebtedness Documents (as defined in the Interim Notes Indenture), incur
additional indebtedness that is pari
passu with the Interim Notes Indebtedness (the “Pari Passu Indebtedness”, as hereinafter
further defined) under agreements evidencing such Pari Passu Indebtedness,
which the Company desires to secure on a pari
passu basis with the Interim Notes Liens (as defined in the Interim ICA
defined below), but junior and subordinate to the Working Capital Facility
Liens (as defined in the Interim ICA) and senior to the Existing Notes Liens
(as defined in the Interim ICA defined below). 
Such Pari Passu Indebtedness shall be permitted to be secured by the
Pari Passu Collateral (such term is as defined in the Interim ICA defined
below) if (x) the Secured Indebtedness Documents (as defined in the
Interim Notes Indenture) do 


 


2

















 


not
prohibit such Pari Passu Indebtedness from being secured by the Pari Passu
Collateral and (y) the Pari Passu Collateral Agent (such term is used
herein as defined in the Interim ICA defined below), for itself and on behalf
of the Pari Passu Lenders (such term is used herein as defined in the Interim
ICA defined below), executes and delivers a joinder hereto and becomes a party
to this Omnibus Agreement in accordance with Section 2.3 hereof.


 


WHEREAS, certain of the
Existing Notes Noteholders have agreed to exchange Existing Notes held by such
Existing Notes Noteholders for the Interim Notes, and in connection therewith
Existing Notes Noteholders of at least a majority in aggregate principal amount
of the Existing Notes outstanding voting as a single class have agreed to enter
into this Omnibus Agreement; and


 


WHEREAS, it is a condition
precedent to the issuance by the Company of the Interim Notes that the Existing
Notes Trustee, the Existing Notes Collateral Agent, the Interim Notes Trustee,
the Interim Notes Collateral Agent, the Company and the Guarantors enter into
this Omnibus 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.  Unless otherwise specifically stated herein
(including through the Transition Incorporation), any capitalized terms used in
this Omnibus Agreement which are not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Interim Notes Indenture then
in effect, unless and until the occurrence of the Transition Effective Date
(defined below) in which case such defined terms are used herein as defined in
the New Notes Indenture then in effect.


 


Section 2. Effectiveness.


 


2.1           Initial Effectiveness.


 


(a)           This
Omnibus Agreement shall become effective as of the date first written above
(the “Initial Effective Date”) when each of the Company, the Guarantors,
the Existing Notes Trustee, the Existing Notes Collateral Agent, the Interim
Notes Trustee and the Interim Notes Collateral Agent shall have executed a
counterpart of this Omnibus Agreement and delivered a copy thereof to the
Interim Notes Trustee.


 


(b)           As
of the Initial Effective Date, the parties to this Omnibus Agreement shall
enter into the Amended and Restated Intercreditor Agreement in the form of Exhibit A attached
hereto (the “Interim ICA”).


 


2.2           Transition Effectiveness.


 


(a)           The
“Transition Effective Date” shall be the first date on which all of the
following conditions have been satisfied: 
(x) the occurrence of a Mandatory Redemption (as


 


3

















 


defined
in Section 3.11 of the Interim Notes Indenture) and receipt by the Company
of written confirmation from the Interim Notes Trustee that the Interim Notes
Indenture has been discharged in accordance with Section 13.01 thereof, (y) the
initial issuance of any New Notes in accordance with the terms of the New Notes
Indenture, and (z) the execution by the New Notes Trustee and the New
Notes Collateral Agent of a joinder agreement in the form of Exhibit C attached
hereto and their each becoming a party to this Omnibus Agreement as
contemplated by the New Notes Indenture.


 


(b)           Upon
the occurrence of the Transition Effective Date, automatically and without the
requirement of any further action on the part of any party hereto, (x) the
Interim ICA shall cease to be in effect and shall terminate in its entirety
(except for those agreements in the Interim ICA which, by their express terms,
survive termination), and (y) all of the provisions of Exhibit B attached
hereto shall be incorporated herein, and each reference in this Omnibus
Agreement to “this Omnibus Agreement”, “hereunder”, “hereof” or words of like
import referring to this Omnibus Agreement and each reference in the Existing
Notes Indenture, the Interim Notes Indenture, the New Notes Indenture, the
Working Capital Facility Agreement, the documents evidencing or governing the
Pari Passu Indebtedness, and all other related documents and instruments, to
the “Intercreditor Agreement” (or to the “Amended and Restated Intercreditor
Agreement”, to the “Omnibus Intercreditor Agreement” or to a like term in
reference to this Omnibus Agreement), “thereunder”, “thereof” or words of like
import referring to this Omnibus Agreement shall mean and be a reference to
this Omnibus Agreement subject to such incorporation of the provisions of Exhibit B
(the “Transition Incorporation”; this Omnibus Agreement giving effect to
such Transition Incorporation, the “New ICA”).  This Omnibus Agreement shall continue to be
in full force and effect and binding on all parties hereto through and after
the Transition Effective Date (and, for the avoidance of doubt, from and after
the Transition Effective Date the provisions of Exhibit B as incorporated herein
shall be in full force and effect and binding on all parties hereto).


 


2.3           Effectiveness
as to Additional Parties.  Other than
the parties whose execution and delivery of a counterpart hereof is a condition
to the Initial Effective Date or the Transition Effective Date (which execution
and delivery are contemplated by Sections 2.1 and 2.2), each party hereto
shall, by executing and delivering to the Interim Notes Trustee (prior to the
Transition Effective Date) or to the New Notes Trustee (on or after the
Transition Effective Date) a joinder agreement in substantially the form of Exhibit C attached hereto,
become a party hereto and bound by this Omnibus Agreement.  Each such party becoming a party hereto prior
to the Transition Effective Date shall also execute and deliver a joinder
agreement to, and become a party to and bound by, the Interim ICA.


 


Section 3. Covenants.


 


3.1           Further Assurances.


 


(a)           The
Existing Notes Trustee and the Existing Notes Collateral Agent each agrees
that, at the sole cost and expense of the Company, it shall, at any time and
from time to time upon the request of the Interim Notes Trustee (prior to the
Transition Effective Date) or the New Notes Trustee (on or after the Transition
Effective Date), promptly take such further action and execute and deliver such
additional documents and instruments (including without limitation


 


4

















 


a
ratification of its obligations hereunder, and taking any actions pursuant to Section 3.1(b),
and in each case in recordable form, if requested) as the Interim Notes Trustee
or New Notes Trustee may reasonably request to effectuate the terms of this
Omnibus Agreement.


 


(b)           Each
party hereto agrees that it shall, at any time and from time to time upon the
request of the Interim Notes Trustee (prior to the Transition Effective Date)
or the New Notes Trustee (on or after the Transition Effective Date), promptly enter
into, and execute and deliver to the Interim Notes Trustee or the New Notes
Trustee, as applicable, a joinder agreement in the form provided in the Interim
ICA (prior to the Transition Effective Date) or in the form provided in the New
ICA (on or after the Transition Effective Date), and take such further action
and execute and deliver such additional documents and instruments (in
recordable form, if requested) as the Interim Notes Trustee or New Notes
Trustee may reasonably request to effectuate the terms of the Interim ICA or
New ICA then in effect.  Each party
hereto further agrees that it shall, at any time and from time to time on or
after the Transition Effective Date, upon the request of the New Notes Trustee
(on or after the Transition Effective Date), promptly enter into, and execute
and deliver to the New Notes Trustee a counterpart of, an intercreditor
agreement substantially in the form of Exhibit B, and take such further
action and execute and deliver such additional documents and instruments (in
recordable form, if requested) as the New Notes Trustee may reasonably request
to effectuate the terms of such intercreditor agreement.  Notwithstanding whether any such request is made
or complied with, this Omnibus Agreement shall be effective as to, and binding
upon, all parties hereto.


 


(c)           The
Interim Notes Collateral Agent agrees that, upon the Transition Effective Date,
it shall (i) promptly deliver, or cause any third party holding Collateral
(as defined in the Interim Notes Indenture) on its behalf to deliver, the
remainder of the Collateral, if any, in its possession to the designee of the
New Notes Collateral Agent (except as may otherwise be required by applicable
law or court order), and (ii) promptly take such further action and
execute and deliver such additional documents and instruments (in recordable
form, if requested) as the New Notes Trustee may reasonably request to ensure
that the New Notes Collateral Agent has possession of, or “control” (as defined
in the UCC) over, such of the Collateral as is necessary or appropriate to
effect the purposes of the New Notes Indenture and the Note Documents (as
defined in the New Notes Indenture).


 


Section 4. Indemnification.  The Company and the Guarantors party hereto,
jointly and severally, hereby agree to indemnify and hold harmless Wells Fargo
Bank, National Association (or such other entity as may be designated as
contemplated by clauses (e) and (f) of the recitals hereto), in its
capacity as Existing Notes Trustee, Existing Note Collateral Agent, Interim
Notes Trustee, Interim Notes Collateral Agent, New Notes Trustee, or New Notes
Collateral Agent, as applicable, and the Pari Passu Collateral Agent and the
Working Capital Facility Collateral Agent, and in each case their respective
directors, officers, employees, agents, successors and assigns, against and
from any and all claims, actions, liabilities, costs and expenses of any kind
or nature whatsoever (including reasonable fees and disbursements of counsel,
costs and expenses of defending themselves against or investigating any claim
or liability and of complying with any process served upon them or any of their
employees, officers or agents in connection with the exercise or performance of
any of their powers or duties under this Omnibus Agreement or any Collateral
Agreement) that may be imposed on, incurred by, or asserted against any of
them, in any way relating to or arising out of this Omnibus Agreement or any


 


5

















 


Collateral Agreement, any
exercise of remedies hereunder or any other action taken or omitted by them
hereunder, except to the extent a court holds in final and nonappealable
judgment that such claims, actions, liabilities, costs and expenses directly
resulted from the gross negligence or willful misconduct of such indemnified
Persons.  The provisions of this Section 4
shall survive termination of this Omnibus Agreement and the discharge or
satisfaction of any of the Indentures.


 


Section 5. Governing
Law.  This Omnibus Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of New York applicable to contracts made and performed in such state and
any applicable laws of the United States of America.


 


Section 6. Binding
on Successors and Assigns.  This
Omnibus Agreement shall be binding upon the Existing Notes Trustee, the Interim
Notes Trustee, the Existing Notes Collateral Agent, the Interim Notes
Collateral Agent, the Holders, each other party that hereafter joins this
Omnibus Agreement (including but not limited to the New Notes Trustee, the New
Notes Collateral Agent, Working Capital Facility Collateral Agent, the Working
Capital Facility Lenders, the Pari Passu Collateral Agent, the Pari Passu
Lenders), and in each case, their respective permitted successors and assigns.


 


Section 7. Counterparts.
 This Omnibus 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 this
Omnibus Agreement by facsimile or electronic transmission shall be equally as
effective as delivery of an original executed counterpart of this Omnibus
Agreement.  Any party delivering an
executed counterpart of this Omnibus Agreement by facsimile or electronic
transmission also shall deliver an original executed counterpart of this
Omnibus Agreement, but the failure to deliver an original executed counterpart
shall not affect the validity, enforceability, and binding effect of this
Omnibus Agreement.


 


Section 8. Amendments,
Etc..  No amendment, modification,
waiver or termination of any of the provisions of this Omnibus Agreement shall
be deemed to be made or effective unless the same shall be in writing signed by
each of the parties at such time party hereto.


 


Section 9. Direction
by Majority Holders.  In accordance
with the Interim Notes Indenture, Holders of a majority in principal amount of
the then outstanding Interim Notes may direct the exercise of all powers and
remedies conferred on or available to the Interim Notes Trustee hereunder
(including without limitation the right to make requests on the Existing Notes
Trustee, the Existing Notes Collateral Agent or any other party hereto,
pursuant to Section 3.1 or otherwise).  In accordance with the New Notes Indenture,
Holders of a majority in principal amount of the then outstanding New Notes may
direct the exercise of all powers and remedies conferred on or available to the
New Notes Trustee hereunder (including without limitation the right to make
requests on the Existing Notes Trustee, the Existing Notes Collateral Agent or
any other party hereto, pursuant to Section 3.1 or otherwise).  However, in accordance with the terms of each
Indenture (including, without limitation, Article 7, Article 8, Article 10
and Article 11), the Interim Notes Trustee or the New Notes Trustee, as
the case may be, may refuse to follow any direction that conflicts with law or
the applicable Indenture, this Omnibus Agreement, or the


 


6

















 


Collateral
Agreements that such Interim Notes Trustee or New Notes Trustee determines may
be unduly prejudicial to the rights of other Holders or that may involve the
Interim Notes Trustee or New Notes Trustee in personal liability or
expense.  In addition, all powers and
remedies conferred on or available to the Interim Notes Trustee or New Notes
Trustee pursuant to Section 3 hereof, constituting rights to make requests
on the Existing Notes Trustee, the Existing Notes Collateral Agent or any other
party hereto, may (without prejudice to the foregoing) be exercised by Holders
of a majority in principal amount of the then outstanding Interim Notes or New
Notes, as applicable, acting directly and not through the Interim Notes Trustee
or New Notes Trustee.


 


Section 10. MUTUAL WAIVER
OF JURY TRIAL.  THE PARTIES
HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING
BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, BETWEEN THE PARTIES ARISING OUT OF, CONNECTED WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH,
THIS OMNIBUS AGREEMENT OR THE TRANSACTIONS RELATED THERETO.


 


[The remainder of this page has been
intentionally left blank.]


 


7

















 


IN WITNESS WHEREOF, the parties hereto have executed this
Omnibus Agreement as of the date first written above.


 


 


	
   

  	
  WELLS FARGO BANK, NATIONAL
  ASSOCIATION, as Existing Notes Trustee and Existing Notes Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name: Patrick T. Giordano

  
	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK, NATIONAL
  ASSOCIATION, as Interim Notes Trustee and Interim Notes Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name: Patrick T. Giordano

  
	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FIBERTOWER CORPORATION

  
	
   

  	
  FIBERTOWER NETWORK SERVICES CORP.

  
	
   

  	
  ART LEASING, INC.

  
	
   

  	
  ART LICENSING CORP.

  
	
   

  	
  TELIGENT SERVICES ACQUISITION, INC.

  
	
   

  	
  FIBERTOWER SOLUTIONS CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name: Thomas A. Scott

  
	
   

  	
  Title: Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  185 Berry St., Suite 400

  
	
   

  	
  San Francisco, CA 94107

  
	
   

  	
  Attention: Chief Financial Officer

  
	
   

  	
  Telecopy No.: (415) 659-0007

  
	
   

  	
  Email Address: tscott@fibertower.com

  



 
















 


EXHIBIT A


 


AMENDED AND RESTATED INTERCREDITOR
AGREEMENT


 


This AMENDED AND RESTATED
INTERCREDITOR AGREEMENT, dated as of
[                ]
[    ], 2009, is entered into by and among (a) WELLS
FARGO BANK, NATIONAL ASSOCIATION, a national banking association, in its
capacity as trustee pursuant to the Existing Notes Indenture (as hereinafter
defined) for the Existing Notes Noteholders (as hereinafter defined) (in such
capacity, together with its successors and assigns in such capacity, the “Existing
Notes Trustee”); (b) WELLS FARGO BANK, NATIONAL ASSOCIATION, a
national banking association, in its capacity as collateral agent pursuant to
the Existing Notes Collateral Agreements (as hereinafter defined) for the
benefit of the Existing Notes Trustee and the Existing Notes Noteholders (in
such capacity, together with its successors and assigns in such capacity, the “Existing
Notes Collateral Agent”); (c) WELLS FARGO BANK, NATIONAL ASSOCIATION,
a national banking association, in its capacity as trustee pursuant to the
Interim Notes Indenture (as hereinafter defined) for the Interim Notes
Noteholders (as hereinafter defined) (in such capacity, together with its
successors and assigns in such capacity, the “Interim Notes Trustee”); (d) WELLS
FARGO BANK, NATIONAL ASSOCIATION, a national banking association, in its
capacity as collateral agent pursuant to the Interim Notes Collateral
Agreements (as hereinafter defined) for the benefit of the Interim Notes
Trustee and the Interim Notes Noteholders (in such capacity, together with its
successors and assigns in such capacity, the “Interim Notes Collateral Agent”);
(e) each additional AUTHORIZED REPRESENTATIVE from time to time  party hereto for the Additional Secured Parties of the Series of
Secured Debt with respect to which it is acting in such capacity; and (f) FIBERTOWER
CORPORATION, a Delaware corporation, FIBERTOWER NETWORK SERVICES CORP., a
Delaware corporation, ART LEASING, INC., a Delaware corporation, TELIGENT
SERVICES ACQUISITION, INC., a Delaware corporation, ART LICENSING CORP., a
Delaware corporation, and FIBERTOWER SOLUTIONS CORPORATION, a Delaware
corporation.


 


W I T N E S S E T H:


 


WHEREAS, the Company (as
hereinafter defined), the Guarantors (as hereinafter defined) and the Existing
Notes Trustee have entered into the Indenture, dated as of November 9,
2006, (as such Indenture may be amended, modified, supplemented, extended,
renewed, restated or refinanced, the “Existing Notes Indenture”)
governing the 9.00% Convertible Senior Secured Notes due 2012 (such notes,
the “Existing Notes”) issued by the Company to the Existing Notes
Noteholders;


 


WHEREAS, on the date hereof
the Company, the Guarantors and the Interim Notes Trustee have entered into the
Indenture, dated as of December 7, 2009, (as such Indenture may be
amended, modified, supplemented, extended, renewed, restated or refinanced, the
“Interim Notes Indenture”) governing the 9.00% Mandatorily
Redeemable Convertible Senior Secured Notes due 2012 (such notes, including the
Initial Interim Notes and any Additional Interim Notes (each, as defined
below), the “Interim Notes”) issued by the Company to the Interim Notes
Noteholders (as defined below);


 

















 


WHEREAS, after the date
hereof, the Company and the Guarantors may, subject to the terms of the Secured
Debt Documents enter into a Working Capital Facility (as defined below) (as
such agreement may be amended, modified, supplemented, extended, renewed,
restated or refinanced, the “Working Capital Facility Agreement”) under
agreements evidencing such Working Capital Facility Indebtedness, which the
Company desires to secure on a senior basis to the Notes Liens and the Pari
Passu Liens.  The Working Capital
Facility Indebtedness (as defined below) shall be permitted to be secured by
the Working Capital Facility Collateral (as defined below) if (x) the
Secured Debt Documents do not prohibit such Working Capital Facility
Indebtedness from being secured by the Working Capital Facility Collateral and (y) the
Working Capital Facility Collateral Agent, for itself and on behalf of the
lenders party to such Working Capital Facility Agreement, execute and deliver a
joinder agreement hereto and become a party to this Agreement pursuant to the
requirements of Section 8.7 hereof.


 


WHEREAS, after the date
hereof, the Company may, subject to the terms and conditions of the Secured
Debt Documents, incur additional indebtedness that is pari passu with the Interim Notes Indebtedness (the “Pari
Passu Indebtedness”, as
hereinafter further defined) under agreements evidencing such Pari Passu
Indebtedness, which the Company desires to secure on a pari passu basis with the Interim Notes Liens (but junior and
subordinate to the Working Capital Facility Liens and senior to the Existing
Notes Liens).  Such Pari Passu
Indebtedness shall be permitted to be secured by the Pari Passu Collateral if (x) the
Secured Debt Documents do not prohibit such Pari Passu Indebtedness from being
secured by the Pari Passu Collateral and (y) the Pari Passu Collateral
Agent, for itself and on behalf of the Pari Passu Lenders (as hereinafter
defined) execute and deliver a joinder agreement hereto and become a party to
this Agreement pursuant to the requirements of Section 8.7 hereof.


 


WHEREAS, certain of the
Existing Notes Noteholders have agreed to exchange Existing Notes held by such
Existing Notes Noteholders for the Initial Interim Notes, and in connection
therewith Existing Notes Noteholders of at least a majority in aggregate
principal amount of the Existing Notes outstanding voting as a single class
have agreed to amend and restate the form of Intercreditor Agreement attached
as Exhibit G to the Existing Notes Indenture in its entirety pursuant to
this Agreement; and


 


WHEREAS, it is a condition
precedent to the issuance by the Company of the Interim Notes that the Existing
Notes Trustee, the Existing Notes Collateral Agent, the Interim Notes Trustee,
the Interim Notes Collateral Agent, the Company and the Guarantors 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.
 Unless otherwise specifically stated,
any capitalized terms used in this Agreement which are not otherwise defined
herein shall have the respective meanings ascribed to such terms in the
Indentures then in effect or, if the Indentures define the same term
differently, in the Interim Notes Indenture as then in effect.  As used in this Agreement, the


 


2

















 


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):


 


“Additional Interim Notes”
means the aggregate principal amount of Interim Notes (other than the Initial
Interim Notes) issued under the Interim Notes Indenture (i) in lieu of
interest payment on the Initial Interim Notes as permitted by Section 5.09
of the Interim Notes Indenture and paragraph “1. Interest” in the form of
Interim Note attached as Exhibit A thereto or (ii) subject to
the satisfaction of all of the covenants in the Interim Notes Indenture,
including, without limitation, Sections 5.09 and 5.12 of the
Interim Notes Indenture, in each case in the form of Exhibit A
thereto, as part of the same series as the Initial Interim Notes.


 


“Additional Secured
Parties” means, with respect to the Working Capital Facility Indebtedness
and the Pari Passu Indebtedness, the holders of such Indebtedness, any trustee
or agent therefor under any related promissory notes, indentures, collateral
documents or other operative agreements evidencing or governing such
Indebtedness, in each case, as amended, restated, refinanced or otherwise
modified from time to time, but shall not include the Obligors.


 


“Affiliate” of any
specified Person means any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified
Person.  For purposes of this definition,
“control,” as used with respect to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities,
by agreement or otherwise; provided that beneficial ownership of 10% or more of
the Voting Stock of a Person will be deemed to be control.  For purposes of this definition, the terms “controlling,”
“controlled by” and “under common control with” have correlative meanings.


 


“Agreement” means
this Amended and Restated Intercreditor Agreement, as amended, supplemented or
otherwise modified from time to time in accordance with the terms hereof.


 


“asset” means any
asset or property (tangible and intangible).


 


“Asset Sale” means in
a single transaction or a series of related transactions:  (i) the sale, lease, conveyance or other
disposition of any assets or rights (including by way of a sale and leaseback
transaction), other than the sale, lease, conveyance or other disposition of
all or substantially all of the assets of the Company and its Restricted
Subsidiaries taken as a whole; and (ii) the issuance or sale of Equity
Interests of any of the Company’s Restricted Subsidiaries or the sale of Equity
Interests in any of the Company’s Subsidiaries. 
For purposes of this definition, the term “Asset Sale” shall not
include:


 


(1)           any single transaction or
series of related transactions that involves assets having a Fair Market Value
of less than $1.0 million;


 


(2)           a transfer of assets between
or among the Company and its wholly-owned Guarantors;


 


(3)           an issuance of Equity Interests
by a Restricted Subsidiary of the Company to the Company or to a wholly-owned
Guarantor;


 


3

















 


(4)           the sale or lease of
products, services or accounts receivable in the ordinary course of business or
equipment or other assets pursuant to a program for the maintenance or
upgrading of such equipment or assets including, without limitation, the
disposition of equipment that is worn out or obsolete; and


 


(5)           the sale or other
disposition of cash or Cash Equivalents.


 


“Authorized Representative” means (i) in
the case of any Working Capital Facility Obligations, the Working Capital
Facility Collateral
Agent on its own behalf and on behalf of the Working Capital
Facility Lenders, (ii) in the case of the Existing Notes Obligations, the
Existing Notes Collateral Agent on its own behalf and on behalf of the Existing
Notes Noteholders, (iii) in the case of the Interim Notes Obligations, the
Interim Notes Collateral Agent on its own behalf and on behalf of the Interim
Notes Noteholders, and (iv) in the case of the Pari Passu Obligations, the
Pari Passu Collateral Agent on its own behalf and on behalf of the Pari Passu
Lenders.


 


“Bankruptcy Code”
means Title 11 of the United States Code (11 U.S.C. 101 et seq.), as amended
from time to time, and any successor statute, or if the context so requires,
any similar federal or state law.


 


“Board of Directors”
means (i) with respect to a corporation, the board of directors of the
corporation or any committee thereof duly authorized to act on behalf of such
board, (ii) with respect to a partnership, the board of directors of the
general partner of the partnership, (iii) with respect to a limited
liability company, the managing member or members or any controlling committee
of managing members thereof and (iv) with respect to any other Person, the
board or committee of such Person serving a similar function.


 


“Business Day” means
any day other than a Saturday, a Sunday or a day on which banking institutions
in The City of New York, New York or San Francisco, California or at a place of
payment are authorized or required by law, regulation or executive order to
remain closed.


 


“Capital Lease
Obligations” means, at the time any determination is to be made, the amount
of the liability in respect of a capital lease that would at that time be
required to be capitalized on a balance sheet prepared in accordance with GAAP,
and the Stated Maturity thereof shall be the date of the last payment of rent
or any other amount due under such lease prior to the first date upon which
such lease may be prepaid by the lessee without payment of a penalty.


 


“Capital Stock”
means:


 


(1)           in the case of a
corporation, corporate stock;


 


(2)           in the case of an
association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock;


 


4

















 


(3)           in the case of a partnership
or limited liability company, partnership interests (whether general or limited)
or membership interests, respectively; and


 


(4)           any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person, but
excluding from all of the foregoing any debt securities convertible into
Capital Stock, whether or not such debt securities include any right of
participation in profits, losses or distribution of assets with Capital Stock.


 


“Cash Equivalents”
means:


 


(1)           United States dollars;


 


(2)           securities issued or
directly and fully guaranteed or insured by the United States government or any
agency or instrumentality of the United States government (provided that the
full faith and credit of the United States is pledged in support of those securities)
having maturities of not more than twelve months from the date of acquisition;


 


(3)           certificates of deposit and
eurodollar time deposits with maturities of twelve months or less from the date
of acquisition, bankers’ acceptances with maturities not exceeding twelve
months and overnight bank deposits, in each case, with any domestic commercial
bank having capital and surplus in excess of $500.0 million and a Thomson Bank
Watch Rating of “B” or better;


 


(4)           repurchase obligations with
a term of not more than seven (7) days for underlying securities of the
types described in clauses (2) and (3) above entered into with any
financial institution meeting the qualifications specified in clause (3) above;


 


(5)           commercial paper having one
of the two highest ratings obtainable from Moody’s or Standard & Poor’s
and, in each case, maturing within twelve months after the date of acquisition;
and


 


(6)           money market funds at least
95% of the assets of which constitute Cash Equivalents of the kinds described
in clauses (1) through (5) of this definition.


 


“Collateral” means
all collateral of whatsoever nature purported to be subject to the lien of any
of the Secured Debt Documents.


 


“Collateral Documents”
means, collectively, (i) the Working Capital Facility Collateral
Documents, (ii) the Notes Collateral Documents, and (iii) the Pari
Passu Collateral Documents.


 


“Company” means
FiberTower Corporation, and its successors and assigns, including, without
limitation, any receiver, trustee or debtor-in-possession on behalf of such
person or on behalf of any successor or assign.


 


“Comparable Noteholder
Collateral Document” means, in relation to any Shared Collateral subject to
any Working Capital Facility Security Document, that Noteholder Collateral


 


5

















 


Document which creates a security interest in
the same Collateral, granted by the same Obligor or Obligors.


 


“Comparable Pari Passu
Collateral Document” means, in relation to any Shared Collateral that is
also Pari Passu Collateral, subject to any Working Capital Facility Security
Document, that Pari Passu Collateral Document which creates a security interest
in the same Collateral, granted by the same Obligor or Obligors.


 


“Controlling Collateral
Agent” means, with respect to any Shared Collateral, (i) from and
after the incurrence of the Working Capital Facility Obligations until the
Discharge of Working Capital Facility Obligations, the Working Capital Facility
Collateral Agent, and (ii) until the Discharge of Interim Notes Obligations,
provided that no Working Capital Facility Obligations are outstanding, the
Primary Notes Collateral Agent.


 


“Controlling Secured Parties” means,
with respect to any Shared Collateral, the Secured Parties whose Authorized
Representative is the Controlling Collateral Agent for such Shared Collateral.


 


“Discharge of Interim
Notes Obligations” means the occurrence of all of the following:


 


(1)           payment in full in cash of
the principal of and interest and premium (if any) on all Interim Notes
Indebtedness; and


 


(2)           payment in full in cash of
all other Interim Notes Obligations that are outstanding and unpaid at the time
the Interim Notes Indebtedness is paid in full in cash (other than any
obligations for taxes, costs, indemnifications, reimbursements, damages and
other liabilities in respect of which no claim or demand for payment has been
made at such time); or


 


(3)           mandatory redemption of the
Interim Notes shall have occurred in accordance with the Interim Notes
Indenture which results in a satisfaction and discharge of the Interim Notes
Indenture, provided that the “Transition Effective Date” and “Transition
Incorporation”, each as defined in the Omnibus Intercreditor Agreement between
the parties hereto to which this Agreement is attached as Exhibit A, shall
have occurred and the “New ICA”, as so defined, shall be effective.


 


“Discharge of Working
Capital Facility Obligations” means the occurrence of all of the following:


 


(1)           termination or expiration of
all commitments to extend credit that would constitute Working Capital Facility
Indebtedness;


 


(2)           payment in full in cash of
the principal of and interest and premium (if any) on all Working Capital
Facility Indebtedness (other than any undrawn letters of credit);


 


(3)           cash collateralization (at
the lower of (i) 110% of the aggregate undrawn amount and (ii) the
percentage of the aggregate undrawn amount required for release of


 


6

















 


Liens
under the terms of the applicable Working Capital Facility Document),
expiration, termination or return to the issuing bank of all outstanding
letters of credit constituting Working Capital Facility Indebtedness; and


 


(4)           payment in full in cash of
all other Working Capital Facility Obligations that are outstanding and unpaid
at the time the Working Capital Facility Obligations are paid in full in cash
(other than any obligations for taxes, costs, indemnifications, reimbursements,
damages and other liabilities in respect of which no claim or demand for
payment has been made at such time).


 


“Disqualified Stock”
means any Capital Stock that, by its terms (or by the terms of any security
into which it is convertible, or for which it is exchangeable, in each case, at
the option of the holder of the Capital Stock), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable at the option of the holder of the
Capital Stock, in whole or in part, on or prior to the date that is ninety-one
(91) days after the date on which the Notes mature.  Notwithstanding the preceding sentence, any
Capital Stock that would constitute Disqualified Stock solely because the
holders of the Capital Stock have the right to require the Company to
repurchase such Capital Stock upon the occurrence of a change of control or an
asset sale will not constitute Disqualified Stock if the terms of such Capital
Stock provide that the Company may not repurchase or redeem any such Capital
Stock pursuant to such provisions unless such repurchase or redemption does not
violate any of the Indentures then in effect.


 


“Enforcement Action”
means the commencement of any judicial or nonjudicial enforcement, collection,
execution, levy or foreclosure action or proceeding with respect to, or seeking
to have a trustee, receiver, liquidator or similar official appointed for or
over, attempting any action to take possession of, or otherwise exercising any
enforcement right, remedy or power with respect to, or otherwise taking any
action to enforce its security interest in or realize upon, or take any other
enforcement action available to it in respect of, any Shared Collateral
(including with respect to any intercreditor agreement with respect to any
Shared Collateral), whether under any Collateral Document, applicable law or
otherwise, other than as permitted in Section 3.1(b).


 


“Equally and Ratably”
means, in reference to sharing Liens or Proceeds thereof with respect to Shared
Collateral as between the Senior Subordinated Secured Parties, that such Liens
or proceeds will be allocated and distributed to the Primary Notes Collateral
Agent (for the account of the Interim Notes Noteholders) and the Pari Passu
Collateral Agent (for the account of the Pari Passu Lenders), ratably in
proportion to outstanding Obligations in respect of the Interim Notes
Indebtedness and Pari Passu Indebtedness, as applicable, when the allocation or
distribution is made.


 


“Equity Interests”
means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or
exchangeable for, Capital Stock).


 


“Existing Notes”
shall have the meaning set forth in the recitals hereto.


 


7

















 


“Existing Notes
Collateral” means all of the assets of any Obligor (other than the Capital
Stock or assets of Guarantors that hold the Company’s 24 GHz or 39 GHz FCC
Licenses), whether real, personal or mixed, with respect to which a Lien is
granted as security for any Existing Notes Obligations.


 


“Existing Notes
Collateral Agreement” means the Pledge and Security Agreement, dated as of November 9,
2006, among the Obligors party thereto and the Existing Notes Collateral Agent,
as the same may be amended, modified, supplemented, extended, renewed, or
restated from time to time.


 


“Existing Notes
Collateral Documents” means this Agreement, the Existing Notes Collateral
Agreement, the Existing Notes Mortgages, and any other document or instrument
executed and delivered at any time pursuant to any Existing Notes Document or
otherwise, pursuant to which a Lien is granted by an Obligor to secure any
Existing Notes Obligations or under which rights or remedies with respect to
any such Lien are governed, as the same may be amended, modified, supplemented,
extended, renewed, or restated from time to time.


 


“Existing Notes Documents”
means the Existing Notes Indenture, the Existing Notes, the Existing Notes
Guarantees, the Existing Notes Collateral Documents and any other agreements
governing, securing or relating to any Existing Notes Obligations.


 


“Existing Notes Guarantee”
means the guarantee by each Guarantor of the Company’s payment obligations
under the Existing Notes Indenture.


 


“Existing Notes
Indebtedness” means the $293,796,440 aggregate principal amount of Existing
Notes issued under the Existing Notes Indenture and outstanding on the date
hereof.


 


“Existing Notes Indenture”
shall have the meaning set forth in the recitals hereto.


 


“Existing Notes Lien”
means a Lien granted by an Existing Notes Collateral Document to the Existing
Notes Collateral Agent (or any other holder, or representative of holders, of
Existing Notes Obligations), at any time, upon any assets of the Company or any
Guarantor to secure Existing Notes Obligations.


 


“Existing Notes Mortgages”
means a collective reference to each mortgage, deed of trust and any other
document or instrument under which any Lien on real property owned or leased by
any Obligor is granted to secure any Existing Notes Obligations or under which
rights or remedies with respect to any such Liens are governed, as the same may
be amended, modified, supplemented, extended, renewed, or restated from time to
time.


 


“Existing Notes
Noteholders” means the Persons holding Existing Notes Indebtedness.


 


“Existing Notes Obligations”
means Existing Notes Indebtedness and all other Obligations in respect thereof.


 


“Fair Market Value”
means the value that would be paid by a willing buyer to an unaffiliated
willing seller in a transaction not involving distress or necessity of either
party,


 


8

















 


determined in good faith by
the Board of Directors of the Company (unless otherwise provided in the
Indentures then in effect), evidenced by a resolution delivered to the Trustee.


 


“FCC” means the U.S.
Federal Communications Commission and any successor agency that is responsible
for regulating the U.S. telecommunications industry.


 


“FCC License” means
any authorization, license or permit issued by the FCC, together with any
extensions or renewals thereof.


 


“GAAP” means
generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
have been approved by a significant segment of the accounting profession, which
are in effect from time to time.


 


“Guarantor” means
each Domestic Restricted Subsidiary of the Company on the date hereof, and each
other Domestic Restricted Subsidiary of the Company that executes a Note
Guarantee in accordance with the provisions of the Indentures then in effect,
in each case, together with their respective successors and assigns, unless and
until the Note Guarantee of such Person has been released in accordance with
the provisions of the Indentures then in effect.


 


“Hedging Obligations”
means, with respect to any Person, the obligations of such Person, incurred in
the ordinary course of business to protect against interest rate and foreign
currency exchange rate fluctuations, under:


 


(1)           interest rate swap
agreements, interest rate cap agreements and interest rate collar agreements;


 


(2)           other agreements or
arrangements designed to manage interest rates or interest rate risk; and


 


(3)           other agreements or
arrangements designed to protect such Person against fluctuations in currency
exchange rates or commodity prices.


 


“Indentures” means,
collectively, (i) the Existing Notes Indenture, and (ii) the Interim
Notes Indenture.


 


“Initial Interim Notes”
means $266,791,438 aggregate principal amount of Interim Notes issued under the
Interim Notes Indenture on December 7, 2009.


 


“Insolvency Proceeding”
means, as to any Person, any of the following: (a) any case or proceeding
with respect to such Person under the Bankruptcy Code or any other federal or
state bankruptcy, insolvency, reorganization, arrangement, composition or
readjustment of the obligations and Indebtedness of such Person; (b) any
proceeding seeking the appointment of any trustee, receiver, liquidator,
custodian or other insolvency official with similar powers with respect to such
Person or any of its assets; (c) any proceeding for liquidation,
dissolution or other winding up of the business of such Person; or (d) any
assignment for the benefit of creditors or any marshaling of assets of such
Person.


 


9

















 


“Interim Notes” shall
have the meaning set forth in the recitals hereto.


 


“Interim Notes Collateral”
means all of the assets of any Obligor, whether real, personal or mixed, with
respect to which a Lien is granted as security for any Interim Notes
Obligations.


 


“Interim Notes Collateral
Agreement” means the Collateral Agreement, dated as of December 7,
2009, among the Obligors party thereto and the Interim Notes Collateral Agent,
as the same may be amended, modified, supplemented, extended, renewed, or
restated from time to time.


 


“Interim Notes Collateral
Documents” means this Agreement, the Interim Notes Collateral Agreement,
the Interim Notes Mortgages, and any other document or instrument executed and
delivered at any time pursuant to any Interim Notes Document or otherwise,
pursuant to which a Lien is granted by an Obligor to secure any Interim Notes
Obligations or under which rights or remedies with respect to any such Lien are
governed, as the same may be amended, modified, supplemented, extended,
renewed, or restated from time to time.


 


“Interim Notes Documents”
means the Interim Notes Indenture, the Interim Notes, the Interim Notes
Guarantees, the Interim Notes Collateral Documents, the Interim Notes
Registration Rights Agreement and any other agreements governing, securing or
relating to any Interim Notes Obligations.


 


“Interim Notes Guarantee”
means the guarantee by each Guarantor of the Company’s payment obligations
under the Interim Notes Indenture.


 


“Interim Notes
Indebtedness” means (1) the Initial Interim Notes and the Interim
Notes Guarantees issued on December 7, 2009, and (2) any Additional
Interim Notes and Interim Notes Guarantees thereon issued pursuant to the
Indenture.


 


“Interim Notes Indenture”
shall have the meaning set forth in the recitals hereto.


 


“Interim Notes Lien”
means a Lien granted by an Interim Notes Collateral Document to the Interim
Notes Collateral Agent (or any other holder, or representative of holders, of
Interim Notes Obligations), at any time, upon any assets of the Company or any
Guarantor to secure Interim Notes Obligations.


 


“Interim Notes Mortgages”
means a collective reference to each mortgage, deed of trust and any other
document or instrument under which any Lien on real property owned or leased by
any Obligor is granted to secure any Interim Notes Obligations or under which
rights or remedies with respect to any such Liens are governed, as the same may
be amended, modified, supplemented, extended, renewed, or restated from time to
time.


 


“Interim Notes
Noteholders” means the Persons holding Interim Notes Indebtedness.


 


“Interim Notes Obligations”
means Interim Notes Indebtedness and all other Obligations in respect thereof.


 


10

















 


“Interim
Notes Registration Rights Agreement” means the registration rights
agreement, to be dated as of the date of the mandatory redemption of the
Interim Notes, among the Company, the Guarantors and the initial purchasers of
the Interim Notes identified therein, as such agreement may be amended,
modified or supplemented from time to time in accordance with its terms.


 


“Junior Secured Parties”
means, collectively, (i) the Existing Notes Collateral Agent and the
Existing Notes Noteholders, (ii) the Senior Subordinated Secured Parties,
and (iii) each other Person that from time to time holds any Existing
Notes Indebtedness, Interim Notes Indebtedness or Pari Passu Indebtedness.  At all times, the Existing Notes Collateral
Agent and the Existing Notes Noteholders shall, in relationship to the Interim
Notes Collateral Agent and the Interim Notes Noteholders, constitute Junior
Secured Parties for all purposes of this Agreement.


 


“Lien” means, with
respect to any asset, any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind in respect of such asset, whether or not filed,
recorded or otherwise perfected under applicable law, including any conditional
sale or other title retention agreement, any lease in the nature thereof, any
option or other agreement to sell or give a security interest in and any filing
of or agreement to give any financing statement under the UCC (or equivalent
statutes) of any jurisdiction.


 


“Liquidated Damages”
means all liquidated damages then owing pursuant to the Interim Notes
Registration Rights Agreement.


 


“Moody’s” means Moody’s
Investors Service, Inc.


 


“Net Proceeds” means
the aggregate cash proceeds received by the Company or any of its Restricted
Subsidiaries in respect of any Asset Sale (including, without limitation, any
cash received upon the sale or other disposition of any non-cash consideration
received in any Asset Sale), net of (1) the direct costs relating to such
Asset Sale, including, without limitation, legal, accounting and investment
banking fees, sales commissions, relocation expenses incurred as a result of
the Asset Sale, and taxes paid or payable as a result of the Asset Sale after
taking into account any available tax credits or deductions and any tax sharing
arrangements, (2) amounts required to be applied to the repayment of
Indebtedness, other than Indebtedness under a Working Capital Facility, secured
by a Lien on the asset or assets that were the subject of such Asset Sale, and (3) any
reserve for adjustment in respect of the sale price of such asset or assets
established in accordance with GAAP.


 


“Non-Controlling Secured Parties”
means, with respect to any Shared Collateral, the Secured Parties that are not
Controlling Secured Parties with respect to such Shared Collateral.


 


“Noteholders” means,
collectively, (i) the Existing Notes Noteholders, and (ii) the
Interim Notes Noteholders.


 


“Notes Collateral Agent”
means Wells Fargo Bank, National Association, in its capacity as Collateral
Agent under the Notes Collateral Documents, together with any successors in
such capacity.


 


11
















 


“Notes Collateral Documents” means,
collectively, (i) the Existing Notes Collateral Documents, and (ii) the
Interim Notes Collateral Documents.


 


“Notes Documents” means, collectively, (i) the
Existing Notes Documents, and (ii) the Interim Notes Documents.


 


“Notes Indebtedness” means, collectively, (i) the
Existing Notes Indebtedness, and (ii) the Interim Notes Indebtedness.


 


“Notes Obligations” means, collectively,
Obligations in respect of (i) the Existing Notes Indebtedness, and (ii) Interim
Notes Indebtedness.


 


“Obligations” means (1) with respect to
Existing Notes Indebtedness, any principal, premium, if any, accrued and unpaid
interest, monetary penalty, or damages, due by the Company or any Guarantor
under the terms of the Existing Notes or the Existing Notes Indenture, (2) with
respect to Interim Notes Indebtedness, any principal, premium, if any, accrued
and unpaid interest, including Liquidated Damages, if any, or monetary penalty,
or damages, due by the Company or any Guarantor under the terms of the Interim
Notes or the Interim Notes Indenture, (3) with respect to Working Capital
Facility Indebtedness, any principal (including reimbursement obligations with
respect to letters of credit whether or not drawn), interest (including, to the
extent legally permitted, all interest accrued thereon after the commencement
of any insolvency or liquidation proceeding at the rate, including any
applicable post-default rate, specified in the Working Capital Facility
Documents, even if such interest is not enforceable, allowable or allowed as a
claim in such proceeding), premium (if any), fees, indemnifications,
reimbursements, expenses and other liabilities payable by the Company or any
guarantor of the Working Capital Facility Indebtedness and (4) with
respect to Pari Passu Indebtedness, any principal (including reimbursement
obligations with respect to letters of credit whether or not drawn), interest
(including, to the extent legally permitted, all interest accrued thereon after
the commencement of any insolvency or liquidation proceeding at the rate,
including any applicable post-default rate, specified in the Pari Passu
Indebtedness Documents, even if such interest is not enforceable, allowable or
allowed as a claim in such proceeding), premium (if any), fees, indemnifications,
reimbursements, expenses and other liabilities payable by the Company or any
guarantor of the Pari Passu Indebtedness.


 


“Obligor” means the Company and any
Guarantor.


 


“Officer” means, with respect to any Person,
the Chairman of the Board, the Vice Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial
Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary
or any Vice-President of such Person.


 


“Officers’ Certificate” means a certificate
signed on behalf of the Company by an Officer of the Company, who must be the
Chief Executive Officer, the Chief Financial Officer, the Treasurer or the
Chief Accounting Officer of the Company.


 


“Pari Passu Collateral” means all of the
assets of any Obligor (other than the Capital Stock or assets of Guarantors
that hold the Company’s 24 GHz or 39 GHz FCC Licenses),


 


12

















 


whether real, personal or
mixed, with respect to which a Lien is granted as security for any Pari Passu
Obligations.


 


“Pari Passu Collateral Agent” means, at any
time, the Person serving at such time as the “Collateral Agent” under the
agreement governing any Pari Passu Indebtedness or any other representative
then most recently designated in accordance with the applicable provisions of
any such agreement, together with its successors in such capacity.


 


“Pari Passu Collateral Documents” means this
Agreement and any other document or instrument executed and delivered at any
time pursuant to any Pari Passu Indebtedness Document or otherwise, pursuant to
which a Lien is granted by an Obligor to secure any Pari Passu Obligations or
under which rights or remedies with respect to any such Lien are governed, as
the same may be amended, modified, supplemented, extended, renewed, or restated
from time to time.


 


“Pari Passu Indebtedness” means Indebtedness
permitted by clause (2) of the second paragraph of Section 5.09
of the Interim Notes Indenture.


 


“Pari Passu Indebtedness Cap” means the
principal amount outstanding under any Pari Passu Indebtedness in an aggregate
principal amount not to exceed $250.0 million.


 


“Pari Passu Indebtedness Documents” means the
Pari Passu Collateral Documents, and any other documents, instruments and
agreements executed by or on behalf of any Obligor which is or becomes a party
to any Pari Passu Indebtedness Document and delivered to or for the Pari Passu
Collateral Agent, securing or relating to any Pari Passu Obligations, and any
other transaction contemplated by the Pari Passu Indebtedness Documents, all as
amended, restated, supplemented or modified from time to time.


 


“Pari Passu Lenders” means the Persons
holding Pari Passu Indebtedness, including, without limitation, the Pari Passu
Collateral Agent.


 


“Pari Passu Lien” means a Lien granted to the
Pari Passu Collateral Agent (or any other holder, or representative of holders,
of Pari Passu Indebtedness), at any time, upon any assets of the Company or any
Guarantor to secure the Pari Passu Obligations.


 


“Pari Passu Obligations” means the Pari Passu
Indebtedness and all other Obligations in respect Pari Passu Indebtedness.


 


“Person” or “person” means any
individual, corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, limited liability company or
government or other entity.


 


“Primary Notes Collateral Agent” means the
Interim Notes Collateral Agent, together with any successors in such capacity.


 


“Proceeds” shall have the meaning set forth
in Section 4.1.


 


13

















 


“Qualified Indemnification Claim” means any
claim for indemnification which the Working Capital Facility Collateral Agent
or any Working Capital Facility Lender has against any Obligor pursuant to the
indemnification obligations of the Company and the other Obligors under the
Working Capital Facility Documents as set forth in the Indemnification Claim
Notice (as defined below); provided, that (a) within five (5) Business
Days following delivery by the Notes Collateral Agent or the Pari Passu
Collateral Agent, as applicable, of an Exercise Notice (as defined herein), the
Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, is
provided with (i) a reasonably detailed description of such claim,
including the approximate amount (if any) of such claim, if known (the “Indemnification
Claim Notice”), and (ii) copies of all correspondence, if any, with
any Obligor in respect of such claim, or notices, if any, delivered to any Obligor
in respect of such claim, and (b) promptly following a request therefor by
the Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, on or
after the date on which the Exercise Notice is delivered by the Notes
Collateral Agent or Pari Passu Collateral Agent, as applicable, deliver such
other information as may be reasonably requested by the Notes Collateral Agent
or Pari Passu Collateral Agent, as applicable, in respect of such claim to the
extent that the Working Capital Facility Collateral Agent or any Working
Capital Facility Lender has such information in its actual possession or
control.


 


“refinance” means to refinance, repay,
prepay, replace, renew or refund.


 


“Required Noteholders” means, as applicable, (i) in
the case of the Existing Notes Indenture, the holders of an aggregate principal
amount of all Existing Notes Indebtedness (or portion thereof) then outstanding
required to approve any amendment or modification of the Existing Notes
Documents, or any termination or waiver of any provision of the Existing Notes
Documents, or any consent or departure by any of the Obligors therefrom, and (ii) in
the case of the Interim Notes Indenture, the holders of an aggregate principal
amount of all Interim Notes Indebtedness (or portion thereof) then outstanding
required to approve any amendment or modification of the Interim Notes
Documents, or any termination or waiver of any provision of the Interim Notes
Documents, or any consent or departure by any of the Obligors therefrom.  For purposes of this definition, Notes
Indebtedness registered in the name of, or beneficially owned by, any Obligor
or any of its Affiliates will be deemed not to be outstanding.


 


“Required Pari Passu Lenders” means, as
applicable, the holders of an aggregate principal amount of all Pari Passu
Indebtedness then outstanding required to approve any amendment or modification
of a Pari Passu Indebtedness Document, or any termination or waiver of any
provision of a Pari Passu Indebtedness Document, or any consent or departure by
any of the Obligors therefrom. For purposes of this definition, Pari Passu
Indebtedness registered in the name of, or beneficially owned by, any Obligor
or any of its Affiliates will be deemed not to be outstanding.


 


“Required Working Capital Facility Lenders”
means, as applicable, those Working Capital Facility Lenders required under the
terms of the Working Capital Facility Documents to approve any amendment or
modification of a Working Capital Facility Document, or any termination or
waiver of any provision of a Working Capital Facility Document, or any consent
or departure by any of the Obligors therefrom.


 


14

















 


“Restricted Subsidiary” of any Person means
any Subsidiary of such Person which at the time of determination is not an
Unrestricted Subsidiary.


 


“Secured Debt Documents” means, collectively,
the Notes Documents, the Working Capital Facility Documents and any Pari Passu
Indebtedness Documents.


 


“Secured Parties” means, collectively, (i) the
Working Capital Facility Collateral Agent and the Working Capital Facility
Lenders, (ii) the Existing Notes Collateral Agent, the Existing Notes
Trustee, and the Existing Notes Noteholders, (iii) the Interim Notes
Collateral Agent, the Interim Notes Trustee and the Interim Notes Noteholders,
and (iv) the Pari Passu Collateral Agent and the Pari Passu Lenders.


 


“Senior Indebtedness” means, collectively, (i) Working
Capital Facility Indebtedness, (ii) the Interim Notes Indebtedness, and (iii) the
Pari Passu Indebtedness.


 


“Senior Subordinated Secured Parties” means,
collectively, (i) the Interim Notes Collateral Agent and the Interim Notes
Noteholders, (ii) the Pari Passu Collateral Agent and the Pari Passu
Lenders, and (iii) each other Person that from time to time holds such
Obligations.


 


“Series of Secured Debt” means,
severally, each of Working Capital Facility Indebtedness, Notes Indebtedness
and the Pari Passu Indebtedness.


 


“Shared Collateral” means Collateral that
secures each of the Working Capital Facility Obligations, the Notes Obligations
and any Pari Passu Obligations, provided that the Shared Collateral with
respect to Existing Notes Indebtedness and Pari Passu Indebtedness shall not
include the assets and Capital Stock of Guarantors that hold the Company’s 24
GHz or 39 GHz FCC Licenses.


 


“Standard & Poor’s” means Standard &
Poor’s Corporation.


 


“Subsidiary” means, with respect to any
specified Person:


 


(1)           any corporation, association or other business
entity of which more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any contingency and after
giving effect to any voting agreement or stockholders’ agreement that
effectively transfers voting power) to vote in the election of directors,
managers or trustees of the corporation, association or other business entity
is at the time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that Person (or a combination
thereof); and


 


(2)           any partnership (a) the sole general partner or
the managing general partner of which is such Person or a subsidiary of such
Person or (b) the only general partners of which are such Person or of one
or more Subsidiaries of such Person (or any combination thereof).


 


“Trustee” shall include, in addition to the
Existing Notes Trustee and Interim Notes Trustee referred to in the recitals
hereto, the then acting collateral agent under the Indentures then in effect
and any successor thereto exercising substantially the same rights and powers,
or if 


 


15

















 


there is no acting
collateral agent under the Indentures then in effect, the Noteholders holding a
majority in principal amount of Notes Indebtedness then outstanding.


 


“UCC” means the Uniform Commercial Code as in
effect in the State of New York or any other applicable jurisdiction


 


“Unrestricted Subsidiary” means any
Subsidiary of the Company that is designated by the Board of Directors of the
Company as an Unrestricted Subsidiary pursuant to a resolution of the Board of
Directors, but only to the extent such Subsidiary:


 


(1)           has no Indebtedness other than Non-Recourse
Indebtedness;


 


(2)           except as permitted by Section 5.11 to
the Indentures, is not a party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the Company
unless the terms of any such agreement, contract, arrangement or understanding
are no less favorable to the Company or such Restricted Subsidiary other than
those that might be obtained at the time from Persons who are not Affiliates of
the Company or any Restricted Subsidiary;


 


(3)           is a Person with respect to which neither the
Company nor any of its Restricted Subsidiaries has any direct or indirect
obligation (A) to subscribe for additional Equity Interests or (B) to
maintain or preserve such Person’s financial condition or to cause such Person
to achieve any specified levels of operating results; and


 


(4)           has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of the Company or any
of its Restricted Subsidiaries.


 


“Voting Stock” of any specified Person as of
any date means the Capital Stock of such Person that is at the time entitled to
vote in the election of the Board of Directors of such Person.


 


“Working Capital Facility” has the meaning
assigned to such term in the Interim Notes Indenture.


 


“Working Capital Facility Collateral” means
all of the assets of any Obligor, whether real, personal or mixed, with respect
to which a Lien is granted as security for any Working Capital Facility
Obligations.


 


“Working Capital Facility Collateral Agent”
means, at any time, the Person serving at such time as the “Collateral Agent”
under the Working Capital Facility or any other representative then most
recently designated in accordance with the applicable provisions of the Working
Capital Facility, together with its successors in such capacity.


 


“Working Capital Facility Debt Cap” means the
principal amount outstanding under the Working Capital Facility in an aggregate
principal amount not to exceed 110% of the amount at any one time outstanding
under clause (1) of Section 5.09 of the Interim Notes
Indenture (with letters of credit being deemed to have a principal amount equal
to the maximum potential liability of the Company thereunder) not to exceed
$50,00,000, less the aggregate amount of all Net Proceeds of Asset Sales
applied by the Company to repay any Indebtedness under the 


 


16

















 


Working Capital Facility and
effect a corresponding permanent commitment reduction thereunder pursuant to Section 5.10
of the Interim Notes Indenture.


 


“Working Capital Facility Documents” means
the Working Capital Facility, the Working Capital Facility Security Documents,
and all agreements governing or relating to any Working Capital Facility
Obligations.


 


“Working Capital Facility
Indebtedness” means:


 


(1)           Indebtedness of the Company,
the Guarantors and the guarantors under the Working Capital Facility Agreement
that was permitted to be incurred and secured under each applicable Secured
Debt Document (or as to which the lenders under the Working Capital Facility
Agreement obtained an Officers’ Certificate at the time of incurrence to the
effect that such Indebtedness was permitted to be incurred and secured by all
applicable Secured Debt Documents); and


 


(2)           Hedging Obligations incurred to hedge or manage
interest rate risk with respect to Working Capital Facility Indebtedness; provided,
that:


 


(a)           such Hedging Obligations are
secured by a Working Capital Facility Lien on all of the assets that secure
Indebtedness under the Working Capital Facility Agreement; and


 


(b)           such Working Capital
Facility Lien is senior to or on a parity with the Working Capital Facility
Liens securing Indebtedness under the Working Capital Facility Agreement.


 


“Working Capital Facility Lenders” means the
Persons holding Working Capital Facility Indebtedness.


 


“Working Capital Facility Lien” means a Lien
granted by a Working Capital Facility Security Document to the Working Capital
Facility Collateral Agent (or any Working Capital Facility Lender or other
representative of the Working Capital Facility Lenders), at any time, upon any
assets of the Company, any Guarantor or any guarantor under the Working Capital
Facility Agreement to secure Working Capital Facility Obligations.


 


“Working Capital Facility Obligations” means
the Working Capital Facility Indebtedness and all other Obligations in respect
of Working Capital Facility Indebtedness.


 


“Working Capital Facility Security Documents”
means this Agreement and all security agreements, pledge agreements, collateral
assignments, mortgages, deeds of trust, collateral agency agreements, control
agreements or other grants or transfers for security executed and delivered by
the Company or any Guarantor creating (or purporting to create) a Working
Capital Facility Lien upon collateral in favor of the Working Capital Facility
Collateral Agent, in each case, as amended, modified, renewed, restated or
replaced, in whole or in part, from time to time, in accordance with its terms.


 


17

















 


Section 2. Lien
Priorities.


 


2.1           Acknowledgment of Liens.


 


(a)           The Existing Notes Collateral Agent hereby acknowledges that
(i) the Interim Notes Collateral Agent, acting for and on behalf of the
Interim Notes Trustee and the Interim Notes Noteholders, has been granted Liens
upon the Interim Notes Collateral pursuant to the Interim Notes Collateral
Documents to secure the Interim Notes Obligations, (ii) to the extent any
Working Capital Facility Indebtedness is outstanding, the Working Capital
Facility Collateral Agent, acting for and on behalf of Working Capital Facility
Lenders, shall be granted Liens upon the Working Capital Facility Collateral
pursuant to the Working Capital Facility Documents to secure the Working
Capital Facility Obligations (subject to the principal amount thereof not
exceeding the Working Capital Facility Debt Cap) and (iii) to the extent
any Pari Passu Indebtedness is outstanding, the Pari Passu Collateral Agent,
acting for and on behalf of the Pari Passu Lenders, has been granted Liens upon
the Pari Passu Collateral pursuant to the Pari Passu Indebtedness Documents to
secure the Pari Passu Obligations (subject to the principal amount thereof not
exceeding the Pari Passu Indebtedness Cap).


 


(b)           The Interim Notes Collateral Agent hereby acknowledges that (i) the
Existing Notes Collateral Agent, acting for and on behalf of the Existing Notes
Trustee and the Existing Notes Noteholders, has been granted Liens upon the
Existing Notes Collateral pursuant to the Existing Notes Collateral Documents
to secure the Existing Notes Obligations, (ii) to the extent any Working
Capital Facility Indebtedness is outstanding, the Working Capital Facility
Collateral Agent, acting for and on behalf of Working Capital Facility Lenders,
has been granted Liens upon the Working Capital Facility Collateral pursuant to
the Working Capital Facility Documents to secure the Working Capital Facility
Obligations (subject to the principal amount thereof not exceeding the Working
Capital Facility Debt Cap) and (iii) to the extent any Pari Passu
Indebtedness is outstanding, the Pari Passu Collateral Agent, acting for and on
behalf of the Pari Passu Lenders, has been granted Liens upon the Pari Passu
Collateral pursuant to the Pari Passu Indebtedness Documents to secure the Pari
Passu Obligations (subject to the principal amount thereof not exceeding the
Pari Passu Indebtedness Cap).


 


2.2           Subordination.  Notwithstanding the order or time of
attachment, or the order, time or manner of perfection, or the order or time of
filing or recordation of any document or instrument, or other method of
perfecting a Lien in favor of the Working Capital Facility Collateral Agent or
any Working Capital Facility Lender, the Existing Notes Collateral Agent or any
Existing Notes Noteholder, the Interim Notes Collateral Agent or any Interim
Notes Noteholder, the Pari Passu Collateral Agent or any holder of any Pari
Passu Indebtedness, in each case in any Shared Collateral, and notwithstanding
any conflicting provisions, terms or conditions of the UCC or any other
applicable law or the Existing Notes Documents, the Interim Notes Documents,
the Pari Passu Indebtedness Documents or the Working Capital Facility Documents
or any other circumstance whatsoever, each of the Authorized Representatives
hereby agree that:


 


(a)           any Lien on the Working Capital Facility Collateral securing
any or all of the Working Capital Facility Obligations (subject to the
principal amount thereof not exceeding the Working Capital Facility Debt Cap)
now or hereafter held by the Working Capital Facility


 


18

















 


Collateral
Agent shall be senior and prior to any Lien on the Shared Collateral securing
any or all of the Existing Notes Obligations, the Interim Notes Obligations or
the Pari Passu Obligations, whether or not any such Liens securing any of the
Working Capital Facility Obligations are subordinated to any Lien securing any
other obligation of the Company or any Guarantor, in each case, on the terms
and in the manner set forth in this Agreement;


 


(b)           any Lien on the Shared Collateral securing any or all of the
Interim Notes Obligations or the Pari Passu Obligations now or hereafter held
by the Interim Notes Collateral Agent or the Pari Passu Collateral Agent,
respectively, shall be senior and prior to any Lien on the Shared Collateral
securing any or all of the Existing Notes Obligations, whether or not any such
Liens securing any of the Interim Notes Obligations and the Pari Passu
Obligations are subordinated to any Lien securing any other obligation of the
Company or any Guarantor, in each case, on the terms and in the manner set
forth in this Agreement;


 


(c)           any Lien on the Shared Collateral now or hereafter held by
the Existing Notes Collateral Agent, the Interim Notes Collateral Agent or the
Pari Passu Collateral Agent, regardless of how acquired, shall be junior and
subordinate in all respects to all Liens on the Shared Collateral securing any
or all of the Working Capital Facility Obligations (subject to the principal
amount thereof not exceeding the Working Capital Facility Debt Cap); and


 


(d)           any Lien on the Shared Collateral now or hereafter held by
the Existing Notes Collateral Agent, regardless of how acquired, shall be
junior and subordinate in all respects to all Liens on the Shared Collateral
securing any or all of the Interim Notes Obligations and the Pari Passu
Obligations.


 


2.3           Pari Passu Liens.  Notwithstanding the order or time of
attachment, or the order, time or manner of perfection, or the order or time of
filing or recordation of any document or instrument, or other method of
perfecting a Lien in favor of the Interim Notes Collateral Agent or the Pari
Passu Collateral Agent in the Shared Collateral , and notwithstanding any
conflicting provisions, terms or conditions of the UCC or any other applicable
law or the Interim Notes Documents or the Pari Passu Indebtedness Documents or
any other circumstance whatsoever, the Interim Notes Collateral Agent (on
behalf of itself and the Interim Notes Noteholders) and the Pari Passu
Collateral Agent (on behalf of itself and the Pari Passu Lenders) each hereby
agree that any Lien on the Shared Collateral securing any or all of the Pari
Passu Obligations (subject to the principal amount thereof not exceeding the
Pari Passu Indebtedness Cap) now or hereafter held by the Pari Passu Collateral
Agent or any Pari Passu Lender and securing any or all of the Interim Notes
Obligations now or hereafter held by the Interim Notes Collateral Agent or any
Interim Notes Noteholder, will to be pari passu to one another, in each case,
regardless of the time or order of attachment or perfection, and otherwise on
the terms and in the manner set forth in this Agreement.


 


2.4           Prohibition on Contesting
Liens.  Each of the Authorized
Representatives (for itself and on behalf of each other Secured Party of the Series of
Secured Debt with respect to which it is acting in such capacity) agrees that
it shall not (and hereby waives any right to) contest or support any other
Person in contesting, in any proceeding (including, without limitation, any
Insolvency Proceeding), the priority, validity or enforceability of a Lien held
by, or purported to be granted to, (i) the Working Capital Facility
Collateral Agent or any of the


 


19

















 


Working Capital Facility Lenders in any of
the Working Capital Facility Collateral, (ii) the Interim Notes Collateral
Agent or any of the Interim Notes Noteholders in any of the Interim Notes
Collateral, (iii) the Pari Passu Collateral Agent or any of the Pari Passu
Lenders in any of the Pari Passu Collateral, or (iv) the Existing Notes
Collateral Agent or any of the Existing Notes Noteholders in any of the
Existing Notes Collateral.


 


2.5           No New Liens.


 


(a)           After the incurrence of the Working Capital Facility
Obligations and until the Discharge of Working Capital Facility Obligations, (i) the
Existing Notes Collateral Agent agrees, for itself and on behalf of each
Existing Notes Noteholder, that the Existing Notes Collateral Agent and each
Existing Notes Noteholder shall not demand or receive any Lien upon any assets
or properties of any Obligor unless the Working Capital Facility Collateral
Agent has been granted a Lien on such assets or properties which is senior and
prior to the Liens thereon of the Notes Collateral Agent and the Noteholders; (ii) the
Interim Notes Collateral Agent agrees, for itself and on behalf of each Interim
Notes Noteholder, that the Interim Notes Collateral Agent and each Interim
Notes Noteholder shall not demand or receive any Lien upon any assets or
properties of any Obligor unless the Working Capital Facility Collateral Agent has
been granted a Lien on such assets or properties which is senior and prior to
the Liens thereon of the Interim Notes Collateral Agent; (iii) the Pari
Passu Collateral Agent agrees, for itself and on behalf of each Pari Passu
Lender, that the Pari Passu Collateral Agent and each Pari Passu Lender shall
not demand or receive any Lien upon any assets or properties of any Obligor
unless the Working Capital Facility Collateral Agent has been granted a Lien on
such assets or properties which is senior and prior to the Liens thereon of the
Pari Passu Collateral Agent and the Pari Passu Lenders; and (iv) the
parties hereto agree that, to the extent that the foregoing provisions of this Section 2.5(a) are
not complied with for any reason, after the date hereof, any amounts received
by or distributed to the Existing Notes Collateral Agent and/or the Existing
Notes Noteholders, the Interim Notes Collateral Agent and/or the Interim Notes
Noteholders or the Pari Passu Collateral Agent and/or the Pari Passu Lenders,
or any of them pursuant to or as a result of Liens granted in contravention of
this Section 2.5(a) shall be subject to Section 4.1.


 


(b)           Until the Discharge of Interim Notes Obligations, (i) the
Existing Notes Collateral Agent agrees, for itself and on behalf of each
Existing Notes Noteholder, that the Existing Notes Collateral Agent and each
Existing Notes Noteholder shall not demand or receive any Lien upon any assets
or properties of any Obligor unless the Interim Notes Collateral Agent has been
granted a Lien for the benefit of itself and the Interim Notes Noteholders on
such assets or properties which is senior and prior to the Liens thereon of the
Existing Notes Collateral Agent and the Existing Notes Noteholders; (ii) 
the Pari Passu Collateral Agent agrees, for itself and on behalf of each Pari
Passu Lender, that the Pari Passu Collateral Agent and each Pari Passu Lender
shall not demand or receive any Lien upon any assets or properties of any
Obligor unless the Interim Notes Collateral Agent has been granted a Lien on
such assets or properties which is pari passu in rank with the Liens thereon of
the Pari Passu Collateral Agent and the Pari Passu Lenders; and (iii) the
parties hereto agree that, to the extent that the foregoing provisions of this Section 2.5(b) are
not complied with for any reason, after the date hereof, any amounts received
by or distributed to the Existing Notes Collateral Agent and/or the Existing
Notes Noteholders or the Pari Passu Collateral Agent and/or the Pari Passu
Lenders, or any of them pursuant to or as a result of Liens granted in
contravention of this Section 2.5(b) shall be subject to Section 4.1.


 


20

















 


Section 3. Enforcement.


 


3.1           Exercise of Remedies.


 


(a)           With respect to any Shared Collateral, subject to the
provisions of Section 3.1(b), (i) only the Controlling Collateral
Agent shall act or refrain from acting with respect to any Enforcement Action
against the Shared Collateral (including with respect to any intercreditor agreement
with respect to any Shared Collateral) and shall have the right to instruct the
Authorized Representatives of the Non-Controlling Secured Parties to act or
refrain from acting with respect to any Enforcement Action against the Shared
Collateral, (ii) the Authorized Representatives of the Non-Controlling
Secured Parties shall follow all instructions with respect Enforcement Actions
against such Shared Collateral (including with respect to any intercreditor
agreement with respect to any Shared Collateral) from any representative of the
Controlling Collateral Agent (and shall not comply with instructions with
respect to Enforcement Actions against such Shared Collateral from any other
Secured Party (other than the Controlling Collateral Agent)) and (iii) no
Authorized Representative of any Non-Controlling Secured Party or other Secured
Party (other than the Controlling Collateral Agent) shall, or shall have the
right to, take any Enforcement Action against any Shared Collateral, it being
agreed that only the Controlling Collateral Agent shall be entitled to take any
such Enforcement Action with respect to Shared Collateral.  Notwithstanding the equal priority of the
Liens, the Controlling Collateral Agent may deal with the Shared Collateral
without regard to the equal priority Lien of the Non-Controlling Secured
Parties on such Collateral.  No
Authorized Representative of any Non-Controlling Secured Party nor any
Non-Controlling Secured Party will contest, protest or object to any
Enforcement Action brought by the Controlling Collateral Agent or Controlling
Secured Party, or any other exercise by the Controlling Collateral Agent or
Controlling Secured Party of any rights and remedies relating to the Shared
Collateral, in each case above in compliance with applicable law and this
Agreement, or support any other Person in so contesting, protesting or
objecting.  The foregoing shall not be
construed to limit the rights and priorities of any Secured Party, the
Controlling Collateral Agent or any Authorized Representative with respect to
any collateral not constituting Shared Collateral.  No Authorized Representative of any
Non-Controlling Secured Party will commence, or join with any Person (other
than the Controlling Collateral Agent upon the request thereof) in commencing
any Insolvency Proceeding against any Obligor or any Enforcement Action with
respect to any Lien held by it on the Shared Collateral.


 


(b)           Notwithstanding the foregoing, however, any Authorized
Representative may:


 


(i)            file a claim or statement of
interest with respect to its Obligations in any Insolvency Proceeding commenced
by or against one or more Obligors;


 


(ii)           take any action (not adverse
to the priority status of the Liens on the Shared Collateral or the rights of
the Controlling Collateral Agent to exercise remedies in respect thereof) in
order to create, perfect, preserve or protect its Lien on the Shared
Collateral;


 


(iii)          file any necessary
responsive or defensive pleadings in opposition to any motion, claim, adversary
proceeding or other pleading made by any person objecting to or


 


21

















 


otherwise seeking the
disallowance of the claims of the Controlling Collateral Agent or of any other
Secured Parties including any claims secured by the Collateral, if any, in each
case in accordance with the terms of this Agreement;


 


(iv)          vote on any plan of
reorganization, file any proof of claim, make other filings and make any
arguments and motions that are, in each case, in accordance with the terms of this
Agreement, with respect to the Obligations and the Shared Collateral; or


 


(v)           exercise any of its rights
or remedies with respect to the Collateral or commence an Insolvency Proceeding
against any Obligor after the termination of the 180-day period specified in Section 3.1(e) to
the extent permitted by Section 3.1(e).


 


(c)           Subject to Section 3.1(e) below, in
exercising rights and remedies with respect to the Shared Collateral, the
Controlling Collateral Agent may enforce the provisions of the Collateral
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,
without limitation, the rights of an agent appointed by it to sell or otherwise
dispose of Shared 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 the Bankruptcy Code or similar laws of any applicable
jurisdiction.  Without limiting the
generality of the foregoing, except as expressly provided above in Sections
3.1(b) or in Section 6.4(b), the sole right of the
Non-Controlling Secured Parties is to hold a Lien on the Shared Collateral
pursuant to the applicable Collateral Documents for the period and to the
extent granted therein and to receive a share of the proceeds thereof, if any,
pursuant to Section 4.1.


 


(d)           Subject to Section 3.1(e) below, each of
the Non-Controlling Secured Parties hereby waives any and all rights it may
have as a junior lien creditor or otherwise to object to the manner in which
the Controlling Collateral Agent seeks to enforce or collect any Obligations or
any Liens granted in any of the Shared Collateral, to the extent such
enforcement or collection is in accordance with applicable law and not
inconsistent with this Agreement.


 


(e)           Notwithstanding anything to the contrary set forth herein,
in the event of the failure of the Company to make any payment in respect of (i) any
Notes Indebtedness in accordance with the terms of the Notes Documents or upon
the occurrence of any other Event of Default under any of the Notes Documents
and for so long as such Event of Default under any of the Notes Documents is
continuing, subject at all times to the provisions of Sections 2.2 and 4.1
hereof, or (ii) the Pari Passu Indebtedness in accordance with the terms
of the Pari Passu Indebtedness Documents or upon the occurrence of any other
Event of Default under the Pari Passu Indebtedness Documents and for so long as
such Event of Default under the Pari Passu Indebtedness Documents is
continuing, subject at all times to the provisions of Sections 2.2 and 4.1
hereof, in each case, commencing one hundred eighty (180) days after the
receipt by the Working Capital Facility Collateral Agent of the declaration by
the Trustee or the Existing Notes Collateral Agent or the Interim Notes
Collateral Agent, on the one hand, or Pari Passu Collateral Agent, on the other
hand, of such Event of Default under any of the Notes Documents or Pari Passu
Indebtedness Documents, as applicable, and of the written demand by the Trustee
or the Existing Notes Collateral Agent or the Interim Notes Collateral Agent,
on the one hand, or the


 


22

















 


Pari
Passu Collateral Agent, on the other hand, to the Company for the accelerated
payment of any or all Notes Obligations or Pari Passu Obligations, as
applicable (unless any Obligor is subject to an Insolvency Proceeding by reason
of which such declaration and the making of such demand is stayed, in which
case, commencing on the date of the commencement of such Insolvency
Proceeding), the Trustee or the Existing Notes Collateral Agent (except as
prohibited by any other provision of this Agreement, including paragraph (f) below)
or the Interim Notes Collateral Agent, on the one hand, or the Pari Passu
Collateral Agent, on the other hand, may take any action described in Section 3.1(a) above
with respect to its Liens on the Shared Collateral but only so long as the
Working Capital Facility Collateral Agent is not already diligently pursuing
the exercise of its enforcement rights or remedies against, or diligently
attempting to vacate any stay of enforcement of its Liens on, all or any
material portion of the Shared Collateral, in the case of the Existing Notes
Collateral Agent or the Interim Notes Collateral Agent and the Existing Notes
Noteholders or Interim Notes Noteholders, as applicable, and the Pari Passu
Collateral, in the case of the Pari Passu Collateral Agent and the Pari Passu
Lenders (including, without limitation, any of the following: subject to
applicable laws, the solicitation of bids from third parties to conduct the liquidation
of all or any material portion of the Shared Collateral, the engagement or
retention of sales brokers, marketing agents, investment bankers, accountants,
auctioneers or other third parties for the purpose of valuing, marketing,
promoting and selling a material portion of the Shared Collateral, the
notification of account debtors to make payments to the Working Capital
Facility Collateral Agent or its agent, any action to take possession of all or
any material portion of the Shared Collateral or commencement of any legal
proceedings or actions against or with respect to all or any material portion
of the Shared Collateral).


 


(f)            Notwithstanding anything to the contrary set forth herein,
in the event of the failure of the Company to make any payment in respect of (i) the
Existing Notes Indebtedness in accordance with the terms of the Existing Notes
Documents or upon the occurrence of any other Event of Default under the
Existing Notes Documents and for so long as such Event of Default under the
Notes Documents is continuing, subject at all times to the provisions of Sections
2.2 and 4.1 hereof, or (ii) the Pari Passu Indebtedness in
accordance with the terms of the Pari Passu Indebtedness Documents or upon the
occurrence of any other Event of Default under the Pari Passu Indebtedness
Documents and for so long as such Event of Default under the Pari Passu
Indebtedness Documents is continuing, subject at all times to the provisions of
Sections 2.2 and 4.1 hereof, in each case, commencing one hundred
eighty (180) days after the later of (i) the Discharge of Working Capital
Facility Obligations (if any) and (ii) receipt by the Interim Notes
Collateral Agent of the declaration by the Existing Notes Trustee or the
Existing Notes Collateral Agent, on the one hand, or Pari Passu Collateral
Agent, on the other hand, of such Event of Default under the Existing Notes
Documents or Pari Passu Indebtedness Documents, as applicable, and of the
written demand by the Existing Notes Trustee or the Existing Notes Collateral Agent,
on the one hand, or the Pari Passu Collateral Agent, on the other hand, to the
Company for the accelerated payment of all Existing Notes Obligations or Pari
Passu Obligations, as applicable (unless any Obligor is subject to an
Insolvency Proceeding by reason of which such declaration and the making of
such demand is stayed, in which case, commencing on the date of the
commencement of such Insolvency Proceeding), the Existing Notes Trustee or the
Existing Notes Collateral Agent, on the one hand, or the Pari Passu Collateral
Agent, on the other hand, may take any action described in Section 3.1(a) above
with respect to its Liens on the Collateral but only so long as the Interim
Notes Collateral Agent is not


 


23

















 


already
diligently pursuing the exercise of its enforcement rights or remedies against,
or diligently attempting to vacate any stay of enforcement of its Liens on, all
or any material portion of the Shared Collateral, in the case of the Existing
Notes Collateral Agent and the Existing Notes Noteholders, and the Pari Passu
Collateral, in the case of the Pari Passu Collateral Agent and the Pari Passu
Lenders (including, without limitation, any of the following: subject to
applicable laws, the solicitation of bids from third parties to conduct the
liquidation of all or any material portion of the Shared Collateral, the
engagement or retention of sales brokers, marketing agents, investment bankers,
accountants, auctioneers or other third parties for the purpose of valuing,
marketing, promoting and selling a material portion of the Shared Collateral,
the notification of account debtors to make payments to the Interim Notes
Collateral Agent or its agent, any action to take possession of all or any
material portion of the Shared Collateral or commencement of any legal
proceedings or actions against or with respect to all or any material portion
of the Shared Collateral).


 


Section 4. Payments.


 


4.1           Application of Proceeds and
Payments Over.  Each
Authorized Representative on its own behalf and on behalf of each other Secured
Party of the Series of Secured Debt with respect to which it is acting in
such capacity (and each such Secured Party by its acceptance of the benefits of
the Secured Debt Documents) hereby agrees that if it shall obtain possession of
any Shared Collateral or shall realize any proceeds or payment in respect of
any such Shared Collateral pursuant to any Collateral Document or by the
exercise of any rights available to it under applicable law or in any
Insolvency Proceedings or through any other exercise of remedies or the taking
of any other Enforcement Action, then it shall hold such Shared Collateral,
proceeds or payment in trust for the other Secured Parties and promptly
transfer such Shared Collateral, proceeds or payment, as the case may be, to
the Controlling Collateral Agent, and any proceeds or payment (collectively, “Proceeds”),
shall be applied in the following order:


 


(a)           FIRST, to the fees and expenses of, and reimbursements and
indemnification owed to, the Controlling Collateral Agent under this Agreement
and under the Secured Debt Documents to which it is a party that are unpaid as
of the applicable date of receipt of such Proceeds, and to any Secured Party
which has theretofore advanced or paid any such fees and expenses of, and
reimbursements and indemnification owed to, the Controlling Collateral Agent in
an amount equal to the amount thereof so advanced or paid by such Secured
Party;


 


(b)           SECOND, to the fees and expenses of, and reimbursements and
indemnification that do not relate to the Collateral or the exercise of rights
and remedies with respect to thereto (which would be the subject of clause
FIRST above) owed to the Working Capital Facility Collateral Agent pursuant to
the Working Capital Facility Agreement;


 


(c)           THIRD to the fees and expenses of, and reimbursements and
indemnification that do not relate to the Collateral or the exercise of rights
and remedies with respect to thereto (which would be the subject of clause FIRST
above) owed to the Notes Collateral Agent pursuant to the Notes Documents and
the Pari Passu Collateral Agent pursuant to the Pari Passu Indebtedness
Documents, Equally and Ratably,


 


24
















 


(d)                                 FOURTH, to the payment in cash of the Working Capital
Facility Obligations then due and owing;


 


(e)                                  FIFTH, to the payment in cash of the Interim Notes
Obligations then due and owing and any Pari Passu Obligations then due and
owing, Equally and Ratably (after giving effect to any payments previously made
under this Section),


 


(f)                                    SIXTH, to the payment in cash of the Existing Notes
Obligations then due and owing, and


 


(g)                                 SEVENTH, to the Company and the Guarantors or their
successors or assigns, as their interests may appear, or to whosoever may be
lawfully entitled to receive the same or as a court of competent jurisdiction
may direct.


 


Section 5.
Other Agreements.


 


5.1                                 Releases.


 


(a)                                  If, in connection with the exercise of the Controlling
Collateral Agent’s remedies in respect of the Shared Collateral provided for in
Section 3.1, or, during the continuance any matured “event of
default” under the Working Capital Facility Documents, in connection with a
Disposition in lieu of foreclosure or other exercise of remedies on any of
Shared Collateral by any Obligor at the written direction, or with the
approval, of the Controlling Collateral Agent or the Controlling Collateral
Agent for itself or on behalf of any of the Controlling Secured Parties, the
Controlling Collateral Agent releases any of its Liens on any part of the
Shared Collateral, then all Liens on such Shared Collateral in favor of any
Secured Party (other than any such Liens on Proceeds, which shall continue
notwithstanding such release) shall be automatically, unconditionally and
simultaneously released, provided that the Proceeds of such Shared Collateral
are applied to repay the Obligations in accordance with Section 4.1.


 


(b)                                 If in connection with any sale, lease, exchange, transfer or
other disposition of any Shared Collateral (collectively, a “Disposition”)
permitted under the terms of each of the Working Capital Facility Documents,
the Notes Documents and the Pari Passu Indebtedness Documents (other than in
connection with the exercise of the Controlling Collateral Agent’s remedies or
any other Enforcement Action in respect of the Shared Collateral provided for
in Section 3.1), the Controlling Collateral Agent, for itself or on
behalf of any of the Controlling Secured Parties, releases its Liens on any of
the Shared Collateral, other than in connection with, or in anticipation of,
the Discharge of Working Capital Facility Obligations, then the Existing Notes
Liens, the Interim Notes Liens and the Pari Passu Liens on such Shared
Collateral shall be automatically, unconditionally and simultaneously released;
provided, that the Existing Notes Liens and Interim Notes Liens
upon the Shared Collateral securing the Notes Obligations shall not be released
if the Disposition is subject to Section 6.01 of the Interim Notes
Indenture.


 


(c)                                  If (i) the Required Working Capital Facility Lenders,
the Required Noteholders under the Notes Documents and the Required Pari Passu
Lenders under the Pari Passu Indebtedness Documents consent to a release of any
or all of the Shared Collateral, and (ii) the Company delivers an
Officers’ Certificate to the Working Capital Facility Collateral Agent,


 


25

















 


the
Notes Collateral Agent and the Pari Passu Collateral Agent certifying that all
such necessary consents have been obtained, the Working Capital Facility
Collateral Agent, for itself and for the benefit of the Working Capital
Facility Lenders, the Notes Collateral Agent, for itself and for the benefit of
the Noteholders, and the Pari Passu Collateral Agent, for itself and for the
benefit of the Pari Passu Lenders, shall unconditionally and simultaneously
release their Liens on such Shared Collateral.


 


(d)                                 If the guarantee of the Notes Indebtedness by a Guarantor is
released in accordance with the Notes Documents, the Liens on the Shared
Collateral securing such guarantee of such Guarantor shall be automatically,
unconditionally and simultaneously released.


 


(e)                                  If the guarantee of the Working Capital Facility
Indebtedness by a Guarantor is released in accordance with the Working Capital
Facility Documents, the Working Capital Facility Liens on the Shared Collateral
of such Guarantor shall be automatically, unconditionally and simultaneously
released.


 


(f)                                    If the guarantee of the Pari Passu Indebtedness by a
Guarantor is released in accordance with the Pari Passu Indebtedness Documents,
the Pari Passu Liens on the Shared Collateral of such Guarantor shall be
automatically, unconditionally and simultaneously released.


 


provided, that,
in each case, the Controlling Collateral Agent and each Trustee have received
all documentation, if any, that may be required by the Trust Indenture Act in
connection therewith.  In connection with
any release of Collateral as provided for above, the Controlling Collateral
Agent will promptly execute any release documentation with respect thereto
reasonably requested by the Company.


 


(g)                                 Each of the Authorized Representatives hereby irrevocably
constitutes and appoints the Controlling Collateral Agent and any officer or
agent of the Controlling Collateral Agent, with full power of substitution, as
its true and lawful attorney-in-fact with full irrevocable power and authority
in the place and stead of such Authorized Representative, or in the Controlling
Collateral Agent’s name, from time to time in the Controlling Collateral
Agent’s discretion, for the purpose of carrying out the terms of this Section 5.1,
to take any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the purposes of
this Section 5.1, including, without limitation, any financing
statement amendments, endorsements or other instruments or transfer or
release.  This power is coupled with an
interest and shall be irrevocable.


 


5.2                                 Insurance.  The Controlling Collateral Agent shall have
the sole and exclusive right, subject to the rights of the Company under the
relevant Collateral Documents, to adjust settlement for any insurance policy
covering any Shared Collateral in the event of any loss thereunder and to
approve any award granted in any condemnation or similar proceeding affecting
any Shared Collateral.  All proceeds of
any such policy and any such award shall be paid to the Controlling Collateral
Agent for distribution in accordance with Section 4.1.  If any Secured Party shall, at any time,
receive any proceeds of any such insurance policy or any such award in
contravention of this Agreement, it shall pay such proceeds over to the
Controlling Collateral Agent in accordance with the terms of Section 4.1.


 


26

















 


5.3                                 Amendments to Documents
The Working Capital Facility Documents, the Existing Notes Documents, the
Interim Notes Documents and the Pari Passu Indebtedness Documents may be
amended, supplemented or otherwise modified in accordance with their terms and
the Working Capital Facility Indebtedness, the Existing Notes Indebtedness, the
Interim Notes Indebtedness and the Pari Passu Indebtedness may be refinanced, in
each case, without notice to, or the consent of any of the parties hereto, all
without affecting the lien subordination or other provisions of this Agreement;
provided, that the holders of such refinancing debt bind
themselves in a writing addressed to each of the parties hereto to the terms of
this Agreement, and provided, that no such amendment, supplement,
modification or refinancing shall result in the Working Capital Facility
Indebtedness exceeding, or being permitted to exceed, the Working Capital Facility
Debt Cap.


 


(b)                                 The Company and the Existing Notes Collateral Agent agree
that each Existing Notes Collateral Document shall include the following
caption (appropriately modified to conform to definitions applicable thereto):


 


“THIS [AGREEMENT][INDENTURE] AND THE RIGHTS OF THE PARTIES HEREUNDER
ARE SUBJECT TO THE PROVISIONS OF THE OMNIBUS INTERCREDITOR AGREEMENT DATED AS
OF DECEMBER 7, 2009, BETWEEN
[                      ]
AND THE OTHER CREDITORS PARTY THERETO FROM TIME TO TIME, AND THE [COMPANY AND
THE GUARANTORS][COMPANY AND THE OTHER [GRANTORS][OBLIGORS]], AS AMENDED OR
OTHERWISE MODIFIED FROM TIME TO TIME IN ACCORDANCE WITH THE PROVISIONS
THEREOF.”


 


(c)                                  The Company, the Notes Collateral Agent and the Pari Passu
Collateral Agent each agrees that each Notes Collateral Document and Pari Passu
Collateral Document shall include the following caption (appropriately modified
to conform to definitions applicable thereto):


 


“THIS [AGREEMENT][INDENTURE] AND THE RIGHTS OF THE PARTIES HEREUNDER
ARE SUBJECT TO THE PROVISIONS OF THE OMNIBUS INTERCREDITOR AGREEMENT DATED AS
OF DECEMBER 7, 2009, BETWEEN
[                      ]
AND THE OTHER CREDITORS PARTY THERETO FROM TIME TO TIME, AND THE [COMPANY AND
THE GUARANTORS][COMPANY AND THE OTHER [GRANTORS][OBLIGORS]], AS AMENDED OR
OTHERWISE MODIFIED FROM TIME TO TIME IN ACCORDANCE WITH THE PROVISIONS
THEREOF.”


 


provided, however,
that if the jurisdiction in which any such Notes Collateral Document or Pari
Passu Collateral Document will be filed prohibits the inclusion of the language
in clause (b) or (c) above or would prevent a document containing
such language from being recorded, the Working Capital Facility Collateral
Agent, the Notes Collateral Agent and, if applicable, the Pari Passu Collateral
Agent, agree, prior to such Notes Collateral Document or Pari Passu Collateral
Document being entered into, to negotiate in good faith replacement language
stating that the Liens granted under such Notes Collateral Document or Pari
Passu Collateral Document is subject to the provisions of this Agreement.


 


27

















 


(d)                                 The Company, the Notes Collateral Agent and the Pari Passu
Collateral Agent each agrees that each indenture or other primary debt document
governing the Notes Indebtedness and Pari Passu Indebtedness shall include the
following language (appropriately modified to conform to definitions applicable
thereto):


 


“The [Lenders][Holders][other applicable term], [by their acceptance of
the [Notes]][by their execution and delivery hereof], hereby irrevocably
authorize and direct the [Agent][Trustee][other applicable term]  to enter into the Omnibus Intercreditor
Agreement [as defined herein] on behalf of the [Agent][Trustee][other applicable
term] and the  [Lenders][Holders][other
applicable term], and agree to be bound by the provisions thereof as if they
were direct signatories thereof, and to take all actions required to be taken
by them in accordance with the provisions thereof, and to otherwise comply
therewith, and irrevocably authorize and direct the [Agent][Trustee][other
applicable term] to take all actions on its or the [Lenders’][Holders’][other
applicable term] behalf as are necessary to comply with the provisions thereof.  The rights and
remedies of the [Agent][Trustee][other applicable term], on behalf of the
[Lenders][Holders][other applicable term], under this [Agreement][Indenture]
shall be subject to the Omnibus Intercreditor Agreement as in effect from time
to time.  In the event of any conflict
between the terms of the Omnibus Intercreditor Agreement and this
[Agreement][Indenture], the terms of the Omnibus Intercreditor Agreement shall
govern and control.”


 


5.4                                 Rights as
Unsecured Creditors.  Except as
otherwise expressly prohibited in this Agreement, each Junior Secured Party may
exercise rights and remedies as an unsecured creditor against any Obligor in
accordance with the terms of the Notes Documents or Pari Passu Indebtedness
Documents, as applicable, and applicable law. 
For the avoidance of doubt, nothing in this Agreement shall prohibit the
receipt by a Junior Secured Party of the required payments of interest on and
principal of the Notes or Pari Passu Obligations, as applicable, so long as
such receipt is not the direct or indirect result of the taking by the Notes
Collateral Agent or any Noteholder, on the one hand, or the Pari Passu
Collateral Agent or any Pari Passu Lender, on the other hand, of any
Enforcement Action in respect of any Lien held by any of them in contravention
of this Agreement.  In the event that a
Junior Secured Party becomes a judgment lien creditor in respect of any Shared
Collateral as a result of its enforcement of its rights as an unsecured
creditor, the judgment lien held by such Junior Secured Party shall be deemed
part of the Obligations held by such Junior Secured Party and shall be
subordinated to the Liens securing the other Obligations held by the other
Junior Secured Parties to the extent provided in this Agreement.


 


5.5                                 Bailee for Perfection
The Controlling Collateral Agent agrees to hold all of the Shared Collateral in
its possession or control (or in the possession or control of its agents or
bailees) as agent for perfection and bailee for the benefit of and on behalf of
the Working Capital Facility Collateral Agent, the Notes Collateral Agent and
the Pari Passu Collateral Agent solely for the purpose of perfecting the
security interest granted in such Shared Collateral pursuant to the Working
Capital Facility Collateral Documents, Notes Collateral Documents and the Pari
Passu Collateral Documents (such provision being intended, among other things,
to satisfy the


 


28

















 


requirements
of Sections 8-301(a)(2) and 9-313(c) of the UCC),
subject to the terms and conditions of this Section 5.5.


 


(b)                                 The Controlling Collateral Agent shall not have any
obligation whatsoever to any Junior Secured Party to assure that the Shared
Collateral in the Controlling Collateral Agent’s possession or control 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
Controlling Collateral Agent under this Section 5.5 shall be
limited solely to holding the Shared Collateral in its possession or control as
agent for perfection and bailee for the Existing Notes Collateral Agent and the
Interim Notes Collateral Agent and the Pari Passu Collateral Agent, as
applicable, for purposes of perfecting the Lien held by the Existing Notes
Collateral Agent and  the Interim Notes
Collateral Agent and the Pari Passu Collateral Agent, as applicable, and to
using the same degree of care with respect to such Shared Collateral as the
Controlling Collateral Agent uses for similar property pledged to it as collateral
for indebtedness generally.  The
Controlling Collateral Agent shall not be liable to any Junior Secured Party
for any action taken or omitted by it hereunder or in connection herewith,
except to the extent of the Controlling Collateral Agent’s own gross negligence
or willful misconduct as determined by a final non-appealable order of a court
of competent jurisdiction.


 


(c)                                  The Controlling Collateral Agent shall not have, by reason
of any document, a fiduciary relationship in respect of any Junior Secured
Party.


 


(d)                                 If (i) the Controlling Collateral Agent is the Working
Capital Facility Collateral Agent, and if any Notes Obligations remain
outstanding upon the Discharge of Working Capital Facility Obligations, the
Working Capital Facility Collateral Agent shall deliver to the Primary Notes
Collateral Agent as successor Controlling Collateral Agent the Shared
Collateral in its possession or control (or in the possession or control of its
agents or bailees) together with any necessary or reasonably requested
endorsements (or otherwise allow the Primary Notes Collateral Agent to obtain
control of such Shared Collateral), or as a court of competent jurisdiction may
otherwise direct, or (ii) the Controlling Collateral Agent is the Primary
Notes Collateral Agent, and if any Pari Passu Indebtedness remains outstanding
upon the Discharge of Interim Notes Obligations, the Primary Notes Collateral
Agent shall deliver to Pari Passu Collateral Agent the Shared Collateral in its
possession or control (or in the possession or control of its agents or
bailees) together with any necessary or reasonably requested endorsements (or
otherwise allow the Pari Passu Collateral Agent to obtain control of such
Shared Collateral), or as a court of competent jurisdiction may otherwise
direct.  The successor Controlling
Collateral Agent agrees to hold any Shared Collateral so received from the
former Controlling Collateral Agent in its possession or control as bailee for
the remaining Authorized Representatives, and to use the same degree of care
with respect to such Shared Collateral as the successor Controlling Collateral
Agent uses for similar property pledged to it as collateral for indebtedness
generally.


 


5.6                                 Purchase Option.


 


(a)                                  Upon the occurrence and during the continuance of an Event
of Default or an event of default under the Working Capital Facility Documents
that is not cured or waived within thirty (30) days, the Interim Notes
Collateral Agent on behalf of the Interim Notes


 


29

















 


Noteholders,
and the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, after
written demand by the Trustee or the Interim Notes Collateral Agent, on the one
hand, and/or the Pari Passu Collateral Agent, on the other hand, to the Company
for the accelerated payment of all Interim Notes Obligations or Pari Passu
Obligations, as applicable, shall have the option at any time upon five (5) Business
Days’ prior written notice to the Working Capital Facility Collateral Agent to
elect to purchase a portion of the Working Capital Facility Indebtedness from
the Working Capital Facility Lenders, ratably in proportion to the outstanding
Obligations of each outstanding Series of Secured Debt (in each case, the
“Purchasable Portion”).  Such
notice (an “Exercise Notice”) from the Interim Notes Collateral Agent or
Pari Passu Collateral Agent, as applicable, to the Working Capital Facility
Collateral Agent shall be irrevocable; provided, that the Interim
Notes Collateral Agent or Pari Passu Collateral Agent, as applicable, shall
have the right within ten (10) days following receipt of the information
required to be delivered pursuant to clauses (a) and (b) of the
definition of “Qualified Indemnification Claim” to revoke such election to
purchase such portion of the Working Capital Facility Indebtedness; provided,
further, that such revocation is in writing duly signed by the Interim Notes
Collateral Agent or Pari Passu Collateral Agent, as applicable, and is received
by the Working Capital Facility Collateral Agent prior to the expiration of
such ten-day period.  Neither the
Existing Notes Collateral Agent nor any Existing Notes Noteholder shall have
any rights under this Section 5.6.


 


(b)                                 On the date specified by the Interim Notes Collateral Agent
or Pari Passu Collateral Agent in its respective Exercise Notice (which shall
not be less than five (5) Business Days, nor more than the later of (i) thirty
(30) days after the receipt by the Working Capital Facility Collateral Agent of
the Exercise Notice, and (ii) ten (10) days after receipt by the
Interim Notes Collateral Agent or Pari Passu Collateral Agent, as applicable,
of the information required to be delivered pursuant to clauses (a) and (b) of
the definition of “Qualified Indemnification Claim” (the later of such dates,
the “Outside Closing Date”)), the Working Capital Facility Collateral
Agent and Working Capital Facility Lenders shall sell to the Interim Notes
Collateral Agent and/or the Pari Passu Collateral Agent, and the Interim Notes
Collateral Agent and/or the Pari Passu Collateral Agent shall purchase from the
Working Capital Facility Collateral Agent and Working Capital Facility Lenders,
the respective Purchasable Portion; provided, that (A) the
Working Capital Facility Collateral Agent and Working Capital Facility Lenders
shall retain all rights to be indemnified or held harmless by any Obligor in
accordance with the terms of the Working Capital Facility Documents as to
actions or events that occurred or did not occur prior to the closing of the of
the sale of the Working Capital Facility Indebtedness to the Interim Notes
Collateral Agent and/or the Pari Passu Collateral Agent, but shall not retain
any rights to the security therefor, and (B) nothing contained in clause (A) above
shall restrict or limit the indemnification rights of any Trustee, the Interim
Notes Collateral Agent, the Interim Notes Noteholders, the Pari Passu
Collateral Agent or the Pari Passu Lenders pursuant to the Working Capital
Facility Documents assumed as a result of the purchase of the Working Capital
Facility Indebtedness.  The Working
Capital Facility Collateral Agent hereby represents and warrants that, as of
the date it becomes a party to this Agreement, no approval of any court or other
regulatory or governmental authority is required for such sale.


 


(c)                                  Upon the date of such purchase and sale, the Interim Notes
Collateral Agent and/or the Pari Passu Collateral Agent, as applicable, shall (i) pay
to the Working Capital Facility Collateral Agent, for the benefit of Working Capital
Facility Lenders, as the purchase price therefore, the full amount of the
respective Purchasable Portion of all the Working Capital


 


30

















 


Facility
Indebtedness then outstanding and unpaid (including principal, interest, fees
and expenses, including reasonable attorneys’ fees and legal expenses but
excluding any early termination fee or prepayment penalty or premium payable
pursuant to the Working Capital Facility Agreement or any other Working Capital
Facility Document), (ii) furnish cash collateral to the Working Capital
Facility Collateral Agent in such amounts as the Working Capital Facility
Collateral Agent determines is reasonably necessary to secure the Working
Capital Facility Collateral Agent and Working Capital Facility Lenders in
connection with any issued and outstanding letters of credit provided by the
Working Capital Facility Collateral Agent or Working Capital Facility Lenders
(or letters of credit that the Working Capital Facility Collateral Agent has
arranged to be provided by third parties pursuant to the financing arrangements
under the Working Capital Facility Documents of the Working Capital Facility
Collateral Agent and Working Capital Facility Lenders with the Company or any
Obligor) to the Company or any Obligor (but not in any event in an amount
greater than 110% of the aggregate undrawn face amount of such letters of
credit), (iii) agree to reimburse the Working Capital Facility Collateral
Agent and Working Capital Facility Lenders for any checks or other payments
provisionally credited to the Working Capital Facility Indebtedness, and/or as
to which the Working Capital Facility Collateral Agent or Working Capital
Facility Lenders has not yet received final payment and (iv) agree to reimburse
the Working Capital Facility Collateral Agent and Working Capital Facility
Lenders in respect of Qualified Indemnification Claims which in fact result in
any loss, cost, damage or expense (including reasonable attorneys’ fees and
legal expenses) to the Working Capital Facility Collateral Agent and Working
Capital Facility Lenders; provided, that (A) in no event
will the Interim Notes Collateral Agent or Interim Notes Noteholders, on the
one hand, or the Pari Passu Collateral Agent or Pari Passu Lenders, on other
other hand, have any liability for such amounts in excess of the cash proceeds
of Shared Collateral received by the Interim Notes Collateral Agent or the Pari
Passu Collateral Agent, as applicable, net of (1) the reasonable costs of
collection (including reasonable attorneys’ fees and legal expenses) incurred
by or on behalf of the Working Capital Facility Collateral Agent or the Working
Capital Facility Lenders in respect of such Shared Collateral and (2) any
amounts that are required to be turned over to the Working Capital Facility
Collateral Agent or the Working Capital Facility Lenders under this Agreement,
including pursuant to Section 6.6, (B) in no event shall the
Interim Notes Collateral Agent or any Interim Notes Noteholder, on the one
hand, or the Pari Passu Collateral Agent or any Pari Passu Lender, on the other
hand, have any such liability for or in respect of any indemnification claims
(other than the Qualified Indemnification Claims), (C) in no event shall
the Interim Notes Collateral Agent or the Pari Passu Collateral Agent have any
such liability for any such losses, costs, damages or expenses to the extent
caused by or resulting from the gross negligence or willful misconduct of the
Working Capital Facility Collateral Agent, as determined by a final
non-appealable order of a court of competent jurisdiction, and (D) any
amounts reimbursed by the Interim Notes Collateral Agent or the Pari Passu
Collateral Agent pursuant to this clause (c)(iv) shall constitute Working
Capital Facility Obligations.  Such
purchase price and cash collateral shall be remitted by wire transfer in
federal funds to such bank account of the Working Capital Facility Collateral
Agent in New York, New York, as the Working Capital Facility Collateral Agent
may designate in writing to the Interim Notes Collateral Agent and Pari Passu
Collateral Agent for such purpose not less than three (3) Business Days
prior to the date on which such amounts are to be so remitted.  Interest shall be calculated to but excluding
the Business Day on which such purchase and sale shall occur if the amounts so
paid by the Interim Notes Collateral Agent and/or the Pari Passu Collateral
Agent, as applicable, to the bank account


 


31

















 


designated
by the Working Capital Facility Collateral Agent are received in such bank
account prior to 1:00 p.m. (New York City time) and interest shall be
calculated to and including such Business Day if the amounts so paid by the
Interim Notes Collateral Agent and/or Pari Passu Collateral Agent, as
applicable, to the bank account designated by the Working Capital Facility
Collateral Agent are received in such bank account later than 1:00 p.m.
(New York City time).


 


(d)                                 Such purchase shall be expressly made without representation
or warranty of any kind by the Working Capital Facility Collateral Agent and
Working Capital Facility Lenders as to the Working Capital Facility
Indebtedness or otherwise and without recourse to the Working Capital Facility
Collateral Agent or Working Capital Facility Lenders, except that the Working
Capital Facility Collateral Agent and Working Capital Facility Lenders shall
represent and warrant: (i) the amount of the Working Capital Facility
Indebtedness being purchased, (ii) that the Working Capital Facility
Collateral Agent and Working Capital Facility Lenders own the Working Capital
Facility Indebtedness free and clear of any Liens or encumbrances and (iii) the
Working Capital Facility Collateral Agent and Working Capital Facility Lenders
have the right to assign the Working Capital Facility Indebtedness and the
assignment is duly authorized.


 


(e)                                  The Working Capital Facility Collateral Agent agrees that it
shall give the Interim Notes Collateral Agent and the Pari Passu Collateral Agent
five (5) Business Days prior written notice of its intention to commence
the exercise of any enforcement right or remedy against the Shared
Collateral.  In the event that during
such five Business Day period, the Interim Notes Collateral Agent and the Pari
Passu Collateral Agent shall send to the Working Capital Facility Collateral
Agent the irrevocable notice of the Interim Notes Collateral Agent’s and the
Pari Passu Collateral Agent’s intention to exercise the purchase option given
by the Working Capital Facility Collateral Agent to the Interim Notes
Collateral Agent and Pari Passu Collateral Agent under this Section 5.6,
the Working Capital Facility Collateral Agent shall not commence any
foreclosure or other action to sell or otherwise realize upon the Shared
Collateral or immediately desist from taking any further action; provided,
that the purchase and sale with respect to the Working Capital Facility
Indebtedness provided for herein shall have closed by the Outside Closing Date
and the Working Capital Facility Collateral Agent shall have received payment
in full of the Working Capital Facility Indebtedness as provided for herein on
or before the Outside Closing Date. 
Nothing contained in this Section 5.6(e) shall restrict
or prohibit the Working Capital Facility Collateral Agent from taking action to
the extent that the Working Capital Facility Collateral Agent, in its good
faith judgment, deems such action to be necessary to preserve or protect the
Shared Collateral.


 


5.7                                 Escrow.  In connection with the issuance of any Series of
Secured Debt, any Obligor may enter into an escrow agreement (each, an “Escrow
Agreement”) with an escrow agent (each, an “Escrow Agent”), which
may be the Primary Notes Collateral Agent, the Working Capital Facility Collateral
Agent or any Pari Passu Collateral Agent pursuant to which such Obligor may
deposit with such Escrow Agent, from the proceeds of such Series of
Secured Debt, an amount equal to that amount of interest payments on the Series of
Secured Debt specified in the applicable Working Capital Facility Security
Document, Notes Collateral Document or Pari Passu Collateral Document (the “Escrowed
Interest”) and may grant a security interest to the applicable Escrow Agent
in such Escrowed Interest to secure all Obligations under such Series of
Secured Debt.  Notwithstanding anything
to the contrary set forth in this Agreement, the Escrowed Interest (and any
earnings thereon) for a Series of Secured Debt shall


 


32

















 


not
secure any Series of Secured Debt other than the Obligations under the Series of
Secured Debt to which it is pledged and shall be applied to payment of the Series of
Secured Debt it secures in accordance with the terms of the respective Escrow
Agreement and the other Working Capital Facility Documents, Notes Documents or
Pari Passu Indebtedness Documents, as applicable.


 


5.8                                 Collateral
Shared Equally and Ratably Among Senior Subordinated Secured Parties.  Unless otherwise agreed in writing by the
Interim Notes Collateral Agent, the Working Capital Facility Collateral Agent
and the Pari Passu Collateral Agent, the Secured Parties hereby agree that the
payment and satisfaction of all of the Senior Indebtedness will be secured
Equally and Ratably by the security interests in the Shared Collateral
established in favor of the Interim Notes Collateral Agent (for itself and for
the benefit of the Interim Notes Noteholders) and the Pari Passu Collateral
Agent (for itself and for the benefit of the Pari Passu Lenders).  It is understood and agreed that nothing in
this Section 5.8 is intended to alter the priorities among the
Secured Parties and the Working Capital Facility Collateral Agent and Working
Capital Facility Lenders as provided in Section 2 hereof.


 


5.9                                 Voting.  Following the Discharge of Working Capital
Facility Obligations, in connection with any decision by the Senior
Subordinated Secured Parties under this Agreement, the votes of each Series of
Senior Subordinated Secured Debt entitled to vote thereon shall be cast in the
manner provided by, and in accordance with the decision of the holders of such Series of
Senior Subordinated Secured Debt made pursuant to the terms of the
corresponding Secured Debt Documents.


 


5.10                           Intercreditor
Decisions.


 


(a)                                  No amendment or supplement to any Notes Documents or Pari
Passu Indebtedness Document that changes the date, amount or method of
calculation of the payment of principal of, or interest or premium (if any) on
the Notes Indebtedness or the Pari Passu Indebtedness, in an a way that
adversely affects the rights of any holder of Notes Indebtedness or the Pari
Passu Indebtedness, will become effective without the consent of the Interim
Notes Collateral Agent and Pari Passu Collateral Agent.


 


(b)                                 The Interim Notes Collateral Agent and the Interim Notes
Noteholders, on the one hand, and the Pari Passu Collateral Agent and the Pari
Passu Lenders, on the other hand, may, at any time and from time to time,
without the consent of or notice to any Junior Secured Party and without impairing
or releasing the obligations of any person under this Agreement, (i) amend
any agreement related solely to such Series of Secured Debt in accordance
with the terms thereof, (ii) release anyone liable in any manner under or
in respect of the obligations owing in connection with such Series of
Secured Debt (but only in respect of such obligations), and (iii) waive
any provisions of any agreement related solely to such Series of Secured
Debt.


 


Section 6. Insolvency
Proceedings.


 


6.1                                 Insolvency
Proceedings Generally.  This
Agreement shall be applicable both before and after the filing of any petition
by or against any Obligor under the Bankruptcy Code or the commencement of any
other Insolvency Proceedings and all converted or succeeding


 


33

















 


cases
in respect thereof, and all references herein to any Obligor shall be deemed to
apply to the trustee for any Obligor and any Obligor as
debtor-in-possession.  The relative
rights of the Working Capital Facility Collateral Agent, the Interim Notes
Collateral Agent, the Pari Passu Collateral Agent and the Existing Notes
Collateral Agent in or to any distributions from or in respect of any Shared
Collateral or proceeds of Collateral shall continue after the filing of such
petition on the same basis as prior to the date of the petition, subject to any
court order approving the financing of, or use of cash collateral by, any
Obligor as debtor-in-possession.  This
Agreement shall constitute a “subordination agreement” for the purposes of Section 510(a) of
the Bankruptcy Code and shall be enforceable in any Insolvency Proceeding in
accordance with its terms.


 


6.2                                 Financing Issues  From the incurrence of the Working Capital
Facility Obligations until the Discharge of Working Capital Facility
Obligations, if any Obligor shall be subject to any Insolvency Proceeding and
the Working Capital Facility Collateral Agent or any Working Capital Facility
Lender shall desire (i) to permit the use of “Cash Collateral” (as such
term is defined in Section 363(a) of the Bankruptcy Code)
constituting Shared Collateral or (ii) to permit any Obligor to obtain
financing under Section 364 of the Bankruptcy Code (“DIP
Financing”), then the Notes Collateral Agent, on behalf of itself and the
Noteholders, and the Pari Passu Collateral Agent, on behalf of the Pari Passu
Lenders, will raise no objection to such Cash Collateral use or DIP Financing
(provided that such DIP Financing is on terms and conditions no less favorable
to the Company and its subsidiaries than any other debtor in possession
financing available to the Company in the market) and to the extent the Liens
securing the Working Capital Facility Obligations (subject to the principal
amount thereof not exceeding the Working Capital Facility Debt Cap) are
subordinated to or pari passu with such DIP Financing, the Notes Collateral
Agent and the Pari Passu Collateral Agent will subordinate their respective
Liens on the Shared Collateral to the Liens securing such DIP Financing (and
all obligations relating thereto) in the same priorities and to the same extent
as provided herein with respect to the Working Capital Facility and will not
request adequate protection or any other relief in connection therewith
(except, as expressly agreed by the Working Capital Facility Collateral Agent
or to the extent permitted by this Section 6.2 or by Section 6.4(b));
provided, that (i) the aggregate principal amount of the DIP
Financing plus the aggregate outstanding principal amount of Working Capital
Facility Indebtedness plus the aggregate face amount of any letters of credit
issued and not reimbursed under the Working Capital Facility Agreement does not
exceed the Working Capital Facility Debt Cap and (ii) the Notes Collateral
Agent and the Noteholders, and the Pari Passu Collateral Agent and the Pari
Passu Lenders, retain the right to object to any ancillary agreements or
arrangements regarding Cash Collateral use or the DIP Financing that are
materially prejudicial to their interests.


 


(b)                                 From the incurrence of the Interim Notes Obligations until
the Discharge of Interim Notes Obligations, if any Obligor shall be subject to
any Insolvency Proceeding and the Interim Notes Collateral Agent or any Interim
Notes Noteholder shall desire (i) to permit the use of “Cash Collateral”
(as such term is defined in Section 363(a) of the Bankruptcy
Code) constituting Shared Collateral or (ii) to permit any Obligor to
obtain DIP Financing, then the Existing Notes Collateral Agent, on behalf of
itself and the Existing Notes Noteholders, and the Pari Passu Collateral Agent,
on behalf of the Pari Passu Lenders, will raise no objection to such Cash
Collateral use or DIP Financing and to the extent the Liens securing the
Interim Notes Obligations are subordinated to or pari passu with such DIP
Financing, the Existing Notes


 


34

















 


Collateral
Agent and the Pari Passu Collateral Agent will subordinate their respective
Liens on the Shared Collateral to the Liens securing such DIP Financing (and
all obligations relating thereto) and will not request adequate protection or
any other relief in connection therewith (except, as expressly agreed by the
Interim Notes Collateral Agent or to the extent permitted by this Section 6.2
or by Section 6.4(b).


 


6.3                                 Relief from the
Automatic Stay. Each of the Notes Collateral Agent (on behalf of
itself and the Noteholders) and the Pari Passu Collateral Agent (on behalf of
the Pari Passu Lenders) agree that, from the incurrence of the Working Capital
Facility Obligations until the Discharge of Working Capital Facility
Obligations, none of them shall seek relief from the automatic stay or any
other stay in any Insolvency Proceeding in respect of the Shared Collateral,
without the prior written consent of the Working Capital Facility Collateral
Agent and the Required Working Capital Facility Lenders.  Until the Discharge of Interim Notes
Obligations, each of the Existing Notes Collateral Agent (on behalf of itself
and the Existing Notes Noteholders) and the Pari Passu Collateral Agent (on
behalf of the Pari Passu Lenders) agree that none of them shall seek relief
from the automatic stay or any other stay in any Insolvency Proceeding in
respect of the Shared Collateral, without the prior written consent of the Required
Noteholders under the Interim Notes Indenture and the Required Working Capital
Facility Lenders.


 


6.4                                 Adequate Protection  Subject to Section 6.2, each of
the Notes Collateral Agent (on behalf of itself and the Noteholders) and the
Pari Passu Collateral Agent (on behalf of the Pari Passu Lenders), agree that
none of them shall contest (or support any other Person contesting):


 


(i)                                     any request by
the Working Capital Facility Collateral Agent or the Working Capital Facility
Lenders for adequate protection; or


 


(ii)                                  any objection
by the Working Capital Facility Collateral Agent or the Working Capital
Facility Lenders to any motion, relief, action or proceeding based on the
Working Capital Facility Collateral Agent or the Working Capital Facility
Lenders claiming a lack of adequate protection.


 


Subject
to Section 6.2, each of the Existing Notes Collateral Agent (on
behalf of itself and the Existing Notes Noteholders) and the Pari Passu
Collateral Agent (on behalf of the Pari Passu Lenders), agree that none of them
shall contest (or support any other Person contesting):


 


(iii)                               any request by
the Interim Notes Collateral Agent or the Interim Notes Noteholders for
adequate protection; or


 


(iv)                              any objection
by the Interim Notes Collateral Agent or the Interim Notes Noteholders to any
motion, relief, action or proceeding based on the Interim Notes Collateral
Agent or the Interim Notes Noteholders claiming a lack of adequate protection.


 


(b)                                 Notwithstanding the foregoing provisions in this Section 6.4,
in any Insolvency Proceeding:


 


35
















 


(i)                                     if the Working
Capital Facility Collateral Agent or the Working Capital Facility Lenders (or
any subset thereof) are granted adequate protection in the form of additional
collateral in connection with any Cash Collateral use or DIP Financing, then
the Interim Notes Collateral Agent (on behalf of itself or any of the Interim
Notes Noteholders) and the Pari Passu Collateral Agent (on behalf of itself or
any of the Pari Passu Lenders) may seek or request adequate protection in the
form of a Lien on such additional collateral, which Lien will be subordinated
to the Liens securing the Working Capital Facility Obligations (subject to the
principal amount thereof not exceeding the Working Capital Facility Debt Cap)
and such Cash Collateral use or DIP Financing (and all obligations relating
thereto) on the same basis as the other Interim Note Liens or Pari Passu Liens,
as applicable, are so subordinated to the Working Capital Facility Obligations
(subject to the principal amount thereof not exceeding the Working Capital
Facility Debt Cap) under this Agreement; and


 


(ii)                                  in the event
the Interim Notes Collateral Agent (on behalf of itself or any of the Interim
Notes Noteholders) or the Pari Passu Collateral Agent (on behalf of itself or
any of the Pari Passu Lenders) seeks or requests adequate protection in respect
of any Interim Notes Obligations or Pari Passu Obligations, as applicable, and
such adequate protection is granted in the form of additional collateral, then
the Interim Notes Collateral Agent (on behalf of itself or any of the Interim
Notes Noteholders) or the Pari Passu Collateral Agent (on behalf of itself or
any of the Pari Passu Lenders), as applicable, agrees that the Working Capital
Facility Collateral Agent (if Working Capital Facility Obligations are then
outstanding) shall also be granted a senior Lien on such additional collateral
as security for the Working Capital Facility Obligations (subject to the
principal amount thereof not exceeding the Working Capital Facility Debt Cap)
and for any Cash Collateral use or DIP Financing provided by the Working
Capital Facility Lenders and that any Note Lien on such additional collateral
shall be subordinated to the Lien on such collateral securing the Working
Capital Facility Obligations (subject to the principal amount thereof not
exceeding the Working Capital Facility Debt Cap) and any such DIP Financing
provided by the Working Capital Facility Lenders (and all obligations relating
thereto) and to any other Liens granted to the Working Capital Facility Lenders
as adequate protection on the same basis as the other Note Liens or other Pari
Passu Liens, as applicable, are so subordinated to such Working Capital
Facility Obligations (subject to the principal amount thereof not exceeding the
Working Capital Facility Debt Cap) under this Agreement.  Except as otherwise expressly set forth in Section 6.2
or Section 6.8 or in connection with the exercise of remedies with
respect to the Shared Collateral, nothing herein shall limit the rights of any
Junior Secured Party (other than the Existing Notes Collateral Agent and the
Existing Notes Noteholders) from seeking adequate protection with respect to
their rights in the Shared Collateral in any Insolvency Proceeding (including
adequate protection in the form of a cash payment, periodic cash payments or
otherwise) and the Working Capital Facility Collateral Agent and the Working
Capital Facility Lenders agree that none of them will contest (or support any
other person contesting) any such request for adequate protection that complies
with and seeks relief not prohibited by the provisions of this Section 6.  Until the Discharge of Working Capital
Facility Obligations and the Discharge of Interim Notes Obligations, none of
the Existing Notes Collateral Agent and the Existing Notes Noteholders or their
Authorized Representatives shall seek or obtain or permit to be granted
adequate protection with respect to their rights in the Shared Collateral in
any Insolvency Proceeding (including adequate protection in the form of a lien
on additional collateral, cash payment, periodic cash payments or otherwise).


 


36

















 


6.5                                 No Waiver.  Subject to Sections 3.1(a), (e) and
Section 6.4(b)(ii), nothing contained herein shall prohibit or in any
way limit the Working Capital Facility Collateral Agent or any Working Capital
Facility Lender from objecting in any Insolvency Proceeding or otherwise to any
action taken by any Junior Secured Party, including, without limitation, action
by a Junior Secured Party seeking adequate protection with respect to its
rights in the Shared Collateral in any Insolvency Proceeding (including
adequate protection in the form of a cash payment, periodic cash payments or
otherwise) or asserting any of its rights and remedies under the Notes
Documents or Pari Passu Indebtedness Documents, as applicable, or
otherwise.  Subject to Sections 3.1(a),
(e) and Section 6.4(b)(ii), nothing contained herein
shall prohibit or in any way limit the Interim Notes Collateral Agent or any
Interim Notes Noteholder from objecting in any Insolvency Proceeding or
otherwise to any action taken by any Junior Secured Party, including, without
limitation, action by a Junior Secured Party seeking adequate protection with
respect to its rights in the Shared Collateral in any Insolvency Proceeding
(including adequate protection in the form of a cash payment, periodic cash
payments or otherwise) or asserting any of its rights and remedies under the
Notes Documents or Pari Passu Indebtedness Documents, as applicable, or
otherwise.


 


6.6                                 Avoidance
Recoveries.  If the
Working Capital Facility Collateral Agent or any Working Capital Facility
Lender; or Notes Collateral Agent or any Noteholder; or Pari Passu Collateral
Agent or any Pari Passu Lender is required in any Insolvency Proceeding or
otherwise to turn over or otherwise pay to the estate of any Obligor any amount
(a “Recovery”), then the relevant Working Capital Facility Indebtedness,
Notes Indebtedness, or Pari Passu Indebtedness shall be reinstated from and
after the Notice Delivery Date to the extent of such Recovery and the Working
Capital Facility Collateral Agent or any Working Capital Facility Lender, or
Notes Collateral Agent or any Noteholder, or Pari Passu Collateral Agent or any
Pari Passu Lender shall be entitled to all of the rights and remedies with
respect to such Recovery under the Working Capital Facility Documents, relevant
Notes Documents, Pari Passu Indebtedness Documents or otherwise that it would
have had if it had not received the payment that formed the basis for such
Recovery.  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 (the “Notice Delivery Date”)
on which the Working Capital Facility Collateral Agent or any Working Capital
Facility Lender, or Notes Collateral Agent or any Noteholder, or Pari Passu
Collateral Agent or any Pari Passu Lender delivers a written notice to the
Notes Collateral Agent and the Pari Passu Collateral Agent or Working Capital
Facility Collateral Agent, as the case may be, advising the Notes Collateral
Agent and the Pari Passu Collateral Agent or the Working Capital Facility
Collateral Agent, as the case may be, of such Recovery, and such prior termination
shall not diminish, release, discharge, impair or otherwise affect the
obligations of the parties hereto from and after the Notice Delivery Date.


 


6.7                                 Reorganization
Securities.  If, in any
Insolvency Proceeding, debt obligations of the reorganized debtor secured by
Liens upon any assets of the reorganized debtor are distributed pursuant to a
plan of reorganization or similar dispositive restructuring plan, on account of
the Working Capital Facility Obligations, the Notes Obligations and the Pari Passu
Obligations, then, to the extent the debt obligations distributed on account of
the Working Capital Facility Obligations (subject to the principal amount
thereof not exceeding the Working Capital Facility


 


37

















 


Debt
Cap), the Notes Obligations and the Pari Passu Obligations are secured by Liens
on the same assets, the provisions of this Agreement will survive the
distribution of such debt obligations pursuant to such plan and will apply with
like effect to the Liens securing such debt obligations.  If, in any Insolvency Proceeding, debt
obligations of the reorganized debtor secured by Liens upon any assets of the
reorganized debtor are distributed pursuant to a plan of reorganization or
similar dispositive restructuring plan, on account of the Interim Notes
Obligations, the Existing Notes Obligations and the Pari Passu Obligations,
then, to the extent the debt obligations distributed on account of the Interim
Notes Obligations, the Existing Notes Obligations and the Pari Passu
Obligations are secured by Liens on the same assets, the provisions of this
Agreement will survive the distribution of such debt obligations pursuant to
such plan and will apply with like effect to the Liens securing such debt
obligations.  Notwithstanding the
foregoing, if any Existing Notes Noteholder shall receive in respect of their
Lien on any Shared Collateral any debt or equity securities that are issued by
a reorganized debtor pursuant to a plan of reorganization or similar dispositive
restructuring plan in connection with an Insolvency Proceeding, then unless
such distribution is made under a plan that is consented to by the affirmative
vote of the class composed of the secured claims of Interim Notes Noteholders,
all such debt or equity securities so received shall be paid or delivered
directly to the Controlling Collateral Agent (to be held and/or applied by the
Controlling Collateral Agent in accordance with the terms of Section 4.1
hereof).


 


6.8                                 Asset Sales in
Bankruptcy.  Each of the
Notes Collateral Agent (for itself and each of the Noteholders) and the Pari
Passu Collateral Agent (for itself and each of the Pari Passu Lenders) agree
that none of them shall object to or oppose a sale or other disposition of any
Collateral free and clear of security interests, liens or other claims under Section 363
of the Bankruptcy Code if Working Capital Facility Indebtedness is outstanding
and the Working Capital Facility Collateral Agent has consented to such sale or
disposition of such assets, and such motion does not impair the rights of the
Noteholders or the Pari Passu Lenders under Section 363(k) of the
Bankruptcy Code; provided, that the Working Capital Facility Debt
Cap shall be reduced by an amount equal to the net cash proceeds of such sale
or other disposition which are used to pay the principal or face amount of the
Working Capital Facility Indebtedness. 
Each of the Existing Notes Collateral Agent (for itself and each of the
Existing Notes Noteholders) and the Pari Passu Collateral Agent (for itself and
each of the Pari Passu Lenders) agrees that none of them shall (i) object
to or oppose a sale or other disposition of any Collateral free and clear of
security interests, liens or other claims under Section 363 of the
Bankruptcy Code if the Primary Notes Collateral Agent has consented to such
sale or disposition of such assets, or (ii) credit bid for any assets that
are subject to any Disposition in any Insolvency Proceeding in accordance with Section 363(k) of
the Bankruptcy Code or otherwise.


 


6.9                                 Separate Grants
of Security and Separate Classification.  Each Secured Party acknowledges and agrees
that (a) the grants of Liens pursuant to the Working Capital Facility
Documents and the Interim Notes Documents and the Pari Passu Indebtedness
Documents and the Existing Notes Documents constitute four separate and
distinct grants of Liens and (b) because of their differing rights in the
Collateral, the secured claims in respect of the Working Capital Facility
Indebtedness, the Interim Notes Indebtedness, the Pari Passu Indebtedness and
the Existing Notes Indebtedness are fundamentally different and must be


 


38

















 


separately
classified in any plan of reorganization proposed or adopted in an Insolvency
Proceeding, and none of them shall seek in any Insolvency Proceeding to have
the Working Capital Facility Indebtedness, on one hand, the Interim Notes
Indebtedness, on another hand, the Pari Passu Indebtedness, on another hand, or
the Existing Notes Indebtedness, on another hand, on any of them, be treated as
part of the same class of creditors or shall oppose any pleading or motion to
have the Working Capital Facility Indebtedness, on one hand, the Interim Notes
Indebtedness, on another hand, the Pari Passu Indebtedness, on another hand, or
the Existing Notes Indebtedness, on another hand, and each of them, to be
treated as separate classes of creditors. 
Notwithstanding the foregoing, if it is held that the secured claims of
the Working Capital Facility Indebtedness, the Interim Notes Indebtedness, the
Pari Passu Indebtedness and/or the Existing Notes Indebtedness in respect of
the Collateral constitute only one secured claim (rather than separate classes
of secured claims as provided herein), then the Secured Parties hereby
acknowledge and agree that all distributions on Collateral securing the
applicable components of such secured claim shall be made as if there were
separate classes of secured claims against the Company and the other Obligors
in respect of such Collateral, all in accordance with the priority set forth in
Section 4.1 hereof.


 


Section 7. Reliance;
Waivers: etc.


 


7.1                                 Reliance
The consent by the Working Capital Facility Lenders to the Lien on the Shared
Collateral granted to the Notes Collateral Agent on behalf of the Noteholders,
and to the Pari Passu Collateral Agent on behalf of the Pari Passu Lenders, and
all loans and other extensions of credit made or deemed made on and after the
date hereof by the Working Capital Facility Collateral Agent or any of the
Working Capital Facility Lenders to the Obligors, shall be deemed to have been
given and made in reliance upon this Agreement. 
Each of the Existing Notes Collateral Agent (on behalf of itself and the
Existing Notes Noteholders), the Interim Notes Collateral Agent (on behalf of
itself and the Interim Notes Noteholders) and the Pari Passu Collateral Agent
(on behalf of itself and the Pari Passu Lenders) acknowledge that it and the
relevant Noteholders and Pari Passu Lenders, as applicable, have, independently
and without reliance on the Working Capital Facility Collateral Agent or any
Working Capital Facility Lender, and based on documents and information deemed
by them appropriate, made their own credit analysis and decision to enter into
the Indentures or acquire the Interim Notes Indebtedness or the Existing Notes
Indebtedness or the Pari Passu Indebtedness Documents, as applicable, and to
enter into this Agreement and the transactions contemplated hereby and thereby,
and they will continue to make their own credit decision in taking or not
taking any action under the Interim Notes Documents, the Existing Notes
Documents or the Pari Passu Indebtedness Documents, as applicable, or this
Agreement.  The consent by the Interim
Notes Noteholders and the Interim Notes Collateral Agent to the Lien on the
Shared Collateral granted to the Working Capital Facility Collateral Agent on
behalf of the Working Capital Facility Lenders, to the Existing Notes
Collateral Agent on behalf of the Existing Notes Noteholders, and to the Pari
Passu Collateral Agent on behalf of the Pari Passu Lenders, and all loans and
other extensions of credit made or deemed made before, on and after the date
hereof by the Interim Notes Collateral Agent or any of the Interim Notes
Noteholders to the Obligors, and all Interim Notes acquired, shall be deemed to
have been given and made, or acquired, as applicable, in reliance upon this
Agreement.  Each of the Existing Notes
Collateral Agent (on behalf of itself


 


39

















 


and
the Existing Notes Noteholders), the Working Capital Facility Collateral Agent
(on behalf of itself and the Working Capital Facility Lenders) and the Pari
Passu Collateral Agent (on behalf of itself and the Pari Passu Lenders)
acknowledge that it and the relevant Noteholders and Working Capital Facility
Lenders and Pari Passu Lenders, as applicable, have, independently and without
reliance on the Interim Notes Collateral Agent, the Interim Notes Trustee, or
any Interim Notes Noteholder, and based on documents and information deemed by
them appropriate, made their own credit analysis and decision to enter into the
Existing Notes Documents, the Working Capital Facility Documents or the Pari
Passu Indebtedness Documents, as applicable, this Agreement and the
transactions contemplated hereby and thereby, and they will continue to make
their own credit decision in taking or not taking any action under the Existing
Notes Documents, the Working Capital Facility Documents or the Pari Passu
Indebtedness Documents, as applicable, or this Agreement.


 


(b)                                 The Senior Subordinated Secured Parties hereby acknowledge,
confirm and agree that, for the purposes of determining the Working Capital
Facility Debt Cap, the Working Capital Facility Collateral Agent and the
Working Capital Facility Lenders shall be entitled to conclusively rely, and
shall be fully protected in conclusively relying, upon, without further
inquiry, each certificate duly executed by the president, the chief executive officer,
the chief financial officer, the treasurer, or the principal accounting officer
of the Company in the form established by the Working Capital Facility
Agreement certifying that such principal or face amount of Working Capital
Facility Indebtedness is, at the time of its incurrence, not greater than the
Working Capital Facility Debt Cap, taking into account the principal or face
amount of any other Working Capital Facility Indebtedness that will remain
outstanding immediately following the incurrence of such additional Working
Capital Facility Indebtedness.  Such
certificate shall be addressed to and delivered to the Notes Collateral Agent
substantially concurrently with the delivery of such certificate to the Working
Capital Facility Collateral Agent and/or the Working Capital Facility Lenders; provided,
that the Working Capital Facility Collateral Agent’s and Working Capital
Facility Lenders’ ability to rely on such certificate shall not be conditioned
on the receipt of such certificate by the Notes Collateral Agent or the Pari
Passu Collateral Agent.


 


(c)                                  The Working Capital Facility Collateral Agent, the Working
Capital Facility Lenders, the Notes Collateral Agent and the Noteholders hereby
acknowledge, confirm and agree that, for the purposes of determining the Pari
Passu Indebtedness Cap, the Pari Passu Collateral Agent and the Pari Passu
Lenders shall be entitled to conclusively rely, and shall be fully protected in
conclusively relying, upon, without further inquiry, each certificate duly executed
by the president, the chief executive officer, the chief financial officer, the
treasurer, or the principal accounting officer of the Company in the form
established by the applicable Pari Passi Indebtedness Document certifying that
such principal or face amount of Pari Passu Indebtedness is, at the time of its
incurrence, not greater than the Pari Passu Indebtedness Cap, taking into
account the principal or face amount of any other Pari Passu Indebtedness that
will remain outstanding immediately following the incurrence of such additional
Pari Passu Indebtedness.  Such
certificate shall be addressed to and delivered to the Notes Collateral Agent
and the Working Capital Facility Collateral Agent substantially concurrently
with the delivery of such certificate to the Pari Passu Collateral Agent and/or
the Pari Passu Lenders; provided, that the Pari Passu Collateral
Agent’s and Pari Passu Lenders’ ability to rely on such certificate shall not
be conditioned on the receipt of such certificate by the Notes Collateral Agent
or the Working Capital Facility Collateral Agent.


 


40

















 


7.2                                 No Warranties
or Liability.  Each of the
Notes Collateral Agent (on behalf of itself and the Noteholders) and the Pari
Passu Collateral Agent (on behalf of itself and the Pari Passu Lenders)
acknowledges and agrees that neither the Working Capital Facility Collateral
Agent nor any Working Capital Facility Lender has made any express or implied
representation or warranty, including, without limitation, with respect to the
execution, validity, legality, completeness, collectibility, or enforceability
of any of the Working Capital Facility Obligations or the Working Capital
Facility Documents.  The Working Capital
Facility Collateral Agent and the Working Capital Facility Lenders 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 Working Capital Facility
Collateral Agent and the Working Capital Facility Lenders may manage their
loans and extensions of credit without regard to any rights or interests that
any of the Senior Subordinated Secured Parties have in the Shared Collateral or
otherwise, except as otherwise expressly provided in this Agreement.  Neither the Working Capital Facility
Collateral Agent nor any Working Capital Facility Lender shall have any duty to
any of the Senior Subordinated Secured Parties to act or refrain from acting in
a manner which allows, or results in, the occurrence or continuance of an event
of default or default under any agreements with any Obligor (including, without
limitation, the Notes Documents and the Pari Passu Indebtedness Documents),
regardless of any knowledge thereof which they may have or be charged with.


 


Each
of the Working Capital Facility Collateral Agent (on behalf of itself and the
Working Capital Facility Lenders, the Existing Notes Collateral Agent (on
behalf of itself and the Existing Notes Noteholders) and the Pari Passu
Collateral Agent (on behalf of itself and the Pari Passu Lenders) acknowledges
and agrees that neither the Interim Notes Trustee, Interim Notes Collateral
Agent nor any Interim Notes Noteholder has made any express or implied
representation or warranty, including, without limitation, with respect to the
execution, validity, legality, completeness, collectability, or enforceability
of any of the Interim Notes Obligations or the Interim Notes Documents or any
other Obligations or Secured Debt Documents or this Agreement.  The Interim Notes Trustee, Interim Notes
Collateral Agent and the Interim Notes Noteholders 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 Interim Notes Trustee, Interim Notes Collateral Agent and
the Interim Notes Noteholders may manage their loans and extensions of credit
without regard to any rights or interests that any of the other Secured Parties
have in the Shared Collateral or otherwise, except as otherwise expressly
provided in this Agreement.  Neither the
Interim Notes Trustee, Interim Notes Collateral Agent nor any of the Interim
Notes Noteholders shall have any duty to any other Secured Parties to act or
refrain from acting in a manner which allows, or results in, the occurrence or
continuance of an event of default or default under any agreements with any
Obligor (including, without limitation, the Working Capital Facility Documents,
the Notes Documents and the Pari Passu Indebtedness Documents), regardless of
any knowledge thereof which they may have or be charged with.


 


7.3                                 No Waiver of Lien Priorities; Effectiveness as to Certain
Persons No right of the Working Capital
Facility Lenders, the Working Capital Facility Collateral Agent, the Interim
Notes Collateral Agent or the Interim Notes Noteholders, 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 Working Capital


 


41

















 


Facility
Lender or the Working Capital Facility Collateral Agent or the Interim Notes
Collateral Agent or the Interim Notes Noteholders, as applicable, or by any
noncompliance by any Person with the terms, provisions and covenants of this
Agreement, any of the Working Capital Facility Documents, any of the Notes
Documents or any of the Pari Passu Indebtedness Documents, regardless of any
knowledge thereof which the Working Capital Facility Collateral Agent or the
Working Capital Facility Lenders, or the Interim Notes Collateral Agent or the
Interim Notes Noteholders, or any of them, may have or be otherwise charged
with.


 


Except during
any period in which Working Capital Facility Documents are in effect and the
Working Capital Facility Lenders have any obligation to extend or maintain
credit thereunder or Working Capital Facility Indebtedness is outstanding
thereunder, the provisions of this Agreement in favor of the Working Capital
Facility Collateral Agent and the Working Capital Facility Lenders, or relating
to the Working Capital Facility Indebtedness or any Working Capital Facility
Documents, or any Liens thereunder or Collateral therefor, shall not be
effective, and the Interim Notes Collateral Agent shall constitute the
Controlling Collateral Agent for all purposes hereof, and the Interim Notes
Noteholders and the Interim Notes Collateral Agent shall not constitute Junior
Secured Parties hereunder and shall instead constitute Controlling Secured
Parties hereunder.


 


Except during
any period in which Pari Passu Indebtedness Documents are in effect and the
Pari Passu Lenders have any obligation to extend or maintain credit thereunder
or Pari Passu Indebtedness is outstanding thereunder, the provisions of this
Agreement in favor of the Pari Passu Collateral Agent and the Pari Passu
Lenders, or relating to the Pari Passu Indebtedness or any Pari Passu
Documents, or any Liens thereunder or Collateral therefor, shall not be
effective.


 


(b)                                 Without in any way limiting the generality of the foregoing
paragraph (but subject to the rights of the Obligors under the Working Capital
Facility Documents and subject to the provisions of Section 5.3(a)),
the Working Capital Facility Lenders, the Working Capital Facility Collateral
Agent or any of one or more of them may, at any time and from time to time,
without the consent of, or notice to, any Junior Secured Party, without
incurring any liabilities to any Junior Secured Party 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 any Junior
Secured Party is affected, impaired or extinguished thereby) do any one or more
of the following:


 


(i)                                     change the
manner, place or terms of payment or change or extend the time of payment of,
or renew, exchange, amend, increase or alter, the terms of any of the Working
Capital Facility Indebtedness or any Lien in any Working Capital Facility
Collateral or guaranty thereof or any liability of any Obligor or any other
Person to any of the Working Capital Facility Lenders or the Working Capital
Facility Collateral Agent (including, without limitation, any increase in or
extension of any of the Working Capital Facility Indebtedness, without any
restriction as to the amount, tenor or terms of any such increase or extension,
subject to the principal amount thereof not exceeding the Working Capital
Facility Debt Cap) or otherwise amend, renew, exchange, extend, modify or
supplement in any manner any of the Working Capital Facility Documents;


 


42

















 


(ii)                                  sell, exchange,
release, surrender, realize upon, enforce or otherwise deal with in any manner
and in any order any part of the Working Capital Facility Collateral or any
liability of any Obligor or any other Person to any of the Working Capital
Facility Lenders or the Working Capital Facility Collateral Agent, or any
liability incurred directly or indirectly in respect thereof;


 


(iii)                               settle or
compromise any Working Capital Facility Obligations or any other liability of
any Obligor or any other Person or any Lien 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, without limitation, any of
the Working Capital Facility Indebtedness) in any manner or order; and


 


(iv)                              exercise or
delay in or refrain from exercising any right or remedy against any Obligor or
any other Person or any Working Capital Facility Collateral or any Lien
therefor, elect any remedy and otherwise deal freely with any Obligor or any
other Person or any Working Capital Facility Collateral or any Lien therefor.


 


Without in
any way limiting the generality of the foregoing paragraphs (but subject to the
rights of the Obligors under the Interim Notes Documents and subject to the
provisions of Section 5.3(a)), the Interim Notes Noteholders, the
Interim Notes Trustee, the Interim Notes Collateral Agent or any of one or more
of them may, at any time and from time to time, without the consent of, or
notice to, any Working Capital Facility Lender or the Working Capital Facility
Collateral Agent or any other Secured Party, without incurring any liabilities
to any other Secured Party 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 any other Secured Party is affected,
impaired or extinguished thereby) do any one or more of the following:


 


(i)                                     change the
manner, place or terms of payment or change or extend the time of payment of,
or renew, exchange, amend, increase or alter, the terms of any of the Interim
Notes Obligations or any Lien in any Collateral or guaranty thereof or any
liability of any Obligor or any other Person to any of the Interim Notes
Noteholders, the Interim Notes Collateral Agent or any of one or more of them
(including, without limitation, any increase in or extension of any of the
Interim Notes Obligations, without any restriction as to the amount, tenor or
terms of any such increase or extension, or otherwise amend, renew, exchange,
extend, modify or supplement in any manner any of the Interim Notes Obligations
or the Interim Notes Documents;


 


(ii)                                  except as
otherwise expressly provided herein, sell, exchange, release, surrender,
realize upon, enforce or otherwise deal with in any manner and in any order any
part of the Collateral or any liability of any Obligor or any other Person to
any of the Interim Notes Noteholders, the Interim Notes Collateral Agent or any
of one or more of them, or any liability incurred directly or indirectly in
respect thereof;


 


(iii)                               settle or
compromise any Interim Notes Obligations or any other liability of any Obligor
or any other Person or any Lien 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, without limitation, any of the Interim
Notes Obligations) in any manner


 


43

















 


or order (subject in the
case of Proceeds of Shared Collateral, to the provisions of this Agreement);
and


 


(iv)                              exercise or
delay in or refrain from exercising any right or remedy against any Obligor or
any other Person or any Collateral or any Lien therefor, elect any remedy and
otherwise deal freely with any Obligor or any other Person or any Collateral or
any Lien therefore (subject in the case of Proceeds of Shared Collateral, to
the provisions of this Agreement).


 


(c)                                  Each of the Notes Collateral Agent (on behalf of itself and
the Noteholders) and the Pari Passu Collateral Agent (on behalf of itself and
the Pari Passu Lenders) also agrees that the Working Capital Facility Lenders
and the Working Capital Facility Collateral Agent shall have no liability to
the Notes Collateral Agent or any Noteholder, on the one hand, and the Pari
Passu Collateral Agent or any Pari Passu Lender, on the other hand, and each of
the Notes Collateral Agent (on behalf of itself and the Noteholders) and the
Pari Passu Collateral Agent (on behalf of itself and the Pari Passu Lenders),
hereby waives any claim against any Working Capital Facility Lender or the
Working Capital Facility Collateral Agent, arising out of any and all actions
which any of the Working Capital Facility Lenders or the Working Capital
Facility Collateral Agent may take or permit or omit to take (if not in
violation of the provisions of this Agreement or applicable law ) with respect
to: (i) any of the Working Capital Facility Documents, (ii) the
collection of any of the Working Capital Facility Obligations or (iii) the
foreclosure upon, or sale, liquidation or other disposition of, any of the
Working Capital Facility Collateral in accordance with this Agreement and
applicable law.  Each of the Notes
Collateral Agent (on behalf of itself and the Noteholders) and the Pari Passu
Collateral Agent (on behalf of itself and the Pari Passu Lenders), agrees that
the Working Capital Facility Lenders and the Working Capital Facility
Collateral Agent has no duty to them in respect of the maintenance or
preservation of the Working Capital Facility Collateral, the Working Capital
Facility Obligations or otherwise except as expressly set forth herein.


 


Each of the
Working Capital Facility Collateral Agent (on behalf of itself and the Working
Capital Facility Lenders), the Existing Notes Collateral Agent (on behalf of
itself and the Existing Notes Noteholders) and the Pari Passu Collateral Agent
(on behalf of itself and the Pari Passu Lenders) also agrees that the Interim
Notes Noteholders and the Interim Notes Collateral Agent shall have no liability
to the Working Capital Facility Collateral Agent or any Working Capital
Facility Lender, on one hand, the Existing Notes Collateral Agent or any
Existing Notes Noteholder, on another hand, and the Pari Passu Collateral Agent
or any Pari Passu Lender, on another hand, and each of the Working Capital
Facility Collateral Agent (on behalf of itself and the Working Capital Facility
Lenders), the Existing Notes Collateral Agent (on behalf of itself and the
Existing Notes Noteholders) and the Pari Passu Collateral Agent (on behalf of
itself and the Pari Passu Lenders), hereby waives any claim against any Interim
Notes Noteholders and the Interim Notes Collateral Agent or the Interim Notes
Trustee, arising out of any and all actions which any of the Interim Notes
Noteholders and the Interim Notes Collateral Agent may take or permit or omit
to take (if not in violation of the provisions of this Agreement or applicable
law) with respect to: (i) any of the Interim Notes Documents, (ii) the
collection of any of the Interim Notes Obligations or (iii) the
foreclosure upon, or sale, liquidation or other disposition of, any of the
Collateral in accordance with this Agreement and applicable law.  Each


 


44

















 


of the Working Capital Facility
Collateral Agent (on behalf of itself and the Working Capital Facility
Lenders), the Existing Notes Collateral Agent (on behalf of itself and the
Existing Notes Noteholders) and the Pari Passu Collateral Agent (on behalf of
itself and the Pari Passu Lenders), agrees that the Interim Notes Noteholders
and the Interim Notes Collateral Agent has no duty to them in respect of the
maintenance or preservation of the Collateral, the Interim Notes Obligations or
otherwise except as expressly set forth herein.


 


(d)                                 Each of the Notes Collateral Agent (on behalf of itself and
the Noteholders) and the Pari Passu Collateral Agent (on behalf of itself and
the Pari Passu Lenders) 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.


 


7.4                                 Obligations
Unconditional.  All rights,
interests, agreements and obligations of the Working Capital Facility
Collateral Agent and the Working Capital Facility Lenders, the Existing Notes
Collateral Agent and the Existing Notes Noteholders, the Interim Notes
Collateral Agent and the Interim Notes Noteholders,  and the Pari Passu Collateral Agent and the
Pari Passu Lenders, respectively, hereunder shall remain in full force and
effect irrespective of:


 


(a)                                  any lack of validity or enforceability of any Working
Capital Facility Document, any Notes Documents or any Pari Passu Indebtedness
Document;


 


(b)                                 any change in the time, manner or place of payment of, or in
any other terms of, all or any of the Working Capital Facility Obligations,
Notes Obligations or Pari Passu Obligations, or any amendment or waiver or
other modification (including, without limitation, any increase in the amount
thereof, whether by course of conduct or otherwise) of the terms of (i) the
Working Capital Facility Agreement or any other Working Capital Facility
Document, (ii) the Indentures or any other Notes Documents, or (iii) any
Pari Passu Indebtedness Document;


 


(c)                                  any amendment, waiver or other modification, whether in
writing or by course of conduct or otherwise, of all or any of the Working
Capital Facility Obligations, Notes Obligations or Pari Passu Obligations, any
Secured Debt Documents, or any guarantee of any of the foregoing;


 


(d)                                 the commencement of any Insolvency 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 any of the
Working Capital Facility Obligations, the Interim Notes Obligations, the Pari
Passu Indebtedness or the Existing Notes Obligations, or of any Junior Secured
Party in respect of this Agreement.


 


(f)                                    Nothing in this Section 7.4 shall be construed
as a consent or waiver by the Working Capital Facility Collateral Agent or any
Working Capital Facility Lender to any action by the Notes Collateral Agent or
the Noteholders or under any of the Notes Documents, or any action by the Pari
Passu Collateral Agent and the Pari Passu Lenders under any of the Pari


 


45

















 


Passu
Indebtedness Documents, that is not otherwise permitted under the Working
Capital Facility Documents.  Nothing in
this Section 7.4 shall be construed as a consent or waiver by the
Interim Notes Collateral Agent or any Interim Notes Noteholder to any action by
the Working Capital Facility Collateral Agent or any Working Capital Facility
Lender or under any of the Working Capital Facility Documents, or any action by
the Existing Notes Collateral Agent or the Existing Notes Noteholders or under
any of the Existing Notes Documents, or any action by the Pari Passu Collateral
Agent and the Pari Passu Lenders under any of the Pari Passu Indebtedness
Documents, that is not otherwise permitted under the Interim Notes Documents.


 


Section 8. Miscellaneous.


 


8.1                                 Conflicts.  In the event of any conflict between the
provisions of this Agreement and the provisions of any of the Working Capital
Facility Documents, any of the Notes Documents or the Pari Passu Indebtedness
Documents, the provisions of this Agreement shall govern.  In the event of any conflict between any
instruction, request or direction given by the Controlling Collateral Agent to
any Trustee or any Junior Secured Party pursuant to, and in accordance with,
this Agreement and any instruction, request or direction given by any Working
Capital Facility Lender or the Interim Notes Collateral Agent (unless it is
acting as the Controlling Collateral Agent) or the Existing Notes Collateral
Agent or Pari Passu Collateral Agent or any Interim Notes Noteholder or Pari
Passu Lender or Existing Notes Noteholder to any Trustee or any Junior Secured
Party pursuant to, and in accordance with, this Agreement, the instruction,
request or direction given by the Controlling Collateral Agent shall govern.


 


8.2                                 Continuing Nature
of this Agreement.  This
Agreement shall continue to be effective until only one Series of Secured
Debt remains outstanding.  This is a
continuing agreement of lien subordination, and the Working Capital Facility
Collateral Agent and Working Capital Facility Lenders may continue, at any time
and without notice to any Junior Secured Party, to extend credit and other
financial accommodations and lend monies to or for the benefit of the Obligors
in reliance on this Agreement.  Each of
the Working Capital Facility Collateral Agent, on behalf of itself and, to the
extent permitted by applicable law, the Working Capital Facility Lenders, the
Notes Collateral Agent, on behalf of itself and, to the extent permitted by
applicable law, the Noteholders, and the Pari Passu Collateral Agent, on behalf
of itself and, to the extent permitted by applicable law, the Pari Passu
Lenders, 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 Proceeding.


 


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 Existing Notes Collateral
Agent, the Interim Notes Collateral Agent, the Pari Passu Collateral Agent (if
any Pari Passu Indebtedness shall be outstanding) (and with respect to any such
waiver, amendment or modification which by the terms of this Agreement requires
the Company’s consent or which increases the obligations or reduces the rights
of the Company or any Guarantor, with the consent of the Company) and the
Working Capital Facility Collateral Agent (if any Working Capital Facility
Obligations shall be outstanding) 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


 


46

















 


any
other respect or at any other time. 
Except as expressly provided herein, the Company and any other Obligor
shall not have any right to amend, modify or waive any provision of this
Agreement, nor shall any consent or signed writing be required of any of them
to effect any amendment, modification or waiver of any provision of this
Agreement.


 


8.4                                 Information
Concerning Financial Condition of the Company and its Subsidiaries.  The Working Capital Facility Collateral Agent
and the Working Capital Facility Lenders, in the first instance, the Notes
Collateral Agent and the Noteholders, in the second instance, and the Pari
Passu Collateral Agent and the Pari Passu Lenders, in the third instance, shall
each be responsible for keeping themselves informed of (a) the financial
condition of the Company and its subsidiaries and all Obligors in respect of
the Working Capital Facility Obligations or the Notes Obligations or the Pari
Passu Obligations, as the case may be, and (b) all other circumstances
bearing upon the risk of nonpayment of the Working Capital Facility
Obligations, the Notes Obligations or the Pari Passu Obligations.  The Working Capital Facility Collateral Agent
and the Working Capital Facility Lenders and the Interim Notes Collateral Agent
and the Interim Notes Noteholders each shall have no duty to advise any other
Secured Party of information known to it or them regarding such condition or
any such circumstances or otherwise.  In
the event the Working Capital Facility Collateral Agent or any of the Working
Capital Facility Lenders, or the Interim Notes Collateral Agent or any of the
Interim Notes Noteholders, in each case in its or their sole discretion,
undertakes at any time or from time to time to provide any such information to
any other Secured Party, it or they shall be under no obligation (i) to
provide any additional information or to provide any such information on any
subsequent occasion, (ii) to undertake any investigation or (iii) to
disclose any information which, pursuant to accepted or reasonable commercial
finance practices, such party wishes to maintain confidential, so long as the
failure to disclose such information will not render information which was
disclosed materially misleading.  None of
the Senior Subordinated Secured Parties shall have a duty to advise the Working
Capital Facility Collateral Agent or any Working Capital Facility Lender or any
other Secured Party of information known to it or them regarding such condition
or any such circumstances or otherwise. 
In the event any Junior Secured Party, in its or their sole discretion,
undertakes at any time or from time to time to provide any such information to
the Working Capital Facility Collateral Agent or any Working Capital Facility
Lender, it or they shall be under no obligation (i) to provide any
additional information or to provide any such information on any subsequent
occasion, (ii) to undertake any investigation or (iii) to disclose
any information which, pursuant to accepted or reasonable commercial finance
practices, such party wishes to maintain confidential, so long as the failure
to disclose such information will not render information which was disclosed
materially misleading.


 


8.5                                 Application of
Payments.  As among
the Working Capital Facility Collateral Agent and the Working Capital Facility
Lenders, in the first instance, and the Notes Collateral Agent and the
Noteholders, in the second instance, and the Pari Passu Collateral Agent and
the Pari Passu Lenders, in the third instance, all payments received by the
Working Capital Facility Collateral Agent or the Working Capital Facility
Lenders may be applied, reversed and reapplied, in whole or in part, to such
part of the Working Capital Facility Indebtedness (subject to the principal
amount thereof not exceeding the Working Capital Facility Debt Cap) as the
Working Capital Facility Collateral Agent and/or the Working Capital Facility
Lenders, in their sole discretion, deem appropriate.  As among the Working Capital Facility
Collateral Agent and


 


47

















 


the
Working Capital Facility Lenders, in the first instance, and the Interim Notes
Collateral Agent, the Interim Notes Trustee, and the Interim Notes Noteholders,
in the second instance, and the Existing Notes Collateral Agent and the
Existing Notes Noteholders, in the third instance, and the Pari Passu
Collateral Agent and the Pari Passu Lenders, in the fourth instance, all
payments received by the Interim Notes Collateral Agent or the Interim Notes
Noteholders may be applied, reversed and reapplied, in whole or in part, to
such part of the Interim Notes Obligations as the Interim Notes Collateral
Agent and/or the Interim Notes Noteholders, in their sole discretion, deem
appropriate.  The Notes Collateral Agent
(on behalf of itself and the Noteholders) and the Pari Passu Collateral Agent
(on behalf of itself and the Pari Passu Lenders) assents to any extension or postponement
of the time of payment of the Working Capital Facility Indebtedness or any part
thereof and to any other indulgence with respect thereto, to any substitution,
exchange or release of any Shared Collateral which may at any time secure any
part of the Working Capital Facility Obligations and to the addition or release
of any other Person primarily or secondarily liable therefor.  The Working Capital Facility Collateral Agent
(on behalf of itself and the Working Capital Facility Lenders) and the Existing
Notes Collateral Agent (on behalf of itself and the Existing Notes Noteholders)
and the Pari Passu Collateral Agent (on behalf of itself and the Pari Passu
Lenders) assents to any extension or postponement of the time of payment of the
Interim Notes Obligations or any part thereof and to any other indulgence with
respect thereto, to any substitution, exchange or release of any Shared
Collateral which may at any time secure any part of the Existing Notes
Obligations and to the addition or release of any other Person primarily or
secondarily liable therefor.


 


8.6                                 Notices.  All notices to the Existing Notes
Noteholders, the Interim Notes Noteholders, the Pari Passu Lenders and the
Working Capital Facility Lenders permitted or required under this Agreement may
be sent to the Existing Notes Collateral Agent, the Interim Notes Collateral
Agent, the Pari Passu Collateral Agent and the Working Capital Facility
Collateral 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, or, as to each
party, at such other address as may be designated by such party in a written
notice to all of the other parties.


 


8.7                                 Joinder of Additional Secured Parties The Pari Passu Collateral Agent and the Pari Passu Lenders
may, upon compliance with the relevant provisions of the Secured Debt
Documents, become parties hereto by executing and delivering to the Controlling
Collateral Agent and the Interim Notes Collateral Agent (a) a joinder
agreement in the form attached hereto as Exhibit A (“Joinder
Agreement”) and (b) copy of the agreements evidencing such Pari Passu
Indebtedness to which such Person is a party. 
Upon the execution and delivery of any such copy of this Agreement by
any such Person, such Person, shall, upon delivery thereof to the Controlling
Collateral Agent and the Interim Notes Collateral Agent, thereafter become a
party to this Agreement.


 


48
















 


(b)                                 The Working Capital Facility Collateral Agent may, upon
compliance with the relevant provisions of the Secured Debt Documents, become a
party hereto by executing and delivering to the Controlling Collateral Agent
and the Interim Notes Collateral Agent (a) the Joinder Agreement, and (b) a
copy of the agreements evidencing such Working Capital Facility Indebtedness to
which such Person is a party.  Upon the
execution and delivery of any such copy of this Agreement by any such Person,
such Person, shall, upon delivery thereof to the Controlling Collateral Agent
and the Interim Notes Collateral Agent, thereafter become a party to this
Agreement.


 


8.8                                 Further
Assurances.


 


(a)                                  The Working Capital Facility Collateral Agent (on behalf of
itself and the Working Capital Facility Lenders), the Existing Notes Collateral
Agent (on behalf of itself and the Existing Notes Noteholders), the Interim
Notes Collateral Agent (on behalf of itself and the Interim Notes Noteholders),
the Pari Passu Collateral Agent (on behalf of itself and the Pari Passu
Lenders) and the Company, agree that each of them shall take such further
action and shall execute and deliver such additional documents and instruments
(in recordable form, if requested) as the Working Capital Facility Collateral
Agent, the Existing Notes Collateral Agent, the Interim Notes Collateral Agent,
or the Pari Passu Collateral Agent may reasonably request to effectuate the
terms of and the Lien priorities contemplated by this Agreement.


 


8.9                                 Governing Law.  This Agreement has been delivered and
accepted at and shall be deemed to have been made at New York, New York and
shall be governed by and construed and enforced in accordance with the laws of
the State of New York.


 


8.10                           Binding on
Successors and Assigns.  This
Agreement shall be binding upon the Working Capital Facility Collateral Agent,
the Working Capital Facility Lenders, the Existing Notes Trustee, the Interim
Notes Trustee, the Existing Notes Collateral Agent, the Interim Notes
Collateral Agent, the Noteholders, the Pari Passu Collateral Agent, the Pari
Passu Lenders, and their respective permitted successors and assigns.


 


8.11                           Specific
Performance.  Each of the
Working Capital Facility Collateral Agent and the Working Capital Facility
Lenders, in the first instance, the Interim Notes Collateral Agent and the
Interim Notes Noteholders, in the second instance, and the Pari Passu
Collateral Agent and the Pari Passu Lenders, in the third instance, may demand
specific performance of this Agreement. 
The Working Capital Facility Collateral Agent (on behalf of itself and
the Working Capital Facility Lenders), the Existing Notes Collateral Agent (on
behalf of itself and the Existing Notes Noteholders), the Interim Notes
Collateral Agent (on behalf of itself and the Interim Notes Noteholders), and
the Pari Passu Collateral Agent (on behalf of itself and the Pari Passu
Lenders) hereby irrevocably waive 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 Interim Notes Collateral
Agent or the Interim Notes Noteholders, the Working Capital Facility Collateral
Agent or the Working Capital Facility Lenders, or the Pari Passu Collateral
Agent or the Pari Passu Lenders, as the case may be.


 


8.12                           Section Titles;
Time Periods; Capacities.  The
section titles contained in this Agreement are and shall be without substantive
meaning or content of any kind whatsoever and


 


49

















 


are
not a part of this Agreement.  In the
computation of time periods, unless otherwise specified, the word “from” means
“from and including” and each of the words “to” and “until” means “to but
excluding” and the word “through” means “to and including”.  All references to the Company or any
Guarantor shall include the Company or such Guarantor as an obligor under the
Working Capital Facility Documents, any of the Notes Documents or the Pari
Passu Indebtedness Documents, regardless of its capacity as a Company or
guarantor thereunder.


 


8.13                           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 this Agreement by facsimile or
electronic transmission shall be equally as effective as delivery of an
original executed counterpart of this Agreement.  Any party delivering an executed counterpart of
this Agreement by facsimile or electronic transmission also shall deliver an
original executed counterpart of this Agreement, but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability,
and binding effect of this Agreement.


 


8.14                           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 and to bind
the Persons for which it acts as Authorized Representative to the terms and
conditions hereof.


 


8.15                           No Third Party
Beneficiaries.  This
Agreement and the rights and benefits hereof shall inure to the benefit of each
of the parties hereto and its respective successors and assigns and shall inure
to the benefit of each of the Working Capital Facility Lenders, the Noteholders
and the Pari Passu Lenders.  Nothing in
this Agreement shall impair, as between the Obligors and the Working Capital
Facility Collateral Agent and the Working Capital Facility Lenders, or as between
the Obligors and the Trustee, the Notes Collateral Agent and the Noteholders,
or as between the Obligors and the Pari Passu Collateral Agent and the Pari
Passu Lenders, the obligations of the Obligors to pay principal, interest, fees
and other amounts as provided in the Working Capital Facility Documents, the
Notes Documents and the Pari Passu Indebtedness Documents, respectively.


 


8.16                           Subrogation.  With respect to the value of any payments or
distributions in cash or other assets that any of the Noteholders or the Notes
Collateral Agent, on the one hand, or any of the Pari Passu Lenders or the Pari
Passu Collateral Agent, on the other hand, pays over to the Working Capital
Facility Collateral Agent or the Working Capital Facility Lenders under the terms
of this Agreement (including, without limitation, any payments pursuant to Section 5.6(b)),
the Noteholders and the Notes Collateral Agent, on the one hand, and the Pari
Passu Lenders and the Pari Passu Collateral Agent, on the other hand, shall be
subrogated to the rights of the Working Capital Facility Collateral Agent and
the Working Capital Facility Lenders; provided, that the Notes
Collateral Agent (on behalf of itself and the Noteholders) and the Pari Passu
Collateral Agent (on behalf of itself and the Pari Passu Lenders) hereby agrees
not to assert or enforce all such rights of subrogation it may acquire as a
result of any payment hereunder until the Discharge of Working Capital Facility
Obligations.  With respect to the value
of any payments or distributions in cash or other assets that any of the
Existing Notes Noteholders or the Existing Notes Collateral Agent, on the one
hand, or any of the Pari Passu Lenders or the Pari Passu Collateral Agent, on
the other hand, pays over to the Interim 
Notes Collateral Agent or the


 


50

















 


Interim
Notes Noteholders under the terms of this Agreement (including, without
limitation, any payments pursuant to Section 5.6(b)), the Existing
Notes Noteholders and the Existing Notes Collateral Agent, on the one hand, and
the Pari Passu Lenders and the Pari Passu Collateral Agent, on the other hand,
shall be subrogated to the rights of the Interim  Notes Collateral Agent and the Interim Notes
Noteholders; provided, that the Existing Notes Collateral Agent
(on behalf of itself and the Existing Notes Noteholders) and the Pari Passu
Collateral Agent (on behalf of itself and the Pari Passu Lenders) hereby agrees
not to assert or enforce all such rights of subrogation it may acquire as a
result of any payment hereunder until the Discharge of Interim Notes
Obligations.  The Company acknowledges
and agrees that the value of any payments or distributions in cash, property or
other assets received by the Notes Collateral Agent, the Noteholders, the Pari
Passu Collateral Agent or the Pari Passu Lenders that are paid over to the
Working Capital Facility Collateral Agent or the Working Capital Facility
Lenders or the Interim Notes Collateral Agent or the Interim Notes Noteholders
pursuant to this Agreement shall not reduce any of the relevant Notes
Indebtedness or the Pari Passu Indebtedness, as applicable.


 


8.17                           Certain
Regulatory Requirements. 
Notwithstanding any provision to the contrary in this Agreement, no
party to this Agreement will take any action hereunder in contravention of Section 6.15
of the Interim Notes Collateral Agreement.


 


[The remainder of this page has been intentionally left blank.]


 


51

















 


IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.


 


 


	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION, as Existing Notes Trustee and Existing
  Notes Collateral Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION, as Interim Notes Trustee and Interim Notes
  Collateral Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


52

















 


OBLIGOR
ACKNOWLEDGMENT


 


Each
of the undersigned hereby acknowledges and agrees to the foregoing terms and provisions.  By its signature below, the undersigned
agrees that it will, together with its successors and assigns, be bound by the
provisions of the within and foregoing Intercreditor Agreement.


 


Each
of the undersigned agrees that the Controlling Collateral Agent possessing or
controlling Shared Collateral does so as bailee and agent for perfection (such
bailment and agency for perfection being intended, among other things, to
satisfy the requirements of Sections 8-301(a)(2) and 9-313(c) of
the UCC) for the other Secured Parties, to the extent each has a Lien on such
Shared Collateral, and is hereby authorized to and may turn over such Shared
Collateral to the Interim Notes Collateral Agent or, after the Discharge of
Interim Note Obligations, the Pari Passu Collateral Agent, in accordance with
the foregoing Intercreditor Agreement, after the Discharge of Working Capital
Facility Obligations.


 


Each
of the undersigned acknowledges and agrees that: (i) although it may sign
this Obligor Acknowledgment to the Intercreditor Agreement it is not a party
thereto and does not and will not receive any right, benefit, priority or
interest under or because of the existence of the foregoing Intercreditor
Agreement and (ii) it will execute and deliver such additional documents
and take such additional action as may be necessary or desirable in the
reasonable opinion of the Working Capital Facility Collateral Agent, the Notes
Collateral Agent or the Pari Passu Collateral Agent to effectuate the
provisions and purposes of the foregoing Intercreditor Agreement.


 


	
   

  	
  FIBERTOWER CORPORATION

  
	
   

  	
  FIBERTOWER NETWORK SERVICES CORP.

  
	
   

  	
  ART LEASING, INC.

  
	
   

  	
  ART LICENSING CORP.

  
	
   

  	
  TELIGENT SERVICES ACQUISITION, INC.

  
	
   

  	
  FIBERTOWER SOLUTIONS CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [

  	
  ]

  
	
   

  	
  [

  	
  ]

  
	
   

  	
  Attention: [

  	
  ]

  
	
   

  	
  Telecopy No.: [

  	
  ]

  
	
   

  	
  email address: [

  	
  ]

  
					



 


53

















 


Exhibit A


 


[FORM OF JOINDER AGREEMENT]


 


JOINDER
AGREEMENT, dated as of
[                            
      ,           ],
to the AMENDED AND RESTATED INTERCREDITOR AGREEMENT, dated as of
[                ]
[    ], 2009 (as amended, restated or otherwise modified
from time to time, the “Intercreditor Agreement”), among  (a) WELLS FARGO BANK, NATIONAL
ASSOCIATION, a national banking association, in its capacity as trustee
pursuant to the Existing Notes Indenture (as hereinafter defined) for the
Existing Notes Noteholders (as hereinafter defined) (in such capacity, together
with its successors and assigns in such capacity, the “Existing Notes
Trustee”); (b) WELLS FARGO BANK, NATIONAL ASSOCIATION, a national
banking association, in its capacity as collateral agent pursuant to the
Existing Notes Collateral Agreements (as hereinafter defined) for the benefit
of the Existing Notes Trustee and the Existing Notes Noteholders (in such
capacity, together with its successors and assigns in such capacity, the “Existing
Notes Collateral Agent”); (c) WELLS FARGO BANK, NATIONAL ASSOCIATION,
a national banking association, in its capacity as trustee pursuant to the
Interim Notes Indenture (as hereinafter defined) for the Interim Notes
Noteholders (as hereinafter defined) (in such capacity, together with its
successors and assigns in such capacity, the “Interim Notes Trustee”); (d) WELLS
FARGO BANK, NATIONAL ASSOCIATION, a national banking association, in its
capacity as collateral agent pursuant to the Interim Notes Collateral
Agreements (as hereinafter defined) for the benefit of the Interim Notes
Trustee and the Interim Notes Noteholders (in such capacity, together with its
successors and assigns in such capacity, the “Interim Notes Collateral Agent”);
(e) each additional AUTHORIZED REPRESENTATIVE from time to time  party hereto for the Additional Secured
Parties of the Series of Secured Debt with respect to which it is acting
in such capacity; and (f) FIBERTOWER CORPORATION, a Delaware corporation,
FIBERTOWER NETWORK SERVICES CORP., a Delaware corporation, ART LEASING, INC., a
Delaware corporation, TELIGENT SERVICES ACQUISITION, INC., a Delaware
corporation, ART LICENSING CORP., a Delaware corporation, and FIBERTOWER
SOLUTIONS CORPORATION, a Delaware corporation.


 


A.  Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Intercreditor Agreement.


 


B.  As a condition to the ability of the Company
to incur Working Capital Facility Indebtedness or Pari Passu Indebtedness and
to secure such indebtedness with a Lien on the Shared Collateral, in each case
under and pursuant to the Intercreditor Agreement, the Working Capital Facility
Collateral Agent and the Pari Passu Collateral Agent, as the case may be, is
required to become an Authorized Representative under, and is required to
become subject to and bound by, the Intercreditor Agreement.  Section 8.7 of the Intercreditor
Agreement provides that such Persons may become an Authorized Representative
under, and become subject to and bound by, the Intercreditor Agreement,
pursuant to the execution and delivery by such Person of a joinder agreement in
the form of this Joinder Agreement.  The
undersigned is executing this Joinder Agreement in accordance with the
requirements of the applicable Secured Debt Documents.


 


SECTION 1.  Accordingly, the undersigned (the “Additional
Authorized Representative”) by its signature below becomes an Authorized
Representative under, and the


 


1

















 


related
Additional Secured Parties become subject to and bound by, the Intercreditor
Agreement with the same force and effect as if the Additional Authorized
Representative had originally been named therein as an Authorized
Representative, and the Additional Authorized Representative, on behalf of
itself and such Additional Secured Parties, hereby agrees to all the terms and
provisions of the Intercreditor Agreement applicable to it as an Authorized
Representative in respect of such Obligations and the Additional Secured
Parties that it represents as Secured Parties. 
The Intercreditor Agreement is hereby incorporated herein by reference.


 


SECTION 2.  [The undersigned Additional Authorized
Representative hereby acknowledges that (i) the Notes Collateral Agent,
acting for and on behalf of the Noteholders, has been granted Liens upon the
Noteholder Collateral pursuant to the Notes Documents to secure the Notes
Obligations and (ii) to the extent any Pari Passu Indebtedness is
outstanding, the Pari Passu Collateral Agent, acting for and on behalf of the
Pari Passu Lenders, has been granted Liens upon the Pari Passu Collateral pursuant
to the Pari Passu Indebtedness Documents to secure the Pari Passu Obligations
(subject to the principal amount thereof not exceeding the Pari Passu
Indebtedness Cap)(1)] [The undersigned Additional Authorized Representative
hereby acknowledges that (i) to the extent any Working Capital Facility
Indebtedness is outstanding, the Working Capital Facility Collateral Agent,
acting for and on behalf of Working Capital Facility Lenders, has been granted
Liens upon the Working Capital Facility Collateral pursuant to the Working
Capital Facility Documents to secure the Working Capital Facility Obligations
(subject to the principal amount thereof not exceeding the Working Capital
Facility Debt Cap) and (ii) the Notes Collateral Agent, acting for and on
behalf of the Noteholders, has been granted Liens upon the Noteholder
Collateral pursuant to the Notes Documents to secure the Notes Obligations.(2)]


 


SECTION 3.  The undersigned Additional Authorized
Representative represents and warrants to the Controlling Agent and the other
Secured Parties that (i) it has full power and authority to enter into
this Joinder Agreement, in its capacity as [agent] [trustee], (ii) this
Joinder Agreement has been duly authorized, executed and delivered by it and
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with the terms of such Agreement and (iii) the applicable
Secured Debt Documents provide that, upon the Additional Authorized
Representative’s entry into this Agreement, the Additional Secured Parties that
it represents, will be subject to
and bound by the provisions of the Intercreditor Agreement as Secured Parties.


 


SECTION 4.  This Joinder Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract.  This Joinder Agreement shall become effective
when the Controlling Collateral Agent shall have received a counterpart of this
Joinder Agreement that bears the signature of the undersigned Additional
Authorized Representative.  Delivery of
an executed signature page to this Joinder Agreement by facsimile
transmission shall be effective as delivery of a manually signed counterpart of
this Joinder Agreement.


 


SECTION 5.  Except as expressly supplemented hereby, the
Intercreditor Agreement shall remain in full force and effect.


 






(1) Include
for Joinder Agreement executed by Working Capital Facility Collateral Agent.


 


(2) Include
for Joinder Agreement executed by Pari Passu Collateral Agent.


 


2

















 


SECTION 6.  THIS JOINDER AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


[Signature on following page]


 


3

















 


IN
WITNESS WHEREOF, the undersigned Additional Authorized Representative and the
Controlling Agent have duly executed this Joinder Agreement as of the day and
year first above written.


 


	
   

  	
  [NAME OF ADDITIONAL AUTHORIZED REPRESENTATIVE], as [                 ] for the holders of [                     ],

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for notices:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention of:

  
	
   

  	
  Telecopy:

  
					



 


 


	
  ACKNOWLEDGED
  AND AGREED:

  	
   

  
	
   

  	
   

  
	
  [NAME
  OF CONTROLLING COLLATERAL AGENT],

  	
   

  
	
  as
  Controlling Collateral Agent,

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:    Authorized Signatory

  	
   

  
	
   

  	
   

  
	
  Address
  for notices:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Attention
  of:

  	
   

  
	
  Telecopy:

  	
   

  



 


4
















 


EXHIBIT B


 


AMENDED AND RESTATED
INTERCREDITOR AGREEMENT


 


This AMENDED AND RESTATED INTERCREDITOR
AGREEMENT, dated as of [            ]
[     ], 20[   ], is entered into,
pursuant to and in accordance with the terms of the Omnibus Intercreditor
Agreement, by and among (a) [WELLS FARGO BANK, NATIONAL ASSOCIATION]
[substitute any successor, as applicable], a national banking association, in
its capacity as trustee pursuant to the Existing Notes Indenture (as
hereinafter defined) for the Existing Notes Noteholders (as hereinafter
defined) (in such capacity, together with its successors and assigns in such
capacity, the “Existing Notes Trustee”); (b) [WELLS FARGO BANK,
NATIONAL ASSOCIATION] [substitute any successor, as applicable], a national
banking association, in its capacity as collateral agent pursuant to the
Existing Notes Collateral Agreements (as hereinafter defined) for the benefit
of the Existing Notes Trustee and the Existing Notes Noteholders (in such
capacity, together with its successors and assigns in such capacity, the “Existing
Notes Collateral Agent”); (c) [WELLS FARGO BANK, NATIONAL ASSOCIATION]
[substitute any successor, as applicable], a national banking association, in
its capacity as trustee pursuant to the New Notes Indenture (as hereinafter
defined) for the New Notes Noteholders (as hereinafter defined) (in such
capacity, together with its successors and assigns in such capacity, the “New
Notes Trustee”); (d) [WELLS FARGO BANK, NATIONAL ASSOCIATION]
[substitute any successor, as applicable], a national banking association, in
its capacity as collateral agent pursuant to the New Notes Collateral
Agreements (as hereinafter defined) for the benefit of the Interim Notes
Trustee and the Interim Notes Noteholders (in such capacity, together with its
successors and assigns in such capacity, the “New Notes Collateral Agent”);
(e) at such time, if any, as the Revolving Credit Agreement is entered
into and becomes effective and designated as such for purposes hereof, the
Revolving Agent; and (f) FIBERTOWER CORPORATION, a Delaware corporation
(the “Borrower” or the “Company”), FIBERTOWER NETWORK SERVICES
CORP., a Delaware corporation, ART LEASING, INC., a Delaware corporation,
TELIGENT SERVICES ACQUISITION, INC., a Delaware corporation, ART LICENSING CORP.,
a Delaware corporation, and FIBERTOWER SOLUTIONS CORPORATION, a Delaware
corporation.


 


W I T N E S S E T H:


 


WHEREAS, the Company (as hereinafter
defined), the other Obligors (as hereinafter defined) and the Existing Notes
Trustee and Existing Notes Collateral Agent have entered into the Indenture,
dated as of November 9, 2006, (as such Indenture may be amended, modified,
supplemented, extended, renewed, restated or refinanced, the “Existing Notes
Indenture”) governing the 9.00% Convertible Senior Secured Notes due 2012
(such notes, the “Existing Notes”) issued by the Company to the Existing
Notes Noteholders;


 


WHEREAS, prior to the date hereof the
Company, the other Obligors and Wells Fargo Bank, National Association, as
Interim Notes Agent, have entered into (i) an Amended and Restated
Intercreditor Agreement (the “Interim Notes Intercreditor Agreement”)
pursuant to the 


 

















 


terms of the Omnibus
Intercreditor Agreement (as defined below) and (ii) the Interim Notes
Indenture governing the Interim Notes issued by the Company to the Interim
Notes Noteholders (as defined in the Interim Notes Intercreditor Agreement);


 


WHEREAS, the Interim Notes have, concurrently
with the effectiveness of this Agreement, been mandatorily redeemed in
accordance with the provisions thereof, and the Interim Notes Obligations have
been satisfied and the New Notes have been issued as partial consideration for
such Mandatory Redemption and, together with other consideration, in exchange
for the Interim Notes, and pursuant to the provisions of the Omnibus
Intercreditor Agreement, dated as of December        ,
2009, among the Company, the other Obligors, the Interim Notes Agent, the
Existing Notes Agent and the New Notes Agent and the other creditors, if any,
party thereto (as amended, modified, supplemented, extended, renewed or
restated in accordance with the term thereof, the “Omnibus Intercreditor
Agreement”), this Agreement has become effective upon effectiveness of the
New Notes Indenture and issuance of the New Notes pursuant thereto in
connection with such Mandatory Redemption;


 


WHEREAS, the Company and the other Obligors
[has entered][may enter] into a Revolving Credit Agreement which the Company
desires to secure, all in a manner consistent with the provisions and
priorities set forth herein, that provides for extensions of credit not to
exceed the Maximum Revolving Credit Principal Amount.


 


WHEREAS, it is a condition precedent to the
issuance by the Company of the New Notes upon consummation of the Mandatory
Redemption that the Existing Notes Agent, on behalf of itself and the Existing
Notes Creditors, the New Notes Agent, on behalf of itself and the Term Loan
Creditors, the Company and the other Obligors enter into this Agreement;


 


WHEREAS, the Existing Notes Agent, on behalf
of itself and the Existing Notes Creditors, the Term Loan Agent, on behalf of
itself and the Term Loan Creditors, and, at such time as the Revolving Credit
Agreement may become effective and the Revolving Agent becomes a party hereto,
the Revolving Agent, on behalf of itself and the Revolving Creditors, wish to
set forth their agreement as to certain of their respective rights and
obligations with respect to the assets and properties of the Company and the
other Obligors and their understanding relative to their respective positions
in certain assets and properties of the Company and the other Obligors.


 


NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the Existing Notes Agent, on behalf of
itself and the Existing Notes Creditors, the Term Loan Agent, on behalf of
itself and the Term Loan Creditors, and, at such time as the Revolving Credit
Agreement may become effective and the Revolving Agent becomes a party hereto,
the Revolving Agent, on behalf of itself and the Revolving Creditors, and the
Obligors party hereto, hereby agree as follows:


 


Section 1.                                            Definitions.


 


1.1           General Terms.  As used in
this Agreement, the following terms (including those in the preamble and
recitals hereto) shall have the respective meanings indicated 


 


2

















 


below, such meanings to be applicable equally
to both the singular and the plural forms of the terms defined:


 


“Access Period”
means, with respect to each parcel or item of Term Loan Priority Collateral,
the period, that begins on the fifth Business Day after which both of the
following have occurred: (a) the Revolving Agent has commenced an
Enforcement Action and (b) the Revolving Agent or any other Revolving Creditor
initially has actual access, whether or not utilized, to such parcel or item of
Term Loan Priority Collateral for the purpose of taking physical possession of,
removing or otherwise controlling, or using in any manner, Revolving Credit
Priority Collateral located at such parcel or item of Term Loan Priority
Collateral (the “Initial Access Date”), and ends on
the earliest of (i) the day that is 180 days after the Initial Access Date
plus such number of days, if any, after the Initial Access Date that it is
stayed or otherwise prohibited by law or court order from exercising remedies
with respect to the associated Revolving Credit Priority Collateral, (ii) the
date on which all or substantially all of the Revolving Credit Priority
Collateral associated with such parcel or item of Term Loan Priority Collateral
is sold, removed, collected or liquidated, (iii) the Revolving Credit
Termination Date and (iv) the date on which the Event of Default which
resulted in commencement of the applicable Enforcement Action against such
Revolving Credit Priority Collateral has been cured or waived in writing.


 


“Account”  shall have
the meaning set forth in the Uniform Commercial Code as in effect in the State
of New York from time to time, including all rights to payment for goods sold
or leased, or for services rendered.


 


“Affiliate”
means with respect to any Person, another Person that directly or indirectly
through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified. 
As used herein, “Control” means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled” have correlative meanings.


 


“Agreement”
means this Amended and Restated Intercreditor Agreement..


 


“Bank Product Obligations”
means, with respect to any Obligor, any obligations of such Obligor owed to any
Revolving Creditor (or any of its Affiliates) in respect of any of the
following products, services or facilities extended to any Obligor by a
Revolving Lender or any of its Affiliates: (a) any services provided from
time to time by any Revolving Lender or any of its Affiliates to any Obligor in
connection with operating, collections, payroll, trust, or other depository or
disbursement accounts, including automated clearinghouse, e-payable, electronic
funds transfer, wire transfer, controlled disbursement, overdraft, depository,
information reporting, lockbox and stop payment services; (b) products
under an agreement relating to any swap, cap, floor, collar, option, forward,
cross right or obligation, or combination thereof or similar transaction, with
respect to interest rate, foreign exchange, currency, or commodity risk; (c) commercial
credit card and merchant card services; and (d) banking products or
services as may be requested by any Obligor, other than Letters of Credit.


 


3

















 


“Bankruptcy Code”
means the provisions of Title 11 of the United States Code, 11 U.S.C.
§§101 et seq.


 


“Bankruptcy Law”
means the Bankruptcy Code and any other federal, state or foreign bankruptcy,
insolvency, receivership or similar law.


 


“Borrower” has
the meaning set forth in the preamble hereto.


 


“Business Day”
means any day of the year that is not a Saturday, a Sunday or a day on which
banks are required or authorized to close in New York City or Chicago,
Illinois.


 


“Cash Proceeds”  shall mean all proceeds of any Collateral
consisting of cash, checks and other near-cash items.


 


“Chattel Paper”  shall mean all “chattel paper” as defined
in Article 9 of the Uniform Commercial Code as in effect in the State of
New York from time to time, including, without limitation, “electronic chattel paper”
or “tangible chattel paper”, as each term is defined in the Uniform Commercial
Code as in effect in the State of New York from time to time.


 


“Collateral”
means all assets and properties of any kind whatsoever, real or personal,
tangible or intangible and wherever located, of any Obligor, whether now owned
or hereafter acquired, upon which a Lien (including, without limitation, any
Liens granted in any Insolvency Proceeding) is now or hereafter granted or
purported to be granted in favor of a Secured Creditor, as security for all or
any part of the Obligations, provided that as to the Existing Notes Creditors,
Collateral shall be limited to assets and properties in which the Existing
Notes Creditors have a Lien pursuant to the Existing Notes Documents as in
effect on the date hereof, and only the Proceeds thereof, and shall not include
any other assets and properties, or Proceeds thereof, on which the Revolving
Creditors or Term Loan Creditors may from time to time have a Lien to secure
their Obligations, and nothing in this Agreement shall be read to provide that
the Existing Notes Creditors have any right to acquire, or that any Obligor has
any obligation to provide to any Existing Notes Creditor, any Lien on any
assets and properties on which they do not have a Lien pursuant to the Existing
Notes Documents as in effect on the date hereof, or Proceeds thereof, or to
permit the granting of a Lien in favor of any Existing Notes Creditor on any
assets or properties where prohibited by Section 2.4(d) hereof.


 


“Company” has
the meaning set forth in the preamble hereto.


 


“Debt Action”
means (a) the filing of a lawsuit by any Secured Creditor solely to
collect the Obligations owed to such Secured Creditor and not to exercise
secured creditor remedies in respect of the Collateral, (b) the demand by
any Secured Creditor for accelerated payment of any and all of the Obligations
owed to such Secured Creditor, (c) the filing  of
any notice of claim and the voting of any such claim in any Insolvency
Proceeding involving an Obligor in a manner not prohibited by, and not
inconsistent with, the terms of Section 6, (d) the filing of
any motion in any Insolvency Proceeding permitted by, and not inconsistent
with, the terms of Section 6 or (e) the filing of any
defensive pleading in any Insolvency Proceeding not inconsistent with the terms
of this Agreement.


 


“DIP Financing”
has the meaning set forth in Section 6.1.


 


4

















 


“Disposition”
means any sale, lease, license, exchange, transfer or other disposition, and “Dispose” and “Disposed of”
shall have correlative meanings.


 


“Distribution”
means, with respect to any indebtedness or obligation of a Person, (a) any
payment or distribution by or on behalf of such Person (or any guarantor or
surety thereon) of cash, securities or other property, by setoff or otherwise,
on account of such indebtedness or obligation or (b) any redemption,
purchase or other acquisition of such indebtedness or obligation by such Person
(or any guarantor or surety thereon).


 


“Enforcement Action”
means (a) the exercise of any enforcement remedies under any Obligation
Document, the UCC or other applicable law in respect of the Collateral by the
applicable Secured Creditor, (b) any action by any Secured Creditor to
foreclose on the Lien of such Person in any Collateral, (c) any action by
any Secured Creditor to take possession of, or sell or otherwise realize upon,
or to exercise any other enforcement rights or remedies with respect to, any
Collateral, including any Disposition after the occurrence of an Event of
Default of any Collateral by an Obligor with the consent of, or at the
direction of, a Secured Creditor, including, without limitation, by
notification of account debtors, (d) the taking of any other actions by a
Secured Creditor against any Collateral, including the taking of control or
possession of, or the exercise of any right of setoff with respect to, any
Collateral and including the exercise of any voting rights relating to any
capital stock composing a portion of the Collateral and/or (e) the commencement
by any Secured Creditor of any legal proceedings or actions against or with
respect to any Obligor or any of such Obligor’s property or assets or any
Collateral to facilitate any of the actions described in clauses (a), (b), (c),
(d) and (e) above, including the commencement of any Insolvency
Proceeding; provided that this definition shall not include any Debt
Action.


 


“Event of Default”
means each “Event of Default” or similar term, as such term is defined in any
Term Loan Credit Document or any Revolving Credit Document.


 


“Excess Revolving Credit
Obligations”  means, as of
any date of determination, the sum of (a) the portion of the principal
amount of the loans outstanding under the Revolving Credit Documents and the
undrawn amount of all outstanding Letters of Credit (disregarding for purposes
of this calculation Letters of Credit to the extent cash collateralized in
accordance with the Revolving Credit Agreement) and, without duplication of
reimbursement obligations having been refinanced with proceeds of loans, the
unreimbursed amount of all Letters of Credit as of such date that is in excess
of the Maximum Revolving Credit Principal Amount as of such date plus (b) without
duplication, the portion of accrued and unpaid interest and fees on account of
such portion of the loans and Letters of Credit described in clause (a) of
this definition; provided, however, that any interest accruing
on, or fees or reimbursement obligations in respect of, out of pocket fees
(including legal fees and disbursements) or other expenses of the Revolving
Agent or other Revolving Creditors that are reimbursable by the Obligors under
the terms of the Revolving Credit Documents and that accrue, or are incurred,
after the occurrence of an Insolvency Proceeding or after the date when
Revolving Agent or the Term Loan Agent, as applicable, commences Enforcement
Action with respect to any of the Collateral shall not constitute Excess
Revolving Credit Obligations, regardless of whether any such amounts are added
to the principal balance of the loans pursuant to the terms of the Revolving
Credit 


 


5

















 


Documents.  Any
DIP Financing by the Revolving Creditors within the limits of Section 6.1(a)(iii)(A)
shall not constitute Excess Revolving Credit Obligations.


 


“Excess Term Obligations”
means, as of any date of determination, the sum of (a) the portion of the
principal amount of the loans outstanding under the Term Loan Credit Documents
as of such date that is in excess of the Maximum Term Loan Principal Amount as
such date plus (b) without duplication, the portion of accrued and unpaid
interest on account of such portion of the loans described in clause (a) of
this definition; provided, however, that any interest accruing
on, or reimbursement obligations in respect of, out of pocket fees (including
legal fees and disbursements) or other expenses of the Term Loan Agent or other
Term Loan Creditors that are reimbursable by the Obligors under the terms of
the Term Loan Credit Documents and that accrue, or are incurred, after the
occurrence of an Insolvency Proceeding or after the date when Revolving Agent
or the Term Loan Agent, as applicable, commences Enforcement Action with
respect to any of the Collateral shall not constitute Excess Term Obligations,
regardless of whether any such amounts are added to the principal balance of
the loans pursuant to the terms of the Term Loan Credit Documents. Any DIP
Financing by the Term Loan Creditors within the limits of Section 6.1(b)(iii)(A) shall
not constitute Excess Term Obligations.


 


“Exigent Circumstances”
means (a) a fraud has been committed by any Obligor in connection with the
Revolving Credit Obligations or Term Loan Obligations, as applicable, including
any withholding of collections of Accounts or other Proceeds or any other
property in violation of the terms of the Revolving Credit Documents or Term
Loan Credit Documents, as applicable, or (b) an event or circumstance that in
the judgment of the Revolving Agent materially and imminently threatens the
value of, or ability of the Revolving Agent to realize upon, its Priority
Collateral, or, in the judgment of the Term Loan Agent materially and
imminently threatens the value of, or ability to realize upon, its Priority
Collateral.


 


“Existing
Notes” means the notes issued and outstanding from time to time
under the Existing Notes Indenture.


 


“Existing
Notes Agent” means, collectively, the Existing Notes Trustee and/or
Existing Notes Collateral Agent under the Existing Notes Indenture and the
other Existing Notes Documents.


 


“Existing Notes Creditors”
means , at any time, the Existing Notes Agent, the “Holders” (as defined in the
Existing Notes Indenture), any other administrative agent under the Existing
Notes Indenture and any other Existing Notes Documents, any collateral agent
under the Existing Notes Indenture and any other Existing Notes Documents, each
lender or other creditor under the Existing Notes Indenture and any other
Existing Notes Documents, each holder of any Hedging Obligations that at the
time of the incurrence of such Hedging Obligations is a lender or other
creditor under the Term Loan Credit Agreement or an Affiliate thereof and is a
secured party under any Existing Notes Document, the beneficiaries of each
indemnification obligation undertaken by any Obligor under any Existing Notes
Document, and each other holder of, or obligee in respect of, any Existing
Notes Obligations, in each case to the extent designated as a secured party under
any Existing Notes Document outstanding at such time.


 


6

















 


“Existing
Notes Documents” means the Existing Notes Indenture and the Existing
Notes, and the “Escrow Agreement”, the “Note Guarantees”, the “Collateral
Agreements” and the other “Notes Documents”, each as defined in the Existing
Notes Indenture as in effect on [           ]
[       ], 20[    ].


 


“Existing
Notes Indenture” means the Indenture, dated as of November 9,
2006, between the Company and the other Obligors, and Wells Fargo Bank,
National Association, as trustee and collateral agent, relating to the Company’s
9.00% Convertible Senior Secured Notes due 2012.


 


“Existing Notes Noteholders” means the holders from time to time of the Existing Notes issued
and outstanding from time to time under the Existing Notes Indenture.


 


“Existing
Notes Obligations” means the Existing Notes and all other “Note
Obligations” (as defined in the Existing Notes Indenture) owing or outstanding
from time to time under the Existing Notes Indenture and the other Existing
Notes Documents.


 


“Existing Notes Refinancing
Conditions” means that the following conditions must be met with
respect to any applicable amendment, restatement, supplement, modification,
substitution, Refinancing, renewal or replacement of the Existing Notes
Documents: (i) it has a final maturity no sooner than, and a weighted
average life (measured as of the date of such amendment, restatement,
supplement, modification, substitution, Refinancing, renewal or replacement) no
less than that applicable to the Existing Notes Obligations on the date hereof;
(ii) in the case of any secured Refinancing, substantially concurrently
with the entry into definitive documentation evidencing such indebtedness, the
lenders thereunder shall enter into an intercreditor agreement on terms no less
favorable to the Revolving Creditors and the Term Loan Creditors than this
Agreement or execute an Intercreditor Agreement Joinder, (iii) Liens on no
categories of Collateral not subject to the Liens securing the Existing Notes
Obligations on the date hereof are granted to secure it; and (iii) no
additional Person is obligated on such indebtedness that is not obligated on
the Existing Notes Obligations on the date hereof, and (iv) it shall
contain no representations, warranties, covenants or events of default not
contained in the Existing Notes Indenture on the date hereof after giving
effect to the amendment thereof deleting such provisions on or about the date hereof,
unless consented to by the Revolving Agent and the Term Loan Agent at the
direction of the majority holders of the Revolving Credit Obligations and the
Term Loan Obligations, respectively, but in no event shall any representations,
warranties, covenants or events of default contained in the Existing Notes
Documents (with such consent as aforesaid) be (x) more restrictive in any
respect on any Obligor than the least restrictive analogous provisions in the
Revolving Credit Documents and the Term Loan Credit Documents or (y) address
substantive restrictions or other matters not contained in both the Revolving
Credit Documents and the Term Loan Credit Documents.


 


“Existing Notes Secured
Claim” means any portion of the Existing Notes Obligations.


 


“General Intangibles”  (i) shall
mean all “general intangibles” as defined in Article 9 of the UCC, including “payment intangibles” also as
defined in Article 9 of the Uniform Commercial Code as in effect in the
State of New York from time to time and (ii) shall 


 


7

















 


include, without limitation, all interest rate or
currency protection or hedging arrangements, all tax refunds and all licenses,
permits, concessions and authorizations, (in each case, regardless of whether
characterized as general intangibles under the Uniform Commercial Code as in
effect in the State of New York from time to time).


 


“Hedging Obligations”
means, with respect to any Obligor, any obligations of such Obligor under an
agreement relating to any non-speculative, ordinary course of business swap,
cap, floor, collar, option, forward, cross right or obligation, or combination
thereof or similar transaction, with respect to interest rate, foreign
exchange, currency or commodity risk.


 


“Insolvency Proceeding”
means any of the following: (a) any case or proceeding with respect to any
Obligor under the Bankruptcy Code or any other federal or state bankruptcy,
insolvency, reorganization or other law affecting creditors’ rights or any
other or similar proceedings seeking any stay, reorganization, arrangement,
composition or readjustment of the obligations and indebtedness of such
Obligor, in each case, whether or not voluntary, (b) any proceeding
seeking the appointment of any trustee, receiver, liquidator, custodian or
other insolvency official with similar powers with respect to any Obligor or
any of its assets in each case, whether or not voluntary, (c) any
proceeding for liquidation, dissolution or other winding up of the business of
the Company or any other Obligor whether or not voluntary and whether or not
involving bankruptcy or insolvency, that, in the case of an Obligor other than
the Company, is not permitted under the Revolving Credit Documents and the Term
Loan Credit Documents or (d) any assignment for the benefit of creditors
or any marshalling of assets of any Obligor.


 


“Intercreditor
Agreement Joinder” means an agreement substantially in the form of Exhibit A.


 


“Interim
Notes” means the notes issued and outstanding under the Interim
Notes Indenture.


 


“Interim
Notes Agent” means the trustee and/or collateral agent under the
Interim Notes Indenture and the other Interim Notes Documents.


 


“Interim Notes Indenture” means the Indenture, dated as of December 7, 2009,
between the Company and the other Obligors, and Wells Fargo Bank, National
Association, as trustee and collateral agent, relating to the Company’s 9.00%
Mandatorily Redeemable Convertible Senior Secured Notes due 2012.


 


“Interim Notes Documents” means the Interim Notes Indenture and the Interim Notes, and
the “Escrow Agreement”, the “Note Guarantees”, the “Collateral Agreements” and
the other “Notes Documents”, each as defined in the Interim Notes Indenture.


 


“Interim Notes Obligations” means the Interim Notes and all other “Note Obligations” (as
defined in the Interim Notes Indenture) owing or outstanding from time to time
under the Interim Notes Indenture and the other Interim Notes Documents.


 


“Inventory”  shall mean:
(i) all “inventory” as defined in the Uniform Commercial Code as in effect
in the State of New York from time to time and (ii) all goods held for
sale or lease or to be furnished under contracts of service or so leased or
furnished, all raw 


 


8

















 


materials, work in process, finished goods, and
materials used or consumed in the manufacture, packing, shipping, advertising,
selling, leasing, furnishing or production of such inventory or otherwise used
or consumed in  any  Obligor’s
business; all goods in which any  Obligor has an interest in mass or a
joint or other interest or right of any kind; and all such goods that are
returned to or repossessed by any Obligor, and all accessions thereto and
products thereof (in each case, regardless of whether characterized as
inventory under the Uniform Commercial Code as in effect in the State of New
York from time to time).  Inventory shall include each item of property
that at any time is or at any time was part of the rental fleet, whether
classified as “inventory,” “rental equipment” or “fixed asset” on the financial
statements of the Company.


 


“Junior Adequate Protection
Liens” has the meaning set forth in Section 6.2.


 


“Junior Lien Default Notice”
means a notice by the Term Loan Agent to the Revolving Agent or by the
Revolving Agent to the Term Loan Agent, indicating that an Event of Default
under the Term Loan Credit Documents or Revolving Credit Documents,
respectively, has occurred and that the Term Loan Agent or Revolving Agent, as
the case may be, intends to take Enforcement Action against Collateral (other than
Collateral that as to such Secured Creditor, is Priority Collateral).


 


“Junior Documents”
means (i) as to the Revolving Credit Priority Collateral, the Term Loan
Credit Documents, (ii) as to the Term Loan Priority Collateral, the Revolving
Credit Documents, and (iii) as to all Collateral, at all times prior to
Payment in Full of the Term Loan Obligations and the Revolving Credit
Obligations, the Existing Notes Documents.


 


“Junior Obligations”
means (i) as to the Term Loan Priority Collateral, the Revolving Credit
Obligations, (ii) as to the Revolving Credit Priority Collateral, the Term
Loan Obligations, and (iii) as to all Collateral, at all times prior to
Payment in Full of the Term Loan Obligations and the Revolving Credit
Obligations, the Existing Notes Obligations. Junior Obligations also means as
to Term Loan Priority Collateral, any Excess Term Obligations, and as to any
Revolving Credit Priority Collateral, any Excess Revolving Credit Obligations.


 


“Junior Secured Creditor”
means, as to the Term Loan Priority Collateral, the Revolving Agent acting on
behalf of itself and the Revolving Creditors, and as to the Revolving Credit
Priority Collateral, the Term Loan Agent acting on behalf of itself and the
Term Loan Creditors, and as to all Collateral, at all times prior to Payment in
Full of the Term Loan Obligations and the Revolving Credit Obligations, the
Existing Notes Creditors.  Junior Secured
Creditor also means the Revolving Agent acting on behalf of itself and the
Revolving Creditors as to its Lien on Revolving Credit Priority Collateral to
the extent securing Excess Revolving Credit Obligations and the Term Loan Agent
acting on behalf of itself and the Term Loan Creditors as to its Lien on Term
Loan Priority Collateral to the extent securing Excess Term Obligations.


 


“L/C Issuer”
means any bank or financial institution that issues, arranges or provides
credit support for a Letter of Credit issued or deemed issued pursuant to the
Revolving Credit Agreement.


 


9

















 


“Letters of Credit”
means any standby or documentary letter of credit issued or arranged by L/C
Issuer for the account of Borrower, or any indemnity, guarantee, exposure
transmittal memorandum or similar form of credit support issued or arranged by
Revolving Agent or L/C Issuer for the benefit of Borrower.


 


“Lien” means any
mortgage, deed of trust, pledge, hypothecation, assignment, charge, deposit
arrangement, encumbrance, easement, lien (statutory or otherwise), security
interest or other security arrangement and any other preference, priority or
preferential arrangement of any kind or nature whatsoever, including any
conditional sale contract or other title retention arrangement, the interest of
a lessor under a capital lease and any synthetic or other financing lease
having substantially the same economic effect as any of the foregoing.


 


“Mandatory Redemption”
means “Mandatory Redemption”, as defined in the New Notes Indenture.


 


“Mandatory Redemption Date”
means “Mandatory Redemption Date”, as defined in the New Notes Indenture.


 


“Maximum Revolving Credit
Principal Amount” means, as of any date of determination, (a) $20,000,000,
minus (b) permanent reductions of
revolving loan commitments under the Revolving Credit Documents after the date
hereof that are accompanied by principal payments outstanding under such
commitments (other than those made in connection with a Refinancing permitted
under Section 4.2), plus  (c) accrued
and unpaid interest and fees (excluding any portion of interest and fees referred
to in clause (b) of the definition of Excess Revolving Credit Obligations), and
costs, expenses, indemnities, and other amounts (other than principal, unless
constituting amounts of interest and fees that are added to principal) payable
pursuant to the terms of the Revolving Credit Documents, whether or not, in the
case of interest or fees, the same are added to the principal amount of the
Revolving Credit Obligations and including the same as would accrue and become
due but for the commencement of an Insolvency Proceeding, whether or not
allowed in any such Insolvency Proceeding, plus  (d) advances
(whether or not added to the principal of the revolving loan) made by the
Revolving Lenders or the Revolving Agent in order to protect, preserve or
enhance the value of any Revolving Credit Priority Collateral or to pay amounts
that the Borrower is obligated to pay under the Revolving Credit Documents to
protect the Collateral, plus (e) Bank
Product Obligations, plus (f) Hedging
Obligations to a Revolving Creditor.


 


“Maximum Term Loan
Principal Amount” means, as of any date of determination, (a) $                   ,
minus (b) the sum of all principal
payments of the term loans constituting Term Loan Obligations (including
voluntary and mandatory prepayments) after the date hereof, but excluding
prepayments resulting from any Refinancing permitted under Section 4.1,
plus  (c) accrued and unpaid
interest and fees (excluding any portion of interest and fees referred to in
clause (b) of the definition of Excess Term Obligations) and costs,
expenses, indemnities, and other amounts (other than principal, unless
constituting amounts of interest and fees that are added to principal) payable
pursuant to the terms of the Term Loan Credit Documents, whether or not, in the
case of interest or fees, the same are added to the principal amount of the
Term Loan Obligations and including the same as would accrue and become due but
for the commencement of an Insolvency Proceeding, whether or not allowed in any
such 


 


10

















 


Insolvency Proceeding, plus
(d) advances (whether or not added to the principal of the term loans) made
by the Term Lenders or the Term Loan Agent in order to protect, preserve or
enhance the value of any Term Loan Priority Collateral or to pay amounts that
any Obligor is obligated to pay under the Term Credit Documents to protect the
Collateral, plus (e) all Term Loan
Hedging Obligations not included in clause (a).(1)


 


“New License Subsidiary” has the meaning specified therefor in the New Notes
Indenture.


 


“New Notes”
means the notes issued and outstanding from time to time under the New Notes
Indenture, including any notes issued in lieu of interest and in respect of
capitalized, or “pay in kind”, interest accruing on any such notes outstanding
from time to time in accordance with the New Notes Indenture.


 


“New Notes Agent” means the New Notes Trustee and/or New Notes Collateral
Agent under the New Notes Indenture and the other New Notes Documents.


 


“New Notes Indenture” means the Indenture, dated as of [             ],
20[    ], between the Company and the other Obligors, and
Wells Fargo Bank, National Association, as trustee and collateral agent,
relating to the Company’s 9.00% Senior Secured Notes due 20[   ],
to be substantially in the form of Exhibit [     ]
hereto.


 


“New Notes Documents” means the New Notes Indenture and the New Notes, and the “Escrow
Agreement”, the “Note Guarantees”, the “Collateral Agreements” and the other “Notes
Documents”, each as defined in the New Notes Indenture.


 


“New Notes Obligations” means the New Notes and all other “Note Obligations” (as
defined in the New Notes Indenture) owing or outstanding from time to time
under the New Notes Indenture and the other New Notes Documents.


 


“New Notes Noteholders” means the holders from time to time of the New Notes issued
and outstanding from time to time under the New Notes Indenture.


 


“Non-Priority Collateral”
means (i) as to the Term Loan Creditors, the Revolving Credit Priority
Collateral, (ii) as to the Revolving Creditors, the Term Loan Priority
Collateral, and (iii) as to the Existing Notes Creditors, any and all
Collateral.  Non-Priority Collateral
shall also mean, as to the Term Loan Creditors, the Term Loan Priority
Collateral to the extent securing Excess Term Obligations, and as to the
Revolving Creditors, the Revolving Credit Priority Collateral to the extent
securing the Excess Revolving Credit Obligations.


 


“Obligation Documents”
means the Revolving Credit Documents and the Term Loan Credit Documents and the
Existing Notes Documents, or any of them.


 


“Obligations”
means the Term Loan Obligations and the Revolving Credit Obligations and the
Existing Notes Obligations, or any of them.


 


 


11
















 


“Obligor” means
the Company and each other Person liable on or in respect of any Obligations,
or that has granted a Lien on any property or assets as Collateral, together
with such Person’s successors and assigns, including a receiver, trustee or
debtor-in-possession on behalf of such Person.


 


“Paid in Full”
or “Payment in Full” means, with respect to
any Obligations, that: (a) all of such Obligations (other than contingent
indemnification obligations for which no underlying claim has been asserted)
have been paid, performed or discharged in full (with all such Obligations
consisting of monetary or payment obligations having been paid in full in
cash), (b) no Person has any further right to obtain any loans, letters of
credit, bankers’ acceptances, or other extensions of credit under the Revolving
Credit Agreement or the other Revolving Credit Documents in the case of
Revolving Credit Obligations or the Term Loan Credit Agreement or the other
Term Loan Credit Documents in the case of the Term Loan Obligations and all
commitments to extend credit under such applicable agreements shall have
terminated, (c) any and all letters of credit, bankers’ acceptances or
similar instruments issued under such documents have been cancelled and
returned (or backed by stand-by guarantees or letters of credit in form and
substance reasonably acceptable to (and from financial institutions
satisfactory to) Revolving Agent or Term Loan Agent, as applicable, or cash
collateralized at the amounts required to obtain a release of liens under the
terms of the applicable Revolving Credit Documents) in accordance with the
terms of such documents, and (d) any costs, expenses and indemnification
obligations not yet due and payable but with respect to which a claim has been
threatened or asserted in writing under any Obligation Document, are backed by
a letter of credit or cash collateral in an amount and on terms reasonably
satisfactory to the Term Loan Agent or Revolving Agent, as applicable.


 


“Payment Rights”
means any right of any Obligor to the payment of money arising from the
Disposition of any Inventory or rendition of services, whether such right to
payment constitutes an Account or Payment Intangible or is evidenced by or
consists of a Document, Instrument, Chattel Paper, Letter-of-Credit Right or
Supporting Obligation.


 


“Permitted Collateral Sale”
means (i) any Disposition of Priority Collateral (other than after the
occurrence and during the continuance of an Insolvency Proceeding by or against
the relevant Obligor and other than in connection with an Enforcement Action or
a Disposition described in clause (ii) below) so long as such Disposition
is permitted under the Priority Documents as in effect on the date hereof and
by the Junior Documents as in effect on the date hereof (other than, in the
case of the New Notes Indenture, pursuant to Section 6.01 thereof); and (ii) any
Disposition of Priority Collateral (other than in an Insolvency Proceeding by
or against the relevant Obligor) permitted under the applicable Priority
Documents as in effect on the date hereof, but not permitted under the
applicable Junior Document, in connection with an Enforcement Action against
such Priority Collateral by the relevant Priority Secured Creditor or a
Disposition by the relevant Obligor during the continuation of an Event of
Default under the Priority Documents with the written permission of the
Priority Secured Creditor; provided, that, in each case above, the Liens
of the Junior Secured Creditors in such Priority Collateral shall continue as
to the Proceeds thereof and such Proceeds received are applied as provided in Section 3.8
hereof.


 


12

















 


“Person” means
an individual, partnership, corporation (including a business trust and a
public benefit corporation), joint stock company, estate, association, firm,
enterprise, trust, limited liability company, unincorporated association, joint
venture, governmental authority or any other entity or regulatory body.


 


“Primary Junior Secured
Creditor” means a Junior Secured Creditor of the type described in
the first sentence of the definition of “Junior Secured Creditor”.


 


“Primary Priority Secured
Creditor” means a Priority Secured Creditor of the type described in
the first sentence of the definition of “Priority Secured Creditor”.


 


“Priority Claim Avoidance”
has the meaning set forth in Section 6.4.


 


“Priority Collateral”
means, as to the Term Loan Creditors, the Term Loan Priority Collateral, and,
as to the Revolving Creditors, the Revolving Credit Priority Collateral, and,
as to the Existing Notes Creditors, none of the Collateral.  Priority Collateral also means, as to any
Revolving Creditors, the Term Loan Priority Collateral to the extent securing
Excess Term Obligations and as to any Term Loan Creditors, the Revolving Credit
Priority Collateral to the extent securing Excess Revolving Credit Obligations;
provided that the right of the Term Loan Creditors to take any
Enforcement Action with respect to their Non-Priority Collateral, and the right
of the Revolving Creditors to take any Enforcement Action with respect to their
Non-Priority Collateral, and the right of the Existing Notes Creditors to take
any Enforcement Action with respect to their Non-Priority Collateral shall in
each case be subject to the provisions of Section 3.


 


“Priority Documents”
means, as to the Revolving Credit Priority Collateral, the Revolving Credit
Documents and as to the Term Loan Priority Collateral, the Term Loan Credit
Documents.  The Existing Notes Documents
shall not constitute Priority Documents for any purpose of this Agreement. at
any time prior to the Payment in Full of all Term Loan Obligations and all
Revolving Credit Obligations, and all Revolving Credit Documents and Term Loan
Credit Documents shall both constitute Priority Documents as they relate to the
Existing Notes Documents, the Existing Notes Obligations or the Existing Notes
Creditors, or any Liens in favor of the Existing Notes Creditors, for all
purposes of this Agreement.


 


“Priority Obligations”
means, as to the Term Loan Priority Collateral, the Term Loan Obligations and
as to the Revolving Credit Priority Collateral, the Revolving Credit
Obligations.  The Existing Notes
Obligations shall not constitute Priority Obligations for any purpose of this
Agreement at any time prior to the Payment in Full of all Term Loan Obligations
and all Revolving Credit Obligations, and all Revolving Credit Obligations and
Term Loan Obligations shall both constitute Priority Obligations as they relate
to the Existing Notes Obligations or the Existing Notes Creditors, or any Liens
in favor of the Existing Notes Creditors, for all purposes of this Agreement.


 


“Priority Secured Creditor”
means, as to the Term Loan Priority Collateral, the Term Loan Agent, and as to
the Revolving Credit Priority Collateral, the Revolving Agent.  The Existing Notes Creditors shall not
constitute Priority Secured Creditors for any purpose of this Agreement at any
time prior to the Payment in Full of all Term Loan Obligations and all 


 


13

















 


Revolving Credit Obligations, and the Term Loan Agent
and the Revolving Agent shall both constitute Priority Security Creditors as
they relate to the Existing Notes Obligations or the Existing Notes Creditors,
or any Liens in favor of the Existing Notes Creditors, for all purposes of this
Agreement.


 


Priority Secured Creditor also means, as to Term Loan
Priority Collateral, to the extent securing Excess Term Obligations, the
Revolving Agent, and as to Revolving Credit Priority Collateral, to the extent
securing Excess Revolving Credit Obligations, the Term Loan Agent.  A Person’s rights as a Priority Secured
Creditor described in the second sentence of this definition shall be limited
as set forth in the definition of Secondary Priority Secured Creditor and the
other applicable provisions hereof.


 


“Proceeds”  of
Collateral shall mean: (i) all “proceeds”, as defined in Article 9 of
the Uniform Commercial Code as in effect in the State of New York from time to
time, (ii) payments or distributions made with respect to such Collateral
and (iii) whatever is receivable or received when such Collateral or proceeds
thereof is sold, leased, licensed, exchanged, collected or otherwise disposed
of, whether such disposition is voluntary or involuntary.  Proceeds shall not include, as to any
Existing Notes Creditor, Proceeds of any Collateral on which the Existing Notes
Creditor do not have a valid and perfected Lien, or on which they may acquire a
Lien in violation of the provisions hereof, including Section 2.4(d) hereof


 


“Refinance”, “Refinancings” and “Refinanced”
means, in respect of any Obligations, to issue other indebtedness in exchange
or replacement for or the proceeds of which are used to repay such Obligations,
in whole or in part.


 


“Release Documents”
has the meaning set forth in Section 2.6.


 


“Release Event”
means the taking of any Enforcement Action by a Secured Creditor against all or
any portion of Collateral that is Priority Collateral as to such Secured
Creditor (including a Disposition conducted by any Obligor with the express
written consent of such Secured Creditor during the continuance of an Event of
Default under the relevant Priority Documents) or, after the occurrence and
during the continuance of an Insolvency Proceeding by or against any Obligor,
the entry of an order of the Bankruptcy Court pursuant to Section 363 or
1129 of the Bankruptcy Code (or similar Bankruptcy Law) authorizing the sale of
all or any portion of such Collateral with the support of such Secured Creditor;
provided, that, upon any such sale, the Liens of the Junior Secured
Creditors in the Collateral shall continue as to the Proceeds thereof, and,
subject to any necessary approvals of any applicable Bankruptcy Court, such
Proceeds received are applied as provided in Section 3.8 hereof, .


 


“Revolver Cash Collateral”
has the meaning set forth in Section 6.1.


 


“Revolver Purchase Option
Closing Date” has the meaning set forth in Section 5.1.


 


“Revolving Agent”
means the collateral agent (or the administrative agent acting as collateral
agent) under any Revolving Credit Agreement, and its successors and assigns in
such capacity and, from and after the execution of a Revolving Credit
Substitute Facility, one or more other agents, collateral agents, trustees or
similar contractual representatives for one or 


 


14

















 


more holders of indebtedness or other Obligations
evidenced thereunder or governed thereby and its successors and assigns in such
capacity, but in no event shall any Obligor or Affiliate thereof be, or
appoint, the Revolving Agent.


 


“Revolving Agent’s Purchase
Notice” has the meaning set forth in Section 5.2.


 


“Revolving Credit Agreement”
means (a) the initial Revolving Credit Agreement, if any, entered into by
the Company, designated as the “Revolving Credit Agreement” for purposes of
this Agreement by written notice from the Company to the Term Loan Agent, and
permitted to be entered into under the terms of the Term Loan Credit Agreement
then in effect, and otherwise complying with the provisions hereof and (i) providing
for Liens on no categories of Collateral not subject to the Liens securing the
Term Loan Obligations are granted to secure it unless such categories of
Collateral also secure the Term Loan Obligations; (ii) providing that no
additional Person is obligated on the indebtedness under such Revolving Credit
Agreement unless such additional Person also is or becomes a pari passu obligor
on the Term Loan Obligations; (iii) not including any limitations on the
ability of the Company and the other Obligors to make payments under any Term
Loan Credit Document, (iv) not providing for aggregate extensions of
credit thereunder at any time that exceed the Maximum Revolving Credit
Principal Amount and (v) being subject to the condition that no “Default”
or “Event of Default” (as defined in the Term Loan Credit Agreement as then in
effect) exists, and (b) each Revolving Credit Substitute Facility, if any, in
each case as amended, restated, supplemented, replaced, substituted or
Refinanced in accordance with the terms of this Agreement and permitted to be
entered into under the terms of the Term Loan Credit Agreement then in effect,
and otherwise complying with the provisions hereof and providing for extensions
of credit not exceeding the Maximum Revolving Credit Principal Amount,
provided, however, that in each case in clause (a) and (b) above, (x) the
Revolving Agent thereunder shall have duly executed and delivered to each other
party hereto a signed counterpart of this Agreement and shall be irrevocably
and validly entitled under the terms of such Revolving Credit Agreement to bind
the Revolving Creditors to all of the terms and conditions hereof by such
execution and delivery and (y) in no event shall any Obligor or Affiliate
thereof be permitted to be a Revolving Creditor thereunder.


 


“Revolving Credit Documents”
means the Revolving Credit Agreement, if any, all other agreements, documents
and instruments at any time executed and/or delivered by the Company or any
other Person with, to or in favor of the Revolving Agent or any Revolving
Creditor in connection therewith or related thereto, if any, including such
documents evidencing successive Refinancings of the Revolving Credit
Obligations, if any, in each case, as amended, amended and restated,
supplemented, modified, replaced, substituted or renewed from time to time in
accordance with the terms of this Agreement (provided that the aggregate
extensions of credit thereunder at any time shall not exceed the Maximum
Revolving Credit Principal Amount).


 


“Revolving Credit
Obligations” means all “Obligations” as defined in the Revolving
Credit Agreement, if any, provided that the aggregate extensions of credit
thereunder at any time shall not exceed the Maximum Revolving Credit Principal
Amount, and including without limitation all Banking Product Obligations and
Hedging Obligations, all obligations to post cash collateral in respect of
Letters of Credit or indemnities in respect thereof, and all other 


 


15

















 


obligations, liabilities and indebtedness of every
kind, nature and description owing by the Company to the Revolving Agent and
the other Revolving Creditors evidenced by or arising under one or more of the
Revolving Credit Documents (including the Revolving Loans and letter of credit
obligations), whether direct or indirect, absolute or contingent, joint or
several, due or not due, primary or secondary, liquidated or unliquidated,
including principal, interest, charges, fees, costs, indemnities and reasonable
expenses, however evidenced, whether as principal, surety, endorser, guarantor
or otherwise, whether now existing or hereafter arising, whether arising
before, during or after the initial or any renewal term of the Revolving Credit
Agreement and whether arising before, during or after the commencement of any
Insolvency Proceeding with respect to the Company (and including the payment of
interest, fees, costs and other charges (including default rate interest) which
would accrue and become due but for the commencement of such Insolvency
Proceeding, but in the case of default rate interest and other amounts accruing
or payable in excess of basic contract rates specified in the Revolving Credit
Documents, only to the extent such amounts are allowed in any such Insolvency
Proceeding), exclusive of the Excess Revolving Credit Obligations, which Excess
Revolving Credit Obligations, if any, shall be excluded from (and shall not
constitute) Revolving Credit Obligations solely for purposes of this Agreement.


 


“Revolving Credit
Obligations Purchaser” has the meaning set forth in Section 5.1.


 


“Revolving Credit Priority
Collateral” means, all present and future right, title and interest
of the Company and each other Obligor in and to the following, whether now
owned or hereafter acquired, existing or arising, and wherever located:


 


(a)           all
Accounts and Payment Rights (and all Instruments, Chattel Paper,
Letter-of-Credit Rights, Supporting Obligations, and Documents evidencing the
obligation of any account debtor to pay any obligation that constitutes an
Account or Payment Right);


 


(b)           to the
extent not otherwise included above, all Payment Intangibles, Instruments,
Chattel Paper, Investment Property and Documents, in each case in this clause (b) evidencing,
derived from, constituting or relating to the property described in clause (a) above
or Proceeds or products thereof;


 


(c)           Money
(other than identifiable Proceeds of Term Loan Priority Collateral), Deposit
Accounts (except for identifiable Proceeds of Term Loan Priority Collateral
contained therein, and other than the Term Loan Priority Collateral Account
(other than identifiable Proceeds of Revolving Credit Priority Collateral
contained therein)), Securities Accounts containing Proceeds of property
described in clause (a) or (b) above (except for identifiable
Proceeds of Term Loan Priority Collateral contained therein) and all lock-boxes
at any bank containing Proceeds of property described in clause (a) or (b) above
(except for identifiable Proceeds of Term Loan Priority Collateral contained
therein, and other than the Term Loan Priority Collateral Account (other than
identifiable Proceeds of Revolving Credit Priority Collateral contained
therein)), including, except as otherwise provided herein, Proceeds of property
described in clause (a) or (b) above consisting of Money and
Certificated Securities, Uncertificated Securities, Securities Entitlements and
Investment Property or other assets credited to or deposited in any such
Deposit Account or Securities Account (including Proceeds 


 


16

















 


of property described in clause (a) or (b) above
constituting cash, cash equivalents, marketable securities and other funds held
in or on deposit in any such Deposit Account or Securities Account), but
excluding in each case above the Term Loan Priority Collateral Account (other
than identifiable Proceeds of Revolving Credit Priority Collateral contained
therein) and identifiable Proceeds of Term Loan Priority Collateral;


 


(d)           books,
Records, documents, ledger cards, computer programs, software and other
property, in each case, to the extent related to any of the foregoing; and


 


(e)           all
Proceeds of any of the Revolving Credit Priority Collateral described in
clauses (a) through (d) above, in any form (including any insurance
proceeds in respect of any or all of the foregoing).


 


Without limitation of the foregoing, property of a type
described in any one or more of the foregoing clauses (a) through (e) and
acquired by an Obligor, or created, after the commencement of an Insolvency
Proceeding with respect to such Obligor, and which, but for the application of Section 552
of the Bankruptcy Code, would constitute Collateral, shall, for the purposes of
this Agreement, nonetheless constitute “Revolving Credit Priority Collateral.”


 


“Revolving Credit
Refinancing Conditions” means that the following conditions must be
met with respect to any applicable amendment, restatement, supplement,
modification, substitution, Refinancing, renewal or replacement of the
Revolving Credit Documents: with respect to any such amendment, restatement,
supplement, modification, substitution, Refinancing, renewal or replacement: (i)
in the case of any secured Refinancing, substantially concurrently with the
entry into of definitive documentation evidencing such indebtedness, the
lenders thereunder shall enter into an intercreditor agreement on terms no less
favorable to the Term Loan Creditors than this Agreement or execute an Intercreditor
Agreement Joinder, (ii) Liens on no categories of Collateral not subject
to the Liens securing the Term Loan Obligations are granted to secure it unless
such categories of Collateral also secure the Term Loan Obligations; (iii) no
additional Person is obligated on such indebtedness unless such additional
Person also is or becomes an obligor on the Term Loan Obligations; (iv) it
does not include any limitations on the ability of the Company to make payments
under any Term Loan Credit Document, (iv) it does not provide for
aggregate extensions of credit thereunder at any time that exceed the Maximum
Revolving Credit Principal Amount and (vi) in the case of a Refinancing,
immediately after giving effect to such Refinancing, no “Default” or “Event of
Default” (as defined in the Term Loan Credit Agreement as then in effect)
exists.


 


“Revolving Credit Secured
Claim” means any portion of the Revolving Credit Obligations.


 


“Revolving Credit
Substitute Facility” means any facility that Refinances the Revolving
Credit Agreement then in existence pursuant to Section 4.2.  For the avoidance of doubt, no Revolving
Credit Substitute Facility shall be required to be a revolving or asset-based
loan facility and may be a facility evidenced or governed by a credit
agreement, loan agreement, note agreement, promissory note, indenture or any
other agreement or instrument; provided that any such Revolving Credit
Substitute Facility shall be subject to the terms of this Agreement for all
purposes set forth herein (including the Lien priorities as set forth herein as
of the date hereof 


 


17

















 


and provided that such facility does not provide for
aggregate extensions of credit thereunder at any time that exceed the Maximum
Revolving Credit Principal Amount ).


 


“Revolving Credit
Termination Date” means the date on which all Revolving Credit
Obligations have been Paid in Full.


 


“Revolving Creditors”
means , at any time, if any, the Revolving Agent, the Revolving Lenders, the
administrative agent under the Revolving Credit Agreement, the collateral Agent
under the Revolving Credit Agreement, each lender, issuing bank and swingline
lender under the Revolving Credit Agreement, each holder of any Hedging
Obligations and Banking Product Obligations that at the time of the incurrence
of such Hedging Obligations or Banking Product Obligations is a lender under
the Revolving Credit Agreement or an Affiliate thereof and is a secured party
under any Revolving Credit Document, the beneficiaries of each indemnification
obligation undertaken by any Obligor under any Revolving Credit Document, each
other Person that provides letters of credit, guarantees or other credit
support related thereto under any Revolving Credit Document and each other holder
of, or obligee in respect of, any Revolving Credit Obligations (including
pursuant to an Revolving Credit Substitute Facility), in each case to the
extent designated as a secured party under any Revolving Credit Document
outstanding at such time, but in no event shall any Obligor or Affiliate
thereof be or become a Revolving Creditor.


 


“Revolving Lenders”
means the lenders from time to time party from time to time to a Revolving
Credit Agreement, if any, but in no event shall any Obligor or Affiliate thereof
be or become a Revolving Lender.


 


“Revolving Loans”
means the loans, if any, outstanding under the Revolving Credit Documents from
time to time.


 


“Secondary Junior Secured
Creditor” means a Junior Secured Creditor of the type described in
the second sentence of the definition of “Junior Secured Creditor”.


 


“Secondary Priority Secured
Creditor” means a Priority Secured Creditor of the type described in
the second sentence of the definition of “Priority Secured Creditor”.  As more fully set forth in Section 2.1,
(i) the Term Loan Agent in its capacity as Secondary Priority Secured
Creditor shall not take any Enforcement Action or actions hereunder with
respect to the Revolving Credit Priority Collateral prior to the Revolving
Credit Termination Date; and (ii) the Revolving Agent in its capacity as
Secondary Priority Secured Creditor shall not take any Enforcement Action or
other action hereunder with respect to the Term Loan Priority Collateral prior
to the Term Loan Termination Date.


 


“Secured Creditors” means the
Term Loan Creditors and the Revolving Creditors and the Existing Notes
Creditors, or any of them.


 


“Senior Adequate Protection
Liens” has the meaning set forth in Section 6.2.


 


“Standstill Period”
means the period commencing on the date of an Event of Default and ending upon
the date which is the earlier of (a) 180 days after the later of (i) the
date the Junior Secured Creditor has declared an Event of Default under its
Obligation Documents 


 


18

















 


and has accelerated its Junior Obligations and (ii) the
date that the Priority Secured Creditor has received a Junior Lien Default
Notice with respect to such Event of Default stating that the Junior
Obligations have been declared due and payable and (b) the date on which
the Priority Obligations of such Priority Secured Creditor have been Paid in
Full; provided that (i) in the event that as of any day during such
180  days, no Event of Default in respect
of the Junior Obligations is continuing, then the Standstill Period shall be
deemed not to have commenced and (ii) the 180 day period specified above
shall be tolled during any period an Insolvency Proceeding has occurred and is
continuing.


 


“Term Lenders”
means the “Lenders” or “Term Lenders” or “Holders” or “Noteholders” (or
comparable term) under and as defined in any Term Loan Credit Agreement.


 


“Term Loan”
means each term loan or other loan or extension of credit made or outstanding
under the Term Loan Credit Documents from time to time.


 


“Term Loan Agent”
means (i) so long as New Notes Obligations are outstanding under the New
Notes Documents, the New Notes Agent, (ii) and after all New Notes
Obligations have been Paid in Full, and so long as Term Loan Obligations are
outstanding under any Term Loan Substitute Facility or the agreements and other
documents securing, guaranteeing, evidencing, governing or otherwise relating
to the foregoing, in each case, as amended, amended and restated, supplemented,
modified, replaced, substituted or renewed from time to time in accordance with
the terms of this Agreement, one or more other agents, collateral agents,
trustees or similar contractual representatives for one or more holders of
indebtedness or other Term Loan Obligations outstanding thereunder or in respect
thereof from time to time.


 


“Term Loan Agent’s Purchase
Notice” has the meaning set forth in Section 5.1.


 


“Term Loan Credit
Agreement” means (a) the New Notes
Indenture and (b) upon Payment in Full of the New Notes Obligations
outstanding under the New Notes Indenture, the credit agreement, loan
agreement, note agreement, promissory note, indenture or any other agreement or
instrument primarily evidencing or governing each Term Loan Credit Substitute
Facility, in each case as the same may from time to time be amended, amended
and restated, supplemented, modified, replaced, substituted, renewed or
Refinanced in accordance with the terms of this Agreement.


 


“Term Loan Credit Documents”
means the Term Loan Credit Agreement, all New Notes Documents, and all other
agreements, documents and instruments at any time executed and/or delivered by
any Obligor or any other Person with, to or in favor of the Term Loan Agent or
any other Term Loan Creditor in connection therewith or related thereto,
including such documents evidencing successive Refinancings of the Term Loan
Obligations, and any Term Loan Credit Substitute Facility, and all agreements
and other documents securing, guaranteeing, evidencing, governing or otherwise
relating to any of the foregoing, in each case, as amended, amended and
restated, supplemented, modified, replaced, substituted or renewed from time to
time in accordance with the terms of this Agreement.


 


“Term Loan Credit
Substitute Facility” means any facility that Refinances the Term
Loan Credit Agreement then in existence pursuant to Section 4.1.  For the avoidance of 


 


19

















 


doubt, the Term Loan Credit Substitute Facility may be
a facility evidenced or governed by a credit agreement, loan agreement, note
agreement, promissory note, indenture or any other agreement or instrument; provided
that any such Term Loan Substitute Facility shall be subject to the terms of
this Agreement for all purposes set forth herein (including the Lien priorities
as set forth herein as of the date hereof).


 


“Term Loan Creditors”
means , at any time, the Term Loan Agent, the Term Lenders, the administrative
agent under the Term Loan Credit Agreement and any other Term Loan Credit
Documents, the collateral agent under the Term Loan Credit Agreement and any
other Term Loan Credit Documents, each lender, noteholder or other creditor
under the Term Loan Credit Agreement, each holder of any Term Loan Hedging
Obligations that at the time of the incurrence of such Hedging Obligations is a
lender or noteholder under the Term Loan Credit Agreement or an Affiliate
thereof and is a secured party under any Term Loan Credit Document, the
beneficiaries of each indemnification obligation undertaken by any Obligor
under any Term Loan Credit Document, and each other holder of, or obligee in
respect of, any Term Loan Obligations (including pursuant to a Term Loan Credit
Substitute Facility), in each case to the extent designated as a secured party
under any Term Loan Credit Document outstanding at such time.


 


“Term Loan Hedging
Obligation” means any Hedging Obligations owed by the Borrower to
the Term Loan Creditors or any of their Affiliates pursuant to agreements
entered into in connection with any Term Loan Credit Agreement.


 


“Term Loan Obligations”
means all obligations, liabilities and indebtedness of every kind, nature and
description owing by the Company and each other Obligor under the Term Loan
Credit Documents, whether direct or indirect, absolute or contingent, joint or
several, due or not due, primary or secondary, liquidated or unliquidated,
including principal, interest, charges, fees, costs, indemnities and reasonable
expenses, however evidenced, and whether as principal, surety, endorser,
guarantor or otherwise, whether now existing or hereafter arising, whether
arising before, during or after the initial or any renewal term of the Term
Loan Credit Agreement and whether arising before, during or after the
commencement of any Insolvency Proceeding with respect to the Company or any other
Obligor (as such term is defined in the Term Loan Credit Agreement) (and
including the payment of any interest, fees, costs and other charges (including
default rate interest) which would accrue and become due but for the
commencement of such Insolvency Proceeding, but in the case of default rate
interest and other amounts accruing or payable in excess of basic contract
rates specified in the Term Loan Credit Documents, only to the extent such
amounts are allowed in any such Insolvency Proceeding), exclusive of the Excess
Term Obligations, which Excess Term Obligations shall be excluded from (and
shall not constitute) Term Loan Obligations solely for purposes of this
Agreement.


 


“Term Loan Priority
Collateral” means all Collateral other than Revolving Credit
Priority Collateral.  Without limitation
of the foregoing, property not of a type described in the definition of “Revolving
Credit Priority Collateral,” and acquired by an Obligor, or created, after the
commencement of an Insolvency Proceeding with respect to such Obligor, and
which, but for the application of Section 552 of the Bankruptcy Code,
would constitute Collateral, shall, for the purposes of this Agreement,
nonetheless constitute “Term Loan Priority Collateral.” Notwithstanding the
foregoing, in no event shall property that is otherwise Term 


 


20

















 


Loan Priority Collateral constitute Revolving Credit
Priority Collateral due to the fact that it was acquired by the Company or any
other Obligor with the Proceeds of Revolving Credit Priority Collateral.


 


“Term Loan Priority
Collateral Account” means any deposit account established or
maintained by an Obligor or the Term Loan Agent or any representative of either
of the foregoing for the sole purpose of holding the identifiable Proceeds of
any Disposition of Term Loan Priority Collateral that are required to be held
in such account or accounts pursuant to the terms of any Term Loan Credit
Document as in effect on the date hereof (or any comparable provision of any
successor Term Loan Credit Document).


 


“Term Loan Purchase Option
Closing Date” has the meaning set forth in Section 5.2.


 


“Term Loan Refinancing
Conditions” means that the following conditions must be met with
respect to any applicable amendment, restatement, supplement, modification,
substitution, Refinancing, renewal or replacement of the Term Loan Credit
Documents if a Revolving Credit Agreement then exists and the Revolving Agent
is a party hereto: (i) it has a final maturity no sooner than (unless such
final maturity is more than six months after the stated final maturity of the
Revolving Credit Obligations as in effect on the date hereof) and a weighted
average life (measured as of the date of such amendment, restatement,
supplement, modification, substitution, Refinancing, renewal or replacement) no
less than that applicable to the Term Loan Obligations on the date hereof; (ii)
in the case of any secured Refinancing, substantially concurrently with the
entry into definitive documentation evidencing such indebtedness, the lenders
thereunder shall enter into an intercreditor agreement on terms no less
favorable to the Revolving Creditors than this Agreement or execute an
Intercreditor Agreement Joinder, (ii) Liens on no categories of Collateral
not subject to the Liens securing the Revolving Credit Obligations are granted
to secure it unless such categories of Collateral also secure the Revolving
Credit Obligations; and (iii) no additional Person is obligated on such
indebtedness unless such additional Person also is or becomes an obligor on the
Revolving Credit Obligations.


 


“Term Loan Secured Claim”
means any portion of the Term Loan Obligations.


 


“Term Loan  Termination Date” means the date on which all Term Loan
Obligations have been Paid in Full (but shall not be deemed to occur if a
Refinancing of any then existing Term Loan Obligations occurs or a Term Loan
Credit Substitute Facility is entered into in connection with the repayment and
Refinancing of any then existing Term Loan Obligations).


 


“Term Obligations
Purchaser” has the meaning set forth in
Section 5.1.


 


“UCC” means the
Uniform Commercial Code of any applicable jurisdiction and, if the applicable
jurisdiction shall not have any Uniform Commercial Code, the Uniform Commercial
Code as in effect in the State of New York.


 


“UCC Notice” has
the meaning set forth in Section 3.2.


 


The terms “Certificated Security,”
“Commodity Account,” “Deposit Account,” “Document,” “Equipment,” “Goods,” “Healthcare Insurance Receivable,” “Instrument,”


 


21
















 


“Investment Property,”
“Letter-of-Credit Right,” “Money,” “Payment Intangible,”
“Records,” “Securities
Account,” “Securities Entitlements,”
“Supporting Obligations” and “Uncertificated Securities” have the meanings ascribed to
them in the Uniform Commercial Code as in effect in the State of New York from
time to time.


 


1.2           Certain
Matters of Construction.  The words “hereof”,
“herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement and section references are to this Agreement unless
otherwise specified.  For purposes of
this Agreement, the following additional rules of construction shall apply: (a) wherever
from the context it appears appropriate, each term stated in either the
singular or plural shall include the singular and the plural, and pronouns
stated in the masculine, feminine or neuter gender shall include the masculine,
the feminine and the neuter, (b) the term “including” shall not be
limiting or exclusive, unless specifically indicated to the contrary, (c) all
references to statutes and related regulations shall include any amendments of
same and any successor statutes and regulations, (d) unless otherwise
specified, all references to any instruments or agreements, including
references to any of this Agreement and the Obligation Documents, shall include
any and all amendments or other modifications thereto and any and all
extensions or renewals thereof, and refinancings and replacements thereof, in
each case, made in accordance with the terms thereof and hereof, and (e) the
terms “property” and “asset” or “properties” and “assets” shall have the same
meaning.


 


Section 2.                                            Security
Interests; Priorities.


 


2.1           Priorities.


 


(a)           Each Secured
Creditor hereby acknowledges that other Secured Creditors have been, or may in
the future be, granted Liens upon the Collateral to secure their respective
Obligations and hereby consent to such grant.


 


(b)           (i) The
Liens of the Term Loan Agent, the Term Loan Creditors and any agent,
representative or trustee representative acting on behalf of the Term Loan
Agent or Term Loan Creditors on the Term Loan Priority Collateral to the extent
securing (or purporting to secure) the Term Loan Obligations are and shall be
senior in right, priority, operation and effect to the Liens of (x) the
Revolving Agent, the Revolving Creditors and any agent, representative or
trustee acting on behalf of the Revolving Agent or Revolving Creditors on the
Term Loan Priority Collateral and (y) the Existing Notes Agent, the
Existing Notes Creditors and any agent, representative or trustee acting on
behalf of the Existing Notes Agent or Existing Notes Creditors on the Term Loan
Priority Collateral and (ii) such Liens of (x) the Revolving Agent,
the Revolving Creditors and any agent, representative or trustee acting on
behalf of the Revolving Agent or Revolving Creditors, if any, on the Term Loan
Priority Collateral and (y) the Existing Notes Agent, the Existing Notes
Creditors and any agent, representative or trustee acting on behalf of the
Existing Notes Agent or Existing Notes Creditors, in each case above, on the
Term Loan Priority Collateral, in each case above, are and shall be junior and
subordinate in right, priority, operation and effect to the Liens of the Term
Loan Agent, the Term Loan Creditors and any agent, representative or trustee
representative acting on behalf of the Term Loan Agent or Term Loan Creditors
in the Term Loan Priority Collateral to the extent securing (or purporting to 


 


22

















 


secure) the Term Loan Obligations.  The Liens of the Term Loan Agent, the Term
Loan Creditors and any agent, representative or trustee representative acting
on behalf of the Term Loan Agent or Term Loan Creditors on the Term Loan
Priority Collateral, to the extent securing (or purporting to secure) Excess
Term Obligations, shall be junior and subordinate to the Liens, if any, of the
Revolving Agent, the Revolving Creditors and any agent, representative or
trustee acting on behalf of the Revolving Agent or Revolving Creditors on the
Term Loan Priority Collateral, to the extent securing Revolving Credit
Obligations. The Liens of the Term Loan Agent, Term Loan Creditors and any
agent, representative or trustee acting on behalf of the Term Loan Agent or
Term Loan Creditors on the Revolving Credit Priority Collateral, to the extent
securing (or purporting to secure) the Term Loan Obligations, shall be senior
to the Liens, if any, of the Revolving Agent, the Revolving Creditors and any
agent, representative or trustee acting on behalf of the Revolving Agent or
Revolving Creditors in the Revolving Priority Collateral, to the extent
securing (or purporting to secure) Excess Revolving Credit Obligations.


 


The Liens of the Term Loan Agent, the Term Loan Creditors and
any agent, representative or trustee representative acting on behalf of the
Term Loan Agent or Term Loan Creditors on the Revolving Credit Priority
Collateral to the extent securing (or purporting to secure) the Term Loan
Obligations are and shall be senior in right, priority, operation and effect to
the Liens of the Existing Notes Agent, the Existing Notes Creditors and any
agent, representative or trustee acting on behalf of the Existing Notes Agent
or Existing Notes Creditors on the Revolving Credit Priority Collateral and
such Liens of the Existing Notes Agent, the Existing Notes Creditors and any
agent, representative or trustee acting on behalf of the Existing Notes Agent
or Existing Notes Creditors on the Revolving Credit Priority Collateral, in
each case above, are and shall be junior and subordinate in right, priority,
operation and effect to the Liens of the Term Loan Agent, the Term Loan
Creditors and any agent, representative or trustee representative acting on
behalf of the Term Loan Agent or Term Loan Creditors in the Revolving Credit
Priority Collateral to the extent securing (or purporting to secure) the Term
Loan Obligations.


 


(c)           (i) The
Liens, if any, of the Revolving Agent, the Revolving Creditors and any agent,
representative or trustee acting on behalf of the Revolving Agent or Revolving
Creditors on the Revolving Credit Priority Collateral to the extent securing
Revolving Credit Obligations shall be senior in right, priority, operation and
effect to the Liens of (x) the Term Loan Agent, Term Loan Creditors and
any agent, representative or trustee acting on behalf of the term Loan Agent or
Term Loan Creditors on the Revolving Credit Priority Collateral and (y) the
Existing Notes Agent, the Existing Notes Creditors and any agent,
representative or trustee acting on behalf of the Existing Notes Agent or
Existing Notes Creditors on the Revolving Credit Priority Collateral and (ii) such
Liens of (x) the Term Loan Agent, Term Loan Creditors and any agent,
representative or trustee acting on behalf of the Term Loan Agent or Term Loan
Creditors and (y) the Existing Notes Agent, the Existing Notes Creditors
and any agent, representative or trustee acting on behalf of the Existing Notes
Agent or Existing Notes Creditors, in each case above, on the Revolving Credit
Priority Collateral, in each case above, are and shall be junior and
subordinate in right, priority, operation and effect to the Liens, if any, of
the Revolving Agent, the Revolving Creditors and any agent, representative or
trustee acting on behalf of the Revolving Agent or Revolving Creditors in the
Revolving Credit Priority Collateral to the extent securing (or purporting to
secure) Revolving Credit Obligations. 
The Liens, if any, of the Revolving Agent, the Revolving Creditors and
any Agent, representative or trustee acting on 


 


23

















 


behalf of the Revolving Agent or Revolving Creditors on the
Revolving Credit Priority Collateral, to the extent securing (or purporting to
secure) Excess Revolving Credit Obligations, shall be junior and subordinate to
the Liens of the Term Loan Agent, Term Loan Creditors and any agent,
representative or trustee acting on behalf of the Term Loan Agent or Term Loan
Creditors on the Revolving Credit Priority Collateral, to the extent securing
(or purporting to secure) Term Loan Obligations. The Liens, if any, of the
Revolving Agent, the Revolving Creditors and any agent, representative or
trustee acting on behalf of the Revolving Agent or Revolving Creditors on the
Term Loan Priority Collateral, to the extent securing (or purporting to secure)
the Revolving Credit Obligations, shall be senior to the Liens of the Term Loan
Agent, Term Loan Creditors and any agent, representative or trustee acting on
behalf of the Term Loan Agent or Term Loan Creditors in the Term Loan Priority
Collateral, to the extent securing (or purporting to secure) Excess Term
Obligations.


 


The Liens, if any, of the Revolving Agent, the Revolving
Creditors and any agent, representative or trustee representative acting on
behalf of the Revolving Agent or Revolving Creditors on the Term Loan Priority
Collateral to the extent securing (or purporting to secure) the Revolving
Credit Obligations are and shall be senior in right, priority, operation and
effect to the Liens of the Existing Notes Agent, the Existing Notes Creditors
and any agent, representative or trustee acting on behalf of the Existing Notes
Agent or Existing Notes Creditors on the Term Loan Priority Collateral and such
Liens of the Existing Notes Agent, the Existing Notes Creditors and any agent,
representative or trustee acting on behalf of the Existing Notes Agent or
Existing Notes Creditors on the Term Loan Priority Collateral, in each case
above, are and shall be junior and subordinate in right, priority, operation
and effect to the Liens, if any, of the Revolving Agent, the Revolving
Creditors and any agent, representative or trustee representative acting on
behalf of the Revolving Agent or Revolving Creditors in the Term Loan Priority
Collateral to the extent securing (or purporting to secure) the Revolving
Credit Obligations.


 


(d)           The
priorities of the Liens provided in this Section 2.1 shall not be
altered or otherwise affected by any amendment, modification, supplement,
extension, renewal, restatement, replacement or Refinancing of any of the
Obligations, by any action or inaction which any of the Secured Creditors may
take or fail to take in respect of any Collateral or, except as expressly
contemplated hereby, by the release of any Collateral or the release of any of
the guarantees of any of the Obligations.


 


(e)           All
rights, powers and priorities of the Term Loan Agent as a Primary Priority
Secured Creditor are senior and superior to the rights, powers and priorities
of the Revolving Agent as a Secondary Priority Secured Creditor, and all
rights, powers and priorities of the Term Loan Agent and the other Term Loan
Creditors as secured creditors in respect of the Collateral are senior and
superior to all rights, however arising, of the Existing Notes Creditors as
secured creditors in respect of the Collateral. 
The Revolving Agent as a Secondary Priority Secured Creditor shall exercise
no rights, powers or remedies as a Priority Secured Creditor so long as the
Term Loan Obligations have not been Paid in Full (without prejudice to its
rights as a Junior Secured Creditor under Section 3).  The Existing Notes Creditors shall exercise
no rights, powers or remedies as secured parties in respect of the Collateral
so long as the Term Loan Obligations have not been Paid in Full.  If at any time no Revolving Credit Agreement
shall be in effect, the Term Loan Agent shall be entitled to act a Primary
Priority Secured Creditor in 


 


24

















 


respect of the Term Loan Priority Collateral and the
Revolving Credit Priority Collateral for all purposes of this Agreement.


 


(f)            All
rights, powers and priorities of the Revolving Agent as a Primary Priority
Secured Creditor are senior and superior to the rights, powers and priorities
of the Term Loan Agent as a Secondary Priority Secured Creditor, and all
rights, powers and priorities of the Revolving Agent and the other Revolving
Creditors as secured creditors in respect of the Collateral are senior and
superior to all rights, however arising, of the Existing Notes Creditors as
secured creditors in respect of the Collateral. The Term Loan Agent as a
Secondary Priority Secured Creditor shall exercise no rights, powers or
remedies as a Priority Secured Creditor so long as the Revolving Credit
Obligations have not been Paid in Full (without prejudice to its rights as a
Junior Secured Creditor under Section 3). 
The Existing Notes Creditors shall exercise no rights, powers or
remedies as secured parties in respect of the Collateral so long as the
Revolving Credit Obligations have not been Paid in Full.


 


(g)           All
rights, powers and priorities of the Term Loan Agent as a Primary Junior
Secured Creditor are senior and superior to the rights, powers and priorities
of the Revolving Agent as a Secondary Junior Secured Creditor.  The Revolving Agent as a Secondary Junior
Secured Creditor shall exercise no rights, powers or remedies as a Junior
Secured Creditor so long as the Term Loan Obligations have not been Paid in
Full, but at all times the Revolving Agent as a Secondary Junior Secured
Creditor shall have the obligations and responsibilities of a Junior Secured
Creditor.


 


(h)           All
rights, powers and priorities of the Revolving Agent as a Primary Junior
Secured Creditor are senior and superior to the rights, powers and priorities
of the Term Loan Agent as a Secondary Junior Secured Creditor.  The Term Loan Agent as a Secondary Junior
Secured Creditor shall exercise no rights, powers or remedies as a Junior
Secured Creditor so long as the Revolving Credit Obligations have not been Paid
in Full, but at all times the Term Loan Agent as a Secondary Junior Secured
Creditor shall have the obligations and responsibilities of a Junior Secured
Creditor.


 


2.2           No
Alteration of Priority.  The
priorities set forth in this Agreement in respect of Collateral are applicable
irrespective of the order, time, method or manner of the creation, attachment,
or perfection, or the order or time of filing or recordation of any document or
instrument, or other method of perfecting a Lien in favor of each Secured
Creditor in any Collateral, and notwithstanding any conflicting terms or
conditions that may be contained in any of the Obligation Documents, any
provision of any agreement, document, instrument or applicable law and
notwithstanding any subsequent failure to maintain perfection of the Lien in
favor of the applicable Secured Creditor, provided that there has been an
initial valid perfection of the Lien in such Collateral as to the relevant
Secured Creditor under applicable law. 
The parties hereto acknowledge and agree that it is their intention that
the Collateral securing the Revolving Credit Obligations and the Collateral
securing the Term Loan Obligations as of the date hereof be identical in all
material respects (except with respect to priorities as set forth in Section 2.1
hereof) and, in furtherance of such intent, the parties hereto agree:  (a) to cooperate in good faith in order
to determine, upon any request by the Revolving Agent or the Term Loan Agent,
the specific assets included in the Collateral securing their respective
Obligations, the steps taken to perfect the Liens thereon and the identity of
the respective parties obligated under 


 


25

















 


any Obligation Document, and (b) any Lien obtained by
any Secured Creditor in respect of any judgment obtained in respect of any
obligations shall be subject in all respects to the terms of this
Agreement.  The parties hereto further
acknowledge and agree that it is their intention that the Collateral securing
the Revolving Credit Obligations and the Collateral securing the Term Loan
Obligations include at all times all of the Collateral securing the Existing
Notes Obligations (subject to the priorities as set forth in Section 2.1
hereof) and, in furtherance of such intent, the Existing Notes Creditors
agree:  (a) to cooperate in good
faith in order to determine, upon any request by the Revolving Agent or the
Term Loan Agent, the specific assets included in the Collateral securing the
Existing Notes Obligations, the steps taken to perfect the Liens thereon and
the identity of the respective parties obligated under any Obligation Document
and (b) any Lien obtained by any Existing Notes Creditor in respect of any
judgment obtained in respect of any obligations shall be subject in all
respects to the terms of this Agreement.. 
The parties hereto further acknowledge and agree that it is not their
intention that the Collateral securing the Existing Notes Obligations include
all Collateral securing the Revolving Credit Obligations and the Term Loan
Obligations, and that there may be Collateral securing the Revolving Credit
Obligations and the Term Loan Obligations that does not secure the Existing
Notes Obligations , including without limitation as contemplated by Section 2.4(d)


 


2.3           Perfection; Contesting Liens. 
Each Secured Creditor shall be
solely responsible for creating, perfecting and maintaining the perfection of
its Lien in the Collateral in which such Secured Creditor has been or is
intended to be granted a Lien, provided that pursuant to the Existing
Notes Documents and New Notes Documents, the Obligors party to such agreements
have agreed to be solely responsible for creating, perfecting and maintaining
Liens in the Collateral which secure the Existing Note Obligations or New Notes
Obligations, as the case may be.  The
foregoing provisions of this Agreement are intended solely to govern the respective
Lien priorities as among the Secured Creditors in respect of Collateral and
shall not impose on any Secured Creditor any obligations in respect of the
Disposition of Proceeds or any Collateral that would conflict with prior
perfected claims therein in favor of any other Person or any order or decree of
any court or governmental authority or any applicable law.  Each Secured Creditor agrees that it will not
(a) institute, join in or support any contest of the validity, perfection,
priority or enforceability of the Liens granted to, or purported to be granted
to, any other Secured Creditor in the Collateral (or any property purported to
be included in the Collateral), including, without limitation, any equity
interests in, or any assets of, any New License Subsidiary or any proceeds
thereof, or the enforceability of the Term Loan Obligations or the Revolving
Credit Obligations (provided that nothing in this Agreement shall be
construed to prevent or impair the rights of the Term Loan Agent or the
Revolving Agent to enforce this Agreement); or (b) prior to payment in
full of the Term Loan Obligations, assert any right as an unsecured creditor
or, in the case of the Existing Notes Creditors, a secured creditor, in, to or
under any equity interests in, or any assets of, any New License Subsidiary or
any proceeds thereof.


 


2.4           Limitation
on New Liens.


 


(a)           The
parties hereto acknowledge that, as of the date hereof, (i) the Liens of
the Term Loan Agent under the Term Loan Credit Documents do not encumber any
assets of any Obligor which assets are not subject to a Lien of the Revolving
Agent under the Revolving Credit Documents (unless as of the date hereof there
are no Revolving Credit Documents in effect) and (ii) the Liens of the
Revolving Agent under the Revolving Credit Documents, if any, 


 


26

















 


do not encumber any assets of any Obligor which assets are
not subject to a Lien of the Term Loan Agent under the Term Loan Credit
Documents and (iii) the Liens of the Existing Notes Creditors under the
Existing Notes Documents do not encumber any assets of any Obligor which assets
are not subject to a Lien of the Term Loan Agent under the Term Loan Credit
Documents and a Lien of the Revolving Agent under the Revolving Credit
Documents (unless as of the date hereof there are no Revolving Credit Documents
in effect).


 


(b)           During any
period when Revolving Credit Obligations are outstanding and until such
Revolving Credit Obligations have been Paid in Full, no Term Loan Creditor
shall acquire after the initial closing date under the Term Loan Credit
Agreement any Lien on any assets of any Obligor securing any Term Loan
Obligation which assets are not also subject to the Lien, if any shall then
exist, of the Revolving Agent under the Revolving Credit Documents, unless the
Revolving Agent shall be notified thereof and shall have had an opportunity to
create a Lien thereon comparable to the Lien thereon in favor of the Term Loan
Creditors, provided that, notwithstanding the foregoing, if the Revolving Agent
shall have had an opportunity to create such a comparable Lien and shall have
failed to do so beyond 30 days after the later of (x) the date it receives
notice thereof and (y) the date it has the opportunity to create such
comparable Lien, the Term Loan Creditors shall nevertheless be entitled to
create and maintain such Lien on such assets though they are not also subject
to the Lien of the Revolving Agent under the Revolving Credit Documents.  Such Liens, if created in favor of the Term
Loan Agent or Term Loan Creditors and the Revolving Agent or Revolving
Creditors shall be subject to the Lien priorities set forth herein.  If any Term Loan Creditor shall acquire or
hold any Lien on any assets of any Obligor securing any Term Loan Obligation
which assets are not also subject to the Lien of the Revolving Agent under the
Revolving Credit Documents (other than by reason of the failure of the
Revolving Agent or the other Revolving Creditors to obtain such a Lien as
contemplated by the first sentence hereof), subject to the Lien priorities set
forth herein, then the Term Loan Agent (or the relevant Term Loan Creditor)
shall, without the need for any further consent of any other Term Loan Creditor
and notwithstanding anything to the contrary in any other Term Loan Credit
Document be deemed to also hold and have held, and the applicable Obligors
hereby grant in favor of the Revolving Agent for the benefit of the Revolving
Creditors as security for the Revolving Credit Obligations, such a comparable
Lien for the benefit of the Revolving Agent as security for the Revolving
Credit Obligations (subject to the Lien priorities set forth herein and other
terms hereof) and the Company shall promptly notify the Revolving Agent in
writing of the existence of such Lien.


 


(c)           Until the
Term Loan Obligations have been Paid in Full, no Revolving Creditor shall
acquire after the initial closing date under the Revolving Credit Agreement any
Lien on any assets of any Obligor securing any Revolving Credit Obligation
which assets are not also subject to the Lien of the Term Loan Agent under the
Term Loan Credit Documents, unless the Term Loan Agent shall be notified
thereof and shall have had an opportunity to create a Lien thereon comparable
to the Lien thereon in favor of the Revolving Loan Creditors, provided that,
notwithstanding the foregoing, if the Term Loan Agent shall have had an
opportunity to create such a comparable Lien and shall have failed to do so
beyond 30 days after the later of (x) the date it receives notice thereof
and (y) the date it has the opportunity to create such comparable Lien,
the Revolving Loan Creditors shall nevertheless be entitled to create and
maintain such Lien on such assets though they are not also subject to the Lien
of the Term Loan Agent under the Term Loan Credit Documents.  Such Liens, if created in favor of the Term
Loan Agent or 


 


27

















 


Term Loan Creditors and the Revolving Agent or Revolving
Creditors shall be subject to the Lien priorities set forth herein.  If any Revolving Creditor shall acquire or
hold any Lien on any assets of any Obligor securing any Revolving Credit
Obligation which assets are not also subject to the Lien of the Term Loan Agent
under the Term Loan Credit Documents (other than by reason of the failure of
the Term Loan Agent or the other Term Loan Creditors to obtain such a Lien as
contemplated by the first sentence hereof), subject to the Lien priorities set
forth herein, then the Revolving Agent (or the relevant Revolving Creditor)
shall, without the need for any further consent of any other Revolving Creditor
and notwithstanding anything to the contrary in any other Revolving Credit
Document be deemed to also hold and have held, and the applicable Obligors
hereby grant in favor of the Term Loan Agent for the benefit of the Term Loan
Creditors as security for the Term Loan Obligations, such a comparable Lien for
the benefit of the Term Loan Agent as security for the Term Loan Obligations
(subject to the Lien priorities set forth herein and other terms hereof) and
the Company shall promptly notify the Term Loan Agent in writing of the
existence of such Lien.


 


(d)           No
Existing Notes Creditor shall, after the date hereof, acquire any Lien on (i) any
assets of any Obligor that do not at such time secure the Term Loan Obligations
and, if then outstanding, the Revolving Credit Obligations, or (ii) any
equity interests in, or any assets of, any New License Subsidiary or any
proceeds thereof.


 


2.5           Proceeds
of Collateral.  Subject to the
proviso to the first sentence of Section 6.5, any Non-Priority
Collateral or Proceeds thereof received by any Secured Creditor including,
without limitation, any such Non-Priority Collateral constituting Proceeds, or
any payment or Distribution, that may be received by any Secured Creditor (a) in
connection with the exercise of any right or remedy (including any right of
setoff) with respect to Non-Priority Collateral, (b) in connection with
any insurance policy claim or any condemnation award (or deed in lieu of
condemnation) as to Non-Priority Collateral, (c) from the collection or
other Disposition of, or realization on, Non-Priority Collateral, whether or
not pursuant to an Insolvency Proceeding or (d) in violation of this Agreement,
shall be segregated and held in trust and promptly paid over to the Priority
Secured Creditor, in the same form as received, with any necessary
endorsements, and each Junior Secured Creditor hereby authorizes the Priority
Secured Creditor to make any such endorsements as agent for such Junior Secured
Creditor (which authorization, being coupled with an interest, is
irrevocable).  In furtherance of the
foregoing, any Collateral or Proceeds thereof received by any Existing Notes
Creditor including, without limitation, any such Collateral constituting
Proceeds, or any payment or Distribution, that may be received by any Existing
Notes Creditor (a) in connection with the exercise of any right or remedy
(including any right of setoff) with respect to any Collateral, (b) in
connection with any insurance policy claim or any condemnation award (or deed
in lieu of condemnation) as to any Collateral, (c) from the collection or
other Disposition of, or realization on, any Collateral, whether or not
pursuant to an Insolvency Proceeding or (d) in violation of this
Agreement, shall be segregated and held in trust and promptly paid over to the
Priority Secured Creditor, in the same form as received, with any necessary
endorsements, and each Existing Notes Creditor hereby authorizes the Priority
Secured Creditor to make any such endorsements as agent for such Existing Notes
Creditor (which authorization, being coupled with an interest, is
irrevocable).  The Term Loan Agent, on
behalf of itself and the Term Loan Creditors, and the Existing Notes Agent, on
behalf of itself and the Existing Notes Creditors, each acknowledges and agrees
that the Revolving Credit Agreement includes a revolving commitment and that in
the ordinary 


 


28

















 


course of business Revolving Agent will apply Proceeds of
Revolving Credit Priority Collateral in accordance with the terms thereof
(which may not permanently reduce such revolving commitment) and may make
advances thereunder from time to time, and may apply Proceeds of Term Loan
Priority Collateral not required pursuant to the provisions of the Term Loan
Credit Documents as in effect on the date hereof or this Agreement to be paid
over to the Term Loan Agent or Term Loan Creditors to repay Revolving Credit
Obligations in the ordinary course.  The
Existing Notes Agent, on behalf of itself and the Existing Notes Creditors,
acknowledges and agrees that the Revolving Credit Agreement includes a
revolving commitment and that in the ordinary course of business Revolving
Agent will apply Proceeds of Revolving Credit Priority Collateral in accordance
with the terms thereof (which may not permanently reduce such revolving
commitment) and may make advances thereunder from time to time, and may apply
Proceeds of Term Loan Priority Collateral not required pursuant to the
provisions of the Term Loan Credit Documents as in effect on the date hereof or
this Agreement to be paid over to the Term Loan Agent or Term Loan Creditors to
repay Revolving Credit Obligations in the ordinary course.  The Revolving Agent, on behalf of itself and
the Revolving Creditors, acknowledges and agrees that the Term Loan Credit
Agreement contains provisions requiring prepayment of the Term Loan Obligations
and that the Obligors may continue to make such prepayments of Term Loan
Obligations notwithstanding any provision to the contrary in the Revolving
Credit Agreement or other Revolving Credit Documents.  The Existing Notes Agent, on behalf of itself
and the Existing Notes Creditors, acknowledges and agrees that Collateral and
Proceeds thereof may be applied to repayment or prepayment of the Revolving
Credit Obligations and Term Loan Obligations in accordance with the provisions
thereof, and prior to payment of the Existing Notes Obligations notwithstanding
any contrary provision in any Existing Notes Document.


 


2.6           Release
of Collateral Upon Permitted Collateral Sale.  Each Junior Secured Creditor shall at any
time in connection with any Permitted Collateral Sale of Collateral that, as to
such Junior Secured Creditor, is Non-Priority Collateral and that is made free
and clear of the Liens of the Priority Secured Creditors (such Lien continuing
as to Proceeds):  (a) upon the
request of the Priority Secured Creditor as to such Collateral subject to such
Permitted Collateral Sale, release or otherwise terminate its Liens on such
Collateral (provided that such Lien shall continue as to Proceeds
thereof), (b) promptly deliver such terminations of financing statements,
partial lien releases, mortgage satisfactions and discharges, endorsements,
assignments or other instruments of transfer, termination or release
(collectively, “Release Documents”) and take such
further actions as the Priority Secured Creditor shall reasonably require in
order to release and/or terminate such Junior Secured Creditor’s Liens on such
Collateral subject to such Permitted Collateral Sale (but not the Proceeds of
such Collateral), and (c) be deemed to have consented under the applicable
Obligation Documents to such Permitted Collateral Sale free and clear of the
Junior Secured Creditor’s security interest (it being understood that the
Junior Secured Creditor shall still, subject to the terms of this Agreement,
have a security interest with respect to the Proceeds of such Collateral) and
to have waived the provisions of the applicable Obligation Documents to the
extent necessary to permit such transaction.


 


2.7           Release
of Collateral Upon Release Event. 
The Junior Secured Creditor shall, at any time in connection with a
Release Event with respect to any Collateral that, as to such Junior Secured
Creditor, is Non-Priority Collateral:  (a) upon
the request of the Priority Secured Creditor with respect to such Collateral
subject to such Release Event (which request 


 


29

















 


will specify the principal proposed terms of the sale and the
type and amount of consideration expected to be received in connection
therewith), release or otherwise terminate its Liens on such Collateral (provided
that such Lien shall continue as to Proceeds thereof), to the extent the
Disposition of such Collateral is either by (i) the Priority Secured
Creditor or its agents or representatives or (ii) any Obligor with the
consent of the Priority Secured Creditor, (b) be deemed to have consented
under the applicable Obligation Documents to such Disposition free and clear of
the Junior Secured Creditor’s Liens (it being understood that the Junior
Secured Creditor shall still, subject to the terms of this Agreement, have a security
interest with respect to the Proceeds of such Collateral) and to have waived
the provisions of the applicable Obligation Documents to the extent necessary
to permit such transaction and (c) deliver such Release Documents and take such
further actions as Priority Secured Creditor may reasonably require in
connection therewith; provided that such release by the Junior Secured
Creditor shall not extend to, or otherwise affect any of the rights of the
Junior Secured Creditor to, the Proceeds from any such Disposition of such
Collateral subject to the provisions hereof.


 


2.8           Power
of Attorney.  As to any Collateral
that, as to any Junior Secured Creditor, is Non-Priority Collateral, such
Junior Secured Creditor hereby irrevocably constitutes and appoints the
Priority Secured Creditor as to such Collateral and any officer of such
Priority Secured Creditor, 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 Junior Secured Creditor and in the name of the Junior Secured
Creditor or in such Priority Secured Creditor own name, from time to time in
such Priority Secured Creditor discretion, for the purpose of carrying out the
terms of Sections 2.6 and 2.7 hereof, to take any and all
appropriate action and to execute any and all documents and instruments which
may be necessary or desirable to accomplish the purposes of such Sections,
including any Release Documents, and, in addition, to take any and all other
appropriate and commercially reasonable action for the purpose of carrying out
the terms of such Sections, all subject to the limitations set forth therein,
such power of attorney being coupled with an interest and irrevocable until the
Term Loan Termination Date, if the Junior Secured Creditor is the Revolving
Agent, or the Revolving Credit Termination Date, if the Junior Secured Creditor
is the Term Loan Agent.  The Junior
Secured Creditor hereby ratifies all that said attorneys shall lawfully do or
cause to be done pursuant to the power of attorney granted in this Section 2.8
if done in accordance with the provisions hereof.  No Person to whom this power of attorney is
presented, as authority for the Priority Secured Creditor to take any action or
actions contemplated hereby, shall be required to inquire into or seek
confirmation from any Junior Secured Creditor as to the authority of the
Priority Secured Creditor to take any action described herein, or as to the
existence of or fulfillment of any condition to this power of attorney, which
is intended to grant to the Priority Secured Creditor the authority to take and
perform the actions contemplated herein. 
The Junior Secured Creditor irrevocably waives any right to commence any
suit or action, in law or equity, against any Person that acts in reliance upon
or acknowledges the authority granted under this power of attorney.


 


2.9           Waiver.  Each Secured Creditor (a) subject to the
requirement that the Company shall be required to designate by written notice
to the Term Loan Agent any Revolving Credit Agreement for purposes hereof, as
contemplated hereby, waives any and all notice from any Secured Creditor of the
creation, renewal, extension or accrual of any of the Obligations under the
Obligation Documents and notice of or proof of reliance by the Secured
Creditors upon this Agreement and protest, demand for payment or notice except
to the extent otherwise 


 


30

















 


specified herein and (b) acknowledges and agrees that
the other Secured Creditors have relied upon the Lien priority and other
provisions hereof in entering into the Obligation Documents and in making funds
available to the Company, subject to the provisions hereof.


 


2.10         Notice
of Interest In Collateral.  This
Agreement, and the execution and delivery by any party hereto to the other
parties hereto, is intended, in part, to constitute an authenticated
notification of a claim by each Secured Creditor to the other Secured Creditors
of an interest in the Collateral in accordance with the provisions of Sections
9-611 and 9-621 of the UCC.


 


Section 3.                                            Enforcement
of Security.


 


3.1           No
Duties of Priority Secured Creditor. 
Each Junior Secured Creditor acknowledges and agrees that the Priority
Secured Creditor shall not have any duties or other obligations to such Junior
Secured Creditor with respect to any Priority Collateral, other than to
transfer to such Junior Secured Creditor (other than any Existing Notes
Creditor, until such time as all Revolving Credit Obligations and all Term Loan
Obligations shall have been Paid in Full) any remaining Collateral that
constitutes Non-Priority Collateral and any Proceeds of the sale or other
disposition of any such Collateral that constitutes Non-Priority Collateral
remaining in its possession following the Payment in Full of the associated
Priority Obligations, or in the case of the Existing Notes Creditors as Junior
Secured Creditors, all Priority Obligations, in each case without
representation or warranty on the part of the Priority Secured Creditor.  In furtherance of the foregoing, each Junior
Secured Creditor acknowledges and agrees that until the Payment in Full of the
associated Priority Obligations secured by any Collateral on which such Junior
Secured Creditor holds a Lien, the Priority Secured Creditor shall be entitled,
for the benefit of the holders of such Priority Obligations, to sell, transfer
or otherwise dispose of or deal with such Collateral, as provided in the
Priority Documents but in no event inconsistent with the other provisions of
this Agreement, without regard to any junior Lien or any rights to which the
holders of the Junior Obligations would otherwise be entitled as a result of
such Lien, except as otherwise provided herein. 
Without limiting the foregoing, each Junior Secured Creditor agrees that
the Priority Secured Creditor shall not have any duty or obligation first to
sell, dispose of or otherwise liquidate all or any portion of such Priority
Collateral (or any other collateral securing the Priority Obligations), in any
manner that would maximize the return to such Junior Secured Creditor,
notwithstanding that the order and timing of any such realization, sale,
disposition or liquidation may affect the amount of proceeds actually received
by such Junior Secured Creditor from such realization, sale, disposition or
liquidation.  Following the Payment in
Full of the associated Priority Obligations, or in the case of the Existing
Notes Creditors as Junior Secured Creditor, all Priority Obligations, the
Junior Secured Creditor may, subject to any other agreements binding on such
Junior Secured Creditor, assert their rights under the New York UCC or
otherwise to any Proceeds remaining following a sale, disposition or other
liquidation of Collateral by, or on behalf of, the Priority Secured Creditor or
the Junior Secured Creditor.  Each Junior
Secured Creditor waives any claim such Junior Secured Creditor may now or
hereafter have against the Priority Secured Creditor arising out of any actions
that the Priority Secured Creditor takes or omits to take (including actions
with respect to the creation, perfection or continuation of Liens on any
Collateral, actions with respect to the foreclosure upon, sale, release or
depreciation of, or failure to realize upon, any of the Collateral, and actions
with respect to the collection of any claim for all or any part of the Priority
Obligations from any account debtor, 


 


31

















 


guarantor or any other party) in accordance with this Agreement
and the Priority Documents, or arising out of the collection of the Priority
Obligations or the valuation, use, protection or release of any security for
the Priority Obligations if effected in accordance with this Agreement and the
Priority Documents.


 


3.2           Management
of Collateral.  Subject to the other
terms and conditions of this Agreement, each Priority Secured Creditor shall
have the exclusive right to manage, perform and enforce the terms of the
applicable Obligation Documents with respect to its Priority Collateral, to
exercise and enforce all privileges and rights thereunder according to its sole
discretion and the exercise of its sole business judgment, including the
exclusive right to take or retake control or possession of such Priority Collateral
and to hold, prepare for sale, process, Dispose of, or liquidate such Priority
Collateral and to incur expenses in connection with such Disposition and to
exercise all the rights and remedies of a secured lender under the UCC of any
applicable jurisdiction.  In conducting
any public or private sale under the UCC of its Priority Collateral, the
Priority Secured Creditor shall give the Junior Secured Creditor such notice (a
“UCC Notice”) of such sale as may be
required by the applicable UCC; provided, however, that 10 days’
notice shall be deemed to be commercially reasonable notice.  Except as specifically provided in this Section 3.2
or Section 3.4 below, notwithstanding any rights or remedies
available to a Junior Secured Creditor under any of the applicable Obligation
Documents, applicable law or otherwise, no Junior Secured Creditor shall,
directly or indirectly, take any Enforcement Action with respect to Collateral
that, as to such Junior Secured Creditor, is Non-Priority Collateral; provided
that, subject at all times to the provisions of Section 2,
upon the expiration of the applicable Standstill Period, a Junior Secured
Creditor (other than any Existing Notes Creditor) may take any Enforcement
Action as to such Collateral (provided that it gives the Priority
Secured Creditor at least 10 Business Days written notice prior to taking such
Enforcement Action); provided, further, that notwithstanding the
expiration of the Standstill Period or anything herein to the contrary, in no
event shall any Junior Secured Creditor take any Enforcement Action or exercise
or continue to exercise any such rights or remedies, or commence or petition
for any such action or proceeding (including any foreclosure action or
proceeding or any Insolvency Proceeding) as to its Non-Priority Collateral if
either (i) an Insolvency Proceeding occurs and is continuing or (ii) the
Priority Secured Creditor shall have commenced the enforcement or exercise of
any rights or remedies with respect to more than a de minimis portion of such
Non-Priority Collateral, or with respect to any of such Non-Priority Collateral
as to which the Junior Secured Creditor has commenced an Enforcement Action, as
applicable, or commenced any such action or proceeding (including, without
limitation, any of the following (if undertaken and pursued to consummate a
Disposition of such Collateral within a commercially reasonable time): the
solicitation of bids from third parties to conduct the liquidation of all or
any material portion of such Collateral, the engagement or retention of sales
brokers, marketing agents, investment bankers, accountants, auctioneers or
other third parties for the purpose of valuing, marketing, promoting or selling
all or any material portion of such Collateral, the notification of account
debtors to make payments to the Priority Secured Creditor or its agents, the
initiation of any action to take possession of all or any material portion of
such Collateral or the commencement of any legal proceedings or actions against
or with respect to the foreclosure and sale of all or any material portion of
such Collateral), or the diligent attempt in good faith to vacate any stay
prohibiting an Enforcement Action with respect to all or any material portion
of such Collateral or diligently attempting in good faith to vacate any stay
prohibiting an Enforcement Action.


 


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3.3                                 Notices of
Default.  Each Secured Creditor shall
give to the other Secured Creditors prior to or substantially concurrently with
the giving thereof to any Obligor (a) a copy of any written notice by any
Secured Creditor of an Event of Default under any of its Obligation Documents
or a written notice of demand for payment from any Obligor and (b) a copy
of any written notice sent by such Secured Creditor to any Obligor stating such
Secured Creditor’s intention to exercise any material enforcement rights or
remedies against such Obligor, including written notice pertaining to any
foreclosure on all or any material part of its Priority Collateral or other
judicial or non-judicial remedy in respect thereof, and any legal process
served or filed in connection therewith; provided that the failure of
any Secured Creditor to give such required notice shall not result in any
liability to such Secured Creditor or affect the enforceability of any
provision of this Agreement, including the relative priorities of the Liens of
the Secured Creditors as provided herein, and shall not affect the validity or
effectiveness of any such notice as against the Company or any other Obligor; provided,
further, that the foregoing shall not in any way impair any claims that
any Secured Creditor may have against any other Secured Creditor as a result of
any failure of any Secured Creditor to provide a UCC Notice in accordance with
the provisions of this Agreement and applicable law (including without
limitation any liability that any Secured Creditor may have to any other
Secured Creditor as a result of any such failure).


 


3.4                                 Permitted Actions; Restricted Prepayments.  Section 3.2
shall not be construed to limit or impair in any way the right of:  (i) any Secured Creditor (other than any
Existing Notes Creditor) to bid for or purchase Collateral at any private or
judicial foreclosure upon such Collateral initiated by any Secured Creditor, (ii) any
Secured Creditor to join (but not control) any foreclosure or other judicial
lien enforcement proceeding with respect to the Collateral initiated by another
Secured Creditor for the sole purpose of protecting such Secured Creditor’s
Lien on the Collateral, so long as it does not delay or interfere with the
exercise by such other Secured Creditor of its rights under this Agreement, the
Obligation Documents and under applicable law and (iii) the Junior Secured
Creditor to exercise any rights expressly granted to them under this Agreement,
subject to the provisions hereof, and to receive any remaining proceeds of
Collateral that as to such Junior Secured Creditor is Non-Priority Collateral
after the Priority Obligations have been Paid in Full.  No Existing Notes Creditor shall exercise any
right to credit bid its Existing Notes Obligations, or claims in respect
thereof, at any private or judicial foreclosure upon such Collateral initiated
by any Secured Creditor.


 


3.5                                 Collateral In Possession.


 


(a)                                  Each of the Revolving Agent and the Term Loan Agent and the
Existing Notes Agent hereby acknowledges that, to the extent that it holds, or
a third party holds on its behalf, physical possession of or has “control” (as
defined in the UCC) over Collateral for purposes of perfecting its Lien
therein, such possession or control is also for the benefit of, and the
Revolving Agent and the Term Loan Agent, or such third party on its behalf, as
applicable, will be deemed to be holding such Collateral as agent for, the Term
Loan Agent and the other Term Loan Creditors or the Revolving Agent and the
other Revolving Creditors and the Existing Notes Agent and the other Existing
Notes Creditors, as applicable, as agent and bailee for perfection, solely to
the extent required to perfect their security interests in such
Collateral.  Nothing in the preceding
sentence shall be construed to impose any duty on the Revolving Agent or the
Term Loan Agent or Existing Notes Agent (or any third party acting on either
such


 


33

















 


Person’s
behalf) with respect to such Collateral or provide the Term Loan Agent, any
other Term Loan Creditor, the Revolving Agent or any other Revolving Creditor,
or the Existing Notes Agent or any other Existing Notes Creditor, as
applicable, with any rights with respect to such Collateral beyond those specified
in this Agreement, the Revolving Credit Documents and the Term Loan Credit
Documents and the Existing Notes Documents, as applicable.  Promptly following the Term Loan Termination
Date or Revolving Credit Termination Date, as the case may be, the Term Loan
Agent or the Revolving Agent, as the case may be, shall, upon the request of
the Revolving Agent or the Term Loan Agent, as the case may be, deliver, or
cause any third party holding such Collateral on its behalf to deliver, the
remainder of the Collateral, if any, in its possession to the designee of the
requesting Secured Creditor (except as may otherwise be required by applicable
law or court order).  Promptly following
the later of the Term Loan Termination Date and the Revolving Credit Termination
Date, the Term Loan Agent or the Revolving Agent, as the case may be, shall,
upon the request of the Existing Notes Agent, deliver, or cause any third party
holding such Collateral on its behalf to deliver, the remainder of the
Collateral, if any, in its possession to the designee of the Existing Notes
Creditor (except as may otherwise be required by applicable law or court
order).


 


(b)                                 It is understood and agreed that this Section 3.5
is intended solely to assure continuous perfection of the Liens granted under
the applicable Obligation Documents, and nothing in this Section 3.5
shall be deemed or construed as altering the priorities or obligations set
forth elsewhere in this Agreement.  The
duties of each party under this Section 3.5 shall be mechanical and
administrative in nature, and no party shall have, or be deemed to have, by
reason of this Agreement or otherwise a fiduciary relationship in respect of
the other party.


 


3.6                                 Waiver of Marshalling and Similar Rights.  Each Secured
Creditor, to the fullest extent permitted by applicable law, waives as to each
other Secured Creditor any requirement regarding, and agrees not to demand,
request, plead or otherwise claim the benefit of, any marshalling,
appraisement, valuation or other similar right that may otherwise be available
under applicable law.


 


3.7                                 Insurance and Condemnation Awards.  So long as the Term
Loan Termination Date has not occurred, the Term Loan Agent, and so long as the
Revolving Credit Termination Date has not occurred, the Revolving Agent, shall
have the exclusive right, subject to the rights of the Company under the
applicable Obligation Documents, to settle and adjust claims in respect of its
Priority Collateral under policies of insurance and to approve any award
granted in any condemnation or similar proceeding, or any deed in lieu of
condemnation, in respect of its Priority Collateral.  After the occurrence of the Term Loan
Termination Date, the Revolving Agent, and after the occurrence of the
Revolving Credit Termination Date, the Term Loan Agent, shall have the
exclusive right, subject to the rights of the Company under the applicable
Obligation Documents, to settle and adjust claims in respect of its
Non-Priority Collateral under policies of insurance and to approve any award granted
in condemnation or similar proceeding, or any deed in lieu of condemnation, in
respect of its Non-Priority Collateral. 
Prior the later of the Term Loan Termination Date and the Revolving
Credit Termination Date, the Existing Loan Creditors shall have no right to
settle or adjust claims in respect of its Non-Priority Collateral under
policies of insurance or to approve any award granted in condemnation


 


34

















 


or similar
proceeding, or any deed in lieu of condemnation, in respect of its Non-Priority
Collateral.


 


3.8                                 Application of Proceeds of Priority Collateral.  (a) 
Notwithstanding the Lien priorities established pursuant hereto as between the
Revolving Creditors and the Term Loan Creditors, the parties hereto agree that
the Proceeds of Term Loan Priority Collateral shall be distributed to
satisfaction of the Term Loan Obligations and the Revolving Credit Obligations
until Paid in Full, according to the priority of application set forth below:


 


(i)                                     FIRST, to the fees and expenses of, and reimbursements and
indemnification owed to, the Term Loan Agent under this Agreement and under the
Term Loan Credit Documents to which it is a party that are unpaid as of the
applicable date of receipt of such Proceeds, and to any Secured Creditor that
has theretofore advanced or paid any such fees and expenses of, and
reimbursements and indemnification owed to, the Term Loan Agent in respect of
the Term Loan Priority Collateral, in an amount equal to the amount thereof so
advanced or paid by such Secured Creditor,


 


(ii)                                  SECOND, to the pro rata
payment of the then unpaid Term Loan Obligations and Revolving Credit
Obligations (pro rata based on the aggregate
outstanding amount thereof as of the date of payment after giving pro forma
effect to any substantially simultaneous application of Proceeds of Revolving
Credit Priority Collateral to satisfaction of the Revolving Credit
Obligations), until Paid in Full,


 


(iii)                               THIRD, to the payment of the Existing Notes Obligations then
due and owing, and


 


(iv)                              FOURTH, to the Company and the other Obligors or their
successors or assigns, as their interests may appear, or to whosoever may be
lawfully entitled to receive the same or as a court of competent jurisdiction
may direct.


 


(b) 
In accordance with the Lien priorities established pursuant hereto as between
the Revolving Creditors, the Term Loan Creditors and the Existing Notes
Creditors, the parties hereto agree that the Proceeds of Revolving Credit
Priority Collateral shall be distributed to satisfaction of the Revolving
Credit Obligations, the Term Loan Obligations and the Existing Notes
Obligations until Paid in Full, according to the priority of application set
forth below:


 


(i)                                     FIRST, to the fees and expenses of, and reimbursements and
indemnification owed to, the Revolving Agent under this Agreement and under the
Revolving Credit Documents to which it is a party that are unpaid as of the
applicable date of receipt of such Proceeds, and to any Secured Creditor that
has theretofore advanced or paid any such fees and expenses of, and
reimbursements and indemnification owed to, the Revolving Agent in respect of
the Revolving Credit Priority Collateral, in an amount equal to the amount
thereof so advanced or paid by such Secured Creditor,


 


(ii)                                  SECOND, to the payment of the then unpaid Revolving Credit
Obligations (after giving pro forma effect to any substantially simultaneous
application of Proceeds of Term Loan Priority Collateral to satisfaction of the
Revolving Credit Obligations), until Paid in Full,


 


35

















 


(iii)                               THIRD, to the payment of the then unpaid Term Loan
Obligations, until Paid in Full,


 


(iv)                              FOURTH, to the payment of the Existing Notes Obligations then
due and owing, and


 


(v)                                 FIFTH, to the Company and the other Obligors or their
successors or assigns, as their interests may appear, or to whosoever may be
lawfully entitled to receive the same or as a court of competent jurisdiction
may direct.


 


Section 4.                                            Covenants


 


4.1                                 Amendment of Term Loan Credit Documents.  The Term Loan
Creditors may at any time and from time to time and without consent of or
notice to the Revolving Agent or any other Revolving Creditor or the Existing
Notes Agent or any other Existing Notes Creditor, without incurring any
liability to the Revolving Agent or any other Revolving Creditor or the
Existing Notes Agent or any other Existing Notes Creditor, and without
impairing or releasing any rights or obligations hereunder or otherwise, amend,
restate, supplement, modify, substitute, Refinance, renew or replace any or all
of the Term Loan Credit Documents; provided, however, that Term
Loan Creditors agree, solely for the benefit of the Revolving Agent and the
other Revolving Creditors and not for the benefit of the Existing Notes
Creditors, that they shall not amend, restate, supplement, modify, substitute,
Refinance, renew or replace any or all of the Term Loan Credit Documents in any
manner that would violate the Term Loan Refinancing Conditions and shall not
impose any mandatory prepayments not in existence in the Term Loan Credit
Documents as in effect on the date hereof.


 


4.2                                 Amendments to Revolving Credit Documents.  The Revolving
Creditors may at any time and from time to time and without consent of or
notice to any Term Loan Creditor, without incurring any liability to the Term
Loan Agent or any other Term Loan Creditor and without impairing or releasing
any rights or obligations hereunder or otherwise, amend, restate, supplement,
modify, substitute, Refinance, renew or replace any or all of the Revolving
Credit Documents; provided, however, that the Revolving Creditors
agree, solely for the benefit of the Term Loan Agent and the other Term Loan
Creditors and not for the benefit of the Existing Notes Creditors, that they
shall not amend, restate, supplement, modify, substitute, Refinance, renew or
replace any or all of the Revolving Credit Documents in any manner that would
violate the Revolving Credit Refinancing Conditions.


 


4.3                                 Amendments to Existing Notes Documents.  The Existing Notes
Creditors may at any time and from time to time and without consent of or
notice to any Term Loan Creditor or Revolving Creditor, without incurring any
liability to the Term Loan Agent or any other Term Loan Creditor or the Revolving
Agent or any other Revolving Creditor and without impairing or releasing any
rights or obligations hereunder or otherwise, amend, restate, supplement,
modify, substitute, Refinance, renew or replace any or all of the Existing
Notes Documents; provided, however, that Existing Notes Creditors
shall not amend, restate, supplement, modify, substitute, Refinance, renew or
replace any or all of the Existing Notes Documents in any manner that would
violate the Existing Notes Refinancing Conditions.


 


36

















 


4.4                                 Enforcement Actions by Junior Secured Creditors.  Each Junior Secured
Creditor shall give the Priority Secured Creditor at least 10 Business Days’
written notice prior to taking any Enforcement Action as to any Collateral
that, as to such Junior Secured Creditor, is Non-Priority Collateral, which
notice may be given during the pendency of any Standstill Period.  Notwithstanding the foregoing, the Existing
Notes Creditors shall not take any Enforcement Action as to any Collateral
prior to Payment in Full of all Revolving Credit Obligations and all Term Loan
Obligations.


 


4.5                                 Legend; Authority.  Term Loan Agent and Revolving Agent and
Existing Notes Agent agree to cause Term Loan
Credit Agreement, the Revolving Credit Agreement and the Existing Notes
Indenture, respectively, and each
related mortgage and each other security document, to contain the following
legend:


 


“THIS
[AGREEMENT][INDENTURE] AND THE RIGHTS OF THE PARTIES HEREUNDER ARE SUBJECT TO
THE PROVISIONS OF THE OMNIBUS INTERCREDITOR AGREEMENT DATED AS OF [                                    ],
20[    ], BETWEEN [                      ]
AND THE OTHER CREDITORS PARTY THERETO FROM TIME TO TIME, AND THE [COMPANY AND
THE GUARANTORS][COMPANY AND THE OTHER [GRANTORS][OBLIGORS]], AS AMENDED OR
OTHERWISE MODIFIED FROM TIME TO TIME IN ACCORDANCE WITH THE PROVISIONS THEREOF.”


 


Notwithstanding
the foregoing, if the jurisdiction in which any of the foregoing documents will
be filed prohibits the inclusion of any language above or would prevent a
document containing any such language from being recorded, the parties hereto,
agree, prior to such document being entered into, to negotiate in good faith
replacement language stating that the Liens granted under such document are
subject to the provisions of this Agreement.


 


Term Loan
Agent and Revolving Agent and Existing Notes Agent agree to cause the Term Loan
Credit Agreement, the Revolving Credit Agreement and the Existing Notes
Indenture, respectively, to contain the following provision:


 


“The
[Lenders][Holders][other applicable term], [by their acceptance of the
[Notes]][by their execution and delivery hereof], hereby irrevocably authorize
and direct the [Agent][Trustee][other applicable term] to enter into the
Omnibus Intercreditor Agreement [as defined herein] on behalf of the
[Agent][Trustee][other applicable term] and the [Lenders][Holders][other
applicable term], and agree to be bound by the provisions thereof as if they
were direct signatories thereof, and to take all actions required to be taken
by them in accordance with the provisions thereof, and to otherwise comply
therewith, and irrevocably authorize and direct the [Agent][Trustee][other
applicable term] to take all actions on its or the [Lenders’][Holders’][other
applicable term] behalf as are necessary to comply with the provisions thereof.  The rights
and remedies of the [Agent][Trustee][other applicable term], on behalf of the
[Lenders][Holders][other applicable term], under this [Agreement][Indenture]
shall be subject to the Omnibus Intercreditor Agreement as in effect from time
to time.  In the event of any conflict
between the terms of the Omnibus Intercreditor Agreement and this
[Agreement][Indenture], the terms of the Omnibus Intercreditor Agreement shall govern
and control.”


 


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Section 5.                                            Purchase
Options


 


5.1                                 Term Loan Agent Purchase Option.


 


(a)                                  Purchase Notice.  The Term Loan Creditors, acting through the
Term Loan Agent as a single group, shall have the option to purchase from the
Revolving Agent all but not less than all of the Revolving Credit Obligations
at any time following the (i) acceleration of the Revolving Credit
Obligations or termination of the commitment thereunder, (ii) the first
commencement of an Enforcement Action by Revolving Agent with respect to a
material portion of the Revolving Credit Priority Collateral or (iii) the
commencement of any Insolvency Proceeding. 
The Revolving Agent shall promptly deliver to the Term Loan Agent notice
of the first to occur of the events described in clauses (i), (ii) or (iii) of
this paragraph (a).  The Term Loan Agent
(on behalf of the exercising Term Loan Creditors (the “Revolving
Credit Obligations Purchaser”)) shall exercise this option by giving
written notice (the “Term Loan  Agent’s Purchase Notice”) of its election to the Revolving
Agent within ten (10) Business Days following the delivery to the Term
Loan Agent of such notice.  The Term Loan
Agent’s Purchase Notice, once delivered, shall be irrevocable and shall not be
subject to withdrawal or rescission.


 


(b)                                 Purchase Option Closing.  On the date specified by Term Loan Agent in
the Term Loan Agent’s Purchase Notice (which shall not be less than 3 Business
Days nor more than 15 Business Days after delivery to the Revolving Agent of
the Term Loan Agent’s Purchase Notice) (the “Revolver
Purchase Option Closing Date”),
Revolving Creditors shall sell to Revolving Credit Obligations Purchaser and
the Revolving Credit Obligations Purchaser shall purchase from Revolving
Creditors the Revolving Credit Obligations, without recourse, representation or
warranty  (except as set forth in Section 5.1(e) below).


 


(c)                                  Purchase Price.  Such purchase and sale shall be made by
execution and delivery by the applicable parties of an assignment agreement in
form and substance reasonably satisfactory to all such parties.  On the Revolving Purchase Option Closing
Date, the Revolving Credit Obligations Purchaser  shall
(i) pay to the Revolving Agent as the purchase price an amount equal to
100% of the Revolving Credit Obligations outstanding on the date of payment to
Revolving Agent (including, without limitation, all unpaid interest, fees and
any other charges accruing after the commencement of a bankruptcy, insolvency
or liquidation proceeding, to the extent such amounts are allowed or are
recoverable pursuant to Section 506 of the Bankruptcy Code or otherwise)
other than Revolving Credit Obligations cash collateralized in accordance with clause
(ii) below, then outstanding and unpaid, (ii) furnish cash
collateral to Revolving Agent in such amounts as Revolving Agent determines is
reasonably necessary to secure Revolving Agent in connection with any issued
and outstanding Letters of Credit constituting Revolving Credit Obligations
(but not in any event in an amount greater than 105% of the aggregate undrawn
amount of such Letters of Credit) and any costs, expenses and indemnification
obligations not yet due and payable but with respect to which a claim has been
threatened or asserted in writing under any Obligation Document, (iii) agree
to reimburse Revolving Creditors for any loss, cost, damage or expense
(including reasonable attorneys’ fees and legal expenses) in connection with
any commissions, fees, costs or expenses related to any issued and outstanding
letters of credit and any checks or other payments provisionally credited to
the Revolving Credit Obligations, and/or as to which Revolving Creditors have
not yet received final payment and (iv) assume any then existing loan commitment
thereunder. The


 


38

















 


purchase
price shall be remitted by wire transfer or immediately available funds to such
bank account of the Revolving Agent as the Revolving Agent may designate in
writing to Term Loan Agent for such purpose. 
Interest shall be calculated to but excluding the Business Day on which
such purchase and sale shall occur if the amounts so paid by the Revolving
Credit Obligations Purchaser to the bank account designated by the Revolving
Agent are received in such bank account prior to 2:00 p.m. New York
time.  Subject to the provisions of Section 5.1(d),
following the consummation of such purchase, the Revolving Credit Obligations
Purchaser shall be entitled to all rights and benefits under the Revolving
Credit Documents to which the Revolving Creditors were entitled immediately
prior to consummation of such purchase, including the right to receive fee
income, expense reimbursement and indemnification.  All cash collateral and other amounts
delivered or paid pursuant to clause (ii) of the preceding sentence in
excess of amounts finally determined to be necessary to satisfy all
reimbursements, costs, expenses and indemnification obligations owing in
respect of items referred to in such clause (ii) shall be repaid to the
Revolving Credit Obligations Purchaser for distribution pro rata to the Persons
who paid such amounts to the Revolving Agent pursuant to such clause (ii).


 


(d)                                 Survival of Indemnification Rights; Excess Revolving Credit
Obligations.  Notwithstanding the foregoing provisions of
this Section 5.1, (i) no sale of the Revolving Credit
Obligations shall terminate or impair any Obligor’s obligations to indemnify
the Revolving Creditors pursuant to the Revolving Credit Documents, all of
which indemnity obligations shall survive any such sale or assignment as an
unsecured obligation of such Obligor; (ii) as between any Obligor and the
Revolving Creditors, no such indemnification obligations shall be amended or
modified without the Revolving Agent’s prior written consent; and (iii) Revolving
Creditors shall retain all rights under the Revolving Credit Documents with
respect to Excess Revolving Credit Obligations, but shall have no right to
exercise any such rights until all Revolving Credit Obligations and Term Loan
Obligations have been Paid in Full, unless the Term Loan Agent shall otherwise
agree and any such exercise must otherwise comply with the terms of this
Agreement.


 


(e)                                  Representations and Warranties.  Such purchase and sale shall be expressly
made with the following representations and warranties by the Revolving
Creditors:  (i)  the amount of the
Revolving Credit Obligations being purchased (including the principal of and
accrued and unpaid interest on and fees, including breakage fees and other
charges in connection with, such Revolving Credit Obligations), and the extent
of any existing loan commitment thereunder, (ii) that the Revolving
Creditors own the Revolving Credit Obligations being purchased free and clear
of any liens granted by the Revolving Creditors or Revolving Agent, and (iii) the
Revolving Creditors have the full right and power to assign the Revolving
Credit Obligations being purchased and such assignment has been duly authorized
by all necessary action by Revolving Agent.


 


(f)                                    Early Termination Fee.  If any early termination fee, prepayment
premium, yield maintenance or similar fee is provided for under the Revolving
Credit Documents at the time of the purchase and sale under this Section 5.1
but is not yet due and payable under the Revolving Credit Documents and
otherwise due as part of the purchase price under Section 5.1(c),
Term Loan Creditors agree not to modify or reduce such fee and, if such fee
becomes due and payable within 90 days after such purchase and sale, Term Loan
Creditors


 


39

















 


shall remit
such fee to Revolving Agent as and when such fee is paid by Company or such
other Obligors.


 


5.2                                 Revolving Agent Purchase Option


 


(a)                                  Purchase Notice.  Revolving Creditors shall have the option to
purchase from the Term Loan Creditors all but not less than all of the Term
Loan Obligations at any time following (i) Term Loan Agent or Term Loan
Creditors have accelerated the maturity of all or a material portion of the
Term Loan Obligations, (ii) the commencement of an Enforcement Action by
Term Loan Agent with respect to a material portion of the Term Loan Priority
Collateral, (iii) the commencement of any Insolvency Proceeding, or (iv) the
extension of the final maturity date of the Term Loan Obligations.  The Term Loan Agent shall promptly deliver to
the Revolving Agent notice of the first to occur of the events described in
clauses (i), (ii), (iii) or (iv) of this paragraph (a). Revolving
Agent (on behalf of the exercising Revolving Creditors (the “Term  Obligations Purchaser”))
shall exercise this option by giving written notice (the “Revolving
Agent’s  Purchase Notice”)
of its election to Term Loan Agent within ten (10) Business Days following
the delivery of such notice.  The
Revolving Agent’s Purchase Notice, once delivered, shall be irrevocable and
shall not be subject to withdrawal or rescission.


 


(b)                                 Purchase Option Closing.  On the date specified by Revolving Agent in
the Purchase Notice (which shall not be less than 3 Business Days nor more than
15 Business Days after delivery to the Term Loan Agent of the Revolving Agent’s
Purchase Notice) (the “Term Loan Purchase Option
Closing Date”), Term Loan Creditors shall sell to the Term
Obligations Purchaser, and Term Obligations Purchaser shall purchase from Term
Loan Creditors the Term Loan Obligations, without recourse, representation or
warranty  (except as set forth in Section 5.2(e) below).


 


(c)                                  Purchase Price.  Such purchase and sale shall be made by
execution and delivery by the applicable parties of an assignment agreement in
form and substance reasonably satisfactory to all such parties.  On the Term Loan Purchase Option Closing
Date, the Term Obligations Purchaser shall (i) pay to the Term Loan Agent,
for the benefit of the Term Loan Creditors, as the purchase price an amount
equal to 100% of the Term Loan Obligations outstanding on the date of payment
to Term Loan Agent (including, without limitation, all unpaid interest, fees
and any other charges accruing after the commencement of a bankruptcy,
insolvency or liquidation proceeding, to the extent such amounts are allowed or
are recoverable pursuant to Section 506 of the Bankruptcy Code or
otherwise) other than Term Loan Obligations cash collateralized in accordance
with clause (ii) below, then outstanding and unpaid and (ii) furnish
cash collateral to Term Loan Agent in such amounts as Term Loan Agent
determines is reasonably necessary to secure Term Loan Agent in connection with
any Term Loan Hedging Obligation and any costs, expenses and indemnification
obligations not yet due and payable but with respect to which a claim has been
threatened or asserted in writing under any Obligation Document. The purchase
price shall be remitted by wire transfer or immediately available funds to such
bank account of the Term Loan Agent, for the benefit of the Term Loan
Creditors, as Term Loan Agent may designate in writing to Revolving Agent for
such purpose.  Interest shall be calculated
to but excluding the Business Day on which such purchase and sale shall occur
if the amounts so paid by the Term Obligations Purchaser to the bank account
designated by Term Loan Agent are received in such bank account prior to 2:00 p.m.
New York time.  Subject to the


 


40

















 


provisions
of Section 5.2(d), following the consummation of such purchase, the
Term Obligations Purchaser shall be entitled to all rights and benefits under
the Term Loan Credit Documents to which the Term Loan Creditors were entitled
immediately prior to consummation of such purchase, including the right to
receive fee income, expense reimbursement and indemnification.  All cash collateral and other amounts
delivered or paid pursuant to clause (ii) of the preceding sentence in
excess of amounts finally determined to be necessary to satisfy all
reimbursements, costs, expenses and indemnification obligations owing in
respect of items referred to in such clause (ii) shall be repaid to the
Term Obligations Purchaser for distribution pro rata to the Persons who paid
such amounts to the Term Loan Agent pursuant to such clause (ii).


 


(d)                                 Survival of Indemnification Rights; Excess Term Loan
Obligations.  Notwithstanding the foregoing provisions of
this Section 5.2, (i) no sale of the Term Loan Obligations
shall terminate or impair any Obligor’s obligations to indemnify the Term Loan
Creditors pursuant to the Term Loan Credit Documents, all of which indemnity
obligations shall survive any such sale or assignment as an unsecured
obligation of such Obligor; (ii) as between any Obligor and the Term Loan
Creditors, no such indemnification obligations shall be amended or modified
without Term Loan Creditors prior written consent; and
(iii) Term Loan Creditors shall retain all rights under the Term Loan
Credit Documents with respect to Excess Term Obligations but shall have no
right to exercise any such rights until all Term Loan Obligations and Revolving
Credit Obligations have been Paid in Full, unless Revolving Agent shall
otherwise agree, and any such exercise must otherwise comply with the terms of
this Agreement.


 


(e)                                  Representations and Warranties.  Such purchase and sale shall be made without
representation or warranty of any kind by Term Loan Creditors and without
recourse to Revolving Agent, except for the following representations and
warranties by the Term Loan Creditors:  (i) 
the amount of the Term Loan Obligations being purchased (including the
principal of and accrued and unpaid interest on and fees, including other
charges in connection with, such Term Loan Obligations), and the extent of any
existing loan commitment thereunder, (ii) that the Term Loan Creditors own
the Term Loan Obligations being purchased free and clear of any liens granted
by the Term Loan Creditors or Term Loan Agent, and (iii) each of the Term
Loan Creditors has the full right and power to assign the Term Loan Obligations
being purchased and such assignment has been duly authorized by all necessary
action by the Term Loan Creditors.


 


(f)                                    Early Termination Fee.  If any early termination fee, prepayment
premium, yield maintenance or similar fee is provided for under the Term Loan
Credit Documents at the time of the purchase and sale under this Section 5.2
but is not yet due and payable under the Term Loan Credit Documents and
otherwise due as part of the purchase price under Section 5.2(c),
the Revolving Creditors agree not to modify or reduce such fee and, if such fee
becomes due and payable within 90 days after such purchase and sale, Revolving
Creditors shall remit such fee to the Term Loan Agent as and when such fee is
paid by Company or such other Obligors.


 


5.3                                 Existing Notes Purchase Option.  Existing
Notes Creditors shall not have any option to purchase from the Term Loan
Creditors or the Revolving Creditors any of the Term Loan Obligations or the
Revolving Credit Obligations, respectively, at any time.


 


41

















 


Section 6.                                            Bankruptcy
Matters.


 


6.1                                 Post Petition Financing; Cash Collateral.


 


(a)                                  If any Obligor or Obligors shall become subject to Insolvency
Proceedings and such Obligor or Obligors as debtor(s)-in-possession (or a
trustee appointed on behalf of such Obligor or Obligors) shall move for
approval of financing (“DIP Financing”)
to be provided by one or more of the Revolving Creditors (or to be provided by
another person or group with the consent of the Revolving Agent) under the
Bankruptcy Code (“Revolving Creditor DIP Financing”) or the use of cash
collateral that is Revolving Credit Priority Collateral (“Revolver
Cash Collateral”) with the consent (or non-objection) of the
Revolving Creditors under the Bankruptcy Code, and the Revolving Agent on
behalf of the Revolving Creditors consents (or does not object) to such use of
Revolver Cash Collateral or Revolving Creditor DIP Financing, then subject to Section 6.2,
the Term Loan Creditors and the Existing Notes Creditors
agree as follows:


 


(i)                                     adequate notice to Term Loan Creditors and the Existing Notes
Creditors for such Revolving Creditor DIP Financing or use of Revolver
Cash Collateral shall be deemed to have been given to the Term Loan Creditors
and the Existing Notes Creditors if the Term Loan Agent and
the Existing Notes Agent, as applicable, receives at least 5 Business Days
notice in advance of the hearing to approve such Revolving Creditor DIP
Financing or Revolver Cash Collateral on an interim basis and at least 15 days
in advance of the hearing to approve such Revolving Creditor DIP Financing or
use of Revolver Cash Collateral on a final basis,


 


(ii)                                  subject to the satisfaction of the conditions in clause
(iii)(A), (B) and (C) below, such Revolving Creditor DIP Financing
(and any Revolving Credit Obligations which arose prior to the Insolvency
Proceeding) may be secured by Liens on all or a part of the Revolving Credit
Priority Collateral which shall be superior in priority to the Liens on the
Revolving Credit Priority Collateral held by any other Person (or pari passu in priority with the Liens of the Revolving
Creditors in the Revolving Credit Priority Collateral securing the Revolving
Credit Obligations and senior to the Liens on the Revolving Credit Priority
Collateral of any other Person), and


 


(iii)                               so long as (A) the aggregate principal amount of loans
and letter of credit obligations outstanding under any such Revolving Creditor
DIP Financing, together with the outstanding principal amount of the
pre-petition Revolving Credit Obligations, does not exceed the Maximum
Revolving Credit Principal Amount plus $3,000,000, (B) the
Term Loan Creditors and the Existing Notes Creditors
retain a Lien on the Revolving Credit Priority Collateral (including proceeds
thereof arising after the commencement of such proceeding) with the same
priority as existed prior to the commencement of the case under the Bankruptcy
Code or similar Bankruptcy Law (junior in priority as to Revolving Credit
Priority Collateral securing such Revolving Creditor DIP Financing and junior
in priority as to Revolving Credit Priority Collateral securing the Revolving
Credit Obligations, including Senior Adequate Protection Liens and junior to
any “carve-out” agreed to by the Revolving Agent or other Revolving Creditors
(and in the case of the Existing Notes Creditors junior in priority as to


 


42

















 


Revolving Credit Priority
Collateral to the Liens thereon securing the Term Loan Obligations)) and (C) the
Term Loan Creditors and the Existing Notes Creditors
receive a replacement Lien on post-petition assets, with the same priority as
existed prior to the commencement of the case under the Bankruptcy Code or
similar Bankruptcy Law (junior in priority to the Liens securing such Revolving
Creditor DIP Financing, to any such “carve-out” and to the existing Liens in
favor of the Revolving Agent on the Revolving Credit Priority Collateral, and
in the case of the Existing Notes Creditors junior in priority to the Liens on
the Revolving Credit Priority Collateral securing the Term Loan Obligations),


 


(1)                                  the Term Loan Creditors and the Existing Notes Creditors will not request or accept adequate protection or any other
relief in connection with the use of such Revolver Cash Collateral or the Liens
on Revolving Credit Priority Collateral securing such Revolving Creditor DIP
Financing except as set forth in Section 6.2 below,


 


(2)                                  the Term Loan Creditors and the Existing Notes Creditors will subordinate (and will be deemed hereunder to have
subordinated) their Liens in their Non-Priority Collateral (X) to the
Liens securing such Revolving Creditor DIP Financing on the same terms (but on
a basis junior to the Liens in Priority Collateral of the Revolving Creditors
and, in the case of the Existing Loan Creditors, to the Liens of the Term Loan
Creditors in such Revolving Credit Priority Collateral) as the Liens of the
Revolving Creditors in their Priority Collateral are subordinated thereto (and,
in the case of the Existing Loan Creditors, to the Liens of the Term Loan
Creditors in such Revolving Credit Priority Collateral) (except that if the
Liens securing such Revolving Creditor DIP Financing are to be pari passu in priority with the Liens of the Revolving
Creditors in the Revolving Credit Priority Collateral securing the Revolving
Credit Obligations, the Term Loan Creditors and the Existing Notes Creditors shall nonetheless subordinate their Liens in such
Non-Priority Collateral to such Liens (and, in the case of the Existing Loan
Creditors, to the Liens of the Term Loan Creditors in such Revolving Credit
Priority Collateral) and such subordination will not alter in any manner the
terms of this Agreement), (Y) to any Senior Adequate Protection Liens or “replacement
Liens” granted to the Revolving Creditors (and, in the case of the Existing
Loan Creditors, to any Senior Adequate Protection Liens or “replacement Liens” granted
to the Term Loan Creditors) as adequate protection of their interests in their
Priority Collateral (or, in the case of the Term Loan Creditors in relation to
the Existing Notes Creditors, as adequate protection of the Term Loan Creditors’
interests in any Collateral), and (Z) to any “carve-out” in an aggregate
amount agreed to by the Revolving Agent or the other Revolving Creditors , provided
that such “carve-out” shall be applied to the Revolving Credit Priority
Collateral, whether such Collateral existed before or after the petition date,
and


 


(3)                                  the Term Loan Creditors and the Existing Notes Creditors (X) shall
not contest or oppose in any manner, any Revolving Creditor DIP Financing, or
any Revolver Cash Collateral use or any adequate protection


 


43
















 


provided to the Revolving Creditors
as adequate protection of their interests in their Priority Collateral, (Y) shall
be deemed to have waived any objections to such adequate protection, Revolving
Creditor DIP Financing or Revolver Cash Collateral use, including, without limitation, any objection alleging Obligors’ failure
to provide “adequate protection” of the interests of the Term Loan Creditors or
the Existing Notes Creditors and (Z) shall be deemed to have consented to
the carve-out and to the subordination of the Liens of the Term Loan Agent and
the Existing Notes Agent in the Revolving Credit Priority Collateral that
secures the Revolving Credit DIP Financing, in each case pursuant to clause (2) above.


 


(b)                                 If any Obligor or Obligors shall become subject to Insolvency
Proceedings and such Obligor or Obligors as debtor(s)-in-possession (or a
trustee appointed on behalf of such Obligor or Obligors) shall move for
approval of DIP Financing to be provided by one or more of the Term Loan Creditors or by a third
party under the Bankruptcy Code (“Term Loan Creditor DIP Financing”) or the
use of cash collateral that is Term
Loan Priority Collateral (“Term Loan Cash Collateral”)
with the consent (or non-objection) of the Term Loan Creditors under the Bankruptcy Code, and the Term Loan
Agent on behalf of the Term Loan Creditors consents (or does not object) to
such use of the Term Loan Cash Collateral or Term Loan Creditor DIP Financing,
then subject to Section 6.2,
the Revolving Creditors and the Existing Notes Creditors agree as follows:


 


(i)                                     adequate notice to Revolving Creditors and the Existing Notes
Creditors for such Term Loan Creditor DIP Financing or use of Term Loan Cash Collateral shall be
deemed to have been given to the Revolving Creditors and the Existing Notes
Creditors if the Revolving Agent and the and the Existing Notes Agent receives
notice at least 5 Business Days in advance of the hearing to approve such Term Loan Creditor DIP Financing or Term Loan Cash Collateral on an
interim basis and at least 15 days in advance of the hearing to approve such Term Loan Creditor DIP Financing or
use of Term Loan Cash Collateral
on a final basis,


 


(ii)                                  subject to the satisfaction of the conditions in clause
(iii)(A), (B) and (C) below, such Term Loan Creditor DIP Financing (and any Term Loan Obligations which arose prior to the Insolvency
Proceeding) may be secured by Liens on all or a part of the Term Loan Priority Collateral which
shall be superior in priority to the Liens on the Term Loan Priority Collateral held by any other Person (or pari passu in priority with the Liens of the Term Loan
Priority Collateral securing the Term Loan Liens and senior to the Liens of any
other Person), and


 


(iii)                               so long as (A) the aggregate principal amount of loans
and letter of credit accommodations outstanding under any such Term Loan Creditor DIP Financing,
together with the outstanding principal amount of the pre-petition Term Loan Obligations, does not exceed
the Maximum Term Loan Principal
Amount plus $20,000,000, (B) the
Revolving Creditors and the Existing Notes Creditors retain a Lien on the Term Loan Priority Collateral
(including proceeds thereof arising after the commencement of such proceeding)
with the same priority as existed prior to the commencement of the case under
the Bankruptcy Code or similar Bankruptcy Law 


 


44

















 


(junior in priority as to Term Loan Priority Collateral securing
such Term Loan Creditor DIP
Financing or Term Loan Obligations,
including Senior Adequate Protection Liens and junior to any “carve-out” agreed
to by the Term Loan Agent or
other Term Loan Creditors (and
in the case of the Existing Notes Creditors junior in priority as to Term Loan
Priority Collateral to the Liens thereon securing the Revolving Credit
Obligations)) and (C) the Revolving Creditors and the Existing Notes Creditors receive a replacement Lien on post-petition assets, with the
same priority as existed prior to the commencement of the case under the
Bankruptcy Code or similar Bankruptcy Law (junior in priority to the Liens
securing such Term Loan Creditor
DIP Financing, to any such “carve-out” and to the existing Liens in favor of
the Term Loan Agent on the Term Loan Priority Collateral (and in
the case of the Existing Notes Creditors junior in priority to the Liens on the
Term Loan Priority Collateral securing the Revolving Credit Obligations)),


 


(1)                                  the Revolving Creditors and the Existing Notes Creditors will not request or accept adequate protection or any other
relief in connection with the use of such Term Loan Cash Collateral or the Liens on Term Loan Priority Collateral securing such Term Loan Creditor DIP Financing
except as set forth in Section 6.2 below,


 


(2)                                  the Revolving Creditors and the Existing Notes Creditors will subordinate (and will be deemed hereunder to have
subordinated) their Liens in their Non-Priority Collateral (X) to the
Liens securing such Term Loan Creditor
DIP Financing on the same terms (but on a basis junior to the Liens in Priority
Collateral of the Term Loan Creditors
and, in the case of the Existing Loan Creditors, to the Liens of the Revolving
Creditors in such Term Loan Priority Collateral) as the Liens of the Term Loan Creditors in their Priority
Collateral are subordinated thereto (and, in the case of the Existing Loan
Creditors, to the Liens of the Revolving Creditors in such Term Loan Priority
Collateral)(except that if the Liens securing such Term Loan Creditor DIP
Financing are to be pari passu in
priority with the Liens of the Term Loan Creditors in the Term Loan Priority
Collateral securing the Term Loan Obligations, the Revolving Creditors and the
Existing Notes Creditors shall nonetheless subordinate their Liens in such
Non-Priority Collateral to such Liens (and, in the case of the Existing Loan
Creditors, to the Liens of the Revolving Creditors in such Term Loan Priority
Collateral) and such subordination will not alter in any manner the terms of
this Agreement), (Y) to any Senior Adequate Protection Liens or “replacement
Liens” granted to the Term Loan Creditors
as adequate protection of their interests in their Priority Collateral (or, in
the case of the Revolving Creditors in relation to the Existing Notes
Creditors, as adequate protection of the Revolving Creditors’ interests in any
Collateral), and (Z) to any “carve-out” agreed to by the Term Loan Agent or the other Term Loan Creditors, provided
that such “carve-out” shall be applied to the Term Loan Priority Collateral,
whether such Collateral existed before or after the petition date, and


 


(3)                                  the Revolving Creditors (X) shall not contest or oppose
in any manner any Term Loan Creditor
DIP Financing, or any Term Loan Cash
Collateral use or any adequate protection provided to the Term Loan Creditors as 


 


45

















 


adequate protection of their
interests in their Priority Collateral, (Y) shall be deemed to have waived
any objections to such adequate protection, Term Loan Creditor DIP Financing or Term Loan Cash Collateral use, including, without limitation, any objection alleging Obligors’ failure
to provide “adequate protection” of the interests of the Revolving Creditors or
the Existing Notes Creditors and (Z) shall
be deemed to have consented to the carve-out and to the subordination of the Liens
of the Revolving Agent and the Existing Notes Agent in the Term Loan Priority Collateral that
secures the Term Loan Creditor DIP Financing, in each case pursuant to clause (2) above.


 


(c)                                  The Term Loan Creditors shall not, directly or indirectly,
offer to provide, support any other Person in providing, provide or seek to
provide DIP Financing secured by Liens equal or senior to the Liens on the
Revolving Credit Priority Collateral securing the Revolving Credit Obligations,
without the prior written consent of the Revolving Agent.  In no event will any of the Term Loan
Creditors seek to obtain a priming Lien on any of the Revolving Credit Priority
Collateral and nothing contained herein shall be deemed to be a consent by
Revolving Creditors to any adequate protection payments using Revolving Credit
Priority Collateral. The Revolving Creditors shall not, directly or indirectly,
offer to provide, support any other Person in providing, provide or seek to
provide DIP Financing secured by Liens equal to or senior to the Liens on the
Term Loan Priority Collateral securing the Term Loan Obligations, without the
written consent of the Term Loan Agent. 
In no event will any of the Revolving Creditors seek to obtain a priming
Lien on any of the Term Loan Priority Collateral and nothing contained herein
shall be deemed to be a consent by Term Loan Creditors to any adequate
protection payments using Term Loan Priority Collateral.  The Existing Notes Creditors shall not,
directly or indirectly, offer to provide, support any other Person in
providing, provide or seek to provide DIP Financing secured by Liens equal or
senior to the Liens on any Collateral securing the Revolving Credit Obligations
or the Term Loan Obligations, In no event will any of the Existing Notes Creditors
seek to obtain a priming Lien on any of the Collateral and nothing contained
herein shall be deemed to be a consent by Term Loan Creditors or the Revolving
Creditors to any adequate protection payments in favor of the Existing Notes
Creditors, or in respect of their Liens on any Collateral, using any of the
Collateral.


 


6.2                                 Adequate Protection.  Notwithstanding the foregoing provisions in
this Section 6, in any Insolvency Proceeding, if any Priority
Secured Creditor (or any subset thereof) is granted adequate protection in
respect of its interests in its Priority Collateral (a “Senior
Adequate Protection Lien”) in the form of a replacement Lien, the
Junior Secured Creditors (other than any Existing Notes Creditors) may seek
(and the Priority Secured Creditors may not oppose) adequate protection of the
interests of the Junior Secured Creditors in such Priority Collateral in the
form of (i) a replacement Lien on the additional collateral subject to the
Senior Adequate Protection Liens (the “Junior Adequate Protection
Liens”), which Junior Adequate Protection Liens, if granted, will be
subordinate to all Liens (other than Liens (including Senior Adequate
Protection Liens) on Collateral that, as to such Junior Secured Creditor, is
its Priority Collateral, in which the Liens of the Junior Secured Creditor
shall remain senior, and, for clarity, other than any Liens securing the
Existing Notes Obligations) securing the Priority Obligations (including,
without limitation, the Senior Adequate Protection Liens and any “carve-out”
agreed to by the Priority Secured Creditors and any Liens securing
debtor-in-possession financing (whether or not constituting DIP Financing)) on
the same basis as the other Liens of the Junior 


 


46

















 


Secured
Creditor on the Priority Secured Creditor’s Priority Collateral securing the
Junior Obligations are so subordinated under this Agreement (provided
that any failure of the Term Loan Creditors or Revolving Creditors to obtain
such Junior Adequate Protection Liens shall not impair or otherwise affect the
agreements, undertakings and consents of the Term Loan Creditors or Revolving
Creditors pursuant to Section 6.1) and (ii) superpriority
claims under Section 507(b) of the Bankruptcy Code junior in all
respects to the superpriority claims granted under Section 507(b) of
the Bankruptcy Code to the Priority Secured Creditors on account of any of the
Priority Obligations or granted under Section 364(c)(1) of the
Bankruptcy Code with respect to any debtor-in-possession financing (whether or
not constituting DIP Financing) or use of its cash collateral (e.g. Revolver
Cash Collateral or Term Loan Cash Collateral, as applicable); provided
that the inability of the Junior Secured Creditors to receive a Lien on actions
under Chapter 5 of the Bankruptcy Code or proceeds thereof shall not affect the
agreements and waivers set forth in this Section 6.2.  No Existing Notes Creditors shall seek any
Junior Adequate Protection Liens or other adequate protection or replacement
liens, or any superpriority claims under Section 507(b) of the
Bankruptcy Code, in respect of the interests of the Existing Notes Creditors in
any Collateral


 


6.3                                 Sale of Collateral; Waivers.


 


(a)                                  In any Insolvency Proceeding, the Junior Secured Creditors
agree that they will not object to or oppose a Disposition of any Collateral
that, as to such Junior Secured Creditor, is Non-Priority Collateral, free and
clear of Liens or other claims under Section 363 of the Bankruptcy Code or
any other provision of the Bankruptcy Code, if the Priority Secured Creditors
with respect to such Collateral have consented to such Disposition.  No Junior Secured
Creditor shall  initiate or prosecute or join
with any other Person to initiate or prosecute any claim, action or other
proceeding, take any position at any hearing or proceeding of any nature, or
otherwise take any action whatsoever including, without limitation, (i) challenging
the enforceability, validity, priority (on terms inconsistent with this Agreement)
or perfected status of any Liens on any Collateral securing the Priority
Obligations of the Priority Secured Creditors under the applicable Obligation
Documents, (ii) asserting any claims which the Company or any other
Obligor may hold with respect to the Priority Secured Creditors, or (iii) determination of any other
Secured Creditor in respect of any Priority Collateral or the value of any
claims of such parties under Section 506(a) of the Bankruptcy Code or
otherwise.  No Secured Creditor will
assert a claim that challenges the perfection or validity of a Lien or
Obligations of another Secured Creditor that is based on allegations (x) of
fraudulent conveyance, unlawful payment of distributions to equity holders or
other like allegations, or (y) that could be asserted with comparable
merit against Liens, interests or rights of the Person asserting the claim.


 


(b)                                 Notwithstanding any other provision in this Agreement, any
Secured Creditor (other than any Existing Notes Creditor) may credit bid for
any assets that are subject to any Disposition in any Insolvency Proceeding in
accordance with Section 363(k) of the Bankruptcy Code; provided,
that (i) unless, prior to or in connection with a successful credit bid,
the Revolving Credit Obligations are Paid In Full, no Term Loan Creditor may
credit bid on any Revolving Credit Priority Collateral and (ii) unless,
prior to or in connection with a successful credit bid, the Term Loan
Obligations are Paid In Full, no Revolving Creditor may credit bid on any Term
Loan Priority Collateral .  No Existing
Notes Creditor may credit bid for any assets 


 


47

















 


that are
subject to any Disposition in any Insolvency Proceeding in accordance with Section 363(k) of
the Bankruptcy Code or otherwise.


 


6.4                                 Invalidated Payments.  To the extent that any Secured Creditor
receives payments on its Priority Obligations or Proceeds of Priority
Collateral for application to its Priority Obligations which are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
Bankruptcy Law, common law, equitable cause or otherwise (and whether as a
result of any demand, settlement, litigation or otherwise) (each a “Priority Claim Avoidance”), then to the extent of such
payment or Proceeds received, such Priority Obligations, or part thereof,
intended to be satisfied by such payment or Proceeds shall be revived and
continue in full force and effect as if such payments or Proceeds had not been
received by such Priority Secured Creditors, and this Agreement, if theretofore
terminated, shall be reinstated in full force and effect as of the date of such
Priority Claim Avoidance, and such prior termination shall not diminish,
release, discharge, impair or otherwise affect the Lien priorities and the
relative rights and obligations of the Priority Secured Creditors and the
Junior Secured Creditors provided for herein with respect to any event
occurring on or after the date of such Priority Claim Avoidance.  The Junior Secured Creditors further 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 shall instead be allocated and turned over for application in
accordance with the priorities set forth in this Agreement.


 


6.5                                 Payments.  Nothing in this Agreement prohibits or limits
the right of a Junior Secured Creditor (other than any Existing Notes Creditor)
to receive and retain any debt or equity securities that are issued by a
reorganized debtor in respect of its Lien in its Non-Priority Collateral
pursuant to a plan of reorganization or similar dispositive restructuring plan
in connection with an Insolvency Proceeding, provided that any debt
securities received by a Junior Secured Creditor to the extent on account of
its Junior Obligations in respect of its Non-Priority Collateral that
constitutes a “secured claim” within the meaning of Section 506(b) of
the Bankruptcy Code will be paid over or otherwise transferred to the Priority
Secured Creditor for application in accordance with Section 2.5, unless
such distribution is (x) made under a plan that is consented to by the
affirmative vote of all classes composed of the secured claims of Priority
Secured Creditors or (y) is of debt securities that (A) are secured
by a Lien on assets of the reorganized debtor which assets are, as to such
Junior Secured Creditor in its capacity as Priority Secured Creditor hereunder,
of the same character as its Priority Collateral hereunder, and (B) if
secured by assets that are of the same character as its Non-Priority Collateral
hereunder, such assets referred to in this clause (B) also secure debt
securities distributed to the Priority Secured Creditor in respect of its Lien
on such Collateral that is its Priority Collateral, and such Lien of the Junior
Secured Creditor referred to in this clause (B) is junior in priority to
the Lien of the Priority Secured Creditor in such assets to the same extent as
the Lien on its Non-Priority Collateral is junior to the Lien thereon of the
Priority Secured Creditor as provided herein, and in such case the provisions
of the next sentence shall govern.  If,
in an Insolvency Proceeding, debt securities 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 the Priority Secured Creditors’ Liens in their Priority Collateral
and on account of Junior Secured Creditors’ Liens in such Collateral, then, to
the extent the debt 


 


48

















 


securities
distributed on account of the Priority Secured Creditors’ Liens in their
Priority Collateral and on account of the Junior Secured Creditors’ Liens in
such Collateral are secured by Liens upon the same property, the provisions of
this Agreement will survive the distribution of such debt securities pursuant
to such plan and will apply with like effect to the Liens securing such debt
securities.  Notwithstanding the
foregoing, if any Existing Notes Creditor shall receive in respect of their
Lien on any Collateral any debt or equity securities that are issued by a
reorganized debtor pursuant to a plan of reorganization or similar dispositive
restructuring plan in connection with an Insolvency Proceeding, then unless
such distribution is made under a plan that is consented to by the affirmative
vote of all classes composed of the secured claims of Priority Secured
Creditors, all such debt or equity securities so received shall be paid or
delivered directly to Priority Secured Creditors (to be held and/or applied by
the Priority Secured Creditors in accordance with the terms of Section 3.8
hereof)


 


In the
event of any Insolvency Proceeding, except as otherwise provided above, all Proceeds
of Priority Collateral (including, without limitation, any Distribution which
would otherwise, but for the terms hereof, be payable or deliverable in respect
of the Junior Obligations as to such Priority Collateral) shall be paid or
delivered directly to Priority Secured Creditor (to be held and/or applied by
the Priority Secured Creditor in accordance with the terms of the applicable
Obligation Documents) until all Priority Obligations are Paid In Full before
any of the same shall be made to one or more of the Junior Secured Creditors on
account of any Junior Obligations, and each Junior Secured Creditor irrevocably
authorizes, empowers and directs any debtor, debtor in possession, receiver,
trustee, liquidator, custodian, conservator or other Person having authority,
to pay or otherwise deliver all such Distributions in respect of its Junior
Obligations to the Priority Secured Creditor. 
Each Junior Secured Creditor also irrevocably authorizes and empowers
the Priority Secured Creditors, in the name of each Junior Secured Creditor, to
demand, sue for, collect and receive any and all such Distributions in respect
of any Junior Obligations to which the Priority Secured Creditors are entitled
hereunder.


 


6.6                                 Separate Grants of Security and Separate Classification.  Each Secured
Creditor acknowledges and agrees that (a) the grants of Liens pursuant to
the Term Loan Credit Documents and the Revolving Credit Documents and the
Existing Notes Documents constitute three separate and distinct grants of Liens
and (b) because of their differing rights in the Collateral, the Revolving
Credit Secured Claims, the Term Loan Secured Claims and the Existing Notes
Secured Claims are fundamentally different and must be separately classified in
any plan of reorganization proposed or adopted in an Insolvency
Proceeding.  No Term Loan Creditor shall
seek in any Insolvency Proceeding to be treated as part of the same class of
creditors as the Revolving Creditors or the Existing Notes Creditors or shall
oppose any pleading or motion for the Revolving Creditors, the Existing Notes
Creditors and the Term Loan Creditors to be treated as separate classes of
creditors.  No Revolving Creditor shall
seek in any Insolvency Proceeding to be treated as part of the same class of
creditors as the Term Loan Creditors or the Existing Notes Creditors or shall
oppose any pleading or motion for the Revolving Creditors, the Existing Notes
Creditors and the Term Loan Creditors to be treated as separate classes of
creditors.  No Existing Notes Creditor
shall seek in any Insolvency Proceeding to be treated as part of the same class
of creditors as the Revolving Creditors or the Term Loan Creditors or shall
oppose any pleading or motion for the Revolving Creditors, the Existing Notes
Creditors and the Term Loan Creditors to be treated as separate classes of
creditors.  Notwithstanding the
foregoing, if it is held that the Revolving Credit Secured Claims and/or the
Existing Notes 


 


49

















 


Secured
Claims and/or the Term Loan Secured Claims in respect of the Collateral
constitute only one secured claim (rather than separate classes of secured
claims), then the Secured Creditors hereby acknowledge and agree that all
distributions shall be made as if there were separate classes of secured claims
against the Company and the other Obligors in respect of the Collateral, with
the effect being that, to the extent that the aggregate value of the Priority
Collateral exceeds the amount of the Priority Obligations, the Priority Secured
Creditors as to such Priority Collateral shall be entitled to receive to the
extent of such excess, 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, and fees, costs and charges incurred subsequent to
the commencement of the applicable Insolvency Proceeding to the extent
constituting Revolving Credit Obligations or Term Loan Obligations, as
applicable, in accordance with the other provisions hereof before any
distribution from such Priority Collateral is made in respect of any of the
claims held by the Junior Secured Creditors as to such Collateral.


 


6.7                                 Rights as Unsecured Lenders; Release of Lien in Non-Priority
Collateral.  In any Insolvency Proceeding, to the extent
not prohibited by this Agreement, each Secured Creditor may take any action,
file any pleading, appear in any proceeding and exercise rights and remedies
that could be taken by any unsecured creditor, in its capacity as such.


 


6.8                                 Relief From the Automatic Stay.  Until the Priority Obligations have been Paid
in Full, the Junior Secured Creditor agrees that it shall not, without the
prior written consent of the Priority Secured Creditor, seek or request relief
from or modification of the automatic stay or any other stay in any Insolvency
Proceeding in respect of any part of the Priority Collateral or any Proceeds
thereof; provided, that, in the event the Priority Secured Creditor
seeks or requests relief from or modification of the automatic stay or any
other stay in any Insolvency Proceeding in respect of its Priority Collateral,
the Priority Secured Creditor agrees that the Junior Secured Creditor may seek
or request similar relief to that sought by the Priority Secured Creditor, so
that the Junior Secured Creditor may seek to exercise its rights and remedies
under the Junior Documents and against such Collateral and Proceeds thereof
subject to the provisions of this Agreement.


 


6.9                                 Effect of Agreement in Bankruptcy.  This Agreement shall
be applicable both before and after the filing of any petition by or against
any Obligor under the Bankruptcy Code or any other Insolvency Proceeding and
all converted or succeeding cases in respect thereof, and all references herein
to any Obligor shall be deemed to apply to any trustee for such Obligor and
such Obligor as a debtor-in-possession. 
The relative rights of the Term Loan Creditors and the Revolving
Creditors and the Existing Notes Creditors in respect of any Collateral or Proceeds
thereof shall continue after the filing of such petition on the same basis as
prior to the date of such filing.  This
Agreement shall constitute a “subordination agreement” for the purposes of Section 510(a) of
the Bankruptcy Code and shall be enforceable in any Insolvency Proceeding in
accordance with its terms.


 


Section 7.                                            Representations
and Warranties.


 


The
Revolving Agent and the Term Loan Agent and the Existing Notes Agent each
represent and warrant to the other parties hereto that it is authorized under
the Revolving 


 


50

















 


Credit Agreement and the Term Loan Credit Agreement and the
Existing Notes Indenture, as the case may be, to enter into this Agreement.


 


Section 8.                                            Miscellaneous.


 


8.1                                 Termination.  Subject to Section 6.4 and
subject to Section 3.8, (i) this Agreement shall terminate as
to the Revolving Creditors (except for their obligations and agreements under Section 2,
Section 3.5, Section 3.8, and Section 8,
which shall continue in full force and effect) and be of no further force and
effect with respect to or for the benefit of the Revolving Creditors (except as
aforesaid) upon Payment in Full of the Revolving Credit Obligations, and (ii) this
Agreement shall terminate as to the Term Loan Creditors (except for their
obligations and agreements under Section 2,  Section 3.5,
Section 3.8, Section 8, which shall continue in full
force and effect) and be of no further force and effect with respect to or for
the benefit of the Term Loan Creditors (except as aforesaid) upon Payment in
Full of the Term Loan Obligations.


 


8.2                                 Successors and Assigns; No Third Party Beneficiaries.


 


(a)                                  This Agreement shall be binding upon each Secured Creditor
and its respective successors and assigns and shall inure to the benefit of
each Secured Creditor and its respective successors, participants and
assigns.  Except solely to the extent of
the Obligors’ rights to consent pursuant to and subject to the conditions in Section 8.7(b),
no other Person shall have or be entitled to assert rights or benefits
hereunder.


 


(b)                                 Each Secured Creditor reserves the right to grant
participations in, or otherwise sell, assign, transfer or negotiate all or any
part of, or any interest in, their respective Obligations; provided that
no Secured Creditor shall be obligated to give any notices to or otherwise in
any manner deal directly with any participant in the Obligations and no
participant shall be entitled to any rights or benefits under this Agreement,
except through the Secured Creditor with which it is a participant.


 


(c)                                  In connection with any participation or other transfer or
assignment, a Secured Creditor (i) may, subject to its respective
Obligation Documents, disclose to such assignee, participant or other
transferee or assignee all documents and information which such Secured
Creditor now or hereafter may have relating to any Obligor or the Collateral
and (ii) shall disclose to such participant or other transferee or
assignee the existence and terms and conditions of this Agreement.


 


8.3                                 Notices.  All notices and other communications provided
for hereunder shall be in writing and shall be sent by registered mail, return
receipt requested, sent by overnight courier, telecopied or sent by PDF or
other readable electronic means, delivered, as follows:


 


51

















 


(a)                                  if to the Term Loan Agent, to it at the following address:


 




Attention:  





Re:  FiberTower

Fax:  (     ) 

Email: 


 


with a copy to:


 


Gibson, Dunn &
Crutcher LLP

200 Park Avenue, 48th Floor

New York, New York 10066-0193

Attn: Robert L. Cunningham

Re:  FiberTower

Fax: (212) 351-25208

Email: Rcunningham@GibsonDunn.com


 


(b)                                 if to the Revolving Agent, to it at the following address:


 


                                             ,



                                             


RE: FiberTower

Attention:  

Fax:  (     ) 

Email: 


 


With a copy to:


 








RE: FiberTower

Attention:  

Fax:  (     )

Email: 


 


52

















 


(c)                                  if to the Existing Notes Agent, to it at the following
address:


 


                                             ,


  

RE: FiberTower

Attention:  

Fax:  (     ) 

Email: 


 


With a copy to:


 








RE: FiberTower

Attention:  

Fax:  (     ) 

Email: 


 


(d)                                 If to any Obligor, to it at the following address:


 


c/o FiberTower Corporation







Attention: 

Fax: 


 


with a copy to:


 








RE: 

Attention:  

Fax:  (     )

Email: 


 


or, as to
each party, at such other address as shall be designated by such party in a
written notice to the other parties complying as to delivery with the terms of
this Section 8.3.  All such
notices and other communications shall be effective (i) if sent by
registered mail, return receipt requested, when received or 3 Business Days
after mailing, whichever first occurs, (ii) if telecopied or sent by other
electronic means, when transmitted and a confirmation is received, provided
the same is on a Business Day and, if not, on the next Business Day or (iii) if
delivered by messenger or overnight courier, upon delivery, provided the same is on a Business Day and, if
not, on the next Business Day.


 


53
















 


8.4                                 Counterparts.  This Agreement may be executed by the parties
hereto in several counterparts, and each such counterpart shall be deemed to be
an original and all of which shall constitute together but one and the same
agreement.  A signed counterpart (or
signature page) of this Agreement delivered by facsimile, PDF or other
electronic means shall be effective for all purposes as a manually signed
original thereof whether or not an original executed counterpart thereof is
delivered, and each party hereto shall promptly on request by any other party
hereto deliver a manually signed original executed counterpart to each such
requesting party.


 


8.5                                 GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE.  THIS AGREEMENT AND
THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN SUCH STATE AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA.  EACH OF THE
PARTIES HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS
LOCATED IN NEW YORK, NEW YORK SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY
CLAIMS OR DISPUTES AMONG THE PARTIES HERETO PERTAINING TO THIS AGREEMENT OR TO
ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT; PROVIDED THAT
THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE
TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK, NEW YORK.  EACH OF THE PARTIES HERETO EXPRESSLY SUBMITS
AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN
ANY SUCH COURT, AND EACH OF THE PARTIES HERETO HEREBY WAIVES ANY OBJECTION
WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE
OR FORUM NON CONVENIENS.


 


8.6                                 MUTUAL WAIVER OF JURY TRIAL.  THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, BETWEEN THE PARTIES ARISING
OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT OR THE TRANSACTIONS
RELATED THERETO.


 


8.7                                 Amendments.


 


(a)                                  No amendment or waiver of any provision of this Agreement,
and no consent to any departure by any Person from the terms hereof, shall in
any event be effective unless it is in writing and (i) insofar as it
relates to any rights or obligations of the Term Loan Agent and Revolving Agent
as between themselves, signed by the Term Loan Agent and the Revolving Agent,
and (ii) insofar as it relates to any rights or obligations of the
Existing Notes Creditors, signed by the Existing Notes Agent, the Term Loan
Agent and the Revolving Agent.


 


(b)                                 No Obligor shall have any right to consent to or approve any
amendment, modification or waiver of any provision of this Agreement.


 


54

















 


8.8                                 No Waiver.  No failure or delay on the part of any
Secured Creditor in exercising any power or right under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power or right preclude any other or further exercise thereof or the
exercise of any other power or right.


 


8.9                                 Severability.  Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provisions in any other jurisdiction.


 


8.10                           Further Assurances.  Each party hereto agrees to cooperate fully
with each other party hereto to effectuate the intent and provisions of this
Agreement and, from time to time, to execute and deliver any and all other
agreements, documents or instruments, and to take such other actions, as may be
reasonably necessary or desirable to effectuate the intent and provisions of
this Agreement.


 


8.11                           Headings.  The section headings contained in this
Agreement are and shall be without meaning or content whatsoever and are not
part of this Agreement.


 


8.12                           Credit Analysis.  The Secured Creditors (other than any Person
acting as a trustee or collateral agent) shall each be responsible for keeping
themselves informed of (a) the financial condition of the Obligors and all
other all endorsers, obligors and/or guarantors of the Obligations and (b) all
other circumstances bearing upon the risk of nonpayment of the
Obligations.  No Secured Creditor shall
have any duty to advise any other Secured Creditor of information known to it
regarding such condition or any such other circumstances.  No Secured Creditor assumes any liability to
any other Secured Creditor or to any other Person with respect to:  (i) the financial or other condition of
Obligors under any instruments of guarantee with respect to the Obligations, (ii) the
enforceability, validity, value or collectibility of the Obligations, any
Collateral therefor or any guarantee or security which may have been granted in
connection with any of the Obligations or (iii) any Obligor’s title or
right to transfer any Collateral or security.


 


8.13                           Waiver of Claims.  To the maximum extent permitted by law, each
party hereto waives any claim it might have against any Secured Creditor with
respect to, or arising out of, any action or failure to act or any error of
judgment or negligence, mistake or oversight whatsoever on the part of any
other party hereto or their respective directors, officers, employees or agents
with respect to any exercise of rights or remedies under the Obligation Documents
or any transaction relating to the Collateral in accordance with this
Agreement.  None of the Secured
Creditors, nor any of their respective directors, officers, employees or agents
shall be liable for failure to demand, collect or realize upon any of the
Collateral or for any delay in doing so or, except as specifically provided
herein, shall be under any obligation to Dispose of any Collateral upon the
request of any Obligor or any Secured Creditor or any other Person or to take
any other action whatsoever with regard to any Collateral or any part thereof.


 


8.14                           Conflicts.  In the event of any conflict between the
provisions of this Agreement and the provisions of the Obligation Documents,
the provisions of this Agreement shall govern.


 


55

















 


8.15                           Specific Performance.  Each of the Term Loan Agent and the Revolving
Agent and the Existing Notes Agent may demand specific performance of this
Agreement and, on behalf of itself and the respective other Secured Creditors,
hereby irrevocably waives any defense based on the adequacy of a remedy at law
and any other defense that might be asserted to bar the remedy of specific
performance in any action which may be brought by the respective Secured
Creditors.


 


8.16                           Provisions Solely to Define Relative Rights.  The provisions of
this Agreement are and are intended solely for the purpose of defining the
relative rights of the Secured Creditors. 
None of the Obligors or any other creditor thereof shall have any rights
hereunder, and none of the Obligors may rely on the terms hereof.  Nothing in this Agreement is intended to or
shall impair the obligations of Obligors under the Obligations Documents.


 


8.17                           Lien Priority Provisions; Subrogation.  This Agreement and
the rights and benefits hereunder shall inure solely to the benefit of the Term
Loan Agent, the Term Loan Creditors and the Revolving Agent and the Revolving
Creditors and the Existing Notes Agent and the Existing Notes Creditors and
their respective successors and permitted assigns and no other Person
(including the Obligors or any trustee, receiver, debtor in possession or
bankruptcy estate in a bankruptcy or like proceeding) shall have or be entitled
to assert rights or benefits hereunder. 
Each Junior Secured Creditor hereby agrees that until the Term Loan
Termination Date, if the Junior Secured Creditor is the Revolving Agent, or the
Revolving Credit Termination Date, if the Junior Secured Creditor is the Term
Loan Agent, it will not assert any rights of subrogation it or they may acquire
as a result of any payment hereunder. 
Each Existing Notes Creditor hereby agrees that until the later of the
Term Loan Termination Date and Revolving Credit Termination Date, it will not
assert any rights of subrogation it or they may acquire as a result of any
payment hereunder.  Nothing contained in
this Agreement is intended to or shall impair the obligation of any Obligor to
pay the Obligations as and when the same shall become due and payable in
accordance with their respective terms.


 


8.18                           Entire Agreement.  This Agreement and the Obligation Documents
embody the entire agreement of the Obligors, the Term Loan Agent, the Term Loan
Creditors, the Revolving Agent, the Revolving Creditors and the Existing Notes
Agent and the Existing Notes Creditors with respect to the subject matter
hereof and thereof and supersede all prior agreements and understandings
relating to the subject matter hereof and thereof and any draft agreements,
negotiations and/or discussions involving any Obligor and any of the Term Loan
Agent, the Term Loan Creditors, the Revolving Agent, the Revolving Creditors
and the Existing Notes Agent and the Existing Notes Creditors relating to the
subject matter hereof.


 


8.19                           Indemnification.  The Existing Notes Agent, the New Notes
Agent, the Term Loan Agent and each other Secured Creditor shall be entitled to
reimbursement of their respective expenses incurred hereunder and indemnity in
connection with the actions taken by any of them hereunder.  The Obligors, jointly and severally, hereby
agree to indemnify and hold harmless the Existing Notes Agent, the New Notes
Agent, the Term Loan Agent, and each other Secured Creditor and their
respective directors, officers, employees, agents, successors and assigns,
against and from any and all claims, actions, liabilities, costs and expenses
of any kind or nature whatsoever (including reasonable fees and disbursements
of counsel) that may be imposed on, incurred by, or asserted against any of
them, in any way relating to or arising out of 


 


56

















 


this
Agreement, any exercise of remedies hereunder or any other action taken or
omitted by them hereunder, except to the extent a court holds in a final and
nonappealable judgment that such claims, actions, liabilities, costs, and
expenses directly resulted from the gross negligence or willful misconduct of
such indemnified Person.  The provisions
of this Section shall survive Payment in Full of the Existing Notes
Obligations, the New Notes Obligations, and the Term Loan Obligations, the
discharge or satisfaction of the Existing Notes Indenture and the New Notes
Indenture, and the termination of this Agreement.


 


8.20                           Obligations Unconditional.  All rights, interests, agreements and
obligations hereunder of the Priority Secured Creditors in respect of any
Collateral and the Junior Secured Creditors in respect of such Collateral shall
remain in full force and effect regardless of:


 


(a)                                  any lack of validity or enforceability of any Priority
Document or any Junior Document and regardless of whether the Liens of the
Priority Secured Creditor are not perfected or are voidable for any reason;


 


(b)                                 any change in the time, manner or place of payment of, or in
any other terms of, all or any of the Senior Obligations or Junior Obligations,
or any amendment or waiver or other modification (including any increase in the
amount thereof), whether by course or conduct or otherwise, of the terms of any
Priority Document or any Junior Document to the extent not inconsistent with
the provisions hereof;


 


(c)                                  any lack of perfection of any Lien on any Collateral or
except as expressly provided herein, any exchange or release of Collateral, or
any amendment, waiver or other modification, whether in writing or by course of
conduct or otherwise, of all or any of the Senor Obligations or Junior
Obligations or any guarantee thereof; or


 


(d)                                 the commencement of any Insolvency Proceeding in respect of
any Obligor.


 


[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]


 


57

















 


IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized as of the day and year first
above written.


 


	
   

  	
   

  	
  ,

  
	
   

  	
  as
  Term Loan Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  .,

  
	
   

  	
  as
  Revolving Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  .,

  
	
   

  	
  as
  Existing Notes Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 


Signature
Page to Amended and Restated Intercreditor Agreement


 

















 


Each of the
undersigned hereby acknowledges and agrees to the foregoing terms and
provisions.


 


	
   

  	
  COMPANY
  AND OTHER OBLIGORS:

  
	
   

  	
   

  
	
   

  	
  FIBERTOWER
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FIBERTOWER
  NETWORK SERVICES CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ART
  LEASING, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TELIGENT
  SERVICES ACQUISITION, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ART
  LICENSING CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Signature
Page to Amended and Restated Intercreditor Agreement


 

















 


	
   

  	
  FIBERTOWER
  SOLUTIONS CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Signature
Page to Amended and Restated Intercreditor Agreement