NOT CONSTITUTE A PART OF THIS
AGREEMENT FOR ANY OTHER PURPOSE OR BE GIVEN ANY SUBSTANTIVE EFFECT.
8.14
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN COUNTERPARTS (AND
BY DIFFERENT PARTIES HERETO IN 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 OR ANY DOCUMENT OR INSTRUMENT DELIVERED IN CONNECTION HEREWITH BY
TELECOPY OR ELECTRONIC MAIL SHALL BE EFFECTIVE AS DELIVERY OF A MANUALLY
EXECUTED COUNTERPART OF THIS AGREEMENT OR SUCH OTHER DOCUMENT OR INSTRUMENT, AS
APPLICABLE.
8.15
AUTHORIZATION.
BY ITS SIGNATURE, EACH PERSON EXECUTING THIS
AGREEMENT ON BEHALF OF A PARTY HERETO REPRESENTS AND WARRANTS TO THE OTHER
PARTIES HERETO THAT IT IS DULY AUTHORIZED TO EXECUTE THIS AGREEMENT.
8.16
NO THIRD PARTY BENEFICIARIES.
THIS AGREEMENT AND THE RIGHTS AND
BENEFITS HEREOF SHALL INURE TO THE BENEFIT OF EACH OF THE PARTIES HERETO AND ITS
RESPECTIVE SUCCESSORS AND ASSIGNS AND SHALL INURE TO THE BENEFIT OF EACH OF THE
FIRST LIEN CLAIMHOLDERS AND THE SECOND LIEN CLAIMHOLDERS.
NOTHING IN THIS
AGREEMENT SHALL IMPAIR, AS BETWEEN THE
33
COMPANY AND THE OTHER GRANTORS AND THE FIRST LIEN AGENT AND THE FIRST LIEN
CLAIMHOLDERS, OR AS BETWEEN THE COMPANY AND THE OTHER GRANTORS AND THE SECOND
LIEN TRUSTEE AND THE SECOND LIEN CLAIMHOLDERS, THE OBLIGATIONS OF THE COMPANY
AND THE OTHER GRANTORS TO PAY PRINCIPAL, INTEREST, FEES AND OTHER AMOUNTS AS
PROVIDED IN THE FIRST LIEN LOAN DOCUMENTS AND THE SECOND LIEN DOCUMENTS,
RESPECTIVELY.
8.17
PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
THE PROVISIONS OF THIS
AGREEMENT ARE AND ARE INTENDED SOLELY FOR THE PURPOSE OF DEFINING THE RELATIVE
RIGHTS OF THE FIRST LIEN AGENT AND THE FIRST LIEN CLAIMHOLDERS ON THE ONE HAND
AND THE SECOND LIEN TRUSTEE AND THE SECOND LIEN CLAIMHOLDERS ON THE OTHER HAND.
NONE OF THE COMPANY, ANY OTHER GRANTOR OR ANY OTHER CREDITOR THEREOF SHALL HAVE
ANY RIGHTS HEREUNDER AND NEITHER THE COMPANY NOR ANY GRANTOR NOR ANY OTHER
CREDITOR THEREOF MAY RELY ON THE TERMS HEREOF.
NOTHING IN THIS AGREEMENT IS
INTENDED TO OR SHALL IMPAIR THE OBLIGATIONS OF THE COMPANY OR ANY OTHER GRANTOR,
WHICH ARE ABSOLUTE AND UNCONDITIONAL, TO PAY THE FIRST LIEN OBLIGATIONS AND THE
SECOND LIEN OBLIGATIONS AS AND WHEN THE SAME SHALL BECOME DUE AND PAYABLE IN
ACCORDANCE WITH THEIR TERMS.
34
IN WITNESS WHEREOF, the parties hereto have executed this Intercreditor
Agreement as of the date first written above.
First Lien Agent
BEAR STEARNS CORPORATE
LENDING INC.,
as First Lien Agent
By:
/s/ Victor F. Bulzacchelli
Name: Victor F. Bulzacchelli
Title: Vice President
Bear Sterns Corporate Lending Inc.
383 Madison Avenue
New York, NY
10179
Attention: Stephen J. Kampf
Telecopy: (212) 272-9743
Telephone: (212) 272-9759
S-1
Second Lien Trustee
WELLS FARGO BANK, N.A.,
as Second Lien Trustee
By:
/s/ Joseph P. O'Donnell
Name: Joseph P. O'Donnell
Title: Vice President
Wells Fargo Bank, N.A.
213 Court Street
Suite 703
Middletown, CT 06557
Attention: Joe