exv4w6






Exhibit 4.6




FORM OF INTERCREDITOR AGREEMENT




     Intercreditor Agreement (this “Agreement”), dated as of October [•] 2010, among THE BANK OF
NEW YORK MELLON, as Collateral Agent (in such capacity, with its successors and assigns, and as
more specifically defined below, the “First Priority Representative”) for the First Priority
Secured Parties (as defined below), WILMINGTON TRUST FSB, as Collateral Trustee (in such capacity,
with its successors and assigns, and as more specifically defined below, the “Second Priority
Representative”) for the Second Priority Secured Parties (as defined below), GeoEye, Inc. (the
“Company”) and each of the other Grantors (as defined below) party hereto.



     WHEREAS, the Company has issued its 9.625% Senior Secured Notes due 2015 pursuant to the
Indenture, dated as of October 9, 2009, with The Bank of New York Mellon, as Trustee and Collateral
Agent (as amended, amended and restated, modified, supplemented or waived, the “Existing First
Priority Agreement”); and



     WHEREAS, the Company has issued its [•] Senior Secured Notes due 2016 pursuant to the
Indenture, dated as of October [•], 2010 (as amended, amended and restated, modified, supplemented
or waived, the “Existing Second Priority Agreement”); and



     WHEREAS, the Company and the other Grantors have granted to the First Priority Representative
security interests in the Common Collateral as security for payment and performance of the First
Priority Obligations; and



     WHEREAS, the Company and the other Grantors propose to grant to the Second Priority
Representative junior security interests in the Common Collateral as security for payment and
performance of the Second Priority Obligations; and



     NOW THEREFORE, in consideration of the foregoing and the mutual covenants herein contained and
other good and valuable consideration, the existence and sufficiency of which are expressly
recognized by all of the parties hereto, the parties agree as follows:



     SECTION 1. Definitions.



     1.1. Defined Terms. The following terms, as used herein, have the following meanings:



     “Additional First Priority Agreement” means any agreement evidencing indebtedness permitted to
be designated by the First Priority Agreement and the Second Priority Agreement as pari passu with
the First Priority Obligations and senior to the Second Priority Obligations.



     “Additional Second Priority Agreement” means any agreement evidencing indebtedness permitted
to be designated by the First Priority Agreement and the Second Priority Agreement as pari passu
with the Second Priority Obligations.



     “Agreement” has the meaning set forth in the introductory paragraph hereof.



     “Bankruptcy Code” means the United States Bankruptcy Code (11 U.S.C. §101 et seq.), as amended
from time to time.



     “Company” has the meaning set forth in the introductory paragraph hereof.









 



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     “Common Collateral” means all assets that are both First Priority Collateral and Second
Priority Collateral.



     “Comparable Second Priority Security Document” means, in relation to any Common Collateral
subject to any First Priority Security Document, that Second Priority Security Document that
creates a security interest in the same Common Collateral, granted by the same Grantor, as
applicable.



     “DIP Financing” has the meaning set forth in Section 5.2.



     “Enforcement Action” means, with respect to the First Priority Obligations or the Second
Priority Obligations, the exercise of any rights and remedies with respect to any Common Collateral
securing such obligations or the commencement or prosecution of enforcement of any of the rights
and remedies with respect to the Common Collateral under, as applicable, the First Priority
Documents or the Second Priority Documents, or applicable law, including without limitation the
exercise of any rights of set-off or recoupment, and the exercise of any rights or remedies of a
secured creditor under the Uniform Commercial Code of any applicable jurisdiction or under the
Bankruptcy Code.



     “Existing First Priority Agreement” has the meaning set forth in the first WHEREAS clause of
this Agreement.



     “Existing Second Priority Agreement” has the meaning set forth in the second WHEREAS clause of
this Agreement.



     “First Priority Agreement” means the collective reference to (a) the Existing First Priority
Agreement, (b) any Additional First Priority Agreement and (c) any other credit agreement, loan
agreement, note agreement, promissory note, indenture or other agreement or instrument evidencing
or governing the terms of any indebtedness or other financial accommodation that has been incurred
to extend, increase, renew, refund, replace (whether upon or after termination or otherwise) or
refinance (including by means of sales of debt securities to institutional investors) in whole or
in part from time to time the indebtedness and other obligations outstanding under the Existing
First Priority Agreement, any Additional First Priority Agreement or any other agreement or
instrument referred to in this clause (c) unless such agreement or instrument expressly provides
that it is not intended to be and is not a First Priority Agreement hereunder (a “Replacement First
Priority Agreement”). Any reference to the First Priority Agreement hereunder shall be deemed a
reference to any First Priority Agreement then extant.



     “First Priority Collateral” means all assets, whether now owned or hereafter acquired by the
Company or any other Grantor, in which a Lien is granted or purported to be granted to any First
Priority Secured Party as security for any First Priority Obligation.



     “First Priority Documents” means the First Priority Agreement, each First Priority Security
Document and each First Priority Guarantee.



     “First Priority Guarantee” means any guarantee by any Grantor of any or all of the First
Priority Obligations.



     “First Priority Lien” means any Lien created by the First Priority Security Documents.









 



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     “First Priority Obligations” means (a) with respect to the Existing First Priority Agreement,
all “Secured Obligations” of each Grantor as defined in the “Security Agreement” referred to in the
First Priority Agreement and (b) with respect to each other First Priority Agreement, (i) all
principal of and interest (including without limitation any Post-Petition Interest) and premium (if
any) on all loans made or other indebtedness issued or incurred pursuant to the First Priority
Agreement, (ii) all reimbursement obligations (if any) and interest thereon (including without
limitation any Post-Petition Interest) with respect to any letter of credit or similar instruments
issued pursuant to the First Priority Agreement, and (iii) all guarantee obligations, fees,
expenses and other amounts payable from time to time pursuant to the First Priority Documents, in
each case whether or not allowed or allowable in an Insolvency Proceeding. To the extent any
payment with respect to any First Priority Obligation (whether by or on behalf of any Grantor, as
proceeds of security, enforcement of any right of setoff or otherwise) is declared to be a
fraudulent conveyance or a preference in any respect, set aside or required to be paid to a debtor
in possession, any Second Priority Secured Party, receiver or similar Person, then the obligation
or part thereof originally intended to be satisfied shall, for the purposes of this Agreement and
the rights and obligations of the First Priority Secured Parties and the Second Priority Secured
Parties, be deemed to be reinstated and outstanding as if such payment had not occurred.



     “First Priority Obligations Payment Date” means the first date on which (a) the First Priority
Obligations (other than those that constitute Unasserted Contingent Obligations) have been paid in
full (or cash collateralized, discharged or defeased in accordance with the terms of the First
Priority Documents), (b) all commitments to extend credit under the First Priority Documents have
been terminated, (c) there are no outstanding letters of credit or similar instruments issued under
the First Priority Documents (other than such as have been cash collateralized, back-stopped or
defeased in accordance with the terms of the First Priority Documents), and (d) the First Priority
Representative has delivered a written notice to the Second Priority Representative stating that
the events described in clauses (a), (b) and (c) have occurred to the satisfaction of the First
Priority Secured Parties, which notice shall be delivered by the First Priority Representative
promptly after the occurrence of the events described in clauses (a), (b) and (c).



     “First Priority Representative” has the meaning set forth in the introductory paragraph
hereof. In the case of any Replacement First Priority Agreement, the First Priority Representative
shall be the Person identified as such in such Agreement.



     “First Priority Secured Parties” means the First Priority Representative and any other holders
of the First Priority Obligations.



     “First Priority Security Documents” means the “Security Documents” as defined in the First
Priority Agreement, and any other documents that are designated under the First Priority Agreement
as “First Priority Security Documents” for purposes of this Agreement.



     “Insolvency Proceeding” means any proceeding in respect of bankruptcy, insolvency, winding up,
receivership, dissolution or assignment for the benefit of creditors, in each of the foregoing
events whether under the Bankruptcy Code or any similar federal, state or foreign bankruptcy,
insolvency, reorganization, receivership or similar law.



     “Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind
(including any agreement to give any of the foregoing, any conditional sale or other title
retention agreement or any lease in the nature thereof).









 



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     “Grantor” means the Company and each direct or indirect subsidiary, affiliate or shareholder
(or equivalent) of the Company or any of its affiliates that is now or hereafter becomes a party to
any First Priority Document or Second Priority Document. All references in this Agreement to any
Grantor shall include such Grantor as a debtor-in-possession and any receiver or trustee for such
Grantor in any Insolvency Proceeding.



     “Person” means any individual, partnership, joint venture, firm, corporation, association,
trust or other enterprise or any government or political subdivision or any agency, department or
instrumentality thereof.



     “Post-Petition Interest” means any interest or entitlement to fees or expenses or other
charges that accrues after the commencement of any Insolvency Proceeding, whether or not allowed or
allowable in any such Insolvency Proceeding.



     “Replacement First Priority Agreement” has the meaning set forth in the definition of “First
Priority Agreement”.



     “Second Priority Agreement” means the collective reference to (a) the Existing Second Priority
Agreement, (b) any Additional Second Priority Agreement and (c) any other credit agreement, loan
agreement, note agreement, promissory note, indenture, or other agreement or instrument evidencing
or governing the terms of any indebtedness or other financial accommodation that has been incurred
to extend, increase, renew, refund, replace (whether upon or after termination or otherwise) or
refinance (including by means of sales of debt securities to institutional investors) in whole or
in part from time to time the indebtedness and other obligations outstanding under the Existing
Second Priority Agreement, any Additional Second Priority Agreement or any other agreement or
instrument referred to in this clause (c). Any reference to the Second Priority Agreement
hereunder shall be deemed a reference to any Second Priority Agreement then extant.



     “Second Priority Collateral” means all assets, whether now owned or hereafter acquired by the
Company or any other Grantor, in which a Lien is granted or purported to be granted to any Second
Priority Secured Party as security for any Second Priority Obligation.



     “Second Priority Creditors” means the “[Lenders]” as defined in the Second Priority Agreement,
or any Persons that are designated under the Second Priority Agreement as the “Second Priority
Creditors” for purposes of this Agreement.



     “Second Priority Documents” means each Second Priority Agreement, each Second Priority
Security Document and each Second Priority Guarantee.



     “Second Priority Guarantee” means any guarantee by any Grantor of any or all of the Second
Priority Obligations.



     “Second Priority Lien” means any Lien created by the Second Priority Security Documents.



     “Second Priority Obligations” means (a) with respect to the Existing Second Priority
Agreement, all “Secured Obligations” of each Grantor as defined in the [“Security Agreement”]
referred to in the Second Priority Agreement and (b) with respect to each other Second Priority
Agreement, (i) all principal of and interest (including without limitation any Post-Petition
Interest) and premium (if any) on









 



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all indebtedness under the Second Priority Agreement, and (ii) all guarantee obligations,
fees, expenses and other amounts payable from time to time pursuant to the Second Priority
Documents, in each case whether or not allowed or allowable in an Insolvency Proceeding. To the
extent any payment with respect to any Second Priority Obligation (whether by or on behalf of any
Grantor, as proceeds of security, enforcement of any right of setoff or otherwise) is declared to
be a fraudulent conveyance or a preference in any respect, set aside or required to be paid to a
debtor in possession, any First Priority Secured Party, receiver or similar Person, then the
obligation or part thereof originally intended to be satisfied shall, for the purposes of this
Agreement and the rights and obligations of the First Priority Secured Parties and the Second
Priority Secured Parties, be deemed to be reinstated and outstanding as if such payment had not
occurred.




     “Second Priority Representative” has the meaning set forth in the introductory paragraph
hereof, but shall also include any Person identified as a “Second Priority Representative” in any
Second Priority Agreement other than the Existing Second Priority Agreement.



     “Second Priority Secured Party” means the Second Priority Representative, the Second Priority
Creditors and any other holders of the Second Priority Obligations.



     “Second Priority Security Documents” means the [“Security Documents”] as defined in the Second
Priority Agreement and any documents that are designated under the Second Priority Agreement as
“Second Priority Security Documents” for purposes of this Agreement.



     “Secured Parties” means the First Priority Secured Parties and the Second Priority Secured
Parties.



     “Unasserted Contingent Obligations” shall mean, at any time, First Priority Obligations for
taxes, costs, indemnifications, reimbursements, damages and other liabilities (excluding (a) the
principal of, and interest and premium (if any) on, and fees and expenses relating to, any First
Priority Obligation and (b) contingent reimbursement obligations in respect of amounts that may be
drawn under outstanding letters of credit) in respect of which no assertion of liability (whether
oral or written) and no claim or demand for payment (whether oral or written) has been made (and,
in the case of First Priority Obligations for indemnification, no notice for indemnification has
been issued by the indemnitee) at such time.



     “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect from time to
time in the applicable jurisdiction.



     1.2 Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (i) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, restated, supplemented or otherwise modified, (ii) any reference herein
to any Person shall be construed to include such Person’s successors or permitted assigns, (iii)
the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any









 




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particular provision hereof, (iv) all references herein to Sections shall be construed to
refer to Sections of this Agreement and (v) the words “asset” and “property” shall be construed to
have the same meaning and effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.




     SECTION 2. Lien Priorities.



     2.1 Subordination of Liens. (a) Any and all Liens now existing or hereafter
created or arising in favor of any Second Priority Secured Party securing the Second Priority
Obligations, regardless of how acquired, whether by grant, statute, operation of law, subrogation
or otherwise are expressly junior in priority, operation and effect to any and all Liens now
existing or hereafter created or arising in favor of the First Priority Secured Parties securing
the First Priority Obligations, notwithstanding (i) anything to the contrary contained in any
agreement or filing to which any Second Priority Secured Party may now or hereafter be a party, and
regardless of the time, order or method of grant, attachment, recording or perfection of any
financing statements or other security interests, assignments, pledges, deeds, mortgages and other
liens, charges or encumbrances or any defect or deficiency or alleged defect or deficiency in any
of the foregoing, (ii) any provision of the Uniform Commercial Code or any applicable law or any
First Priority Document or Second Priority Document or any other circumstance whatsoever and (iii)
the fact that any such Liens in favor of any First Priority Secured Party securing any of the First
Priority Obligations are (x) subordinated to any Lien securing any obligation of any Grantor other
than the Second Priority Obligations or (y) otherwise subordinated, voided, avoided, invalidated or
lapsed.



     (b) No First Priority Secured Party or Second Priority Secured Party shall object to or
contest, or support any other Person in contesting or objecting to, in any proceeding (including
without limitation, any Insolvency Proceeding), the validity, extent, perfection, priority or
enforceability of any security interest in the Common Collateral granted to the other.
Notwithstanding any failure by any First Priority Secured Party or Second Priority Secured Party to
perfect its security interests in the Common Collateral or any avoidance, invalidation or
subordination by any third party or court of competent jurisdiction of the security interests in
the Common Collateral granted to the First Priority Secured Parties or the Second Priority Secured
parties, the priority and rights as between the First Priority Secured Parties and the Second
Priority Secured Parties with respect to the Common Collateral shall be as set forth herein.



     2.2 Nature of First Priority Obligations. The Second Priority Representative on
behalf of itself and the other Second Priority Secured Parties acknowledges that a portion of the
First Priority Obligations may represent debt that is revolving in nature and that the amount
thereof that may be outstanding at any time or from time to time may be increased or reduced and
subsequently reborrowed, and that the terms of the First Priority Obligations may be modified,
extended or amended from time to time, and that the aggregate amount of the First Priority
Obligations may be increased, replaced or refinanced, in each event, without notice to or consent
by the Second Priority Secured Parties and without affecting the provisions hereof, but only so
long as, except in the case of any DIP Financing, any such obligations are permitted to be incurred
pursuant to the Second Priority Documents as in effect on the date of this Agreement. The lien
priorities provided in Section 2.1 shall not be altered or otherwise affected by any such
amendment, modification, supplement, extension, repayment, reborrowing, increase, replacement,
renewal, restatement or refinancing of either the First Priority Obligations or the Second Priority
Obligations, or any portion thereof.









 



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     2.3 Agreements Regarding Actions to Perfect Liens. (a) The Second Priority
Representative on behalf of itself and the other Second Priority Secured Parties agrees that UCC-1
financing statements, patent, trademark or copyright filings or other filings or recordings filed
or recorded by or on behalf of the Second Priority Representative shall be in form reasonably
satisfactory to the First Priority Representative.



     (b) The Second Priority Representative agrees on behalf of itself and the other Second
Priority Secured Parties that all mortgages, deeds of trust, deeds and similar instruments
(collectively, “mortgages”) now or hereafter filed against real property in favor of or for the
benefit of the Second Priority Representative and the other Second Priority Secured Parties shall
be in form reasonably satisfactory to the First Priority Representative and shall contain the
following notation: “The lien created by this mortgage on the property described herein is junior
and subordinate to the lien on such property created by any mortgage, deed of trust or similar
instrument now or hereafter granted to the First Priority Representative, and its successors and
assigns, in such property, in accordance with the provisions of the Intercreditor Agreement dated
as of ___________, 20__ among The Bank of New York Mellon., as Collateral Agent, _______________,
as ___________________, ___________________, as the Company, and the other Grantors referred to
therein, as amended from time to time.”



     (c) The First Priority Representative hereby acknowledges that, to the extent that it holds,
or a third party holds on its behalf, physical possession of or “control” (as defined in the
Uniform Commercial Code) over Common Collateral pursuant to the First Priority Security Documents,
such possession or control is also for the benefit of, and the First Priority Representative or
such third party holds such possession or control as bailee and agent for, the Second Priority
Representative and the other Second Priority Secured Parties solely to the extent required to
perfect their security interest in such Common Collateral (such bailment 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 Uniform Commercial Code). Nothing in the preceding sentence shall be construed to
impose any duty on the First Priority Representative (or any third party acting on its behalf) with
respect to such Common Collateral or provide the Second Priority Representative or any other Second
Priority Secured Party with any rights with respect to such Common Collateral beyond those
specified in this Agreement and the Second Priority Security Documents, provided that
subsequent to the occurrence of the First Priority Obligations Payment Date, the First Priority
Representative shall (i) deliver to the Second Priority Representative, at the Company’s sole cost
and expense, the Common Collateral in its possession or control together with any necessary
endorsements to the extent required by the Second Priority Documents or (ii) direct and deliver
such Common Collateral as a court of competent jurisdiction otherwise directs, and
provided, further, that the provisions of this Agreement are intended solely to
govern the respective Lien priorities as between the First Priority Secured Parties and the Second
Priority Secured Parties and shall not impose on the First Priority Secured Parties any obligations
in respect of the disposition of any Common Collateral (or any proceeds thereof) that would
conflict with prior perfected Liens or any claims thereon in favor of any other Person that is not
a Secured Party.



     2.4 No New Liens. So long as the First Priority Obligations Payment Date has not
occurred, the parties hereto agree that (a) there shall be no Lien, and no Grantor shall have any
right to create any Lien, on any assets of any Grantor securing any Second Priority Obligation if
these same assets are not subject to, and do not become subject to, a Lien securing the First
Priority Obligations and (b) if any Second Priority Secured Party shall acquire or hold any Lien on
any assets of any Grantor securing any Second Priority Obligation which assets are not also subject
to the first-priority Lien of the First Priority









 



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Representative under the First Priority Documents, then the Second Priority Representative,
upon demand by the First Priority Representative, will without the need for any further consent of
any other Second Priority Secured Party, notwithstanding anything to the contrary in any other
Second Priority Document either (i) release such Lien or (ii) assign it to the First Priority
Representative as security for the First Priority Obligations (in which case the Second Priority
Representative may retain a junior lien on such assets subject to the terms hereof). To the extent
that the foregoing provisions are not complied with for any reason, without limiting any other
rights and remedies available to the First Priority Secured Parties, the Second Priority
Representative and the other Second Priority Secured Parties agree that any amounts received by or
distributed to any of them pursuant to or as a result of Liens granted in contravention of this
Section 2.4 shall be subject to Section 4.1.




     SECTION 3. Enforcement Rights.



     3.1 Exclusive Enforcement. Until the First Priority Obligations Payment Date has
occurred, whether or not an Insolvency Proceeding has been commenced by or against any Grantor, the
First Priority Secured Parties shall have the exclusive right to take and continue any Enforcement
Action with respect to the Common Collateral, without any consultation with or consent of any
Second Priority Secured Party, but subject to the provisos set forth in Sections 3.2 and 5.1. Upon
the occurrence and during the continuance of a default or an event of default under the First
Priority Documents, subject to the provisions of such documents, the First Priority Representative
and the other First Priority Secured Parties may take and continue any Enforcement Action with
respect to the First Priority Obligations and the Common Collateral in such order and manner as
they may determine in their sole discretion.



     3.2 Standstill and Waivers. The Second Priority Representative, on behalf of itself
and the other Second Priority Secured Parties, agrees that, until the First Priority Obligations
Payment Date has occurred, subject to the proviso set forth in Section 5.1:



     (a) they will not take or cause to be taken any Enforcement Action;




     (b) they will not take or cause to be taken any action, the purpose or effect of which
is to make any Lien in respect of any Second Priority Obligation pari passu with or senior
to, or to give any Second Priority Secured Party any preference or priority relative to, the
Liens with respect to the First Priority Obligations or the First Priority Secured Parties
with respect to any of the Common Collateral;




     (c) they will not contest, oppose, object to, interfere with, hinder or delay, in any
manner, whether by judicial proceedings (including without limitation the filing of an
Insolvency Proceeding) or otherwise, any foreclosure, sale, lease, exchange, transfer or
other disposition of the Common Collateral by any First Priority Secured Party or any other
Enforcement Action taken (or any forbearance from taking any Enforcement Action) by or on
behalf of any First Priority Secured Party;




     (d) they have no right to (i) direct either the First Priority Representative or any
other First Priority Secured Party to exercise any right, remedy or power with respect to
the Common Collateral or pursuant to the First Priority Security Documents or (ii) consent
or object to the exercise by the First Priority Representative or any other First Priority
Secured Party of any right, remedy or power with respect to the Common Collateral or
pursuant to the First Priority Security









 



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Documents or to the timing or manner in which any such right is exercised or not
exercised (or, to the extent they may have any such right described in this clause (d),
whether as a junior lien creditor or otherwise, they hereby irrevocably waive such right);




     (e) they will not institute any suit or other proceeding or assert in any suit,
Insolvency Proceeding or other proceeding any claim against any First Priority Secured Party
seeking damages from or other relief by way of specific performance, instructions or
otherwise, with respect to, and no First Priority Secured Party shall be liable for, any
action taken or omitted to be taken by any First Priority Secured Party with respect to the
Common Collateral or pursuant to the First Priority Documents; and




     (f) they will not seek, and hereby waive any right, to have the Common Collateral or
any part thereof marshaled upon any foreclosure or other disposition of the Common
Collateral.


provided that in any Insolvency Proceeding commenced by or against any Grantor, the Second
Priority Representative and the Second Priority Secured Parties may take any action expressly
permitted by Section 5.




     3.3 Judgment Creditors. In the event that any Second Priority Secured Party becomes a
judgment lien creditor as a result of its enforcement of its rights as an unsecured creditor, such
judgment lien shall be subject to the terms of this Agreement for all purposes (including in
relation to the First Priority Liens and the First Priority Obligations) to the same extent as all
other Liens securing the Second Priority Obligations are subject to the terms of this Agreement.



     3.4 Cooperation. The Second Priority Representative, on behalf of itself and the
other Second Priority Secured Parties, agrees that each of them shall take such actions as the
First Priority Representative shall reasonably request in connection with the exercise by the First
Priority Secured Parties of their rights set forth herein (at the sole cost and expense of the
Grantors).



     3.5 No Additional Rights For the Grantors Hereunder. Except as provided in Section
3.6, if any First Priority Secured Party or Second Priority Secured Party shall enforce its rights
or remedies in violation of the terms of this Agreement, no Grantor shall be entitled to use such
violation as a defense to any action by any First Priority Secured Party or Second Priority Secured
Party, nor to assert such violation as a counterclaim or basis for set off or recoupment against
any First Priority Secured Party or Second Priority Secured Party.



     3.6 Actions Upon Breach. (a) If any Second Priority Secured Party, contrary to this
Agreement, commences or participates in any action or proceeding against any Grantor or the Common
Collateral, such Grantor, with the prior written consent of the First Priority Secured
Representative, may interpose as a defense or dilatory plea the making of this Agreement, and any
First Priority Secured Party may intervene and interpose such defense or plea in its or their name
or in the name of such Grantor.



     (b) Should any Second Priority Secured Party, contrary to this Agreement, in any way take,
attempt to or threaten to take any action with respect to the Common Collateral (including, without
limitation, any attempt to realize upon or enforce any remedy with respect to this Agreement), or
fail to take any action required by this Agreement, any First Priority Secured Party (in its own
name or in the name of the relevant Grantor) or the relevant Grantor may obtain relief against such
Second Priority Secured Party by injunction, specific performance and/or other appropriate
equitable relief, it being









 



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understood and agreed by the Second Priority Representative on behalf of each Second Priority
Secured Party that (i) the First Priority Secured Parties’ damages from its actions may at that
time be difficult to ascertain and may be irreparable, and (ii) each Second Priority Secured Party
waives any defense that the Grantors and/or the First Priority Secured Parties cannot demonstrate
damage and/or be made whole by the awarding of damages.




     SECTION 4. Application of Proceeds of Common Collateral; Dispositions and Releases
of Common Collateral; Inspection and Insurance.



     4.1 Application of Proceeds; Turnover Provisions. All proceeds of Common Collateral
(including without limitation any interest earned thereon) resulting from the sale, collection or
other disposition of Common Collateral in connection with an Enforcement Action, whether or not
pursuant to an Insolvency Proceeding, shall be distributed as follows: first to the First
Priority Representative for application to the First Priority Obligations in accordance with the
terms of the First Priority Documents, until the First Priority Obligations Payment Date has
occurred and thereafter, to the Second Priority Representative for application in
accordance with the Second Priority Documents. Until the occurrence of the First Priority
Obligations Payment Date, any Common Collateral, including without limitation any such Common
Collateral constituting proceeds, that may be received by any Second Priority Secured Party in
violation of this Agreement shall be segregated and held in trust and promptly paid over to the
First Priority Representative, for the benefit of the First Priority Secured Parties, in the same
form as received, with any necessary endorsements, and each Second Priority Secured Party hereby
authorizes the First Priority Representative to make any such endorsements as agent for the Second
Priority Representative (which authorization, being coupled with an interest, is irrevocable).



     4.2 Releases of Second Priority Lien. (a) Upon any release, sale or disposition of
Common Collateral permitted pursuant to the terms of the First Priority Documents that results in
the release of the First Priority Lien on any Common Collateral (excluding any sale or other
disposition that is expressly prohibited by the Second Priority Agreement as in effect on the date
hereof unless such sale or disposition is consummated in connection with an Enforcement Action or
consummated after the institution of any Insolvency Proceeding), the Second Priority Lien on such
Common Collateral (excluding any portion of the proceeds of such Common Collateral remaining after
the First Priority Obligations Payment Date occurs) shall be automatically and unconditionally
released with no further consent or action of any Person.



     (b) The Second Priority Representative shall promptly execute and deliver such release
documents and instruments and shall take such further actions as the First Priority Representative
shall reasonably request to evidence any release of the Second Priority Lien described in paragraph
(a). The Second Priority Representative hereby appoints the First Priority Representative and any
officer or duly authorized person of the First Priority Representative, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in
the place and stead of the Second Priority Representative and in the name of the Second Priority
Representative or in the First Priority Representative’s own name, from time to time, in the First
Priority Representative’s reasonable discretion, for the purposes of carrying out the terms of this
Section 4.2, to take any and all appropriate action and to execute and deliver any and all
documents and instruments as may be necessary or desirable to accomplish the purposes of this
Section 4.2, including, without limitation, any financing statements, endorsements, assignments,
releases or other documents or instruments of transfer (which appointment, being coupled with an
interest, is irrevocable).









 



11


     4.3 Inspection Rights and Insurance. (a) Any First Priority Secured Party and its
representatives and invitees may at any time inspect, repossess, remove and otherwise deal with the
Common Collateral, and the First Priority Representative may advertise and conduct public auctions
or private sales of the Common Collateral, in accordance with the terms of the First Priority
Documents, in each case without notice to, the involvement of or interference by any Second
Priority Secured Party or liability to any Second Priority Secured Party.



     (b) As between the First Priority Representative and the Second Priority Representative,
until the First Priority Obligations Payment Date has occurred, the First Priority Representative
will have the sole and exclusive right (i) to be named as additional insured and loss payee under
any insurance policies maintained from time to time by any Grantor (except that the Second Priority
Representative shall have the right to be named as additional insured and loss payee so long as its
second lien status is identified in a manner satisfactory to the First Priority Representative);
(ii) to adjust or settle any insurance policy or claim covering the Common Collateral in the event
of any loss thereunder and (iii) to approve any award granted in any condemnation or similar
proceeding affecting the Common Collateral.




	 	 	SECTION 5. Insolvency Proceedings.





     5.1 Filing of Motions. Until the First Priority Obligations Payment Date has
occurred, the Second Priority Representative agrees on behalf of itself and the other Second
Priority Secured Parties that no Second Priority Secured Party shall, in or in connection with any
Insolvency Proceeding, file any pleadings or motions, take any position at any hearing or
proceeding of any nature, or otherwise take any action whatsoever, in each case that (a) violates,
or is prohibited by, this Section 5 (or, in the absence of an Insolvency Proceeding, otherwise
would violate or be prohibited by this Agreement), (b) asserts any right, benefit or privilege that
arises in favor of the Second Priority Representative or Second Priority Secured Parties, in whole
or in part, as a result of their interest in the Common Collateral or in the Second Priority Lien
(unless the assertion of such right is expressly permitted by this Agreement) or (c) challenges the
validity, priority, enforceability or voidability of any Liens or claims held by the First Priority
Representative or any other First Priority Secured Party, or the extent to which the First Priority
Obligations constitute secured claims under Section 506(a) of the Bankruptcy Code or otherwise;
provided that the Second Priority Representative may file a proof of claim in an Insolvency
Proceeding, subject to the limitations contained in this Agreement and only if consistent with the
terms and the limitations on the Second Priority Representative imposed hereby.



     5.2 Financing Matters. If any Grantor becomes subject to any Insolvency Proceeding,
and if the First Priority Representative or the other First Priority Secured Parties desire to
consent (or not object) to the use of cash collateral under the Bankruptcy Code or to provide
financing to any Grantor under the Bankruptcy Code or to consent (or not object) to the provision
of such financing to any Grantor by any third party (any such financing, “DIP Financing”), then the
Second Priority Representative agrees, on behalf of itself and the other Second Priority Secured
Parties, that each Second Priority Secured Party (a) will be deemed to have consented to, will
raise no objection to, nor support any other Person objecting to, the use of such cash collateral
or to such DIP Financing, (b) will not request or accept adequate protection or any other relief in
connection with the use of such cash collateral or such DIP Financing except as set forth in
paragraph 5.4 below and (c) will subordinate (and will be deemed hereunder to have subordinated)
the Second Priority Liens (i) to such DIP Financing on the same terms as the First Priority Liens
are subordinated thereto (and such subordination will not alter in any manner the terms of this
Agreement), (ii) to any adequate protection provided to the First Priority Secured Parties and
(iii) to any









 



12

“carve-out” agreed to by the First Priority Representative or the other First Priority Secured
Parties, and (d) agrees that notice received five calendar days prior to the entry of an order
approving such usage of cash collateral or approving such financing shall be adequate notice.




     5.3 Relief From the Automatic Stay. The Second Priority Representative agrees, on
behalf of itself and the other Second Priority Secured Parties, that none of them will seek relief
from the automatic stay or from any other stay in any Insolvency Proceeding or take any action in
derogation thereof, in each case in respect of any Common Collateral, without the prior written
consent of the First Priority Representative.



     5.4 Adequate Protection. The Second Priority Representative, on behalf of itself and
the other Second Priority Secured Parties, agrees that none of them shall object, contest, or
support any other Person objecting to or contesting, (a) any request by the First Priority
Representative or the other First Priority Secured Parties for adequate protection or any adequate
protection provided to the First Priority Representative or the other First Priority Secured
Parties or (b) any objection by the First Priority Representative or any other First Priority
Secured Parties to any motion, relief, action or proceeding based on a claim of a lack of adequate
protection or (c) the payment of interest, fees, expenses or other amounts to the First Priority
Representative or any other First Priority Secured Party under Section 506(b) or 506(c) of the
Bankruptcy Code or otherwise. Notwithstanding anything contained in this Section and in Section
5.2(b) (but subject to all other provisions of this Agreement, including, without limitation,
Sections 5.2(a) and 5.3), in any Insolvency Proceeding, (i) if the First Priority Secured Parties
(or any subset thereof) are granted adequate protection consisting of additional collateral (with
replacement liens on such additional collateral) and superpriority claims in connection with any
DIP Financing or use of cash collateral, and the First Priority Secured Parties do not object to
the adequate protection being provided to them, then in connection with any such DIP Financing or
use of cash collateral the Second Priority Representative, on behalf of itself and any of the
Second Priority Secured Parties, may seek or accept adequate protection consisting solely of (x) a
replacement Lien on the same additional collateral, subordinated to the Liens securing the First
Priority Obligations and such DIP Financing on the same basis as the other Liens securing the
Second Priority Obligations are so subordinated to the First Priority Obligations under this
Agreement and (y) superpriority claims junior in all respects to the superpriority claims granted
to the First Priority Secured Parties, provided, however, that the Second Priority
Representative shall have irrevocably agreed, pursuant to Section 1129(a)(9) of the Bankruptcy
Code, on behalf of itself and the Second Priority Secured Parties, in any stipulation and/or order
granting such adequate protection, that such junior superpriority claims may be paid under any plan
of reorganization in any combination of cash, debt, equity or other property having a value on the
effective date of such plan equal to the allowed amount of such claims and (ii) in the event the
Second Priority Representative, on behalf of itself and the Second Priority Secured Parties, seeks
or accepts adequate protection in accordance with clause (i) above and such adequate protection is
granted in the form of additional collateral, then the Second Priority Representative, on behalf of
itself or any of the Second Priority Secured Parties, agrees that the First Priority Representative
shall also be granted a senior Lien on such additional collateral as security for the First
Priority Obligations and any such DIP Financing and that any Lien on such additional collateral
securing the Second Priority Obligations shall be subordinated to the Liens on such collateral
securing the First Priority Obligations and any such DIP Financing (and all Obligations relating
thereto) and any other Liens granted to the First Priority Secured Parties as adequate protection,
with such subordination to be on the same terms that the other Liens securing the Second Priority
Obligations are subordinated to such First Priority Obligations under this Agreement. The Second
Priority Representative, on behalf of itself and the other Second Priority Secured Parties, agrees









 



13

that except as expressly set forth in this Section none of them shall seek or accept adequate
protection without the prior written consent of the First Priority Representative.




     5.5 Avoidance Issues. If any First Priority Secured Party is required in any
Insolvency Proceeding or otherwise to disgorge, turn over or otherwise pay to the estate of any
Grantor, because such amount was avoided or ordered to be paid or disgorged for any reason,
including without limitation because it was found to be a fraudulent or preferential transfer, any
amount (a “Recovery”), whether received as proceeds of security, enforcement of any right of
set-off or otherwise, then the First Priority Obligations shall be reinstated to the extent of such
Recovery and deemed to be outstanding as if such payment had not occurred and the First Priority
Obligations Payment Date shall be deemed not to have occurred. If this Agreement shall have been
terminated prior to such Recovery, this Agreement shall be reinstated in full force and effect, and
such prior termination shall not diminish, release, discharge, impair or otherwise affect the
obligations of the parties hereto. The Second Priority Secured Parties agree that none of them
shall be entitled to benefit from any avoidance action affecting or otherwise relating to any
distribution or allocation made in accordance with this Agreement, whether by preference or
otherwise, it being understood and agreed that the benefit of such avoidance action otherwise
allocable to them shall instead be allocated and turned over for application in accordance with the
priorities set forth in this Agreement.



     5.6 Asset Dispositions in an Insolvency Proceeding. In an Insolvency Proceeding,
neither the Second Priority Representative nor any other Second Priority Secured Party shall oppose
any sale or disposition of any assets of any Grantor that is supported by the First Priority
Secured Parties, and the Second Priority Representative and each other Second Priority Secured
Party will be deemed to have consented under Section 363 of the Bankruptcy Code (and otherwise) to
any sale supported by the First Priority Secured Parties and to have released their Liens on such
assets.



     5.7 Separate Grants of Security and Separate Classification. Each Secured Party
acknowledges and agrees that (a) the grants of Liens pursuant to the First Priority Security
Documents and the Second Priority Security Documents constitute two separate and distinct grants of
Liens and (b) because of, among other things, their differing rights in the Common Collateral, the
First Priority Obligations and the Second Priority Obligations are fundamentally different from
each other and must be separately classified in any plan of reorganization proposed or adopted in
an Insolvency Proceeding. To further effectuate the intent of the parties as provided in the
immediately preceding sentence, if it is held that the claims of the First Priority Secured Parties
and Second Priority Secured Parties in respect of the Common Collateral constitute only one secured
claim (rather than separate classes of senior and junior secured claims), then the Second Priority
Secured Parties hereby acknowledge and agree that all distributions shall be made as if there were
separate classes of senior and junior secured claims against the Grantors in respect of the Common
Collateral, with the effect being that, to the extent that the aggregate value of the Common
Collateral is sufficient (for this purpose ignoring all claims held by the Second Priority Secured
Parties), the First Priority Secured Parties shall be entitled to receive, in addition to amounts
distributed to them in respect of principal, pre-petition interest and other claims, all amounts
owing in respect of Post-Petition Interest before any distribution is made in respect of the claims
held by the Second Secured Priority Secured Parties. The Second Priority Secured Parties hereby
acknowledge and agree to turn over to the First Priority Secured Parties amounts otherwise received
or receivable by them to the extent necessary to effectuate the intent of the preceding sentence,
even if such turnover has the effect of reducing the claim or recovery of the Second Priority
Secured Parties.









 



14


     5.8 No Waivers of Rights of First Priority Secured Parties. Nothing contained herein
shall prohibit or in any way limit the First Priority Representative or any other First Priority
Secured Party from objecting in any Insolvency Proceeding or otherwise to any action taken by any
Second Priority Secured Party not expressly permitted hereunder, including the seeking by any
Second Priority Secured Party of adequate protection (except as provided in Section 5.4).



     5.9 Other Matters. To the extent that the Second Priority Representative or any
Second Priority Secured Party has or acquires rights under Section 363 or Section 364 of the
Bankruptcy Code with respect to any of the Common Collateral, the Second Priority Representative
agrees, on behalf of itself and the other Second Priority Secured Parties not to assert any of such
rights without the prior written consent of the First Priority Representative unless expressly
permitted to do so hereunder.



     5.10 Effectiveness in Insolvency Proceedings. This Agreement, which the parties
hereto expressly acknowledge is a “subordination agreement” under section 510(a) of the Bankruptcy
Code, shall be effective before, during and after the commencement of an Insolvency Proceeding.



     SECTION 6. Security Documents.



     (a) Each Grantor and the Second Priority Representative, on behalf of itself and the Second
Priority Secured Parties, agrees that it shall not at any time execute or deliver any amendment or
other modification to any of the Second Priority Documents inconsistent with or in violation of
this Agreement.



     (b) Each Grantor and the First Priority Representative, on behalf of itself and the First
Priority Secured Parties, agrees that it shall not at any time execute or deliver any amendment or
other modification to any of the First Priority Documents inconsistent with or in violation of this
Agreement.



     (c) In the event the First Priority Representative enters into any amendment, waiver or
consent in respect of any of the First Priority Security Documents for the purpose of adding to, or
deleting from, or waiving or consenting to any departures from any provisions of, any First
Priority Security Document or changing in any manner the rights of any parties thereunder, then
such amendment, waiver or consent shall apply automatically to any comparable provision of the
Comparable Second Priority Security Document without the consent of or action by any Second
Priority Secured Party (with all such amendments, waivers and modifications subject to the terms
hereof); provided that (other than with respect to amendments, modifications or waivers
that secure additional extensions of credit and add additional secured creditors and do not violate
the express provisions of the Second Priority Agreements), (i) no such amendment, waiver or consent
shall have the effect of removing assets subject to the Lien of any Second Priority Security
Document, except to the extent that a release of such Lien is permitted by Section 4.2, (ii) any
such amendment, waiver or consent that materially and adversely affects the rights of the Second
Priority Secured Parties and does not affect the First Priority Secured Parties in a like or
similar manner shall not apply to the Second Priority Security Documents without the consent of the
Second Priority Representative, (iii) no such amendment, waiver or consent with respect to any
provision applicable to the collateral agent under the Second Priority Documents shall be made
without the prior written consent of such collateral agent and (iv) notice of such amendment,
waiver or consent shall be given to the Second Priority Representative no later than 10 days after
its effectiveness, provided that the failure to give such notice shall not affect the
effectiveness and validity thereof.
















 




15



	 	 	SECTION 7. Reliance; Waivers; etc.





     7.1 Reliance. The First Priority Documents are deemed to have been executed and
delivered, and all extensions of credit thereunder are deemed to have been made or incurred, in
reliance upon this Agreement. The Second Priority Representative, on behalf of it itself and the
Second Priority Secured Parties, expressly waives all notice of the acceptance of and reliance on
this Agreement by the First Priority Secured Parties. The Second Priority Documents are deemed to
have been executed and delivered and all extensions of credit thereunder are deemed to have been
made or incurred, in reliance upon this Agreement. The First Priority Representative expressly
waives all notices of the acceptance of and reliance by the Second Priority Representative and the
Second Priority Secured Parties.



     7.2 No Warranties or Liability. The Second Priority Representative and the First
Priority Representative acknowledge and agree that neither has made any representation or warranty
with respect to the execution, validity, legality, completeness, collectibility or enforceability
of any other First Priority Document or any Second Priority Document. Except as otherwise provided
in this Agreement, the Second Priority Representative and the First Priority Representative will be
entitled to manage and supervise their respective extensions of credit to any Grantor in accordance
with law and their usual practices, modified from time to time as they deem appropriate.



     7.3 No Waivers. No right or benefit of any party hereunder shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of such party or any other
party hereto or by any noncompliance by any Grantor with the terms and conditions of any of the
First Priority Documents or the Second Priority Documents.



     SECTION 8. Obligations Unconditional.



     8.1 First Priority Obligations Unconditional. All rights and interests of the First
Priority Secured Parties hereunder, and all agreements and obligations of the Second Priority
Secured Parties (and, to the extent applicable, the Grantors) hereunder, shall remain in full force
and effect irrespective of:




     (a) any lack of validity or enforceability of any First Priority Document;




     (b) any change in the time, place or manner of payment of, or in any other term of,
all or any portion of the First Priority Obligations, or any amendment, waiver or other
modification, whether by course of conduct or otherwise, or any refinancing, replacement,
refunding or restatement of any First Priority Document;




     (c) prior to the First Priority Obligations Payment Date, any exchange, release,
voiding, avoidance or non-perfection of any security interest in any Common Collateral or
any other collateral, or any release, amendment, waiver or other modification, whether by
course of conduct or otherwise, or any refinancing, replacement, refunding or restatement of
all or any portion of the First Priority Obligations or any guarantee or guaranty thereof;
or




     (d) any other circumstances that otherwise might constitute a defense available to, or
a discharge of, any Grantor in respect of the First Priority Obligations, or of any of the
Second Priority Representative, or any Grantor, to the extent applicable, in respect of this
Agreement.









 



16


     8.2 Second Priority Obligations Unconditional. All rights and interests of the Second
Priority Secured Parties hereunder, and all agreements and obligations of the First Priority
Secured Parties (and, to the extent applicable, the Grantors) hereunder, shall remain in full force
and effect irrespective of:




     (a) any lack of validity or enforceability of any Second Priority Document;




     (b) any change in the time, place or manner of payment of, or in any other term of,
all or any portion of the Second Priority Obligations, or any amendment, waiver or other
modification, whether by course of conduct or otherwise, or any refinancing, replacement,
refunding or restatement of any Second Priority Document;




     (c) any exchange, release, voiding, avoidance or non-perfection of any security
interest in any Common Collateral or any other collateral, or any release, amendment, waiver
or other modification, whether by course of conduct or otherwise, or any refinancing,
replacement, refunding or restatement of all or any portion of the Second Priority
Obligations or any guarantee or guaranty thereof; or




     (d) any other circumstances that otherwise might constitute a defense available to, or
a discharge of, any Grantor in respect of the Second Priority Obligations or any First
Priority Secured Party in respect of this Agreement.




	 	 	SECTION 9. Miscellaneous.





     9.1 Conflicts. In the event of any conflict between the provisions of this Agreement
and the provisions of any First Priority Document or any Second Priority Document, the provisions
of this Agreement shall govern. Notwithstanding the foregoing, the parties hereto acknowledge that
the terms of this Agreement are not intended to and shall not, as between the Grantors and the
Secured Parties, negate, waive or cancel any rights granted to, or carry liability or obligation
of, any Grantor in the First Priority Documents and the Second Priority Documents or impose any
additional obligations on the Grantors (other than as expressly set forth herein).



     9.2 Continuing Nature of Provisions. This Agreement shall continue to be effective,
and shall not be revocable by any party hereto, until the First Priority Obligation Payment Date
shall have occurred. This is a continuing agreement and the First Priority Secured Parties and the
Second Priority Secured Parties may continue, at any time and without notice to the other parties
hereto, to extend credit and other financial accommodations, lend monies and provide indebtedness
to, or for the benefit of, Company or any other Grantor on the faith hereof.



     9.3 Amendments; Waivers. (a) No amendment or modification of any of the provisions
of this Agreement shall be effective unless the same shall be in writing and signed by the First
Priority Representative (with the consent of the necessary parties under the First Priority
Agreement) and the Second Priority Representative (with the consent of the necessary parties under
the Second Priority Agreement), and, in the case of amendments or modifications of Sections 3.5,
3.6, 5.2, 5.4, 9.3, 9.5 or 9.6, the Grantors and each waiver, if any, shall be a waiver only with
respect to the specific instance involved and shall in no way impair the rights of the parties
making such waiver or the obligations of the other parties to such party in any other respect or at
any other time. Anything herein to the contrary notwithstanding, no consent of any Grantor shall
be required for amendments, modifications or waivers of any other provisions of this Agreement
other than those that (i) directly affect any obligation or right of









 



17

the Grantors hereunder or under the First Priority Documents or the Second Priority Documents
or that would impose any additional obligations on the Grantors or (ii) change the rights of the
Grantors to refinance the First Priority Obligations or the Second Priority Obligations.




     (b) Notwithstanding the foregoing, without the consent of any First Priority Secured Party or
Second Priority Secured Party, the representative under any Additional First Priority Agreement or
Additional Second Priority Agreement may, by executing a Joinder Agreement in the form of Annex II
hereto, cause such Additional First Priority Agreement or Additional Second Priority Agreement to
be treated as a First Priority Agreement or Second Priority Agreement, respectively, hereunder, and
the obligations evidenced by such Additional First Priority Agreement or Additional Second Priority
Agreement shall be subject to the terms hereof.



     9.4 Information Concerning Financial Condition of the Company and the other Grantors.
The Second Priority Representative and the First Priority Representative hereby agree that no party
shall have any duty to advise any other party of information known to it regarding the financial
condition of the Company and each of the other Grantors or of any such circumstances bearing upon
the risk of nonpayment of the First Priority Obligations or the Second Priority Obligations. In
the event the Second Priority Representative or the First Priority Representative, in its sole
discretion, undertakes at any time or from time to time to provide any information to any other
party to this Agreement, it shall be under no obligation (a) to provide any such information to
such other party or any other party on any subsequent occasion, (b) to undertake any investigation
not a part of its regular business routine, or (c) to disclose any other information.



     9.5 Governing Law. This Agreement shall be construed in accordance with and governed
by the law of the State of New York, except as otherwise required by mandatory provisions of law
and except to the extent that remedies provided by the laws of any jurisdiction other than the
State of New York are governed by the laws of such jurisdiction.



     9.6 Submission to Jurisdiction. (a) Each First Priority Secured Party, each Second
Priority Secured Party and each Grantor hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York
sitting in New York County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment, and each such party
hereby irrevocably and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent permitted by law,
in such Federal court. Each such party agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Agreement shall affect any right that the
any First Priority Secured Party or Second Priority Secured Party may otherwise have to bring any
action or proceeding against any Grantor or its properties in the courts of any jurisdiction.



     (b) Each First Priority Secured Party, each Second Priority Secured Party and each Grantor
hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively
do so (i) any objection it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to in paragraph (a)
of this Section and (ii) the defense of an inconvenient forum to the maintenance of such action or
proceeding.









 



18


     (c) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.7. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.



     9.7 Notices. Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and may be personally
served, telecopied, or sent by overnight express courier service or United States mail and shall be
deemed to have been given when delivered in person or by courier service, upon receipt of a
telecopy or five days after deposit in the United States mail (certified, with postage prepaid and
properly addressed). For the purposes hereof, the addresses of the parties hereto (until notice of
a change thereof is delivered as provided in this Section) shall be as set forth below each party’s
name on the signature pages hereof, or, as to each party, at such other address as may be
designated by such party in a written notice to all of the other parties.



     9.8 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of each of the parties hereto and each of the First Priority Secured Parties and Second
Priority Secured Parties and their respective successors and permitted assigns, and nothing herein
is intended, or shall be construed to give, any other Person any right, remedy or claim under, to
or in respect of this Agreement or any Common Collateral.



     9.9 Headings. Section headings used herein are for convenience of reference only, are
not part of this Agreement and shall not affect the construction of, or be taken into consideration
in interpreting, this Agreement.



     9.10 Severability. Any provision of this Agreement held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other jurisdiction.



     9.11 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
Delivery of an executed counterpart of a signature page of this Agreement by email or telecopy
shall be effective as delivery of a manually executed counterpart of this Agreement. This Agreement
shall become effective when it shall have been executed by each party hereto.



     9.12 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY
COUNTERCLAIM THEREIN.



     9.13 Additional Grantors. Each Person that becomes a Grantor after the date hereof
shall become a party to this Agreement upon execution and delivery by such Person of a Joinder
Agreement in the form of Annex 1 hereto.









 



19


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



	 	 	 	 	 	 	 

	 	 	THE BANK OF NEW YORK MELLON, as First Priority Representative
for and on behalf of the First Priority Secured Parties	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	Attention:	 	 
	 	 	Telecopy No.:	 	 
	 
	 	 	 	 	 	 
	 	 	WILMINGTON TRUST FSB, as Second Priority Representative 

for
and on behalf of the Second Priority Secured Parties	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	Attention:	 	 
	 	 	Telecopy No.:	 	 
	 
	 	 	 	 	 	 
	 	 	GEOEYE, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	Attention:	 	 
	 	 	Telecopy No.:	 	 












 



20


	 	 	 	 	 	 	 

	 	 	GEOEYE IMAGERY
COLLECTION SYSTEMS INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	Attention:	 	 
	 	 	Telecopy No.:	 	 
	 
	 	 	 	 	 	 
	 	 	GEOEYE SOLUTIONS HOLDCO
INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	Attention:	 	 
	 	 	Telecopy No.:	 	 
	 
	 	 	 	 	 	 
	 	 	GEOEYE SOLUTIONS INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	Attention:	 	 
	 	 	Telecopy No.:	 	 
	 
	 	 	 	 	 	 
	 	 	I5, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 












 



21


	 	 	 	 	 	 	 

	 	 	Attention:	 	 
	 	 	Telecopy No.:	 	 
	 
	 	 	 	 	 	 
	 	 	MJ HARDEN ASSOCIATES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	Attention:	 	 
	 	 	Telecopy No.:	 	 
	 
	 	 	 	 	 	 
	 	 	GEOEYE LICENSE CORP.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	Attention:	 	 
	 	 	Telecopy No.:	 	 

















 



22







ANNEX I




Form of Joinder to Junior Lien Intercreditor Agreement




     The undersigned,                    , a                     , hereby joins in the execution of that certain Junior Lien Intercreditor
Agreement dated as of ___________, 20__ (the “Intercreditor Agreement”), issued and
executed by each Person that is or becomes a Grantor, as applicable, thereunder on and/or after the
date and pursuant to the terms thereof. By executing this Joinder, the undersigned hereby agrees
that it is a Grantor thereunder with the same force and effect as if originally named therein as a
Grantor. The undersigned agrees to be bound by all of the terms and provisions of the
Intercreditor Agreement. Each reference to a Grantor in the Intercreditor Agreement shall be deemed
to include the undersigned. Capitalized terms used but not defined herein shall have the meanings
set forth in the Intercreditor Agreement.



     IN WITNESS WHEREOF, the undersigned has executed this Joinder this ___ day of                                         , 20___.



	 	 	 	 	 
	 	[NAME OF GRANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 	 	Address: 	 	 
	 










 



23


ANNEX II




          [FORM OF] JOINDER AGREEMENT dated as of [     ], 20[ ] to the JUNIOR LIEN INTERCREDITOR
AGREEMENT dated as of [     ], 20[ ] (the “Intercreditor Agreement”), among GeoEye, Inc., a
Delaware corporation (“the Company”), certain subsidiaries of the Company (each a “Grantor”), The
Bank of New York Mellon, as First Priority Representative, and __________________, as Second
Priority Representative.




          A. Capitalized terms used herein but 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 indebtedness under an [Additional
First Priority Agreement/Additional Second Priority Agreement] and to have such indebtedness
treated as [First Priority Obligations/Second Priority Obligations], pursuant to 

Section 9.3(b)
____________, as representative (the “Additional Representative”) under the [Additional First
Priority Agreement/Additional Second Priority Agreement] is required to execute this Joinder
Agreement in accordance with the requirements of the Intercreditor Agreement.




          Accordingly, the Additional Representative agrees as follows:




          SECTION 1. In accordance with Section 9.3(b) of the Intercreditor Agreement, the Additional
Representative by its signature below hereby agrees that it, on its own behalf and the behalf of
the holders of any indebtedness under the [Additional First Priority Agreement/Additional Second
Priority Agreement] is subject to and bound by, the Intercreditor Agreement, and the Additional
Representative hereby agrees to all the terms and provisions of the Intercreditor Agreement
applicable to any [Additional First Priority Agreement/Additional Second Priority Agreement]. The
Intercreditor Agreement is hereby incorporated herein by reference.




          SECTION 2. The Additional Representative represents and warrants to the First Priority
Representative, the Second Priority Representative, the other First Priority Secured Parties and
the other Second Priority 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
holders of any indebtedness under the [Additional First Priority Agreement/Additional Second
Priority Agreement] for which it is representative, upon the Additional Representative’s entry into
this Joinder Agreement, will be subject to and bound by the provisions of the Intercreditor
Agreement as [First Lien Secured Parties/Second Lien Secured Parties].




          SECTION 3. 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










 



24

contract. This Joinder Agreement shall become effective when the First Priority
Representative and the Second Priority Representative shall have received a counterpart of this
Joinder Agreement that bears the signature of the Additional 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 4. Except as expressly supplemented hereby, the Intercreditor Agreement shall remain
in full force and effect.




          SECTION 5. THIS REPRESENTATIVE SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.




          SECTION 6. In case any one or more of the provisions contained in this Joinder Agreement
should be held invalid, illegal or unenforceable in any respect, no party hereto shall be required
to comply with such provision for so long as such provision is held to be invalid, illegal or
unenforceable, but the validity, legality and enforceability of the remaining provisions contained
herein and in the Intercreditor Agreement shall not in any way be affected or impaired. The
parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.




          IN WITNESS WHEREOF, the parties hereto have duly executed this Joinder Agreement to the
Intercreditor Agreement as of the day and year first above written.




	 	 	 	 	 	 	 

	 	 	[NAME OF ADDITIONAL REPRESENTATIVE],

as [      ] for the holders of	 	 
	 
	 	 	 	 	 	 
	 	 	[                    
                              ],	 	 
	 
	 	 	 	 	 	 
	 

	 	by	 	 

	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	Address for notices: