Exhibit
10.15


 


AMENDED AND RESTATED INTERCREDITOR AGREEMENT


 


THIS AMENDED AND RESTATED
INTERCREDITOR AGREEMENT (this “Agreement”) is entered into as of September 30, 2003, by
and among (i) Deutsche Bank Trust Company Americas, acting in its capacity as
Administrative Agent under the First Priority Credit Agreement (as hereinafter
defined) (together with its successors and assigns in such capacity, the “First
Priority Bank Agent”), (ii) Deutsche Bank Trust Company Americas, acting in
its capacity as collateral agent under the First Priority Security Agreement
(as hereinafter defined) (together with its successors and assigns in such
capacity, the “First Priority Collateral Agent”), (iii) Deutsche Bank
Trust Company Americas, acting in its capacity as Administrative Agent under
the Second Priority Credit Agreement (as hereinafter defined) (together with
its successors and assigns in such capacity, the “Second Priority Bank Agent”),
(iv) Deutsche Bank Trust Company Americas, acting in its capacity as collateral
agent under the Second Priority Security Agreement (as hereinafter defined)
(together with its successors and assigns in such capacity, the “Second
Priority Collateral Agent”), (v) Deutsche Bank Trust Company Americas, as
beneficiary for the benefit of the Secured Creditors under the Mortgages (as
hereinafter defined) (together with its successors and assigns in such
capacity, the “Mortgagee”), and (vi) HSBC Bank USA, as trustee for the
holders of Second Priority Senior Notes (as defined below) issued under the
Second Priority Senior Notes Indenture (as hereinafter defined) (in such
capacity, together with its successors and assigns in such capacity, the “Second
Priority Senior Notes Trustee”), and is acknowledged and consented to by
Huntsman LLC, a Utah limited liability company formerly known as Huntsman
Company LLC (“Borrower”).


 


R E C I T A L S


 


WHEREAS, the
Collateral Agents and Borrower are parties to that certain Intercreditor
Agreement dated as of September 30, 2002, pursuant to which the Collateral Agents
have set forth certain of their respective rights and obligations, including
with respect to the Collateral (the “Existing Intercreditor Agreement”);


 


WHEREAS, on the
date hereof, Borrower is issuing $380 million in aggregate principal amount of
11-5/8% Senior Secured Notes due 2010 (such notes, together with any exchange
notes and additional notes issued under the Second Priority Senior Notes
Indenture (as defined herein), which are permitted to be issued by the Credit
Agreements (as defined herein), the “Second Priority Senior Notes”)
under an Indenture dated as of the date hereof among Borrower, the guarantors
named therein and the Second Priority Senior Notes Trustee (as amended,
supplemented or otherwise modified from time to time, in accordance with the
terms hereof, the “Second Priority Senior Notes Indenture”);


 


WHEREAS, Borrower,
certain subsidiaries of Borrower parties thereto and the First Priority
Collateral Agent are parties to a Security Agreement with respect to the First
Priority Secured Obligations (as amended, replaced, modified, extended,
renewed, supplemented or restated (in connection with a Refinancing or
otherwise) or otherwise modified from time to time, the “First Priority
Security Agreement”);


 

















 


WHEREAS,
contemporaneously herewith, in order to secure the Second Priority Senior Notes
on a pari passu basis with the Lenders that are parties to the Second Priority
Credit Agreement and the other Second Priority Secured Creditors, (i) the
Second Priority Collateral Agent, Borrower and the subsidiaries of Borrower
parties thereto are entering into the Second Amended and Restated Security
Agreement (as amended, replaced, modified, extended, renewed, supplemented or
restated (in connection with a Refinancing or otherwise) or otherwise modified
from time to time, the “Second Priority Security Agreement”) and (ii)
the Mortgages are being amended in order to add the Second Priority Senior
Notes Obligations (as defined herein) as secured obligations thereunder (as
more fully described in each such amendment); and


 


WHEREAS, the
Collateral Agents, the Bank Agents (as defined below), the Mortgagee, the
Second Priority Senior Notes Trustee and Borrower hereto desire to enter into
this Agreement for the purpose of setting forth the rights and obligations of
the Collateral Agents and the respective secured parties with respect to the
Collateral.


 


NOW, THEREFORE, in
consideration of the premises and the mutual agreements set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:


 


Section 1.                Defined Terms. 
As used in this Agreement, the following terms shall have the following
meanings (all such meanings to be equally applicable to both the singular and
plural forms of the terms defined):


 


“Bank Agents”
shall mean the First Priority Bank Agent and the Second Priority Bank Agent.


 


“Bank Obligations”
shall mean the First Priority Bank Obligations and the Second Priority Bank
Obligations.


 


“Bankruptcy Proceeding”
shall have the meaning set forth in the Second Priority Credit Agreement.


 


“Borrower” shall
have the meaning provided in the first paragraph of this Agreement.


 


“Collateral” shall
mean the property from time to time consisting of Collateral under the First
Priority Security Agreement, the Second Priority Security Agreement and the
Mortgages.


 


“Collateral Agents”
shall mean the First Priority Collateral Agent, the Second Priority Collateral
Agent and the Mortgagee.


 


“Credit Agreements”
shall mean the First Priority Credit Agreement and the Second Priority Credit
Agreement.


 


“Credit Party”
shall mean any Credit Party (as defined in the First Priority Credit Agreement)
or any Credit Party (as defined in the Second Priority Credit Agreement).  The term “Credit Parties” shall have
a correlative meaning.


 


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“Existing
Intercreditor Agreement” shall have the meaning provided in the Recitals
hereto.


 


“First Priority Agent”
shall mean the First Priority Bank Agent and/or the First Priority Collateral
Agent, as the case may be.


 


“First Priority Bank
Agent” shall have the meaning set forth in the first paragraph hereto.


 


“First Priority Bank
Obligations” shall mean Obligations (as defined in the First Priority
Credit Agreement), together with any obligations incurred to evidence any
refunding, Refinancing, replacement or successive refunding, Refinancing or
replacement thereof.


 


“First Priority
Collateral Agent” shall have the meaning set forth in the first paragraph
hereto.


 


“First Priority Credit
Agreement” shall mean that certain Revolving Credit Agreement by and among
Borrower, the other borrowers parties thereto, Deutsche Bank Trust Company
Americas, as administrative agent and collateral agent, and the lenders parties
thereto, together with any agreement or agreements from time to time executed
by Borrower to evidence any refunding, Refinancing, replacement or successive
refunding, Refinancing or replacement of all or any part of the First Priority
Bank Obligations, together with any amendments, replacements, modifications,
extensions, renewals or supplements to, or restatements of, any of the
foregoing.


 


“First Priority
Instructing Group” shall mean the Instructing Group (as defined in the
First Priority Security Agreement).


 


“First Priority Loan
Documents” shall mean the Loan Documents (as defined in the First Priority
Credit Agreement) and all other documents, instruments and agreements now or
hereafter evidencing or securing the whole or any part of the First Priority
Bank Obligations (including, without limitation, each of the loan documents as
defined in any principal agreement evidencing First Priority Bank Obligations,
including any documents evidencing or securing any complete, partial or
successive refunding, Refinancing or replacement of the First Priority Bank
Obligations or successive refunding, Refinancing or replacement, together with
any amendments, replacements, modifications, extensions, renewals or
supplements to, or restatements of, any of the foregoing).


 


“First Priority
Secured Creditors” shall mean all holders of the First Priority Secured
Obligations.


 


“First Priority
Secured Obligations” shall mean the Obligations (as defined in the First
Priority Security Agreement), together with any obligations incurred to
evidence any refunding, Refinancing, replacement or successive refunding,
Refinancing or replacement thereof.


 


“First Priority
Security Agreement” shall have the meaning set forth in the Recitals
hereto.


 


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“First Priority
Security Documents” shall mean the First Priority Security Agreement and
all other Security Documents (as defined in the First Priority Credit
Agreement).


 


“Fully Paid” shall
mean, with respect to any Obligation, that the respective obligee of such
Obligation (which obligee shall, (i) in the case of the First Priority Bank
Obligations, be the First Priority Bank Agent; and (ii) in the case of the
Second Priority Bank Obligations, be the Second Priority Bank Agent, shall have
certified to the respective Collateral Agent that such Obligation has
terminated and that there remain no obligations of any kind whatsoever of the
Borrower or any Credit Party with respect thereto (other than contingent
indemnification obligations as to which no claims shall have accrued or be
pending).


 


“Lender” shall
mean any Lender (as defined in the First Priority Credit Agreement) or any
Lender (as defined in the Second Priority Credit Agreement), in each case
together with their respective successors and assigns in such capacity.


 


“Liens” shall mean
Liens (as defined in the First Priority Credit Agreement) and/or Liens (as
defined in the Second Priority Credit Agreement), as the context shall require.


 


“Loan Documents”
shall mean, collectively, the First Priority Loan Documents and the Second
Priority Loan Documents, or any of the foregoing.


 


“Mortgagee” shall
have the meaning set forth in the first paragraph hereto.


 


“Mortgages” shall
mean Mortgages (as defined in the First Priority Credit Agreement) and
Mortgages (as defined in the Second Priority Credit Agreement), as the context
shall require.


 


“Obligations”
shall mean, collectively, the First Priority Secured Obligations and the Second
Priority Secured Obligations.  “Obligation”
means any First Priority Secured Obligation or Second Priority Secured
Obligation, as the context shall require.


 


“Refinance” shall
mean, with respect to any Obligation, to refinance, extend, renew, repay,
prepay, redeem, defease or retire, or to issue indebtedness in exchange or
replacement for, such Obligation.  “Refinancing”
has a correlative meaning.


 


“Second Priority Agent”
shall mean the Second Priority Bank Agent and/or the Second Priority Collateral
Agent, as the case may be.


 


“Second Priority Bank
Agent” shall have the meaning set forth in the first paragraph hereto.


 


“Second Priority Bank
Obligations” shall mean Obligations (as defined in the Second Priority
Credit Agreement), together with any obligations incurred to evidence any
refunding, Refinancing, replacement or successive refunding, Refinancing or
replacement thereof.


 


“Second Priority
Collateral Agent” shall have the meaning set forth in the first paragraph
hereto.


 


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“Second Priority
Credit Agreement” shall mean that certain Amended and Restated Credit
Agreement by and among Borrower, Deutsche Bank Trust Company Americas, as
administrative agent, and the lenders parties thereto, together with any
agreement or agreements from time to time executed by Borrower to evidence any
refunding, Refinancing, replacement or successive refunding, Refinancing or
replacement of all or any part of the Second Priority Bank Obligations,
together with any amendments, replacements, modifications, extensions,
renewals, supplements to, or restatements of, any of the foregoing.


 


“Second Priority
Instructing Group” shall mean the Instructing Group (as defined in the
Second Priority Security Agreement).


 


“Second Priority Loan
Documents” shall mean the Loan Documents (as defined in the Second Priority
Credit Agreement) and all other documents, instruments and agreements now or
hereafter evidencing or securing the whole or any part of the Second Priority
Bank Obligations (including, without limitation, each of the loan documents as
defined in any principal agreement evidencing Second Priority Bank Obligations,
including any documents evidencing or securing any complete, partial or
successive refunding, Refinancing or replacement of the Second Priority Bank
Obligations or successive refunding, Refinancing or replacement, together with
any amendments, replacements, modifications, extensions, renewals or
supplements to, or restatements of, any of the foregoing).


 


“Second Priority
Secured Creditors” shall mean all holders of the Second Priority Secured
Obligations.


 


“Second Priority
Secured Obligations” shall mean the Obligations (as defined in the Second
Priority Security Agreement, together with any obligations incurred to evidence
any refunding, Refinancing or replacement or successive refunding, Refinancing
or replacement thereof.).


 


“Second Priority
Security Agreement” shall have the meaning set forth in the Recitals
hereto.


 


“Second Priority
Security Documents” shall mean the Second Priority Security Agreement and
all other Security Documents (as defined in the Second Priority Credit
Agreement).


 


“Second Priority
Senior Noteholders” shall mean the holders of the Second Priority Senior
Notes.


 


“Second Priority
Senior Notes” shall have the meaning set forth in the Recitals thereto.


 


“Second Priority
Senior Notes Indenture” shall have the meaning set forth in the Recitals
hereto.


 


“Second Priority
Senior Notes Obligations” shall mean the obligations incurred by Borrower
under the Second Priority Senior Notes Indenture, as evidenced by the Second
Priority Senior Notes.


 


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“Second Priority
Senior Notes Trustee” shall have the meaning set forth in the Recitals
hereto.


 


“Secured Creditors”
shall mean, collectively, the First Priority Secured Creditors and the Second
Priority Secured Creditors.


 


“Security Agreements”
shall have the meaning set forth in the Recitals hereto.


 


“Security Documents”
shall mean the Security Documents (as defined in the First Priority Credit
Agreement) and the Security Documents (as defined in the Second Priority Credit
Agreement).


 


Section
2.              Lien
Priorities.


 


(a)           (i)            The parties hereto hereby agree that,
notwithstanding the time, order or method of creation, attachment or perfection
of the respective security interests and/or Liens granted in favor of the
Collateral Agents to secure the Obligations or the filing or recording of
financing statements or other Security Documents; the validity or
enforceability of the security interests and Liens granted in favor of the Collateral
Agents or the First Priority Secured Creditors or the Second Priority Secured
Creditors; the dating, execution or delivery of any agreement, document or
instrument granting any Collateral Agent or Secured Creditor security interests
and/or Liens in or on any or all of the property or assets of any pledgor; the
date on which any indebtedness is extended; the giving or failure to give
notice of the acquisition or expected acquisition of any purchase money or
other security interest; any provision of the Uniform Commercial Code,
including any rule for determining priority thereunder or under any other law
or rule governing the relative priorities of secured creditors, including with
respect to real property or fixtures; any provision set forth in any Loan
Document or the Second Priority Senior Notes Indenture or the Second Priority
Notes; or the possession or control by any Collateral Agent or Secured Creditor
or any bailee of all or any part of any Collateral as of the date hereof or
otherwise, the Liens granted under the First Priority Security Documents to
secure the First Priority Secured Obligations shall be a first and prior
security interest for all purposes and the Liens granted under the Second
Priority Security Documents to secure the Second Priority Secured Obligations
shall be second and subordinated to the Liens granted under the First Priority
Security Documents.


 


(ii)           Notwithstanding
the terms of any First Priority Loan Documents, Second Priority Loan Documents
or the Second Priority Senior Notes Indenture, in the event of any enforcement
of any Liens or in connection with a Bankruptcy Proceeding, all proceeds of
Collateral, including the proceeds of any collection, sale or disposition of
the Collateral or any portion thereof in connection with the exercise of
remedies under the Security Documents or otherwise and any proceeds or
recoveries under any title insurance policy(ies) insuring any Mortgage, shall
be distributed in accordance with the following procedure:


 


(x)            Such proceeds of the Collateral
shall be applied first to the First Priority Secured Obligations (including,
without limitation, all interest thereon accruing subsequent to the filing of a
bankruptcy case (or that would accrue but for such filing) at the rate provided


 


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for in the First Priority Credit Agreement, whether or
not such interest is an allowed claim under applicable law) and, after the
First Priority Secured Obligations have been Fully Paid, shall be applied to
the Second Priority Secured Obligations in accordance with the Second Priority
Security Agreement.


 


(y)           In the event that
either Collateral Agent receives the proceeds of any Collateral in
contravention of the preceding paragraph, it shall hold such proceeds in trust
for, and promptly turn over such proceeds (in the same form as received, with
any necessary non-recourse endorsement) to the proper Collateral Agent in
accordance with the provisions of clause (x) above; provided, however,
that in the event any Collateral Agent fails to provide any such endorsement,
the applicable Collateral Agent, or any of its officers or employees, is hereby
irrevocably authorized to make the same (which authorization, being coupled
with an interest, is irrevocable).


 


(iii)          For the avoidance of
doubt, it is understood and agreed that the First Priority Collateral Agent may
apply proceeds held in the Master Collection Account (as defined in the First
Priority Credit Agreement), any Deposit Account (as defined in the First
Priority Credit Agreement) and any Cash Collateral Account (as such term is
defined in both the First Priority Security Agreement and the Second Priority
Security Agreement) pursuant to and in accordance with the express terms of the
First Priority Credit Agreement, and that the mandatory prepayments provided
for in Section 4.5 of the First Priority Credit Agreement and Section 4.2 of
the Second Priority Credit Agreement may be applied in a manner consistent with
the terms of such respective agreements.


 


(iv)          Each of the parties
hereto acknowledges that the Lien priorities provided in this Agreement shall
not be affected or impaired in any manner whatsoever, including, without
limitation, on account of (i) the invalidity, irregularity or
unenforceability of all or any part of the Loan Documents, the Second Priority
Senior Notes Indenture or the Second Priority Senior Notes; (ii) any
amendment, change or modification of any Loan Document, the Second Priority
Senior Notes Indenture or the Second Priority Senior Notes; or (iii) any
impairment, modification, change, exchange, release or subordination of or
limitation on, any liability of, or stay of actions or lien enforcement
proceedings against, any Credit Party, its property, or its estate in
bankruptcy resulting from any bankruptcy, arrangement, readjustment,
composition, liquidation, rehabilitation, similar proceeding or otherwise
involving or affecting any Credit Party.


 


(b)           Each Collateral
Agent hereby appoints each other as agent for purposes of perfecting its respective
security interests, Liens and claims in the Collateral (in each case, whether
such Collateral was delivered to the First Priority Collateral Agent or the
Second Priority Collateral Agent, as the case may be, prior to, on or after the
date hereof), in each case to the extent that such perfection may be obtained
by possession or control and hereby acknowledges that it holds possession of
such collateral, including, without limitation, any instruments, for the
benefit of the other Collateral Agent. 
On the date on which the First Priority


 


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Secured Obligations are Fully Paid, the First Priority Collateral Agent
shall deliver or cause to be delivered any Collateral in its possession or
control to the Second Priority Collateral Agent.


 


(c)           The parties hereto
shall not challenge or question in any proceeding the validity, perfection,
priority or enforceability of this Agreement, as a whole, or any term or
provision contained herein or the validity or enforceability of any Lien,
Mortgage or financing statement in favor of any Collateral Agent or the
relative priority of any such Lien or Mortgage.


 


(d)           In the event of any
Refinancing of the First Priority Secured Obligations, the Second Priority
Collateral Agent and the Second Priority Secured Creditors, including the
Second Priority Senior Notes Trustee, on behalf of itself and the Second
Priority Senior Noteholders, do hereby confirm (and, upon request, agree to
reconfirm at any time) the continued applicability of the provisions hereof in
respect of the relative priority between the Liens securing the Second Priority
Secured Obligations and the Liens securing any Obligations incurred as a result
of the Refinancing of the First Priority Secured Obligations, but only to the
extent that such Refinancing is consummated in accordance with all applicable
provisions of the Second Priority Credit Agreement.  In connection with any Refinancing of all or any portion of the
First Priority Secured Obligations prior to the occurrence of a Bankruptcy
Event, the Second Priority Collateral Agent, on behalf of each Second Priority
Secured Creditor, shall, if requested by Borrower or the existing or new
holders of the First Priority Secured Obligations, execute an intercreditor agreement
or amend and restate this Agreement in a manner that is substantially similar
to this Agreement with the lenders under such Refinancing.


 


(e)           The Second Priority
Collateral Agent, on behalf of itself and each Second Priority Secured Creditor
(including, without limitation, the Second Priority Senior Notes Trustee, for
itself and the Second Priority Senior Noteholders), hereby waives any
requirement on the part of the First Priority Collateral Agent or the First
Priority Secured Creditors in respect of marshalling of assets upon any
exercise of remedies by the First Priority Collateral Agent or the First
Priority Secured Creditors and any requirement that the First Priority
Collateral Agent or any First Priority Secured Creditor exercise remedies with respect
to collateral security for the First Priority Obligations in any particular
order or any particular manner.


 


(f)            Nothing in this
Agreement shall relieve any Assignor from the performance of any term,
covenant, condition or agreement on such Assignor’s part to be performed or
observed under or in respect of any of the Collateral pledged by it or from any
liability to any Person under or in respect of any of such Collateral or impose
any obligation on any Collateral Agent to perform or observe any such term,
covenant, condition or agreement on such Assignor’s part to be so performed or
observed or impose any liability on any Collateral Agent for any act or
omission on the part of such Assignor relative thereto or for any breach of any
representation or warranty on the part of such Assignor contained in this
Agreement or any other Loan Document or the Second Priority Senior Notes
Indenture, or in respect of the Collateral pledged by it.  The obligations of each Assignor contained
in this paragraph shall survive the termination of this Agreement and the
discharge of such Assignor’s other obligations hereunder.


 


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Section
3.              Certain
Intercreditor Agreements Regarding Refinancing of Bank Obligations, Amendments
to Loan Documents and Related Matters.


 


(a)           The Second Priority
Senior Notes Trustee agrees, acknowledges and consents that, until the Bank
Obligations are Fully Paid, at any time and from time to time without the
consent of or notice to the Second Priority Senior Notes Trustee or any Second
Priority Senior Noteholder and, without incurring responsibility to the Second
Priority Senior Notes Trustee or any Second Priority Senior Noteholder, and
without impairing or releasing the subordination provided for herein or the
obligations hereunder, any or all of the First Priority Loan Documents and/or
any or all of the Second Priority Loan Documents and/or any or all of the
Obligations thereunder may be Refinanced, refunded, replaced, amended,
extended, renewed, restated, supplemented or otherwise modified in any way
whatsoever, including, without limitation, to:


 


(i) shorten or
extend the final maturity of all or any part of the First Priority Secured
Obligations or Second Priority Secured Obligations (other than the Second
Priority Senior Notes Obligations), (ii) modify the amortization of the
principal amount of all or any part of the First Priority Secured Obligations
or Second Priority Secured Obligations, (other than the Second Priority Senior
Notes Obligations), (iii) to the extent permitted by the Second Priority Senior
Notes Indenture, increase the principal amount of the First Priority Secured
Obligations or Second Priority Secured Obligations (other than the Second
Priority Senior Notes Obligations), or otherwise provide for additional
advances and grant any lien, mortgage, pledge, hypothecation, collateral
assignment, security interest, encumbrance, charge, deposit arrangement or
other similar encumbrance to secure any such increased indebtedness and, irrespective
of the time, order or method of creation, attachment or perfection thereof or
the filing or recording thereof, make any such lien, mortgage, pledge,
hypothecation, collateral assignment, security interest, encumbrance, charge,
deposit arrangement or other similar encumbrance, in each case subject to Section
2, including the lien priorities set forth set forth therein, (iv) raise
the standard or default per annum interest rates applicable to all or any part
of the First Priority Secured Obligations or Second Priority Secured
Obligations (other than the Second Priority Senior Notes Obligations), (v)
impose any additional fees or penalties upon Borrower or any of its
subsidiaries or increase the amount of or rate for any fees or penalties
provided for in the First Priority Loan Documents or Second Priority Loan
Documents, (vi) retain or obtain a lien, mortgage, pledge, hypothecation,
collateral assignment, security interest, encumbrance, charge, deposit
arrangement or other similar encumbrance on any property to secure any of the
First Priority Secured Obligations or Second Priority Secured Obligations,
(vii) enter into any new, replaced, amended, extended, renewed, restated,
supplemented or otherwise modified First Priority Loan Documents or Second Priority
Loan Documents, (viii) change the manner, place or terms of payment or extend
the time of payment of, or renew or alter, all or any of the First Priority
Secured Obligations or Second Priority Secured Obligations (other than the
Second Priority Senior Notes Obligations) or otherwise Refinance, refund,
replace, amend, extend, renew, restate, supplement or otherwise modify in any
manner, or grant any waiver, forbearance or release with respect to, all or any
part of the First Priority Secured Obligations or Second Priority Secured
Obligations (in each case, other than the Second Priority Senior Notes
Obligations) or any First Priority Loan Document or Second Priority Loan
Document, (ix) retain or obtain the primary or secondary obligation of any
other Person with respect to any of the First Priority Secured Obligations or
Second Priority Secured Obligations (other than the Second


 


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Priority Senior
Notes Obligations), (x) release any Person liable in any manner under or in
respect of First Priority Secured Obligations or Second Priority Secured
Obligations (other than the Second Priority Senior Notes Obligations) or,
acting in accordance with the relevant Security Documents, release or
compromise any obligation of any nature of any Person with respect to any of
the First Priority Secured Obligations or Second Priority Secured Obligations,
(xi) except to the extent in violation of the Second Priority Senior Notes
Indenture, sell, exchange, not perfect or otherwise deal with any property at
any time pledged, assigned or mortgaged to secure or otherwise securing, all or
any part of the First Priority Secured Obligations or Second Priority Secured
Obligations, including without limitation, any Collateral, (xii) subject to Section
4, release its security interest in, or surrender, release or permit any
substitution or exchange for, all or any part of any property securing any
First Priority Secured Obligations or Second Priority Secured Obligations, or
release, compromise, alter or exchange any obligations of any nature of any
Person with respect to any such property, (xiii) amend or grant any waiver or
release with respect to, or consent to any departure from, any guaranty of all
or any of the First Priority Secured Obligations or Second Priority Secured
Obligations (other than the Second Priority Senior Notes Obligations), (xiv)
grant any lien, mortgage, pledge, hypothecation, collateral assignment,
security interest, encumbrance, charge, deposit arrangement or other similar
encumbrance, (xv) exercise or refrain from exercising any rights or remedies
against and release from obligations of any type (other than the Second
Priority Senior Notes Obligations), Borrower or any of its subsidiaries or any
other Person, (xvi) replace any Bank Agent, Collateral Agent or Lender, whether
or not in connection with a Refinancing and (xvii) otherwise manage and
supervise the First Priority Secured Obligations or Second Priority Secured
Obligations (other than the Second Priority Senior Notes Obligations) in
accordance with such person’s usual practices, modified from time to time as
such person deems appropriate under the circumstances.


 


(b)           The Second Priority
Senior Notes Trustee, for itself and on behalf of the Second Priority Senior
Noteholders, hereby irrevocably constitutes and appoints the Second Priority
Collateral Agent and any officer or agent of the Second Priority 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 the Second
Priority Senior Notes Trustee or such holder or in the Second Priority
Collateral Agent’s own name, from time to time in the Second Priority
Collateral Agent’s discretion, for the purpose of carrying out the terms of
this Section 3, to take any and all appropriate action and to execute
and record any and all documents and instruments which may be necessary or
desirable to accomplish the purposes of this Section 3, including,
without limitation, any financing statements, endorsements or other instruments
of transfer or release.  In connection
therewith, the Second Priority Collateral Agent acknowledges its appointment on
the date hereof under Section 11.03 of the Second Priority Senior Notes Indenture
as Second Priority Collateral Agent for the benefit of the Second Priority
Senior Notes Trustee and the holders of the Second Priority Senior Notes,
subject to all terms and conditions set forth in the Indenture.


 


(c)           In connection with
any Refinancing, refunding, replacement, amendment, extension, renewal,
restatement, supplement or other modification of all or any portion of the
First Priority Secured Obligations or the Second Priority Secured Obligations
prior to the occurrence of a Bankruptcy Event, the Second Priority Senior Notes
Trustee, on behalf of each Second Priority Senior Noteholder, does hereby (i)
confirm (and, upon request, agrees to reconfirm at any time) the continued
applicability of the provisions hereof and (ii) consent to any


 


10

















 


successor, replacement or assignee of any First Priority Agent, Second
Priority Agent or Mortgagee becoming party to this Agreement and/or any
Security Agreements or Loan Documents (including by execution of an assignment
or joinder agreement or other equivalent instrument) without any additional
consent or approval of the Second Priority Senior Notes Trustee; provided,
however, that, notwithstanding the foregoing, the Second Priority Senior
Notes Trustee shall, if requested by the Borrower, any First Priority Agent,
Second Priority Agent or the Mortgagee (or any successor, replacement or
assignee thereof), or any existing or new holder of First Priority Secured
Obligations or Second Priority Secured Obligations, execute an intercreditor
agreement, or an amendment to or restatement of this Agreement substantially
similar to this Agreement (incorporating such amendments, modifications,
waivers or variances which do not materially adversely affect the rights and benefits
of the holders of the Second Priority Senior Notes in a different manner than
the other Second Priority Secured Creditors).


 


Section 4.              Release of Liens.


 


(a)           Subject to the
provisions of Section 4(b), each of the First Priority Collateral Agent,
the Second Priority Collateral Agent and the Mortgagee may, at any time or from
time to time, acting in accordance with the First Priority Security Agreement,
the Second Priority Security Agreement or, in the case of any Mortgage, the
terms of the Credit Agreements, as the case may be, release any Liens against
all or any portion of the Collateral.


 


(b)           If (i) the First
Priority Collateral Agent releases the Liens on all Collateral in respect of
all First Priority Secured Obligations and the Second Priority Collateral Agent
releases the Liens on all Collateral in respect of all Second Priority Secured
Obligations (other than the Second Priority Senior Notes Obligations), or (ii)
all First Priority Secured Obligations and all Second Priority Secured Obligations
(other than the Second Priority Senior Notes Obligations) are Fully Paid, then
all the Liens on the Collateral securing the Second Priority Senior Notes
Obligations will be automatically released and terminated and the Second
Priority Collateral Agent shall have no further duties or obligations under the
Second Priority Security Agreement; provided, however, in the
case of either clause (i) or (ii) above, if a Default or Event of Default shall
have occurred and be continuing under the Second Priority Senior Notes
Indenture, the Liens on the Collateral securing the Second Priority Senior
Notes Obligations shall not be released and the Second Priority Security
Agreement shall not terminate until such time as the Default or Event of
Default is cured or waived in accordance with the Second Priority Senior Notes
Indenture.


 


(c)           Subject to Section
4(b), the Second Priority Senior Notes Trustee agrees that its consent
shall not be required in connection with the release of all or any portion of
the Collateral at any time, including, without limitation, any time that a
Default or Event of Default shall have occurred and be continuing under the
Second Priority Senior Notes Indenture.


 


Section 5.              Exercise of Remedies.


 


(a)           Notwithstanding
anything to the contrary in this Agreement or the Second Priority Senior Notes
Indenture, until the Second Priority Bank Obligations are Fully Paid and, so
long as all Liens securing the Second Priority Notes Obligations have not been
released, (i) neither the Second Priority Senior Notes Trustee nor any Second
Priority Senior Noteholder shall have any


 


11

















 


right or power to exercise or seek to exercise any rights or remedies
(including setoff or recoupment) with respect to any Collateral (other than to
receive a share of the Proceeds (as defined in the Second Priority Security
Agreement or the applicable Mortgage, as the case may be)) of such Collateral,
if any, as and when provided in the Second Priority Security Agreement or the
applicable Mortgage, as the case may be), including, without limitation, the
following: (w) to institute any action or proceeding with respect to any
Collateral, including, without limitation, any action of foreclosure, (x)
contest, protest or object to (1) any foreclosure proceeding or action brought
by any Bank Agent or Collateral Agent, (2) the exercise of any right under any
lockbox agreement, control agreement, landlord waiver or bailee’s letter or
similar agreement or arrangement to which any Bank Agent or First Priority
Secured Creditor is a party, or (3) any other exercise by any such party, of
any rights and remedies relating to the Collateral under any First Priority
Loan Documents, any Second Priority Loan Documents or otherwise, (y) object to
the forbearance by any Bank Agent or Lender from bringing or pursuing any
foreclosure proceeding or action or any other exercise of any rights or
remedies relating to the Collateral, (z) demand, accept or obtain any lien,
mortgage, pledge, hypothecation, collateral assignment, security interest,
encumbrance, charge, deposit arrangement or other similar encumbrance on any
Collateral (other than from time to time as granted pursuant to the Second
Priority Security Agreement or the Mortgages); and (ii) the Bank Agents and the
Lenders shall have the exclusive right to enforce rights, exercise remedies
(including, without limitation, setoff, recoupment and the right to credit bid
any Obligations) and make determinations regarding release (subject to Section
4), disposition, or restrictions with respect to the Collateral without any
consultation with or the consent of the Second Priority Senior Notes Trustee or
any Second Priority Senior Noteholder. 
In exercising rights and remedies with respect to the Collateral, the
Bank Agents and the Lenders may (acting in accordance with the terms of the
applicable Loan Documents) enforce the provisions of the First Priority Loan
Documents and the Second Priority Loan Documents and exercise remedies
thereunder, all in such order and in such manner as they may determine in the
exercise of their sole discretion.  Such
exercise and enforcement shall include, without limitation, the rights of an
agent or other representative appointed by them to sell or otherwise dispose of
Collateral upon foreclosure, to incur expenses in connection with such sale or
disposition, and to exercise all the rights and remedies of a secured lender
under the Uniform Commercial Code of any applicable jurisdiction and of a
secured creditor under bankruptcy or similar laws of any applicable
jurisdiction.


 


(b)           In the event that
the Second Priority Senior Notes Trustee receives proceeds of any Collateral,
it shall hold such proceeds in trust for, and promptly turn over such proceeds
(in the same form as received, with any necessary non-recourse endorsement), to
the Second Priority Collateral Agent, which shall in turn, if required, dispose
of such Collateral in accordance with the provisions of Section 2(a)(ii);
provided, however, that in the event that the Second Priority
Senior Notes Trustee fails to provide any such endorsement, the Second Priority
Collateral Agent is hereby irrevocably authorized to make the same (which
authorization, being coupled with an interest, is irrevocable).


 


(c)           The Second Priority
Senior Notes Trustee, for itself and on behalf of the Second Priority Senior
Noteholders, agrees that the Second Priority Senior Notes Trustee and the
Second Priority Senior Noteholders will not take any action that would hinder
any exercise of remedies undertaken by the Collateral Agents under the


 


12

















 


Security Documents or the Bank Agents under the Loan Documents,
including any sale, lease, exchange, transfer or other disposition of the
Collateral, whether by foreclosure or otherwise.


 


(d)           Without limiting
the generality of the foregoing, in any bankruptcy case of a pledgor of
Collateral, neither the Second Priority Senior Notes Trustee nor the Second
Priority Senior Noteholders shall directly or indirectly (i) object to the
terms of any use of cash collateral or debtor in possession financing consented
to by the Bank Agents, or file any pleading with respect to use of cash
collateral or debtor in possession financing without the prior express written
consent of the Bank Agents in each instance, provided the Second
Priority Senior Notes Obligations and Second Priority Bank Obligations are
treated similarly in connection with any such use of cash collateral or
financing, (ii) object to any adequate protection, including additional or
replacement liens or administrative priority claims, consented to by the Bank
Agents, or file any pleading with respect to any such adequate protection,
without the prior express written consent of the Bank Agents in each instance, provided
the Second Priority Senior Notes Obligations and Second Priority Bank
Obligations are treated similarly in connection with any such adequate
protection, (iii) seek relief from the automatic stay, or object to any relief
from the automatic stay requested by the Bank Agents, with respect to any
portion of the Collateral, without the prior express written consent of the
Bank Agents in each instance, provided the Second Priority Senior Notes
Obligations and Second Priority Bank Obligations are treated similarly in
connection with any such motion, (iv) object to any sale of all or any portion
of the Collateral consented to by the Bank Agents, or file any pleading with
respect to the sale of all or any portion of the Collateral, without the prior
express written consent of the Bank Agents in each instance, provided
the Second Priority Senior Notes Obligations and Second Priority Bank
Obligations are treated similarly in connection with any such sale, or (v)
appear and be heard on any matter in such case in a manner inconsistent with
the terms and provisions of this Agreement.


 


(e)           Unless and until
all Bank Obligations have been Fully Paid, the Bank Agents and the Lenders
shall have the sole and exclusive right, subject to the rights of the Borrower
under the Loan Documents, to adjust settlement for any insurance policy
governing the Collateral in the event of any loss thereunder and to approve any
award granted in any condemnation or similar proceeding affecting the
Collateral.


 


Section
6.                Amendments
to Second Priority Senior Notes Indenture.  The Second Priority Senior Notes Trustee shall not amend, modify,
waive or supplement, or cause to be amended, modified, waived or supplemented,
any provision of the Second Priority Senior Notes Indenture, unless such
amendment, modification, waiver or supplement is permitted in accordance with
any applicable terms of the Credit Agreements.


 


Section
7.                Disclaimers,
Etc.


 


(a)           Each party
executing this Agreement agrees, for itself and on behalf of the relevant
Secured Creditors, that (i) each Collateral Agent may act as the First Priority
Instructing Group or the Second Priority Instructing Group, as the case may be,
may direct (regardless of whether any Secured Creditor or any holder
represented thereby agrees, disagrees or abstains with respect to such
request), (ii) each Collateral Agent shall have no liability for acting in
accordance with such request (provided such action does not, on its
face, conflict with the


 


13

















 


express terms of this Agreement) and (iii) no Secured Creditor or any
holder represented thereby shall have any liability to any other Secured
Creditor or any holder represented thereby for any such request.


 


(b)           For the avoidance
of doubt, each Collateral Agent may at any time request directions from the
First Priority Instructing Group or the Second Priority Instructing Group, as
the case may be, as to any course of action or other matter relating hereto or
as to any Security Document.  Except as
otherwise expressly specified in this Agreement, any such directions given by
the First Priority Instructing Group or the Second Priority Instructing Group
shall be binding on the First Priority Secured Creditors and the Second
Priority Secured Creditors, respectively, for all purposes as described in this
Section 7.


 


(c)           The provisions of
Article XI of the Second Priority Security Agreement are incorporated herein by
reference thereto.


 


(d)           Notwithstanding the
use of the term “Agent” herein and/or in any Loan Document, it is expressly
understood and agreed that no Collateral Agent shall have any fiduciary
responsibilities to any Secured Creditor by reason of this Agreement, any
Security Agreement or any Loan Document and that each Collateral Agent is
merely acting as the contractual representative of the applicable Secured
Creditors with only those duties as are expressly set forth in this Agreement
and the Security Agreements and Mortgages, as the case may be.  In its capacity as the Secured Creditors’
contractual representative, no Collateral Agent assumes any fiduciary duties to
any of the Secured Creditors and each is acting as an independent contractor,
the rights and duties of which are limited to those expressly set forth in this
Agreement and the Security Agreements and Mortgages, as the case may be.  Each party hereto, for itself and on behalf
of the relevant Secured Creditors hereby agrees not to assert a claim against a
Collateral Agent on any agency theory or any other theory of liability for
breach of fiduciary duty, all of which claims each party hereto, on behalf of
each Secured Creditor, hereby waives. 
In addition, no Collateral Agent shall have any implied duties to any
Secured Creditor or any obligation to any Secured Creditor to take any action
hereunder or under any Security Agreement or Mortgage, except any action
specifically provided herein or therein to be taken by such Collateral Agent.


 


Section 8.                Notices of Default and of Payment in Full of
Indebtedness.  Each party hereto agrees to use reasonable
efforts to  give to the others
copies of any written notices of default, termination, demand for payment,
redemption, acceleration, foreclosure, exercise of remedies and any other
written notice of a like nature, which may be given under or pursuant to the
terms of any of the applicable Loan Documents or the Second Priority Senior
Notes Indenture and of any notice contemplated under the definition of the term
“Fully Paid” herein, in each case concurrently with, or as soon as practicable
after, the giving of such notice to such party; provided, however,
that no failure of any party to give a copy of any such notice as provided
herein shall in any event affect the validity or effectiveness of the notice or
render the party liable to any other party in any respect or relieve any party
of its obligations and agreements contained herein; provided, further,
however, that in no event shall this Section 8 require the
delivery of any notices to Borrower.


 


14

















 


Section 9.                Notices.


 


(a)           All notices and
communications hereunder shall be sent or delivered by mail, telecopier or
overnight courier service and all such notices and communications shall (i) in
the case of a notice or communication sent by mail, be effective three Business
Days following deposit with proper prepaid postage in the mail; (ii) in the
case of a notice or communication sent by telecopier, be effective when sent,
provided appropriate confirmation is received by the sender; and (iii) in the
case of a notice or communication sent by overnight courier, be effective on
the date of delivery.  All notices,
requests, demands or other communications shall be in writing and addressed as
follows:


 


(i)          If to the First Priority
Collateral Agent or First Priority Bank Agent or Mortgagee:


 


Deutsche Bank Trust Company Americas

233 South Wacker Drive

Chicago, Illinois  60606

Attention:  Frank Fazio

Telephone No.:  (312) 993-8094

Telecopier No.:  (312) 993-8139


 


with a copy to:


 


Winston & Strawn LLP

35 West Wacker Drive

Chicago, Illinois 60601

Attention:  Charles B. Boehrer

Telephone Number:  (312) 558-5600

Telecopier Number:  (312) 558-5700


 


(ii)           If to the Second
Priority Collateral Agent or Second Priority Bank Agent or Mortgagee:


 


Deutsche Bank Trust
Company Americas

31 West 52nd Street

New York, New York  10022

Attention:  John Anos

Telephone No.:  (212) 469-2750

Telecopier No.:  (212) 469-3632


 


with a copy to:


 


Winston & Strawn LLP

35 West Wacker Drive

Chicago, Illinois 60601

Attention:  Charles B. Boehrer

Telephone Number:  (312) 558-5600

Telecopier Number:  (312) 558-5700


 


15

















 


(iii)          If to the Second
Priority Senior Notes Trustee:


 


HSBC Bank USA

452 Fifth Avenue

Issuer Services

New York, New York  10018

Attention:  Gloria Alli

Telephone:  (212) 525-1404

Telecopier No.:  (212) 525-1300


 


with a copy to:


 


Baker & McKenzie

805 Third Avenue

New York, New York  10022

Attention:  Lawrence D. Pringle

Telephone No.:  (212) 891-3980

Telecopier No.:  (416) 863-6275


 


or at such other address
or to any such successor or assign as any party may designate by notice to the
other party in accordance with the provisions hereof.  In the event that any Secured Creditor shall be required by the
UCC or any other applicable law to give notice to the Borrower or any other
Secured Creditor of the intended disposition of any Collateral, such notice
shall be given as provided in the Second Priority Security Agreement and ten
days notice shall be deemed to be commercially reasonable.  Each Second Priority Secured Creditor,
including the Second Priority Senior Notes Trustee, hereby appoints the Second
Priority Collateral Agent as its agent and representative for purposes of
giving and receiving notices under the Second Priority Security Documents.


 


(b)           Upon written
request from the Second Priority Collateral Agent, the Second Priority Notes
Trustee agrees to promptly notify the Second Priority Collateral Agent of (i)
the aggregate amount of principal and interest outstanding and other amounts
owing with respect to the Second Priority Senior Notes and the amount, if any,
then due and payable under the Second Priority Senior Notes Indenture, as at
such date as the Second Priority Collateral Agent may specify and (ii) any
payment received by the Second Priority Senior Notes Trustee to be applied to
the principal of or interest on the amounts due with respect to the Second
Priority Senior Notes.


 


Section 10.             GOVERNING LAW. 
THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF
THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS AND DECISIONS OF SAID STATE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW (EXCEPT SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW).


 


Section 11.             CONSENT TO JURISDICTION. 
THE PARTIES HERETO HEREBY CONSENT TO THE JURISDICTION OF ANY STATE OR
FEDERAL COURT


 


16

















 


LOCATED WITHIN THE CITY OF NEW YORK, STATE OF NEW YORK AND IRREVOCABLY
AGREE THAT ALL ACTIONS OR PROCEEDINGS RELATING TO THIS AGREEMENT SHALL BE
LITIGATED IN SUCH COURTS.  EACH PARTY
HERETO ACCEPTS FOR AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, IN ANY SUCH ACTIONS OR PROCEEDINGS, THE EXCLUSIVE JURISDICTION
OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH THIS AGREEMENT, AND WITH ANY JUDGMENT SUBJECT TO RIGHTS OF APPEAL IN THE
JURISDICTIONS SET FORTH ABOVE.


 


Section 12.             WAIVER OF JURY TRIAL. 
THE PARTIES HERETO HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, OR
ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.  THE PARTIES HERETO ALSO WAIVE ANY BOND OR
SURETY OR SECURITY UPON SUCH BOND THAT MIGHT, BUT FOR THIS WAIVER, BE REQUIRED
OF THE PARTIES HERETO.  THE SCOPE OF
THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY
BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT,
INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.  THE PARTIES HERETO EACH ACKNOWLEDGE THAT
THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP,
THAT EACH HAS ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND
THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE
DEALINGS.  THE PARTIES HERETO FURTHER
WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL
COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. 
THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.  IN THE EVENT OF LITIGATION, THIS AGREEMENT
MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.


 


Section 13.             Section Titles. 
The section titles contained in this Agreement are and shall be without
substantive meaning or content of any kind whatsoever and are not a part of the
Agreement between the parties hereto.


 


Section 14.             Counterparts. 
This Agreement and any amendments, waivers, consents or supplements may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all of which counterparts together shall constitute but
one and the same instrument.


 


17

















 


Section 15.             Severability. 
The invalidity, illegality or unenforceability of any provision in or
obligation under this Agreement shall not affect or impair the validity,
legality or enforceability of the remaining provisions or obligations under
this Agreement.


 


Section 16.             Assignment.  This Agreement shall
be binding upon, and inure to the benefit of, the First Priority Secured
Creditors and the Second Priority Secured Creditors and their respective
successors and assigns regardless of whether such successors or assigns are
signatories hereto.  The term “Borrower”
as used herein shall also refer to the permitted successors and assigns of the
Borrower, including, without limitation, a receiver, trustee, custodian or
debtor-in-possession.  The Secured
Creditors shall have the right to assign, transfer or grant participations in
part or all of the senior debt owed to them, the security therefor and their
rights hereunder.  This Agreement shall
be binding upon and enure to the benefit of the Secured Creditors and their
successors and assigns.


 


Section 17.             Conflict with Other Agreements. 
The parties hereto agree that in the event of any conflict between the
provisions of this Agreement and the provisions of any Loan Document, the
provisions of this Agreement shall control.


 


Section 18.             Amendments and Waivers. 
This Agreement constitutes the entire agreement of the parties hereto
and does not affect any rights and remedies except as expressly provided
herein. This Agreement shall be amended, modified or waived only with the
written consent of the First Priority Collateral Agent (with such written
requisite consent of the First Priority Lenders as may be required pursuant to
Section 13.1 of the First Priority Credit Agreement) and the Second Priority
Collateral Agent (with the written consent of the Required Lenders (as defined
in the Second Priority Credit Agreement)), except that (i) written consent of
the Second Priority Senior Notes Trustee shall be required if the amendment,
modification or waiver or variance would materially adversely affect the rights
and benefits of the Second Priority Senior Noteholders in a different manner
than the other Second Priority Secured Creditors; and (ii) written consent of
the Borrower shall be required if the amendment, modification or waiver would
impose, or have the effect of imposing, on the Borrower more restrictive
covenants or greater obligations than those applicable to the Borrower under
this Agreement or any of the Loan Documents as of the date hereof.  No waiver shall be deemed to be made by
either Collateral Agent of their respective rights hereunder, unless the same
shall be in writing signed by such Collateral Agent (acting in accordance with
this Section 18), 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 such Collateral Agent, in any other respect at any other time.


 


Section 19.             Miscellaneous. 
This Agreement is solely for the purpose of defining the relative rights
and priorities of the parties hereto and that of the First Priority Secured
Creditors and the Second Priority Secured Creditors and their respective
successors and assigns with respect to the Collateral, and no other person,
firm, entity or corporation shall have any right, benefit, priority or interest
under, or because of the existence of, this Agreement.  It is expressly acknowledged and agreed that
the First Priority Collateral Agent and the Second Priority Collateral Agent
may be referred to in one or more Security Documents by other defined terms,
including, without limitation, the “Revolving Credit Agreement Collateral
Agent” and the “Term Credit Agreement Collateral Agent”, respectively.  No such use of such different terminology is
intended to affect the enforcement of this Agreement or any other Security


 


18

















 


Document.  This Agreement shall
not inure to the benefit of the Borrower or any Subsidiary thereof, or their
respective successors and assigns.  The
parties hereto agree and acknowledge that they shall not challenge or question
in any proceeding the validity, perfection, priority or enforceability of this
Agreement, as a whole, or any term or provision contained herein.  Without limiting the terms of this
Agreement, the parties intend that this Agreement shall be enforceable in a
bankruptcy proceeding, including pursuant to Section 510(a) of the Bankruptcy
Code (as defined in the Second Priority Security Agreement).


 


Section 20.             Termination.  Upon the one hundred
twenty-first (121st)  day after all
Bank Obligations have been Fully Paid, this Agreement shall immediately
terminate and cease to be effective and the Bank Agents, the Lenders, the Second
Priority Senior Noteholders, the Second Priority Senior Notes Trustee, and the
Credit Parties shall be released from their respective obligations hereunder
(other than such obligations that by their terms are stated to survive the
termination of this Agreement); provided, however, (a) this
Agreement shall be automatically reinstated if at any time payment of, in whole
or in part, any of the Bank Obligations are challenged by the initiation of any
suit or proceeding by any party, or are rescinded or must otherwise be restored
or returned by any Bank Agent or any Lender as a preference, fraudulent
conveyance or otherwise under any bankruptcy, insolvency or similar law, or
under any other state or federal law, the common law or any ruling in equity,
all as though such payment had not been made, and in such event, all reasonable
documented costs and expenses including, without limitation, any reasonable
documented legal fees and disbursements) incurred by any Bank Agent or any
Lender in defending any such action or proceeding or enforcing such
reinstatement shall be deemed included as part of the First Priority Bank
Obligations or Second Priority Bank Obligations, as the case may be, and the
Second Priority Senior Notes Trustee and the Second Priority Senior Noteholders
shall account for any payments received in respect of the Collateral prior to
such reinstatement and (b) immediately after all Bank Obligations have been
Fully Paid, the terms of this Agreement shall no longer be applicable to
restrict any action or failure to act by the Second Priority Senior Notes
Trustee and the Second Priority Senior Noteholders with respect to the
Collateral subject to the immediately preceding clause (a).


 


Section 21.             Effect of Amendment and Restatement.  Each party hereto hereby acknowledges that
this Agreement amends and restates in its entirety the Existing Intercreditor
Agreement and the liens and security interests of the Secured Creditors
securing payment of the Obligations are in all respects continuing and in full force
and effect with respect to the Obligations, without regard to such amendment
and restatement.  The security interest
in, lien upon and/or conditional assignment of rights and interests of the
Borrower and its relevant subsidiaries granted to the Collateral Agents
pursuant to the Security Agreements are hereby ratified and shall continue from
and after the date hereof and as such, shall remain in full force and effect
pursuant to the Security Agreements from and after the date hereof.


 


[signature pages
follow]


 


19

















 


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


 


 


	
   

  	
  DEUTSCHE BANK TRUST COMPANY

  AMERICAS, as First Priority Bank Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Mary Jo Jolly

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Mary Jo Jolly

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Assistant Vice
  President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK TRUST COMPANY

  AMERICAS, as First Priority Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Mary Jo Jolly

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Mary Jo Jolly

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Assistant Vice
  President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK TRUST COMPANY

  AMERICAS, as Second Priority Bank Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Mary Jo Jolly

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Mary Jo Jolly

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Assistant Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK TRUST COMPANY

  AMERICAS, as Second Priority Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Mary Jo Jolly

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Mary Jo Jolly

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Assistant Vice
  President

  	
   

  
								



 


20

















 


	
   

  	
  DEUTSCHE BANK TRUST COMPANY

  AMERICAS, as Mortgagee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Mary Jo Jolly

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Mary Jo Jolly

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Assistant Vice
  President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HSBC BANK USA, as Second Priority Senior

  Notes Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Herawattee Alli

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Herwattee Alli

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Corporate Trust Officer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Acknowledged and
  Agreed:

  	
   

  
	
   

  	
   

  
	
  HUNTSMAN LLC

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/  J. Kimo Esplin

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  J. Kimo Esplin

  	
   

  	
   

  
	
   

  	
   

  
	
  Title:  Executive Vice President and Chief
  Financial Officer

  	
   

  
											



 


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