Attached files
| file | filename |
|---|---|
| EX-99.1 - EXHIBIT 99.1 - Weatherford International plc | eh2001109_ex9901.htm |
| EX-10.1 - EXHIBIT 10.1 - Weatherford International plc | eh2001109_ex1001.htm |
| EX-4.1 - EXHIBIT 4.1 - Weatherford International plc | eh2001109_ex0401.htm |
| 8-K - FORM 8-K - Weatherford International plc | eh2001109_8k.htm |
EXHIBIT 10.3
Execution Version
INTERCREDITOR AGREEMENT
dated as of
August 28, 2020
among
among
DEUTSCHE BANK TRUST COMPANY AMERICAS
as LC Collateral Agent,
as LC Collateral Agent,
WILMINGTON TRUST, NATIONAL ASSOCIATION
as Notes Collateral Agent,
as Notes Collateral Agent,
BTA INSTITUTIONAL SERVICES AUSTRALIA LIMITED
when joined hereto as LC Australian Collateral Agent,
when joined hereto as LC Australian Collateral Agent,
WEATHERFORD INTERNATIONAL PLC,
and
The other Grantors Named Herein
TABLE OF CONTENTS
Page
|
ARTICLE I Definitions
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2
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|
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SECTION 1.01
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Construction; Certain Defined Terms
|
2
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SECTION 1.02
|
Luxembourg Terms
|
13
|
|
ARTICLE II Priorities and Agreements with Respect to Collateral
|
14
|
|
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SECTION 2.01
|
Priority of Claims
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14
|
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SECTION 2.02
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Actions With Respect to Collateral; Prohibition on Contesting Liens
|
16
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SECTION 2.03
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No Duties of Senior Representative; Provision of Notice
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17
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SECTION 2.04
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No Interference; Payment Over; Reinstatement
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19
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SECTION 2.05
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Automatic Release of Junior Liens
|
20
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SECTION 2.06
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Certain Agreements With Respect to Insolvency or Liquidation Proceedings
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21
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SECTION 2.07
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Reinstatement
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28
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SECTION 2.08
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[Reserved]
|
28
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SECTION 2.09
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Insurance
|
28
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SECTION 2.10
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Refinancings
|
28
|
|
SECTION 2.11
|
Amendments to Security Documents
|
29
|
|
SECTION 2.12
|
Possessory Collateral Agent as Gratuitous Bailee for Perfection
|
30
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SECTION 2.13
|
Control Agreements
|
31
|
|
SECTION 2.14
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Rights under Permits and Licenses
|
31
|
|
ARTICLE III Existence and Amounts of Liens and Obligations
|
32
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|
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ARTICLE IV Consent of Grantors
|
32
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|
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ARTICLE V Representations and Warranties
|
32
|
|
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SECTION 5.01
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Representations and Warranties of Each Party
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32
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SECTION 5.02
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Representations and Warranties of Each Representative
|
33
|
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ARTICLE VI Collateral Agency for Foreign Collateral
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33
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|
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SECTION 6.01
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Appointment of Foreign Collateral Agent
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33
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SECTION 6.02
|
Rights as a Secured Party
|
34
|
|
SECTION 6.03
|
Exculpatory Provisions
|
34
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|
SECTION 6.04
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Reliance by the Foreign Collateral Agent
|
35
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SECTION 6.05
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Delegation of Duties
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35
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|
SECTION 6.06
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Resignation of Foreign Collateral Agent
|
36
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SECTION 6.07
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Non-Reliance on Foreign Collateral Agent and Other Secured Parties
|
36
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SECTION 6.08
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Collateral Matters
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37
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SECTION 6.09
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Discretionary Rights
|
37
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SECTION 6.10
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Indemnification of Foreign Collateral Agent
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38
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SECTION 6.11
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Treatment of Proceeds of Foreign Collateral
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39
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SECTION 6.12
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Currency Conversion
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40
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SECTION 6.13
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Swiss Collateral
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40
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i
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SECTION 6.14
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Scottish Collateral
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41
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SECTION 6.15
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Benefits of Foreign Collateral Agent
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41
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ARTICLE VII Miscellaneous
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42
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|
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SECTION 7.01
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Legends
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42
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SECTION 7.02
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Notices
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43
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SECTION 7.03
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Waivers; Amendment
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44
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SECTION 7.04
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Parties in Interest
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44
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SECTION 7.05
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Survival of Agreement
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45
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SECTION 7.06
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Counterparts
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45
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SECTION 7.07
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Severability
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45
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SECTION 7.08
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Governing Law; Jurisdiction; Consent to Service of Process
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45
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SECTION 7.09
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WAIVER OF JURY TRIAL
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46
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SECTION 7.10
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Headings
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46
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SECTION 7.11
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Conflicts
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46
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SECTION 7.12
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Provisions Solely to Define Relative Rights
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46
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SECTION 7.13
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Agent Capacities
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46
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SECTION 7.14
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Supplements
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47
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SECTION 7.15
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Collateral Agent Rights, Protections and Immunities
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47
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SECTION 7.16
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Other Junior Intercreditor Agreements
|
47
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SECTION 7.17
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Additional Grantors
|
48
|
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SECTION 7.18
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Joinder of LC Australian Collateral Agent
|
48
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SECTION 7.19
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Purchase Right.
|
48
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ii
This INTERCREDITOR AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), dated as of August 28, 2020, is among BTA Institutional Services Australia Limited (ABN 48 002 916 396), in its capacity as trustee of the LC Australian Security Trust referred to
herein (when joined to this Agreement, in such capacity, together with its successors in substantially the same capacity as may from time to time be appointed, the “LC Australian Collateral Agent”),
Deutsche Bank Trust Company Americas (“DBTCA”), as administrative agent and collateral agent for the LC Secured Parties referred to herein (in such capacity, together with its successors and
co-agents and, as applicable, sub-agents (including with respect to the LC Australian Collateral, the LC Australian Collateral Agent), in substantially the same capacity as may from time to time be appointed, the “LC Collateral Agent”), Wilmington Trust, National Association (“Wilmington Trust”), as collateral agent for the Notes Secured Parties referred to herein (in
such capacity, together with its successors and co-agents and, as applicable, sub-agents, in substantially the same capacity as may from time to time be appointed, the “Notes Collateral Agent”),
the Parent (as defined below) and the other Subsidiaries of the Parent from time to time party hereto.
Weatherford International Ltd., a Bermuda exempted company limited by shares (“WIL-Bermuda” or “Notes Issuer”), Weatherford International plc, a public limited company incorporated in the Republic of Ireland (“Parent”), certain other subsidiaries of Parent, Wilmington Trust, as trustee (in such capacity, together with its successors and co-trustees, as applicable, in substantially the same capacity as may from time to
time be appointed, the “Notes Trustee”) and the Notes Collateral Agent are party to the Notes Indenture, dated as of the date hereof (the “Existing Notes Indenture”), providing for an initial aggregate principal amount of up to $500,000,000 of the Notes Issuer’s 8.75% Senior Secured First Lien Notes due 2024 (the “Notes”).
WIL-Bermuda and Weatherford International LLC, a Delaware limited liability company (“WIL-Delaware”) (the “LC Borrowers”), the issuing lenders from time to time party thereto (the “Issuing
Lenders”), the lenders from time to time party thereto (the “LC Lenders”) and the LC Collateral Agent are party to the Credit Agreement, dated as of December 13, 2019 , pursuant to
which the Issuing Lenders have agreed to issue, and the LC Lenders have agreed to purchase participations in, letters of credit (as amended by the Amendment No. 1 thereoto, dated as of the date hereof, the “Existing LC Credit Agreement”).
This Agreement governs the relationship between the LC Secured Parties as a group, on the one hand, and the Notes
Secured Parties, on the other hand, with respect to the Collateral shared by the LC Secured Parties and the Notes Secured Parties. In addition, it is understood and agreed that not all of the Secured Parties may have security interests in all of the
Collateral and nothing in this Agreement is intended to give rights to any Person in any Collateral in which such Person (or their Representative or Collateral Agent) does not otherwise have a security interest under their respective security
documents.
In consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
Definitions
Definitions
SECTION 1.01 Construction; Certain Defined Terms.
(a) 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, other document, statute or regulation herein shall be construed as referring to such agreement, instrument, other document, statute or regulation as from time to time amended, supplemented or otherwise
modified, (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, but shall not be deemed to include the subsidiaries of such Person unless express reference is made to such subsidiaries, (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 particular provision hereof, (iv) all references herein to Articles, Sections and Exhibits shall
be construed to refer to Articles, Sections and Exhibits of this Agreement, (v) unless otherwise expressly qualified herein, 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 and (vi) the term “or” is not exclusive.
(b) As
used in this Agreement, the following terms have the meanings specified below:
“Agreement” has the meaning set forth in the
recitals.
“Applicable Junior Collateral Agent” means (a) with
respect to the LC Priority Collateral, the Notes Collateral Agent, and (b) with respect to the Notes Priority Collateral, the LC Collateral Agent.
“Applicable Possessory Collateral Agent” means (a)
with respect to Notes Priority Possessory Collateral, the Notes Collateral Agent, (b) with respect to LC Priority Possessory Collateral, the LC Collateral Agent, and (c) notwithstanding the foregoing, with respect to Foreign Collateral, the Foreign
Collateral Agent.
“Applicable Senior Collateral Agent” means (a) with
respect to the Notes Priority Collateral, the Notes Collateral Agent, and (b) with respect to the LC Priority Collateral, the LC Collateral Agent.
“Bank Product Obligations” means all “Banking
Services Obligations” and all “Swap Obligations” as defined in the LC Credit Agreement (other than “Excluded Swap Obligations” as defined in the LC Credit Agreement).
“Bankruptcy Case” has the meaning set forth in
Section 2.06(b).
2
“Bankruptcy Code” means Title 11 of the United States Code, as amended.
“Business Day” means any day that is not a Saturday,
Sunday or other day that is a legal holiday under the laws of the State of New York or on which banking institutions in the State of New York are required or authorized by law or other governmental action to close.
“Capital Stock” means, with respect to any Person,
any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents (however designated) of such Person’s equity, including all common stock and preferred stock, common shares and preference shares, any limited
or general partnership interests and any limited liability company membership interests.
“Class” has the meaning set forth in the definition
of Senior Secured Obligations.
“Collateral” means all assets and properties subject
to (or purportedly subject to) Liens in favor of any Secured Party created by any of the Foreign Collateral Documents, Notes Security Documents or the LC Security Documents, as applicable, to secure the Notes Obligations or the LC Obligations, as
applicable.
“Collateral Agent” means the Foreign Collateral
Agent, the Notes Collateral Agent, the LC Collateral Agent, or any of the foregoing, as the context may require.
“Comparable Junior Priority Collateral Document”
means, in relation to any Senior Secured Obligations Collateral subject to any Lien created (or purportedly created) under any Senior Secured Obligations Collateral Document, those Junior Secured Obligations Collateral Documents that create (or
purport to create) a Lien on the same Collateral, granted by the same Grantor.
“Controlling Party” means (i) for decisions relating
to Foreign Collateral that is Notes Priority Collateral, the Notes Collateral Agent and; (ii) for decisions relating to Foreign Collateral that is LC Priority Collateral, the LC Collateral Agent (and in the case of the LC Australian Collateral Agent,
acting for, and with any decisions relating to LC Australian Collateral made by, the LC Administrative Agent).
“Debtor Relief Laws” means the Bankruptcy Code, the
United Kingdom’s Insolvency Act 1986, the Council Regulation (EU) No. 2015/848 of 20 May 2015 on insolvency proceedings (recast), as amended, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), Dutch
Bankruptcy Act (faillissementswet), the Winding-Up and Restructuring Act (Canada), the German Insolvency Code (Insolvenzordnung), Swiss Federal Debt Collection and
Bankruptcy Act (Bundesgesetz über Schuldbetreibung und Konkurs), Part XIII of the Bermuda Companies Act 1981, the Luxembourg Commercial Code and the Luxembourg Act dated 10 August 1915 on Commercial Companies,
the Insolvency Act 2003 of the British Virgin Islands and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, examinership reorganization or similar debtor
relief laws of the United States of America or other applicable jurisdictions from time to time in effect, in each case as amended, including any corporate law of any jurisdiction which may be used by a debtor to obtain a stay or a compromise,
settlement, adjustment or arrangement of the claims of its creditors against it and including any rules and
3
regulations pursuant thereto (but, in each case, shall exclude any part of such laws, rules or regulations which relate solely to any solvent
reorganization or solvent restructuring process).
“Default Disposition” means any private or public
sale or disposition of all or any material portion of the Senior Secured Obligations Collateral (including Foreign Collateral) by one or more Grantors with the consent of Senior Collateral Agent or Foreign Collateral Agent (as instructed by the
Controlling Party), as applicable, after the occurrence and during the continuation of an Event of Default under the Senior Secured Obligations Security Documents or the Notes Indenture or LC Credit Agreement, as applicable (and prior to the
Discharge of the Senior Secured Obligations), including any disposition contemplated by Section 9-620 of the UCC, which disposition is conducted by such Grantors with the consent of Senior Collateral Agent or Foreign Collateral Agent (as instructed
by the Controlling Party) in connection with good faith efforts by Senior Collateral Agent or Foreign Collateral Agent (as instructed by the Controlling Party) to collect the Senior Secured Obligations through the disposition of Senior Secured
Obligations Collateral (including any Foreign Collateral).
“DIP Financing” has the meaning set forth in Section
2.06(b).
“DIP Financing Liens” has the meaning set forth in
Section 2.06(b).
“DIP Lenders” has the meaning set forth in Section
2.06(b).
“Discharge” means, with respect to any Obligations,
except to the extent otherwise provided herein with respect to the reinstatement or continuation of any such Obligations, the payment in full in cash (except for contingent indemnities and cost and reimbursement obligations to the extent no claim has
been threatened (in writing) or asserted) of all such Obligations then outstanding, if any, and, with respect to (x) letters of credit or letter of credit guaranties outstanding under the agreements or instruments governing such Obligations (as
related to all or any subset of Obligations, the “Relevant Instruments”); (y) Bank Product Obligations; and (z) asserted or threatened (in writing) claims, demands, actions, suits,
investigations, liabilities, fines, costs, or damages for which a party may be entitled to indemnification or reimbursement by any Grantor, delivery of cash collateral or backstop letters of credit in respect thereof in a manner consistent with such
Relevant Instruments, in each case after or concurrently with the termination of all commitments to extend credit thereunder, and the termination of all commitments of “secured parties” under the Relevant Instruments (including, in any event, all
such interest, fees, costs, expenses and other charges regardless of whether such amounts are allowed, allowable or reasonable in any Insolvency or Liquidation Proceeding, whether under Section 506 of the Bankruptcy Code of otherwise); provided
that (i) the Discharge of Notes Obligations shall not be deemed to have occurred if such payments are made with the proceeds of Notes Obligations that constitute an exchange or replacement for or a refinancing of Notes Obligations and (ii) the
Discharge of LC Obligations shall not be deemed to have occurred if such payments are made with the proceeds of LC Obligations that constitute an exchange or replacement for or a refinancing of such Obligations or LC Obligations. In the event any
Obligations are modified and such Obligations are paid over time or otherwise modified, in each case, pursuant to Section 1129 of the Bankruptcy Code or similar Debtor Relief Law, such Obligations shall be deemed to be discharged only when the final
payment is made, in cash, in respect of such indebtedness and any
4
obligations pursuant to such new or modified indebtedness shall have been satisfied. The term “Discharged”
shall have a corresponding meaning.
“European Insolvency Regulation” means Regulation
(EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast)
“Event of Default” means an “Event of Default” under
and as defined in the Notes Indenture or the LC Credit Agreement, as the context may require.
“Foreign Collateral” has the meaning set forth in
Section 2.01(d).
“Foreign Collateral Agent” means either the LC
Collateral Agent or the Notes Collateral Agent with respect to Foreign Collateral as set forth in Section 6.01(i) and (ii), and their respective successors or assigns (as appointed in accordance with Article VI hereof).
“Foreign Collateral Documents” means the documents
listed on Schedule I attached hereto and any other documents creating (or purporting to create) a Lien on any Foreign Collateral in favor of the Secured Parties and/or the Foreign Collateral Agent/Preceding Foreign Collateral Agent acting in their
respective capacities and all documents delivered therewith.
“Grantor” means Parent and each Subsidiary of Parent
that shall have granted any Lien in favor of any Collateral Agent on any of its assets or properties to secure any of the Obligations.
“Insolvency or Liquidation Proceeding” means (a) any
case or proceeding commenced by or against the Parent or any other Grantor under the Bankruptcy Code or other Debtor Relief Laws or any other process or proceeding for the reorganization, recapitalization, restructuring, adjustment, arrangement or
marshalling of the assets or liabilities of the Parent or any other Grantor or any receivership or assignment for the benefit of creditors relating to the Parent or any other Grantor or relating to all or a substantial part of the property or assets
of the Parent or any other Grantor or any similar case or proceeding relative to the Parent or any other Grantor, or their respective property or their respective creditors, as such, in each case whether or not voluntary; (b) any process or
proceeding for the appointment of any trustee in bankruptcy, receiver, receiver and manager, interim receiver, administrator, liquidator, monitor, custodian, sequestrator, examiner, conservator or any similar official appointed for or relating to the
Parent or any other Grantor or all or a substantial portion of their respective property and assets, in each case whether or not voluntary; (c) any liquidation, dissolution, examinership, marshalling of assets or liabilities or other winding up (or
similar process) of or relating to the Parent or any other Grantor, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency; or (d) any other proceeding of any type or nature in which substantially all claims of
creditors of the Parent or any other Grantor, or of a class of creditors of the Parent or any other Grantor, are stayed, compromised, restructured or determined and any payment, distribution, restructuring or arrangement is or may be made on account
of or in relation to such claims.
“Junior Claims” means (a) with respect to the Notes
Priority Collateral, the LC Obligations secured by such Collateral and (b) with respect to the LC Priority Collateral, the Notes Obligations secured by such Collateral.
5
“Junior Collateral Agent” means (a) with respect to the LC Priority
Collateral, the Notes Collateral Agent and (b) with respect to the Notes Priority Collateral, the LC Collateral Agent.
“Junior Representative” means (a) with respect to the
LC Priority Collateral, the Notes Collateral Agent and (b) with respect to the Notes Priority Collateral, the LC Collateral Agent.
“Junior Secured Obligations” means (a) with respect
to the Notes Obligations (to the extent such Obligations are secured by the Notes Priority Collateral), the LC Obligations (to the extent such Obligations are secured by the Notes Priority Collateral) and (b) with respect to the LC Obligations (to
the extent such Obligations are secured by the LC Priority Collateral), the Notes Obligations (to the extent such Obligations are secured by the LC Priority Collateral).
“Junior Secured Obligations Collateral” means, with
respect to any Obligations, the Collateral in respect of which such Obligations constitute Junior Claims.
“Junior Secured Obligations Collateral Documents”
means (a) with respect to the LC Obligations, the Notes Security Documents and (b) with respect to the Notes Obligations, the LC Security Documents.
“Junior Secured Obligations Secured Parties” means
(a) with respect to the LC Priority Collateral, the Notes Secured Parties (to the extent that the Obligations owing to such Notes Secured Parties are secured by the LC Priority Collateral) and (b) with respect to the Notes Priority Collateral, the LC
Secured Parties (to the extent that the Obligations owing to such LC Secured Parties are secured by the Notes Priority Collateral).
“LC Administrative Agent” means the Administrative
Agent under, and as defined in, the LC Credit Agreement together with its successors and co-agents in substantially the same capacity as may from time to time be appointed.
“LC Australian Collateral Agent” has the meaning set
forth in the recitals.
“LC Australian Security Documents” means the LC
Australian Security Trust Deed and each other Australian law governed document now existing or entered into after the date hereof that create Liens on any assets or properties of any Grantor to secure any LC Obligations in favor of the LC Australian
Collateral Agent.
“LC Australian Security Trust” means the “Security
Trust” under and as defined in the LC Australian Security Trust Deed.
“LC Australian Security Trust Deed” means the
Security Trust Deed to be entered into among the Borrowers, the LC Administrative Agent, the LC Lenders and the LC Australian Collateral Agent.
“LC Collateral Agent” has the meaning set forth in
the recitals.
6
“LC Credit Agreement”
means the Existing LC Credit Agreement, as amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original lenders or otherwise), restructured, repaid, refunded, Refinanced or otherwise modified from
time to time after the date hereof, including any agreement or indenture extending the maturity thereof, Refinancing, replacing or otherwise restructuring all or any portion of the indebtedness under such agreement or agreements or indenture or
indentures or any successor or replacement agreement or agreements or indenture or indentures or increasing the amount loaned or issued thereunder or altering the maturity thereof (except to the extent any such refinancing, replacement or
restructuring is designated by the Parent not to be included in the definition of “LC Credit Agreement”).
“LC Documents” means the LC Credit Agreement, the LC
Security Agreement, the LC Mortgages, the LC Australian Security Documents and the other “Loan Documents” as defined in the LC Credit Agreement.
“LC Facility Guarantee” means any guarantee of the
Obligations of the Parent under the LC Credit Agreement by any Person in accordance with the provisions of the LC Credit Agreement.
“LC Facility Guarantor” means any Person that incurs
a LC Facility Guarantee; provided that, upon the release or discharge of such Person from its LC Facility Guarantee in accordance with the LC Credit Agreement, such Person ceases to be a LC Facility Guarantor.
“LC Facility Secured Parties” means the “Secured Parties” as defined in the LC Credit Agreement.
“LC Lenders” has the meaning set forth in the
recitals.
“LC Mortgages” means all “Mortgages” as defined in
the LC Credit Agreement.
“LC Obligations” means all “Secured Obligations” (as
such term is defined in the LC Credit Agreement) of the LC Borrowers and other obligors under the LC Credit Agreement or any of the other LC Documents, including obligations to pay principal, premiums, if any, and interest, attorneys’ fees, fees,
costs, charges, expenses, Letters of Credit (as defined in the LC Credit Agreement) and commissions, (and, with regard to all such items, including any interest accruing after the commencement of any Insolvency or Liquidation Proceeding, regardless
of whether allowed or allowable in such proceeding) when due and payable, and all other amounts due or to become due under or in connection with the LC Documents and the performance of all other Obligations of the obligors thereunder under the LC
Documents, according to the respective terms thereof.
“LC Priority Collateral” means all Collateral (other
than Notes Priority Collateral) now owned or at any time hereafter acquired (including, for the avoidance of doubt, any such assets that, but for the application of Section 552 of the Bankruptcy Code (or any provision of any other Debtor Relief Law),
would constitute LC Priority Collateral) by any Grantor consisting of (a) all assets securing the LC Obligations on the date hereof immediately prior to giving effect to Amendment No. 1, dated as of August 28, 2020, (b) all assets of Grantors
organized in the LC Priority Jurisdictions, and (c) all assets required to be subject of the Lien securing the LC
7
Obligations pursuant to the LC Credit Agreement and (d) all products and proceeds of any and all of the foregoing.
“LC Priority Jurisdictions” means the Specified
Jurisdictions as defined in the LC Credit Agreement other than the Notes Priority Jurisdictions. .
“LC Priority Possessory Collateral” means LC Priority
Collateral that is Possessory Collateral.
“LC Secured Parties” means the (a) the LC Collateral Agent (including for avoidance of doubt the LC Australian Collateral Agent), and (b) the LC Facility Secured Parties.
“LC Security Agreement” means the U.S. Security
Agreement, as amended by the Amendment No. 1 to U.S. Security Agreement, dated as of the Amendment No. 1 Effective Date (as such term is defined in the LC Credit Agreement), by and among the Parent, LC Borrowers, each other pledgor party thereto and
the LC Collateral Agent, as amended, amended and restated, supplemented or modified from time to time.
“LC Security Documents” means the LC Security
Agreement, the LC Mortgages, the LC Australian Security Documents and any other documents now existing or entered into after the date hereof that create Liens on any assets or properties of any Grantor to secure any LC Obligations.
“Lien” means any lien, mortgage, deed of trust,
pledge, hypothecation, security interest, charge or encumbrance of any kind, including any conditional sale or other title retention agreement or any lease in the nature thereof or a ‘security interest’ (as defined in section 12 (1) and (2) of the Personal Property Securities Act 2009 (Cth)) (whether voluntary or involuntary and whether imposed or created by operation of law or otherwise).
“Luxembourg Obligors” means any Grantor organized
under the laws of the Grand Duchy of Luxembourg.
“Memorandum” has the meaning set forth in Section
2.02(e).
“Mortgages” means the Notes Mortgages and the LC
Mortgages.
“New York UCC” means the Uniform Commercial Code as
from time to time in effect in the State of New York.
“Notes Collateral Agent” has the meaning set forth in
the recitals.
“Notes Documents” means the Notes Indenture, the
Notes Security Documents and the other “Notes Documents” as defined in the Notes Indenture.
“Notes Indenture” means the Existing Notes Indenture,
as amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the initial purchasers or otherwise), restructured, repaid, refunded, Refinanced or otherwise modified from time to time after the date hereof,
in accordance with the terms hereof, including any agreement or
8
indenture extending the maturity thereof, Refinancing, replacing or otherwise restructuring all or any portion of the indebtedness under such agreement
or agreements or indenture or indentures or any successor or replacement agreement or agreements or indenture or indentures or increasing the amount loaned or issued thereunder or altering the maturity thereof (except to the extent any such
Refinancing, replacement or restructuring is designated by the Parent not to be included in the definition of “Notes Indenture”).
“Notes Issuer” has the meaning set forth in the
recitals.
“Notes Mortgages” means all “Mortgages” as defined in
the Notes Indenture.
“Notes Obligations” means all “Indenture Obligations”
(as such term is defined in the Notes Indenture) of the Notes Parties (as defined in the Notes Indenture) under the Notes Indenture or any of the other Notes Documents, including obligations to pay principal, premiums, if any, interest, attorneys
fees, fees, costs, charges, expenses, commissions, fees and charges (and, with regard to all such items, including any interest accruing after the commencement of any Insolvency or Liquidation Proceeding, regardless of whether allowed or allowable in
such proceeding) when due and payable, and all other amounts due or to become due under or in connection with the Notes Documents and the performance of all other Obligations of the obligors thereunder to the holders, the Notes Trustee, the Notes
Collateral Agent, any other trustees and agents under the Notes Documents according to the respective terms thereof.
“Notes Priority Collateral” means all Collateral now
owned or at any time hereafter acquired (including, for the avoidance of doubt, any such assets that, but for the application of Section 552 of the Bankruptcy Code (or any provision of any other Debtor Relief Law), would constitute Notes Priority
Collateral) by (i) any Grantor (x) formed in Notes Priority Jurisdictions or (y) consisting of Capital Stock of Subsidiaries that are formed or located in the Cayman Islands, China, Cyprus, Qatar, Romania, Russia or the United Arab Emirates, other
than to the extent such Subsidiary is a direct or indirect owner of a majority of Capital Stock in an LC Facility Guarantor or such Subsidiary becomes an LC Facility Guarantor as contemplated under the LC Credit Agreement as in effect on the date
hereof, and (ii) all products and proceeds of any the foregoing; provided that, for the avoidance of doubt, in no event shall Notes Priority Collateral include (x) any assets securing the LC Obligations on the date hereof immediately prior to giving
effect to Amendment No. 1 to the LC Credit Agreement dated as of August 28, 2020 and (y) any assets required to be subject of the Lien securing the LC Obligations pursuant to the LC Credit Agreement on the date hereof immediately prior to giving
effect to Amendment No. 1 to the LC Credit Agreement dated as of August 28, 2020.
“Notes Priority Jurisdictions” means Mexico, Brazil and any other jurisdictions agreed upon by the Required Lenders under, and as defined in, the LC Credit Agreement.
“Notes Priority Possessory Collateral” means Notes Priority Collateral that is Possessory Collateral.
“Notes Secured Parties” means the “Secured Parties”
as defined in the Notes Indenture.
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“Notes Security Agreement” means
the Security Agreement (as such term in defined in the Notes Indenture), dated as of the date hereof, by and among WIL-Bermuda and the Notes Collateral Agent, as amended, amended and restated, supplemented or modified from time to time.
“Notes Security Documents” means the Notes Security
Agreement, the Notes Mortgages and any other documents now existing or entered into after the date hereof that create or purport to create Liens on any assets or properties of any Grantor to secure any Notes Obligations.
“Notes Trustee” has the meaning set forth in the
recitals.
“Obligations” means the Notes Obligations and the LC
Obligations.
“Parent” has the meaning set forth in the recitals.
“Permitted Discretion” means a determination made in
the exercise of good faith and reasonable credit judgment (from the perspective of a secured lender).
“Permitted Remedies” means, with respect to any
Junior Secured Obligations:
(a) filing
a proof of claim or statement of interest with respect to such Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against any Grantor;
(b) taking
any action (not adverse to the Liens securing Senior Secured Obligations, the priority status thereof, or the rights of the Applicable Senior Collateral Agent or any of the Senior Secured Obligations Secured Parties to exercise rights, powers
and/or remedies in respect thereof) in order to create, perfect, preserve or protect (but not enforce) its Lien on any of the Collateral;
(c) filing
any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior Secured Obligations Secured
Parties, including any claims secured by the Junior Secured Obligations Collateral, in each case in accordance with the terms of this Agreement;
(d) filing
any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under either any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case in
accordance with the terms of this Agreement or applicable law (including the bankruptcy laws of any applicable jurisdiction);
(e) join
(but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial lien enforcement proceeding with respect to the Senior Secured Obligations Collateral of the Senior Collateral Agent initiated by such Senior
Collateral Agent to the extent that any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement
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action by such Senior Collateral Agent (it being understood that neither the Junior Collateral Agent nor any Junior Secured Obligations Secured Parties
shall be entitled to receive any proceeds from the Senior Secured Obligations Collateral unless otherwise expressly permitted herein);
(f) subject
to Section 2.04(a)(iii), inspect, appraise or value the Collateral (and to engage or retain investment bankers or appraisers for the purposes of appraising or valuing the Collateral) or to receive information or reports concerning the
Collateral, in each case pursuant to the terms of the Notes Documents or LC Documents, as applicable, or applicable law;
(g) subject
to Section 2.04(a)(iii), take any action to seek and obtain specific performance or injunctive relief to compel a Grantor to comply with (or not to violate or breach) an obligation under the Notes Documents or LC Documents, as applicable; provided
that such action does not include any action by a Junior Secured Obligations Secured Party to seek specific performance or injunctive relief against any Senior Secured Obligations Secured Party or the sale or disposition of any such Senior Secured
Obligations Secured Party’s Senior Secured Obligations Collateral in contravention of the other provisions of this Agreement;
(h) make
a cash or, if allowed pursuant to applicable law, credit bid for Collateral at any public or private sale thereof, provided that (i) such Secured Party does not challenge the bid of any Senior Secured Obligations Secured Party for its
Senior Secured Obligations Collateral or otherwise bid for any Senior Secured Obligations Collateral other than by a bid that provides for the Discharge of the Senior Secured Obligations, and (ii) each Senior Secured Obligations Secured Party may,
subject to the terms of its Senior Secured Obligations Collateral Documents, offset its Senior Secured Obligations against the purchase price for the Senior Secured Obligations Collateral; and
(i) in
any Insolvency or Liquidation Proceeding, (i) voting on any Plan of Reorganization to the extent not otherwise prohibited by the terms hereof, (ii) filing any proof of claim and (iii) making other filings and motions and making any arguments in
connection therewith (including in support of or opposition to, as applicable, the confirmation or approval of any Plan of Reorganization) that comply with the terms of this Agreement.
“Person” means any natural person, corporation,
business trust, joint venture, association, company, partnership, limited liability partnership, limited liability company or government, individual or family trusts or any agency or political subdivision thereof.
“Plan of Reorganization” means any plan of reorganization, scheme of arrangement, plan of arrangement or compromise, proposal, plan of liquidation, agreement for composition or other type of plan, proposal or arrangement proposed in or in
connection with any Insolvency or Liquidation Proceeding.
“Possessory Collateral” means the Collateral in the
possession or control of any Collateral Agent (or its agents or bailees), to the extent that possession or control thereof (a) perfects a Lien thereon under the Uniform Commercial Code or (b) provides a substantially similar legal effects as
“perfection” under the Uniform Commercial Code under other applicable legislation of any jurisdiction. Possessory Collateral includes, without limitation, any Certificated Securities, Promissory Notes, Instruments and Chattel Paper, in each case,
delivered to or in the
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possession of any Collateral Agent under the terms of the Notes Security Documents or the LC Security Documents. All capitalized terms used in this
definition and not defined elsewhere in this Agreement have the meanings assigned to them in the New York UCC.
“Possessory Collateral Agent” means, with respect to
any Possessory Collateral, the Collateral Agent having possession or control (including through its agents or bailees) of same.
“Preceding Foreign Collateral Agent” means Wells
Fargo Bank, National Association.
“Proceeds” has the meaning set forth in Section
2.01(a).
“Purchase Option Event” has the meaning set forth in
Section 7.19(a).
“Purchase Price” has the meaning set forth in Section
7.19(b).
“Real Estate Asset” means, at any time of
determination, any interest (fee, leasehold or otherwise) then owned by any Grantor in any real property that does not constitute Excluded Assets (as defined in the LC Credit Agreement).
“Refinance” means to amend, restate, supplement,
waive, replace (whether or not upon termination, and whether with the original parties or otherwise), restructure, repay, refund, refinance or otherwise modify from time to time (including by means of any agreement or indenture extending the maturity
thereof, refinancing, replacing or otherwise restructuring all or any portion of the obligations under such agreement or agreements or indentures or any successor or replacement agreement or agreements or indentures or increasing the amount loaned or
issued thereunder or altering the maturity thereof). “Refinanced” and “Refinancing” shall have correlative meanings; provided
that that any of the foregoing that increases the principal amount of Senior Claims with respect to any Collateral shall be effective for purposes hereof only if such increase does not contravene the documents pursuant to which any Junior Claims with
respect to such Collateral have been incurred, all as in effect on the date hereof or as may be amended in accordance with the terms hereof.
“Related Parties” means, with respect to any Person,
such Person’s affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s affiliates.
“Representative” means (a) in the case of any Notes
Obligations, the Notes Collateral Agent and (b) in the case of any LC Obligations, the LC Collateral Agent.
“Secured Parties” means (a) the Notes Secured Parties
and (b) the LC Secured Parties.
“Senior Claims” means (a) with respect to the Notes
Priority Collateral, the Notes Obligations secured by such Collateral and (b) with respect to the LC Priority Collateral, the LC Obligations secured by such Collateral.
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“Senior Collateral Agent” means (a) with respect to the LC Priority
Collateral, the LC Collateral Agent and (b) with respect to the Notes Priority Collateral, the Notes Collateral Agent.
“Senior Representative” means (a) with respect to the
LC Priority Collateral, the LC Collateral Agent and (b) with respect to the Notes Priority Collateral, the Notes Collateral Agent.
“Senior Secured Obligations” means (a) with respect
to the Notes Obligations (to the extent such Obligations are secured by the LC Priority Collateral), the LC Obligations, and (b) with respect to the LC Obligations (to the extent such Obligations are secured by the Notes Priority Collateral), the
Notes Obligations; the LC Obligations shall, collectively, constitute one “Class” of Senior Secured Obligations and the Notes Obligations shall constitute a separate “Class” of Senior Secured Obligations.
“Senior Secured Obligations Collateral” means, with
respect to any Obligations, the Collateral in respect of which such Obligations constitute Senior Claims. For the avoidance of doubt, notwithstanding the Foreign Collateral Agent holding any Liens on Foreign Collateral for the benefit of the Secured
Parties, subject to Article VI, Foreign Collateral shall not be treated differently from other Collateral when determining whether such Collateral or its proceeds are Senior Secured Obligations Collateral.
“Senior Secured Obligations Collateral Documents”
means (a) with respect to the LC Obligations, the LC Security Documents and (b) with respect to the Notes Obligations, the Notes Security Documents.
“Senior Secured Obligations Secured Parties” means
(a) with respect to the LC Priority Collateral, the LC Secured Parties (to the extent that the Obligations owing to such LC Secured Parties are secured by the LC Priority Collateral) and (b) with respect to the Notes Priority Collateral, the Notes
Secured Parties (to the extent that the Obligations owing to such Notes Secured Parties are secured by the Notes Priority Collateral).
“Subsidiary” of a person means (a) a company or
corporation, a majority of whose voting stock is at the time, directly or indirectly, owned by such person, by one or more subsidiaries of such person or by such person and one or more subsidiaries of such person, (b) a partnership in which such
person or one or more subsidiaries of such person is, at the date of determination, a general partner or (c) any other person (other than a corporation or partnership) in which such person, directly or indirectly, at the date of determination
thereof, has (i) at least a majority ownership interest or (ii) the power to elect or direct the election of a majority of the directors or other governing body of such person.
“Taxes” means taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by any taxing authority, and all interest, penalties or similar liabilities with respect thereto.
SECTION 1.02 Luxembourg Terms. In this Agreement, in respect of any Luxembourg Obligor or any other entity which is organized under the laws of the Grand-Duchy
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of Luxembourg or has its “centre of main interests” (as that term is used in Article 3(1) of the European Insolvency Regulation in Luxembourg, a
reference to:
(a) a
“liquidator”, “trustee”, “custodian”, “compulsory manager”, “receiver”, “administrative receiver”, “administrator” or “similar officer” includes any:
(i) juge-commissaire or insolvency receiver (curateur) appointed under the Luxembourg Commercial Code;
(ii) liquidateur appointed under Articles 1100-1 to 1100-15 (inclusive) of the Luxembourg act dated 10 August 1915 on commercial companies, as amended;
(iii) juge-commissaire or liquidateur appointed under Article 1200-1 of the Luxembourg act dated 10 August 1915 on commercial companies, as
amended;
(iv) commissaire appointed under the Grand-Ducal decree of 24 May 1935 on the controlled management regime or under Articles 593 to 614 (inclusive) of the Luxembourg Commercial Code; and
(v) juge délégué appointed under the Luxembourg act of 14 April 1886 on the composition to avoid bankruptcy, as amended; and
(b) a “winding-up”, “administration”, “liquidation” or “dissolution” includes, without
limitation, bankruptcy (faillite), liquidation, composition with creditors (concordat préventif de faillite), moratorium or reprieve from payment (sursis de paiement) and controlled management (gestion contrôlée).
(c) an
officer, a manager or a director includes a manager (gérant) and a director (administrateur).
ARTICLE II
Priorities and Agreements with Respect to Collateral
Priorities and Agreements with Respect to Collateral
SECTION 2.01 Priority of Claims. (a) Anything contained herein or in any of the Notes Documents or the LC Documents to the contrary notwithstanding, if an Event of Default has occurred and is
continuing, and any Collateral Agent is taking action to enforce rights in respect of any Collateral (whether in an Insolvency or Liquidation Proceeding or otherwise), or any distribution is made in respect of any Collateral in any Insolvency or
Liquidation Proceeding with respect to any Grantor, the Proceeds (subject, in the case of any such distribution, to Section 2.06 hereof) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such
distribution, including adequate protection or similar payments under any Debtor Relief Law, being collectively referred to as “Proceeds”) shall be applied as follows:
(i) In the case of LC Priority Collateral,
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FIRST, to the payment in full of the LC Obligations (including the cash collateralization thereof) in accordance with Section 9.04 of
the LC Credit Agreement and the other applicable provisions of the LC Documents, and
SECOND, to the payment in full of the Notes Obligations in accordance with Section 506 of the Notes Indenture
and the other applicable provisions of the Notes Documents.
If any Notes Obligations remain outstanding after the Discharge of the LC Obligations, all proceeds of the LC
Priority Collateral will be applied to the repayment of any outstanding Notes Obligations.
(ii) In the case of Notes Priority Collateral,
FIRST, to the payment in full of the Notes Obligations in accordance with Section 506 of the Notes Indenture and
the other applicable provisions of the Notes Documents, and
SECOND, to the payment in full of the LC Obligations (including the cash collateralization thereof) in
accordance with Section 9.04 of the LC Credit Agreement and the other applicable provisions of the LC Documents.
If any LC Obligations remain outstanding after the Discharge of the Notes Obligations, all proceeds of the Notes
Priority Collateral will be applied to the repayment (including the cash collateralization thereof) of any outstanding LC Obligations.
(b) It
is acknowledged that (i) the aggregate amount of any Senior Secured Obligations may, subject to the limitations set forth in the Notes Indenture and the LC Credit Agreement, both as in effect on the date hereof, be Refinanced from time to time, all
without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the Notes Secured Parties and the LC Secured Parties and (ii) the Senior Secured Obligations consists or may consist
of indebtedness that is revolving in nature, and the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed. The priorities provided for herein shall not be altered or
otherwise affected by any Refinancing of either the Junior Secured Obligations (or any part thereof) or the Senior Secured Obligations (or any part thereof), by the release of any Collateral or of any guarantees for any Junior Secured Obligations
or Senior Secured Obligations or by any action that any Representative or Secured Party may take or fail to take in respect of any Collateral.
(c) Notwithstanding
the date, time, method, manner or order of grant, attachment or perfection of any Liens securing the LC Obligations granted on the Collateral or of any Liens securing the Notes Obligations granted on the Collateral and notwithstanding any provision
of the Uniform Commercial Code or other applicable legislation of any jurisdiction, or any other applicable law or the Notes Documents or the LC Documents, or any defect or deficiencies in or failure to perfect any such Liens or any other
circumstance whatsoever (1) the Liens on the LC Priority Collateral securing the LC Obligations will rank senior to any Liens on
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the LC Priority Collateral securing the Notes Obligations and (2) the Liens on the Notes Priority Collateral securing the Notes Obligations will rank
senior to any Liens on the Notes Priority Collateral securing the LC Obligations.
(d) For
the avoidance of doubt, notwithstanding that Liens granted to the Foreign Collateral Agent, LC Collateral Agent, or Notes Collateral Agent on the Collateral governed by the laws of a jurisdiction located outside of the United States of America (the
“Foreign Collateral”) may (A) have legally the same or different ranking due to mandatory legal provisions governing such Foreign Collateral; (B) have been granted or perfected in an order contrary to the contemplated ranking as set forth in
this Agreement or (C) not have been granted to Notes Collateral Agent or LC Collateral Agent, the contractual ranking of the Liens on such Foreign Collateral shall be consistent with the ranking set forth in Section 2.1, and, subject to Article
VI, all other terms and provisions of this Agreement with respect to Collateral shall be applicable to such Foreign Collateral.
SECTION 2.02 Actions With Respect to Collateral; Prohibition on Contesting Liens.
(a) Until
the Discharge of all of the Senior Secured Obligations of a particular Class, (i) only the Applicable Senior Collateral Agent shall act or refrain from acting with respect to the Senior Secured Obligations Collateral of such Class, (ii) no
Collateral Agent shall follow any instructions with respect to such Senior Secured Obligations Collateral from any Junior Representative or from any Junior Secured Obligations Secured Parties and (iii) each Junior Representative and the Junior
Secured Obligations Secured Parties shall not, and shall not instruct any Collateral Agent to, commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver, receiver and manager, interim receiver,
agent, liquidator, administrator, custodian or similar official, person or agent appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its
interest in or realize upon, or take any other action available to it in respect of, any Junior Secured Obligations Collateral, whether under any Notes Security Document or any LC Security Document, as applicable, applicable law or otherwise, it
being agreed that (A) only the Applicable Senior Collateral Agent, acting in accordance with the Notes Security Documents or the LC Security Documents, as applicable, shall be entitled to take any such actions or exercise any such remedies, or to
cause any Collateral Agent to do so and (B) notwithstanding the foregoing, each Junior Representative may take Permitted Remedies. Each Senior Collateral Agent may deal with the Senior Secured Obligations Collateral as if they had a senior Lien on
such Collateral. No Junior Collateral Agent, Junior Representative or Junior Secured Obligations Secured Party will contest, protest or object to any foreclosure proceeding or action brought by any Senior Collateral Agent, Senior Representative or
Senior Secured Obligations Secured Party or any other exercise by such Senior Collateral Agent, Senior Representative or Senior Secured Obligations Secured Party of any rights and remedies relating to the Senior Secured Obligations Collateral.
(b) Each
of the Junior Collateral Agent and the Junior Secured Obligations Secured Parties agrees that it will not (and hereby waives any right to) directly or indirectly contest or support any other Person in contesting, in any proceeding (including any
Insolvency or Liquidation Proceeding), the creation, extent, attachment, perfection, priority, validity or
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enforceability of a Lien or Senior Secured Obligations held by or on behalf of any of the Senior Secured Obligations Secured Parties in all or any part
of the Collateral or the provisions of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any of the Collateral Agents or the Secured Parties to enforce this Agreement.
(c) (i)
Only the Foreign Collateral Agent shall act or refrain from acting with respect to the Foreign Collateral, (ii) Foreign Collateral Agent shall not follow any instructions with respect to Foreign Collateral except from the Controlling Party (in
accordance with Article VI) and (iii) other than the Controlling Parties, no Secured Party will, or will instruct Foreign Collateral Agent to, commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee,
receiver, receiver and manager, interim receiver, agent, liquidator, administrator, custodian or similar official, person or agent appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to,
or otherwise take any action to enforce its interest in or realize upon, or take any other action available to it in respect of, any Foreign Collateral, whether under any Notes Security Document or any LC Security Document, applicable law or
otherwise, it being agreed that (A) only the Foreign Collateral Agent, acting in accordance with the Foreign Collateral Documents and the terms of Article VI, shall be entitled to take any such actions or exercise any such remedies and (B)
notwithstanding the foregoing, each Representative may take Permitted Remedies with regard to the Foreign Collateral. No Secured Party will contest, protest or object to any foreclosure or other proceeding or action brought by Foreign Collateral
Agent acting upon instructions of a Controlling Party, and the Controlling Parties may make such instructions as if they had a senior Lien on such Foreign Collateral.
(d) (i)
With respect to any payments or distributions in cash, property or other assets that any Junior Secured Obligations Secured Party pays over to any Senior Secured Obligations Secured Party under the terms of this Agreement, such Junior Secured
Obligations Secured Party shall be subrogated to the rights of the Senior Secured Party Obligations Secured Party and (ii) any Secured Party may assert its rights of subrogation under applicable law resulting from any draw or other payment under
any letter of credit issued under or secured by the Notes Documents or LC Documents, as applicable; provided, that (x) the LC Facility Secured Parties shall not assert or enforce any such rights of subrogation they may acquire as described
in clauses (i) or (ii) above with respect to the Notes Documents or Notes Priority Collateral until the Discharge of all Notes Obligations has occurred and (y) the Notes Secured Parties shall not assert or enforce any such rights of subrogation
they may acquire as described in clauses (i) or (ii) above with respect to the LC Documents or LC Priority Collateral until the Discharge of all LC Obligations has occurred.
(e) The
parties hereto agree to execute, acknowledge and deliver a Memorandum of Intercreditor Agreement (“Memorandum”), together with such other documents in furtherance hereof or thereof, in
each case, in proper form for recording in connection with any Mortgages and in form and substance reasonably satisfactory to the Collateral Agents, in those jurisdictions where such recording is reasonably recommended or requested by local real
estate counsel and/or the title insurance company, or as otherwise deemed reasonably necessary or proper by the parties hereto.
SECTION 2.03 No Duties of Senior Representative; Provision of Notice.
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(a) Each Junior Secured
Obligations Secured Party acknowledges and agrees that none of the Senior Collateral Agents, the Senior Representative nor any other Senior Secured Obligations Secured Party shall have any duties or other obligations to such Junior Secured
Obligations Secured Party with respect to any Senior Secured Obligations Collateral, other than to transfer to the Applicable Junior Collateral Agent any proceeds of any such Senior Secured Obligations Collateral remaining in its possession or
under its control following any sale, transfer or other disposition of such Collateral (in each case, unless the Junior Secured Obligations have been Discharged prior to or concurrently with such sale, transfer, disposition, payment or
satisfaction) and the Discharge of the Senior Secured Obligations secured thereby, or if a Senior Collateral Agent shall be in possession or control of all or any part of such Collateral after such payment and satisfaction in full and termination,
such Collateral or any part thereof remaining, in each case without representation or warranty on the part of any Senior Collateral Agent, any Senior Representative or any Senior Secured Obligations Secured Party and at the sole cost and expense of
the Grantors. In furtherance of the foregoing, each Junior Secured Obligations Secured Party acknowledges and agrees that, until the Senior Secured Obligations secured by any Collateral shall have been Discharged, the Applicable Senior Collateral
Agent shall be entitled, for the benefit of the holders of such Senior Secured Obligations, to sell, transfer or otherwise dispose of, or cause the sale, transfer or other disposition of, such Senior Secured Obligations Collateral as provided
herein and in the Notes Documents and the LC Documents, as applicable, without regard to any Junior Claims or any rights to which the holders of the Junior Secured Obligations would otherwise be entitled as a result of such Junior Claims. Without
limiting the foregoing, each Junior Secured Obligations Secured Party agrees that none of the Senior Collateral Agents, the Senior Representatives nor any other Senior Secured Obligations Secured Party shall have any duty or obligation first to
marshal or realize upon any type of Senior Secured Obligations Collateral (or any other collateral securing the Senior Secured Obligations), or to sell, dispose of, realize on or liquidate all or any portion of such Senior Secured Obligations
Collateral (or any other collateral securing the Senior Secured Obligations), in any manner that would maximize the return to the Junior Secured Obligations Secured Parties, notwithstanding that the order and timing of any such realization, sale,
disposition or liquidation may affect the amount of proceeds actually received by the Junior Secured Obligations Secured Parties from such realization, sale, disposition or liquidation. Each of the Junior Secured Obligations Secured Parties waives
any claim such Junior Secured Obligations Secured Party may now or hereafter have against any Senior Collateral Agent, any Senior Representative or any other Senior Secured Obligations Secured Party (or their representatives, including any
receiver, receiver and manager, interim receiver, administrator, delegate or agent they may appoint) arising out of (i) any actions which any Senior Collateral Agent, any Senior Representative or the Senior Secured Obligations Secured Parties (or
their representatives, including any receiver, receiver and manager, interim receiver, administrator, delegate or agent they may appoint) take or omit to take (including, actions with respect to the creation, attachment, perfection or continuation
of Liens on any Senior Secured Obligations Collateral, actions with respect to the preservation, foreclosure upon, realization, sale, release or depreciation of, or failure to realize upon, any of the Senior Secured Obligations Collateral and
actions with respect to the collection of any claim for all or any part of the Senior Secured Obligations from any account debtor, guarantor or any other party) in accordance with the Notes Documents and the LC Documents or any other agreement
related thereto or to the collection of the Senior Secured Obligations or the valuation, use, protection or release of any security for the Senior Secured Obligations, (ii) any election by any Applicable Senior Collateral Agent, any
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Senior Representative or any Senior Secured Obligations Secured Parties, in any proceeding instituted under the Bankruptcy Code, of the application of
Section 1111(b) of the Bankruptcy Code (or any equivalent proceeding under any other Debtor Relief Law) or (iii) subject to Section 2.06, any borrowing by, or grant of a security interest or administrative expense priority under Section 364 of the
Bankruptcy Code by, the Parent or any of its Subsidiaries, as debtor-in-possession (or any equivalent action under any other Debtor Relief Law).
SECTION 2.04 No Interference; Payment Over; Reinstatement.
(a) Each
Junior Secured Obligations Secured Party, each Junior Representative and each Junior Collateral Agent agrees that (i) it will not take or cause to be taken any action the purpose or effect of which is, or could be, to make any Junior Claim pari passu with, or to give such Junior Secured Obligations Secured Party any preference or priority relative to, any Senior Claim with respect to the Senior Secured Obligations Collateral or any part thereof,
(ii) it will not challenge or question in any proceeding the validity or enforceability of any Foreign Collateral Document, Notes Security Document, or LC Security Document or the extent, validity, attachment, perfection, priority, or
enforceability of any Lien under the Foreign Collateral Documents, Notes Security Documents or the LC Security Documents, or the validity or enforceability of the priorities, rights or duties established by or other provisions of this Agreement,
(iii) it will not take or cause to be taken any action the purpose or intent of which is, or could be, to interfere, hinder or delay, in any manner, whether by judicial proceedings or otherwise, any sale, transfer or other disposition of the Senior
Secured Obligations Collateral by the Applicable Senior Collateral Agent or any Senior Secured Obligations Secured Parties or any Senior Representative acting on their behalf (or their respective representatives, including any receiver, receiver
and manager, interim receiver, administrator, delegate or agent they may appoint), including with respect to the Foreign Collateral by the Foreign Collateral Agent following the instructions of a Controlling Party, (iv) it shall have no right to
(A) direct the Applicable Senior Collateral Agent, any Senior Representative or any holder of Senior Secured Obligations (or their respective representatives, including any receiver, receiver and manager, interim receiver, administrator, delegate
or agent they may appoint) to exercise any right, remedy or power with respect to any Senior Secured Obligations Collateral or (B) consent to the exercise by the Applicable Senior Collateral Agent, any Senior Representative or any other Senior
Secured Obligations Secured Party (or their respective representatives, including any receiver, receiver and manager, interim receiver, administrator, delegate or agent they may appoint) of any right, remedy or power with respect to any Senior
Secured Obligations Collateral, (v) it will not institute any suit or assert in any Insolvency or Liquidation Proceeding any claim against the Applicable Senior Collateral Agent, any Senior Representative or other Senior Secured Obligations Secured
Party seeking damages from or other relief by way of specific performance, injunction, directions, instructions or otherwise with respect to, and none of the Applicable Senior Collateral Agent, any Senior Representative or any other Senior Secured
Obligations Secured Party shall be liable for, any action taken or omitted to be taken by such Senior Collateral Agent, such Senior Representative or other Senior Secured Obligations Secured Party with respect to any Senior Secured Obligations
Collateral, (vi) it will not seek, and hereby waives any right, to have any Senior Secured Obligations Collateral, Foreign Collateral or any part thereof marshaled upon any foreclosure or other disposition of such Senior Secured Obligations
Collateral or Foreign Collateral and (vii) it will not attempt, directly or indirectly, whether by judicial proceedings or otherwise, to challenge the enforceability of any provision of this Agreement; provided that
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nothing in this Agreement shall be construed to prevent or impair the rights of any of the Collateral Agents, or the Secured Parties to enforce this
Agreement.
(b) Each
Junior Collateral Agent, each Junior Representative and each Junior Secured Obligations Secured Party hereby agrees that, if it shall obtain possession or control of any Senior Secured Obligations Collateral, or shall receive any Proceeds or
payment in respect of any Senior Secured Obligations Collateral, pursuant to any Notes Security Document or LC Security Document or by the exercise of any rights available to it under any applicable law or in any Insolvency or Liquidation
Proceeding or through any other exercise of rights or remedies, at any time prior to the Discharge of the Senior Secured Obligations, then it shall hold such Senior Secured Obligations Collateral proceeds or payment in trust for the Senior Secured
Obligations Secured Parties and transfer such Senior Secured Obligations Collateral, proceeds or payment, as the case may be, to the Applicable Senior Collateral Agent reasonably promptly after obtaining actual knowledge, or notice from the
Applicable Senior Collateral Agent, that it is in possession or control of such Senior Secured Obligations Collateral, proceeds or payment. Each Junior Secured Obligations Secured Party agrees that if, at any time, it receives notice or obtains
actual knowledge that all or part of any payment with respect to any Senior Secured Obligations previously made shall be rescinded for any reason whatsoever, such Junior Secured Obligations Secured Party shall promptly pay over to the Applicable
Senior Collateral Agent any payment received by it and then in its possession or under its control in respect of any Senior Secured Obligations Collateral and shall promptly turn over any Senior Secured Obligations Collateral then held by it over
to the Applicable Senior Collateral Agent, and the provisions set forth in this Agreement shall be reinstated as if such payment had not been made, until the payment and satisfaction in full of the Senior Secured Obligations.
(c) Prior
to the Discharge of Senior Secured Obligations, if any Junior Secured Obligations Secured Party holds any Lien on any assets of the Parent or any other Grantor securing any Junior Claims that are intended to secure the Senior Claims pursuant to the
Senior Secured Obligations Collateral Documents but are not already subject to a senior Lien in favor of the Senior Secured Obligations Secured Parties, such Junior Secured Obligations Secured Party, upon demand by any Senior Secured Obligations
Secured Party, will assign such Lien to the applicable Senior Representative, at the sole cost and expense of the Grantors, as security for such Senior Secured Obligations (in which case the Junior Secured Obligations Secured Parties may retain a
junior Lien on such assets subject to the terms hereof).
SECTION 2.05 Automatic Release of Junior Liens.
(a) The
LC Collateral Agent and each other LC Secured Party agrees that, in the event of a sale, transfer or other disposition of any Notes Priority Collateral in connection with the foreclosure upon or other exercise of rights and remedies with respect to
such Notes Priority Collateral that results in the release by the Notes Collateral Agent of the Lien held by the Notes Collateral Agent on such Notes Priority Collateral, the Lien held by the LC Collateral Agent on such Notes Priority Collateral
shall be automatically released; provided that, notwithstanding the foregoing, all holders of the LC Obligations shall be entitled to any proceeds of a sale, transfer or other disposition under this clause (a) that remain after Discharge of
the Notes Obligations, and the Liens on such remaining proceeds securing the LC Obligations shall not be automatically released pursuant to this Section 2.05(a).
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(b) The Notes Collateral
Agent and each other Notes Secured Party agrees that, in the event of a sale, transfer or other disposition of any LC Priority Collateral in connection with the foreclosure upon or other exercise of rights and remedies with respect to such LC
Priority Collateral that results in the release by the LC Collateral Agent of the Lien held by the LC Collateral Agent on such LC Priority Collateral, the Lien held by the Notes Collateral Agent on such LC Priority Collateral shall be automatically
released; provided that, notwithstanding the foregoing, all holders of the Notes Obligations shall be entitled to any proceeds of a sale, transfer or other disposition under this clause (b) that remain after Discharge of all LC Obligations,
and the Liens on such remaining proceeds securing the Notes Obligations shall not be automatically released pursuant to this Section 2.05(b).
(c) In
the event of a Default Disposition, the Liens of Junior Collateral Agent shall be automatically released so long as (i) such Default Disposition is conducted by the applicable Grantor(s) in a commercially reasonable manner (as if such Default
Disposition were a disposition of collateral by a secured party in accordance with the UCC or similar law under the applicable jurisdiction) and in accordance with applicable law, (ii) Senior Collateral Agent also releases its Liens on such Senior
Secured Obligations Collateral and (iii) the net cash proceeds of any such Default Disposition are applied in accordance with Section 2.1(a) hereof (as if they were proceeds received in connection with an enforcement action).
(d) Each
Junior Representative and each Junior Collateral Agent agrees to execute and deliver (at the sole cost and expense of the applicable Grantors) all such authorizations and other instruments as shall reasonably be requested by the applicable Senior
Representative or the Applicable Senior Collateral Agent to evidence and confirm any release of Junior Secured Obligations Collateral provided for in this Section.
(e) If
at any time any Grantor or the holder of any Senior Secured Obligations delivers notice to each Junior Collateral Agent that any specified Senior Secured Obligations Collateral (including all or substantially all of the Capital Stock of a Grantor
or any of its Subsidiaries) is sold, transferred or otherwise disposed of (i) by the owner of such Collateral in a transaction permitted under the LC Documents and the Notes Documents, or (ii) during the existence of any Event of Default under the
Notes Documents or the LC Documents, in each case in connection with the foreclosure upon (or exercise of rights and remedies with respect to) such Collateral, to the extent that the Applicable Senior Collateral Agent has consented to such sale,
transfer or disposition, then the Liens in favor of the Junior Secured Obligations Secured Parties upon such Collateral will automatically be released and discharged as and when, but only to the extent, such Liens on such Senior Secured Obligations
Collateral are released and discharged; provided that the proceeds of such sale, transfer or disposition shall be applied in accordance with Section 2.01(a). Upon delivery to each Junior Collateral Agent of a notice from the
Applicable Senior Collateral Agent stating that any release of Liens securing or supporting the Senior Secured Obligations has become effective (or shall become effective upon each Junior Collateral Agent’s release), each Junior Collateral Agent
will promptly execute and deliver (at the sole cost and expense of the Grantors) such instruments, releases, terminations statements or other documents confirming such release on customary terms.
SECTION 2.06 Certain Agreements With Respect to Insolvency or Liquidation Proceedings.
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(a) This Agreement shall
continue in full force and effect notwithstanding the commencement of any proceeding under the Bankruptcy Code or any other Debtor Relief Law by or against the Parent or any of its Subsidiaries. Without limiting the generality of the foregoing, the
provisions of this Agreement are intended to be and shall be enforceable as a “Subordination Agreement” under Section 510(a) of the Bankruptcy Code. All references to the Parent or any other Grantor shall include such Parent or Grantor as a
debtor-in-possession and any receiver, trustee, liquidator (whether provisional or permanent, as the case may be) or court-appointed officer for such person in any Insolvency or Liquidation Proceeding.
(b) If
the Parent or any of its Subsidiaries shall become subject to a case (a “Bankruptcy Case”) under any Debtor Relief Law:
(i) if the Notes Collateral Agent desires to permit debtor-in-possession financing (“DIP Financing”) secured by a Lien on the Notes Priority Collateral, to be provided by one or
more lenders (the “DIP Lenders”) under Section 364 of the Bankruptcy Code (or any similar provision of any other Debtor Relief Laws) or the use of cash collateral under Section 363 of the
Bankruptcy Code (or any similar provision of any other Debtor Relief Laws), then the LC Collateral Agent and the LC Secured Parties hereby agree to consent to and not to object to any such financing or to the Liens on the Notes Priority Collateral
securing the same (“DIP Financing Liens”) or to any use of cash collateral that constitutes Notes Priority Collateral, unless the Notes Collateral Agent shall then oppose or object to such
DIP Financing or such DIP Financing Liens or use of cash collateral that constitutes Notes Priority Collateral (and (i) to the extent that such DIP Financing Liens are senior to the Liens on any such Notes Priority Collateral for the benefit of the
Notes Secured Parties, each LC Secured Party will subordinate its Liens with respect to such Notes Priority Collateral on the same terms as the Liens of the Notes Secured Parties (other than any Liens of any LC Secured Party constituting DIP
Financing Liens) are subordinated thereto and to any “carve out” for the payment of professional fees, clerk fees, and United States trustee fees (or any other administration charge, directors’ and officers’ charge or similar court ordered priority
charge under applicable Debtor Relief Laws) and (ii) to the extent that such DIP Financing Liens rank pari passu with the Liens on any such Notes Priority Collateral granted to secure the Notes Obligations of the Notes Secured Parties, each LC
Secured Party will confirm the priorities with respect to such Notes Priority Collateral as set forth herein, in each case so long as (A) the Notes Secured Parties retain the benefit of their Liens on all such Notes Priority Collateral pledged to
the DIP Lenders, including proceeds thereof arising after the commencement of such proceeding (other than any Liens constituting DIP Financing Liens) as existed prior to the commencement of the Bankruptcy Case and/or Insolvency or Liquidation
Proceeding, (B) the LC Secured Parties are granted junior Liens on any additional collateral pledged to any Notes Secured Party as adequate protection or otherwise in connection with such DIP Financing or use of cash collateral, (C) if any amount
of such DIP Financing or cash collateral is applied to repay any of the Notes Obligations, such amount is applied pursuant to Section 2.01(a) of this Agreement, and (D) if any Notes Secured Parties are granted adequate protection, including in the
form of periodic payments, in connection with such DIP Financing
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or use of cash collateral, the proceeds of such adequate protection are applied pursuant to Section 2.01(a) of this Agreement; provided
that the LC Secured Parties shall have a right to object to the grant of a Lien (i) to secure the DIP Financing over any Collateral that shall not constitute Notes Priority Collateral and (ii) in respect of any additional Collateral that would not
constitute Notes Priority Collateral hereunder were it pledged for the benefit of the Notes Secured Parties pursuant to the Notes Security Documents to any Notes Secured Party as adequate protection, for use of cash collateral, or otherwise, as set
forth in clause (B) above; and
(ii) if the LC Collateral Agent desires to permit a DIP Financing secured by a Lien on LC Priority Collateral, to be provided by DIP Lenders under Section 364 of the Bankruptcy Code (or any similar provision of any other Debtor
Relief Laws) or the use of cash collateral under Section 363 of the Bankruptcy Code (or any similar provision of any other Debtor Relief Laws), then the Notes Collateral Agent and the Notes Secured Parties hereby agree not to object to any such
financing or to the DIP Financing Liens on the LC Priority Collateral securing the same or to any use of cash collateral that constitutes LC Priority Collateral, unless the LC Collateral Agent shall then oppose or object to such DIP Financing or
such DIP Financing Liens or use of cash collateral that constitutes LC Priority Collateral (and (i) to the extent that such DIP Financing Liens are senior to the Liens on any such LC Priority Collateral for the benefit of the LC Secured Parties,
each Notes Secured Party will subordinate its Liens with respect to such LC Priority Collateral on the same terms as the Liens of the LC Secured Parties (other than any Liens of any Notes Secured Party constituting DIP Financing Liens) are
subordinated thereto and to any “carve out” for the payment of professional fees, clerk fees, and United States trustee fees (or any other administration charge, directors’ and officers’ charge or similar court-ordered priority charge under
applicable Debtor Relief Laws), and (ii) to the extent that such DIP Financing Liens rank pari passu with the Liens on any such LC Priority Collateral granted to secure the LC Obligations of the LC Secured
Parties, each Notes Secured Party will confirm the priorities with respect to such LC Priority Collateral as set forth herein), in each case so long as (A) the Notes Secured Parties retain the benefit of their Liens on all such LC Priority
Collateral pledged to the DIP Lenders, including proceeds thereof arising after the commencement of such proceeding (other than any Liens constituting DIP Financing Liens) as existed prior to the commencement of the Bankruptcy Case and/or
Insolvency or Liquidation Proceeding, (B) the Notes Secured Parties are granted Liens on any additional collateral pledged to any LC Secured Party as adequate protection or otherwise in connection with such DIP Financing or use of cash collateral,
(C) if any amount of such DIP Financing or cash collateral is applied to repay any of the LC Obligations, such amount is applied pursuant to Section 2.01(a) of this Agreement and (D) if any LC Secured Parties are granted adequate
protection, including in the form of periodic payments, in connection with such DIP Financing or use of cash collateral, the proceeds of such adequate protection is applied pursuant to Section 2.01(a) of this Agreement; provided
that the Notes Secured Parties shall have a right to object to the grant of a Lien (i) to secure the DIP Financing over any Collateral that shall not constitute LC
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Priority Collateral and (ii) in respect of any additional Collateral that would not constitute LC Priority Collateral hereunder were
it pledged for the benefit of the LC Secured Parties pursuant to the LC Security Documents to any LC Facility Secured Party as adequate protection, for use of cash collateral, or otherwise, as set forth in clause (B) above).
(iii) No Junior Secured Obligations Secured Party will directly or indirectly propose or support any DIP Financing secured by a Lien senior or prior to the Liens of the Senior Secured Obligations Secured Parties on the Senior
Secured Obligations Collateral unless such DIP Financing provides for the Discharge of the Senior Secured Obligations.
(c) The
Applicable Junior Collateral Agent and each Junior Secured Obligations Secured Party agrees that it will not object to and will not otherwise contest: (i) any motion for relief from the automatic stay or any other stay in any Insolvency or
Liquidation Proceeding (including by way of moratorium) or from any injunction against foreclosure or enforcement in respect of the Senior Secured Obligations made by the Applicable Senior Collateral Agent or any Senior Secured Obligations Secured
Party; (ii) any lawful exercise by any holder of Senior Claims of the right to credit bid Senior Claims in any sale of Collateral that is Senior Secured Obligations Collateral with respect to such Senior Claims; (iii) any other request for judicial
relief made in any court by the Applicable Senior Collateral Agent or any Senior Secured Obligations Secured Party relating to the lawful enforcement of any Lien on the Senior Secured Obligations Collateral; (iv) and will consent to any sale or
other disposition (or related order) of any Senior Secured Obligations Collateral (or any portion thereof) under Section 363 of the Bankruptcy Code or any other provision of the Bankruptcy Code (or any equivalent action under any other Debtor
Relief Law) if the Senior Secured Obligations Secured Parties shall have consented to such sale or disposition (or related order) of such Senior Secured Obligations Collateral if such sale or other disposition is not free and clear of the Liens
securing the Junior Secured Obligations or (v) any sale or other disposition (or related order) of any Senior Secured Obligations Collateral (or any portion thereof) under Section 363 of the Bankruptcy Code or any other equivalent provision of the
Bankruptcy Code (or any other provision under any other Debtor Relief Law) if the Senior Secured Obligations Secured Parties shall have consented, and the related court order provides that, to the extent the sale is to be free and clear of Liens,
the Liens securing the Senior Secured Obligations and the Junior Secured Obligations will attach to the proceeds of the sale on the same basis of priority as the Liens securing such Obligations on the assets being sold, in accordance with this
Agreement.
(d) The
Applicable Junior Collateral Agent and each Junior Secured Obligations Secured Party agrees that it will not seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding (including by way of moratorium) with
respect to Senior Secured Obligations Collateral without the prior consent of the Applicable Senior Collateral Agent, unless, and solely to the extent that, the Applicable Senior Collateral Agent or Senior Secured Obligations Secured Party shall
obtain relief from the automatic stay (or any other stay in any Insolvency or Liquidation Proceeding) with respect to such collateral to commence a lien enforcement action.
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(e) The Applicable Junior
Collateral Agent and each Junior Secured Obligations Secured Party hereby agrees that it will not, other than as set forth in Section 2.06(b), object to and will not otherwise contest (or support any other Person contesting): (i) any
request by the Applicable Senior Collateral Agent or any Senior Secured Obligations Secured Party for adequate protection; provided that (1) any Notes Secured Party, solely in its capacity as a
Senior Secured Obligations Secured Party, may object to adequate protection in the form of cash payments to the extent such payment is sought to be paid from Notes Priority Collateral, any DIP Financing under Section 2.06(b)(i) or the
proceeds thereof and (2) any LC Secured Party, solely in its capacity as a Senior Secured Obligations Secured Party, may object to adequate protection in the form of cash payments to the extent such payment is sought to be paid from LC Priority
Collateral, any DIP Financing under Section 2.06(b)(ii) or the proceeds thereof or (ii) any objection by the Applicable Senior Collateral Agent or any Senior Secured Obligations Secured Party to any motion, relief, action or proceeding
based on the Applicable Senior Collateral Agent or any Senior Secured Obligations Secured Party claiming a lack of adequate protection. Notwithstanding the foregoing, in any Insolvency or Liquidation Proceeding, (x) if the Senior Secured
Obligations Secured Parties (or any subset thereof) are granted adequate protection in the form of a replacement lien or additional collateral in connection with any DIP Financing or use of cash collateral under Section 363 or Section 364 of the
Bankruptcy Code or any similar law, then the Applicable Junior Collateral Agent may seek or request adequate protection in the form of a replacement Lien on such additional collateral, so long as, with respect to the Senior Secured Obligations
Collateral, such Lien is subordinated to the Liens securing the Senior Secured Obligations and such DIP Financing (and all obligations relating thereto), on the same basis as the other Liens securing Junior Secured Obligations on the Senior Secured
Obligations Collateral are subordinated to the Liens on Senior Secured Obligations Collateral securing the Senior Secured Obligations under this Agreement; (y) in the event the Applicable Junior Collateral Agent seeks or requests adequate
protection and such adequate protection is granted in the form of a replacement lien or additional collateral, then the Applicable Junior Collateral Agent and the Junior Secured Obligations Secured Parties hereby agree that the Senior Secured
Obligations Secured Parties shall also be granted a Lien on such additional collateral as security for the Senior Secured Obligations and any such DIP Financing and that any Lien on such additional collateral that constitutes Senior Secured
Obligations Collateral securing the Junior Secured Obligations shall be subordinated to the Liens on such collateral securing the Senior Secured Obligations and any such DIP Financing (and all obligations relating thereto) and any other Liens on
Senior Secured Obligations Collateral granted to the holders of Senior Secured Obligations as adequate protection on the same basis as the Liens securing Junior Secured Obligations are so subordinated to the Liens securing the Senior Secured
Obligations under this Agreement; (z) any adequate protection granted in favor of any Senior Secured Obligations Secured Party in the form of a superpriority or other administrative expense claim and any claim in favor of any Senior Secured
Obligations Secured Party arising under Section 507(b) of the Bankruptcy Code (or similar Debtor Relief Laws) (collectively, “Senior 507(b) Claims”) shall be senior to and have priority of payment over any superpriority or other
administrative expense claim and any claim arising under Section 507(b) of the Bankruptcy Code (or similar Debtor Relief Laws) in favor of any Junior Secured Obligations Secured Party (collectively, “Junior 507(b) Claims”). The holders of
the Junior 507(b) Claims agree that, in connection with any Plan of Reorganization in any Insolvency or Liquidation Proceeding, such Junior 507(b) Claims may be paid in any combination of cash, securities, or other property having a present value
equal to the amount of such Junior 507(b) Claims as of the
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effective date of such plan. For the avoidance of doubt, as between the Notes Secured Parties and LC Secured Parties, all Senior 507(b) Claims shall be pari passu with the Senior 507(b) Claims held by the other Class, and all Junior 507(b) Claims shall be pari passu with the Junior 507(b) Claims held by the other Class.
(f) The
Applicable Junior Collateral Agent and each Junior Secured Obligations Secured Party hereby agrees that (i) it will not oppose or seek to challenge any claim by the Applicable Senior Collateral Agent or any Senior Secured Obligations Secured Party
for allowance of Senior Secured Obligations consisting of post-petition interest, costs, fees, charges, or expenses and (ii) until the Discharge of Senior Secured Obligations has occurred, the Applicable Junior Collateral Agent, on behalf of itself
and the Junior Secured Obligations Secured Parties, will not assert or enforce any claim under Section 506(c) of the Bankruptcy Code (or any similar provision of any other Debtor Relief Laws) senior to or on a parity with the Liens on Senior
Secured Obligations Collateral securing the Senior Secured Obligations for costs or expenses of preserving or disposing of any Collateral; provided that, for the avoidance of doubt, any amounts received by the Applicable Senior Collateral
Agent pursuant to such a claim shall in all cases be subject to Section 2.1(a).
(g) The
LC Collateral Agent, on behalf of the LC Secured Parties, and the Notes Collateral Agent, on behalf of the Notes Secured Parties, acknowledge and intend that the grants of Liens pursuant to the LC Security Documents, on the one hand, and the Notes
Security Documents, on the other hand, constitute separate and distinct grants of Liens, and because of, among other things, their differing rights in the Collateral, the LC Obligations are fundamentally different from the Notes Obligations and
must be separately classified in any Plan of Reorganization proposed or confirmed (or approved) in an Insolvency or Liquidation 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 Notes Secured Parties and the LC Secured Parties in respect of any Collateral constitute claims in the same class (rather than separate classes of senior and junior secured claims), then the Notes Secured Parties and the
LC Secured Parties hereby acknowledge and agree that all distributions shall be made as if there were separate classes of Notes Obligations and LC Obligations against the Grantors (with the effect being that, to the extent that the aggregate value
of the Notes Priority Collateral or the LC Priority Collateral is sufficient (for this purpose ignoring all claims held by the other Secured Parties for whom such Collateral is Junior Secured Obligations Collateral), the Notes Secured Parties or
the LC Secured Parties, respectively, 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, costs, fees,
charges, or expenses that are available from the Senior Secured Obligations Collateral for each of the Notes Secured Parties and the LC Secured Parties, respectively, before any distribution is made in respect of the Junior Claims with respect to
such Collateral, with the holder of such Junior Claims hereby acknowledging and agreeing to turn over to the Junior Secured Obligations Secured Parties amounts otherwise received or receivable by them to the
extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the aggregate recoveries). Additionally, to further effectuate the intent of the parties as provided in this subsection, if it is held that
the claims of any of the LC Secured Parties, on the one hand, and the Notes Secured Parties, on the other hand, constitute claims in the same class (rather than separate classes of secured claims), then the Notes Secured Parties hereby acknowledge
and agree to vote to reject such plan of reorganization or similar dispositive restructuring plan unless LC Secured Parties
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greater than half in number and holding greater than two-thirds in amount of the LC Obligations agree to accept such plan or such plan provides for the
Discharge of LC Obligations. The Notes Collateral Agent (on behalf of all the Notes Secured Parties) agrees it shall not object to or contest (or support any other party in objection or contesting) a plan of reorganization or other dispositive
restructuring plan on the grounds that the LC Obligations and Notes Obligations are classified separately. The Notes Collateral Agent (on behalf of all the Notes Secured Parties) agrees that in any Insolvency or Liquidation Proceeding, neither it
nor any other Notes Secured Party shall support or vote to accept any plan of reorganization of the Borrower or any other Grantor unless the plan of reorganization is accepted by the LC Secured Parties in accordance with Section 1126(e) of the
Bankruptcy Code or otherwise provides for the Discharge of LC Obligations on the effective date of such plan of reorganization. Except as provided herein, the Notes Secured Parties shall remain entitled to vote their claims in any such Insolvency or
Liquidation Proceeding.
(h) If,
in any Insolvency or Liquidation Proceeding, debt obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor are distributed pursuant to a Plan of Reorganization (or any form of Court-sanctioned restructuring
permitted under any applicable law), both on account of the Notes Obligations and on account of the LC Obligations, then, to the extent the debt obligations distributed on account of the Notes Obligations and on account of the LC Obligations are
secured by Liens upon the Collateral, the provisions of this Agreement will survive the distribution of such debt obligations pursuant to such plan and will apply with like effect to the debt obligations so distributed, to the Liens securing such
debt obligations and the distribution of proceeds thereof.
Notwithstanding anything to the contrary contained herein, if in any Insolvency or Liquidation Proceeding a
determination is made that any Lien encumbering any Collateral is not enforceable for any reason, then each of the LC Collateral Agent and the Notes Collateral Agent for themselves and on behalf of their respective Secured Parties agrees that, any
distribution or recovery they may receive in respect of any Collateral (including assets that would constitute Collateral but for such determination) shall be segregated and held in trust and forthwith paid over to the LC Collateral Agent or the
Notes Collateral Agent, as the case may be, in the same form as received without recourse, representation or warranty (other than a representation of such Collateral Agent that it has not otherwise sold, assigned, transferred or pledged any right,
title or interest in and to such distribution or recovery) but with any necessary endorsements or as a court of competent jurisdiction may otherwise direct in order to comply with the priority provisions set forth in Section 2.01
(i) Notwithstanding
the provisions of Sections 2.02(a) and 2.02(b), 2.04(a) and 2.06(b), (c) (e) and (f) or otherwise, both before and during an Insolvency or Liquidation Proceeding, any of the Junior Secured Obligations Secured Parties may take any actions and
exercise any and all rights that would be available to a holder of unsecured claims, including, without limitation, the commencement of an Insolvency or Liquidation Proceeding against any Grantor in accordance with applicable law (including the
Debtor Relief Laws of any applicable jurisdiction); provided that, the Junior Secured Obligations Secured Parties may not take any of the actions that is inconsistent with the terms of this Agreement, including without limitation, such
actions prohibited by Sections 2.02(a) and 2.02(b), Section 2.04(a) or Section 2.06(b), (c), (e) and (f); provided further, that in the event that any of the Junior Secured Obligations Secured Parties becomes a judgment lien creditor
in respect of any Collateral as a result of its enforcement of its
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rights as an unsecured creditor with respect to the Junior Secured Obligations, such judgment lien shall be subject to the terms of this Agreement for
all purposes (including in relation to the Senior Secured Obligations) as the other Liens securing the Junior Secured Obligations are subject to this Agreement.
SECTION 2.07 Reinstatement. In the event that any of the Senior Secured Obligations shall be paid in full and such payment or any part thereof shall subsequently, for whatever reason
(including an order or judgment for disgorgement of a preference under any Debtor Relief Law, or the settlement of any claim in respect thereof), be required to be returned or repaid, the terms and conditions of this Article II shall be fully
applicable thereto until all such Senior Secured Obligations shall again have been irrevocably paid in full in cash.
SECTION 2.08 [Reserved].
SECTION 2.09 Insurance. Unless and until the Notes Obligations have been Discharged, as between the Notes Collateral Agent, on the one hand, and the LC Collateral Agent, on the other hand,
only the Notes Collateral Agent will have the right (subject to the rights of the Grantors under the Notes Documents and the LC Documents) to adjust or settle any insurance policy or claim covering or constituting Notes Priority Collateral in the
event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding affecting the Notes Priority Collateral. Unless and until the LC Obligations have been Discharged, as between the Notes Collateral Agent, on
the one hand, and the LC Collateral Agent, on the other hand, only the LC Collateral Agent will have the right (subject to the rights of the Grantors under the Notes Documents and the LC Documents) to adjust or settle any insurance policy covering
or constituting LC Priority Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding solely affecting the LC Priority Collateral. To the extent that an insured loss covers or
constitutes Notes Priority Collateral and LC Priority Collateral, then the Notes Collateral Agent and the LC Collateral Agent will work jointly and in good faith to collect, adjust or settle (subject to the rights of the Grantors under the Notes
Documents and the LC Obligations Documents) under the relevant insurance policy.
SECTION 2.10 Refinancings. Each of the Notes Obligations and the LC Obligations and the agreements governing them may be Refinanced, in each case without notice to, or the consent (except to
the extent a consent is otherwise required to permit the Refinancing transaction under any Notes Document or any LC Obligations Document, as in effect on the date hereof or as may be amended in accordance with the
terms hereof) of, any Notes Secured Party or any LC Secured Party, all without affecting the priorities provided for herein or the other provisions hereof; provided, however, that the holders of any such Refinancing indebtedness
(or an authorized agent or trustee on their behalf) bind themselves in writing (to the extent they are not already so bound) to the terms of this Agreement pursuant to a joinder in the form of Exhibit A hereto, and such other Refinancing
documents or agreements (including amendments or supplements to this Agreement) as each Applicable Senior Collateral Agent, shall reasonably request and in form and substance reasonably acceptable to such Applicable Senior Collateral Agent. In
connection with any Refinancing contemplated by this Section 2.10, this Agreement may be amended at the request and sole expense of the Parent, and without the consent (except to the extent a consent is otherwise required to permit such Refinancing
transaction under any Notes Document or any LC Obligations Document, and other than the consent of each Applicable Senior
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Collateral Agent, whose consent shall still be required to the extent set forth in the proviso of the immediately preceding sentence) of any
Representative, (a) to add parties (or any authorized agent or trustee therefor) providing any such Refinancing, (b) to confirm that such Refinancing indebtedness in respect of any LC Obligations shall have the same rights and priorities in respect
of any LC Priority Collateral as the indebtedness being Refinanced and (c) to confirm that such Refinancing indebtedness in respect of any Notes Obligations shall have the same rights and priorities in respect of any Notes Priority Collateral as the
indebtedness being Refinanced, all on the terms provided for herein immediately prior to such Refinancing. Any such additional party and each Applicable Senior Collateral Agent shall be entitled to rely on the determination of officers of the Parent
that such modifications do not violate the Notes Documents or the LC Documents if such determination is set forth in an officers’ certificate delivered to such party and each Applicable Senior Collateral Agent; provided, however, that such
determination will not affect whether or not the Parent and the Grantors have complied with their undertakings in any such document or this Agreement. In connection with the delivery of a joinder as set forth above, the Parent shall deliver an
officer’s certificate to each Collateral Agent certifying that the Refinancing, including the incurrence of indebtedness and the incurrence of liens in respect thereof, qualifies as a Refinancing as defined herein.
SECTION 2.11 Amendments to Security Documents.
(a) Subject
to paragraph (c) below, each of the LC Collateral Agent and other LC Secured Parties agrees that, without the prior written consent of the Notes Collateral Agent, no LC Security Document to which such LC Collateral Agent or LC Secured Party is
party may be amended, supplemented or otherwise modified or entered into to the extent such amendment, supplement or modification or the terms of any new LC Security Document would be prohibited by or inconsistent with any of the terms of this
Agreement.
(b) Subject
to paragraph (c) below, each of the Notes Collateral Agent and other Notes Secured Parties agrees that, without the prior written consent of the LC Collateral Agent and each LC Collateral Agent, no Notes Security Document to which the Notes
Collateral Agent or Notes Secured Parties are party may be amended, supplemented or otherwise modified or entered into to the extent such amendment, supplement or modification or the terms of any new Notes Security Document would be prohibited by
or inconsistent with any of the terms of this Agreement.
(c) In
the event that any Senior Collateral Agent or Senior Secured Obligations Secured Parties enter into any amendment, waiver or consent in respect of or replace any of the Senior Secured Obligations Collateral Documents for the purpose of adding to,
or deleting from, or waiving or consenting to any departures from any provisions of, such Senior Secured Obligations Collateral Document or changing in any manner the rights of such Senior Collateral Agent, such Senior Secured Obligations Secured
Parties, the Grantors thereunder (including the release of any Liens in the applicable Senior Secured Obligations Collateral), then such amendment, waiver or consent shall apply automatically to any comparable provision of each Comparable Junior
Priority Collateral Document without the consent of any Junior Collateral Agent or any Junior Secured Obligations Secured Party and without any action by any Junior Collateral Agent, any Junior Secured Obligations Secured Party, the Parent or any
other Grantor; provided, however, that (A) such amendment, waiver or consent does not materially adversely
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affect the rights of the applicable Junior Secured Obligations Secured Parties or the interests of the applicable Junior Secured Obligations Secured
Parties in the applicable Junior Secured Obligations Collateral and not the Senior Collateral Agent or the Senior Secured Obligations Secured Parties, as the case may be, that have a security interest in the affected collateral in a like or similar
manner, and (B) written notice of such amendment, waiver or consent shall have been given by the Parent to the Applicable Junior Collateral Agent.
(d) Notwithstanding
anything to the contrary contained herein, the LC Collateral Agent and other LC Secured Parties and the Notes Collateral Agent and other Notes Secured Parties hereby agree that they will not amend or otherwise modify the provisions of the LC
Documents or the Notes Documents related to the Refinancing or payment of any Obligations (including ordinary course payments) in a manner that makes them more restrictive to Grantors or otherwise prohibits or restricts a Refinancing or payment
permitted under the LC Documents or Notes Documents as in effect on the date hereof.
SECTION 2.12 Possessory Collateral Agent as Gratuitous Bailee for Perfection.
(a) Each
Possessory Collateral Agent agrees to hold the Possessory Collateral that is in its possession or control (or in the possession or control of its agents or bailees) as gratuitous bailee for, or, as applicable, on trust for, the benefit of each
Secured Party and any assignee solely for the purpose of perfecting the security interest granted in such Possessory Collateral pursuant to the Notes Security Documents or the LC Security Documents, subject to the terms and conditions of this
Section 2.12. To the extent any Possessory Collateral is possessed by or is under the control of a Collateral Agent (either directly or through its agents or bailees) other than the Applicable Possessory Collateral Agent, such Collateral Agent
shall deliver such Possessory Collateral to (or shall cause such Possessory Collateral to be delivered to) the Applicable Possessory Collateral Agent and shall take all actions reasonably requested in writing by the Applicable Possessory Collateral
Agent to cause the Applicable Possessory Collateral Agent to have possession or control of same. Pending such delivery to the Applicable Possessory Collateral Agent, each other Collateral Agent agrees to hold any Possessory Collateral as
gratuitous bailee, or, as applicable, on trust for, for the benefit of each other Secured Party and any assignee, solely for the purpose of perfecting the security interest granted in such Possessory Collateral, if any, pursuant to the applicable
Notes Security Documents or LC Security Documents, in each case subject to the terms and conditions of this Section 2.12.
(b) The
duties or responsibilities of each Possessory Collateral Agent and each other Collateral Agent under this Section 2.12 shall be limited solely to holding the Possessory Collateral as gratuitous bailee, or, as applicable, on trust for, for the
benefit of each Secured Party for purposes of perfecting the security interest held by the Secured Parties therein.
(c) Upon
the Discharge of all LC Obligations, the LC Collateral Agent shall deliver to the Notes Collateral Agent (at the sole expense of the Grantors), to the extent that it is legally permitted to do so, the remaining Possessory Collateral (if any) held
by it, together with any necessary endorsements (or otherwise allow the Notes Collateral Agent to obtain control of such Possessory Collateral) or as a court of competent jurisdiction may otherwise direct. The Grantors shall take such further
action as is required to effectuate the transfer contemplated hereby
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and shall indemnify the Possessory Collateral Agent for loss or damage suffered by the Possessory Collateral Agent as a result of such transfer except
for loss or damage suffered by the Possessory Collateral Agent as a result of its own willful misconduct or gross negligence. No LC Collateral Agent shall be obligated to follow instructions from the Notes Collateral Agent in contravention of this
Agreement.
(d) Upon
the Discharge of all Notes Obligations, the Notes Collateral Agent shall deliver to the LC Collateral Agent (at the sole expense of the Grantors), to the extent that it is legally permitted to do so, the remaining Possessory Collateral (if any)
held by it, together with any necessary endorsements (or otherwise allow the LC Collateral Agent to obtain control of such Possessory Collateral) or as a court of competent jurisdiction may otherwise direct. The Grantors shall take such further
action as is required to effectuate the transfer contemplated hereby and shall indemnify the Possessory Collateral Agent for loss or damage suffered by the Possessory Collateral Agent as a result of such transfer except for loss or damage suffered
by the Possessory Collateral Agent as a result of its own willful misconduct or gross negligence. The Notes Collateral Agent shall not be obligated to follow instructions from any LC Collateral Agent in contravention of this Agreement.
SECTION 2.13 Control Agreements. The LC Collateral Agent hereby agrees to act as collateral agent of the Notes Secured Parties under each control agreement solely for the purpose of perfecting
the Lien of the Notes Secured Parties in the deposit accounts and securities accounts subject to such control agreements by control. The Notes Collateral Agent, on behalf of the Notes Secured Parties, hereby appoints the LC Collateral Agent to act
as its collateral agent under each such control agreement, as applicable. The duties or responsibilities of the LC Collateral Agent under this Section 2.13 shall be limited solely to acting as agent for the benefit of each Notes Secured Party for
purposes of perfecting the security interest held by the Secured Parties in the deposit accounts and securities accounts subject to such control agreements by control, in each case prior to the Discharge of all LC Obligations
SECTION 2.14 Rights under Permits and Licenses. The LC Collateral Agent agrees that if the Notes Collateral Agent shall require
rights available under any permit or license controlled by the LC Collateral Agent (as certified to the LC Collateral Agent by the Notes Collateral Agent, upon which the LC Collateral Agent may rely) in order to realize on any Notes Priority
Collateral, the LC Collateral Agent shall (subject to the terms of the LC Documents, including the LC Collateral Agent’s rights to indemnification thereunder) take all such actions as shall be available to it (at the sole expense of the Grantors),
consistent with applicable law and reasonably requested by the Notes Collateral Agent in writing, to make such rights available to the Notes Collateral Agent, subject to the Liens held by the LC Collateral Agent for the benefit of the LC Secured
Parties. The Notes Collateral Agent agrees that if the LC Collateral Agent shall require rights available under any permit or license controlled by the Notes Collateral Agent (as certified to the Notes Collateral Agent by the LC Collateral Agent,
upon which the Notes Collateral Agent may rely) in order to realize on any LC Priority Collateral, the Notes Collateral Agent shall (subject to the terms of the Notes Documents, including such Notes Collateral Agent’s rights to indemnification
thereunder) take all such actions as shall be available to it (at the sole expense of the Grantors), consistent with applicable law and reasonably requested by the LC Collateral Agent in writing, to make such rights available to the LC Collateral
Agent, subject to the Liens held by the Notes Collateral Agent for the benefit of the Notes Secured Parties.
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ARTICLE III
Existence and Amounts of Liens and Obligations
Existence and Amounts of Liens and Obligations
Whenever a Representative shall be required, in connection with the exercise of its rights or the performance of
its obligations hereunder, to determine the existence or amount of any Senior Secured Obligations (or the existence of any commitment to extend credit that would constitute Senior Secured Obligations) or Junior Secured Obligations, or the Collateral
subject to any such Lien, it may, acting reasonably, request that such information be furnished to it in writing by the other Representatives and shall be entitled to make such determination on the basis of the information so furnished; provided,
however, that, if a Representative shall fail or refuse reasonably promptly to provide the requested information, the requesting Representative shall be entitled to make any such determination by such method as it may, in the exercise of its
good faith judgment, determine, including by reliance upon a certificate of the Parent. Each Representative may rely conclusively, and shall be fully protected in so relying, on any determination made by it in accordance with the provisions of the
preceding sentence (or as otherwise directed by a court of competent jurisdiction) and shall have no liability to the Parent or any of its subsidiaries, any Secured Party or any other Person as a result of such determination.
ARTICLE IV
Consent of Grantors
Consent of Grantors
Each Grantor hereby consents to the provisions of this Agreement and the intercreditor arrangements provided for
herein and agrees that the obligations of the Grantors under the Notes Security Documents, the LC Security Documents or the Foreign Collateral Documents will in no way be diminished or otherwise affected by such provisions or arrangements.
Notwithstanding any other provision of this Agreement to the contrary, the obligations and liabilities of any
Grantor incorporated in Norway shall be limited by such mandatory provisions of sections 8-7 and/or 8-10 of the Norwegian Limited Liability Companies Act of 13 June 1997 regarding restrictions on a Norwegian limited liability company’s ability to
grant guarantees, loans, security or other financial assistance.
ARTICLE V
Representations and Warranties
Representations and Warranties
SECTION 5.01 Representations and Warranties of Each Party. Each party hereto represents and warrants to the other parties hereto as follows:
(a) Such
party is duly organized or incorporated (as the case may be), validly existing and, if applicable, in good standing (or the equivalent status under the laws of any foreign jurisdiction) under the laws of the jurisdiction of its organization or
incorporation (as the case may be) and has all requisite power and authority to enter into and perform its obligations under this Agreement.
(b) This
Agreement has been duly executed and delivered by such party.
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(c) The execution, delivery
and performance by such party of this Agreement (i) do not require any consent or approval of, registration or filing with or any other action by any governmental authority, (ii) will not violate any applicable law or regulation governing the
powers of such party or any order of any governmental authority having jurisdiction over it and (iii) will not violate the charter, by-laws or other organizational documents of such party.
SECTION 5.02 Representations and Warranties of Each Representative. Each Collateral Agent and Representative represents and warrants to the other parties hereto that it is authorized under the
Notes Indenture or the LC Obligations Credit Agreement, as applicable, to enter into this Agreement.
ARTICLE VI
Collateral Agency for Foreign Collateral
Collateral Agency for Foreign Collateral
SECTION 6.01 Appointment of Foreign Collateral Agent. It is acknowledged that, in certain jurisdictions outside of the United State of America, applicable law prevents both the Notes
Collateral Agent and the LC Collateral Agent from obtaining liens on the Collateral. In such circumstances, solely for Foreign Collateral, the parties hereto agree that with effect as of the resignation of the Preceding Foreign Collateral Agent (i)
the LC Collateral Agent, who may appoint any sub-agent in its sole discretion and upon written notice to the Notes Collateral Agent to act in such capacity, is hereby appointed as Foreign Collateral Agent and sub-agent for the Collateral Agents in
respect of any LC Priority Collateral, (ii) the Notes Collateral Agent, or any sub-agent that it may in its sole discretion and upon written notice to the LC Collateral Agent designate to act in such capacity, is hereby appointed as Foreign
Collateral Agent and sub-agent for the Collateral Agents in respect of any Notes Priority Collateral, and (iii) notwithstanding anything to the contrary contained herein, Foreign Collateral Agent is permitted to hold Liens on such Foreign
Collateral in trust for the Secured Parties notwithstanding the inability of any other Collateral Agent to hold similar Liens. In recognition of the foregoing, each other Collateral Agent hereby irrevocably appoints the LC Collateral Agent or the
Notes Collateral Agent, as applicable, to act as the “collateral agent” under any Foreign Collateral Documents, pursuant to Section 6.01(i) and (ii), and each other Collateral Agent hereby irrevocably appoints and authorizes the LC Collateral Agent
or the Notes Collateral Agent, as applicable, to act as the agent of such Secured Party for purposes of acquiring, holding and enforcing any and all Liens on Foreign Collateral, pursuant to Section 6.01(i) and (ii), granted by any of the
Grantors to secure any of the Notes Obligations or LC Obligations, together with such powers and discretion as are reasonably incidental thereto (including, without limitation, to enter into additional Foreign Collateral Documents or supplements to
existing Foreign Collateral Documents on behalf of the Secured Parties). In this connection, the Foreign Collateral Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Foreign Collateral Agent pursuant
to this Article VI for purposes of holding or enforcing any Lien on the Foreign Collateral (or any portion thereof) granted under the Foreign Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the
Foreign Collateral Agent, shall be entitled to the benefits of all provisions of this Agreement, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under this agreement and the Foreign Collateral Documents as if
set forth in full herein with respect thereto. It is understood and agreed that the use of the term “agent” herein or in any other Foreign Collateral Documents (or any other similar term) with reference to the Foreign
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Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law.
Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.
SECTION 6.02 Rights as a Secured Party. The Person serving as the Foreign Collateral Agent hereunder shall have the same rights and powers in its capacity as a Secured Party as any other
Secured Party and may exercise the same as though it were not the Foreign Collateral Agent and the term “Secured Party” or “Secured Parties” (or, as applicable, Notes Secured Party or LC Secured Party) shall, unless otherwise expressly indicated or
unless the context otherwise requires, include the Person serving as the Foreign Collateral Agent hereunder in its individual capacity. Such Person and its affiliates may accept deposits from, lend money to, own securities of, act as the financial
advisor or in any other advisory capacity for and generally engage in any kind of business with any Grantor or any Grantor’s Subsidiary or other affiliate thereof as if such Person were not the Foreign Collateral Agent hereunder and without any
duty to account therefor to the Secured Parties.
SECTION 6.03 Exculpatory Provisions.
(a) The
Foreign Collateral Agent shall not have any duties or obligations except those expressly set forth herein and in the other Foreign Collateral Documents to which Foreign Collateral Agent is a party, and its duties hereunder and thereunder shall be
administrative in nature. Without limiting the generality of the foregoing, the Foreign Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether a default or Event of Default under the Notes Documents or LC Documents has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers (though it hereby is authorized to take such actions in its Permitted Discretion), except discretionary rights and powers expressly
contemplated hereby or by the Foreign Collateral Documents that the Foreign Collateral Agent is required to exercise as directed in writing by the Controlling Parties; provided that the Foreign Collateral Agent shall not be required to take
any action that, in its good faith, based upon the advice of counsel or upon the written opinion of its counsel, may expose the Foreign Collateral Agent to liability, or for which it is not indemnified to its satisfaction or that is contrary to any
Foreign Collateral Document or applicable law, including, for the avoidance of doubt, any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property in
violation of any Debtor Relief Law; and
(iii) shall not, except as expressly set forth herein and in the Foreign Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Grantors or any of their
Subsidiaries or affiliates that is communicated to or obtained by the Person serving as the Foreign Collateral Agent or any of its affiliates in any capacity.
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(b) The Foreign Collateral
Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Controlling Parties or (ii) in the absence of its own willful misconduct or gross negligence as determined by a court of competent
jurisdiction by final nonappealable judgment. The Foreign Collateral Agent shall be deemed not to have knowledge of any default or Event of Default under the Notes Documents or LC Documents unless and until written notice describing such default
or Event of Default is given to the Foreign Collateral Agent by the Grantors, LC Collateral Agent, or Notes Collateral Agent.
(c) The
Foreign Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Foreign Collateral Document, (ii) the
contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or
therein or the occurrence of any default or Event of Default or (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Foreign Collateral Document or any other agreement, instrument or document.
SECTION 6.04 Reliance by the Foreign Collateral Agent. The Foreign Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) reasonably believed by it to be genuine and to have been signed, sent or otherwise
authenticated by the proper Person. The Foreign Collateral Agent also may rely upon any statement made to it orally or by telephone and reasonably believed by it to have been made by the proper Person, and shall not incur any liability for relying
thereon. The Foreign Collateral Agent may consult with legal counsel, independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the written advice of any such
counsel, accountants or experts.
SECTION 6.05 Delegation of Duties.
(a) The
Foreign Collateral Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any Foreign Collateral Document by or through any one or more sub-agents appointed by the Foreign Collateral Agent. The Foreign
Collateral Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article VI shall apply to any such sub-agent and to
the Related Parties of the Foreign Collateral Agent and any such sub-agent, and shall apply to their respective activities in connection with the Foreign Collateral. The Foreign Collateral Agent shall not be responsible for the negligence or
misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Foreign Collateral Agent acted with willful misconduct or gross negligence in the selection of such
sub agents.
(b) Should
any instrument in writing from any Grantor be required by any sub-agent appointed by the Foreign Collateral Agent to more fully or certainly vest in and confirm to such sub-agent such rights, powers, privileges and duties, such Grantor shall
execute, acknowledge and deliver any and all such instruments promptly upon request by the Foreign Collateral Agent. If
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any such sub-agent, or successor thereto, shall resign or be removed, all rights, powers, privileges and duties of such sub-agent, to the extent
permitted by law, shall automatically vest in and be exercised by the Foreign Collateral Agent until the appointment of a new sub-agent. All references in this Agreement or in any other Foreign Collateral Document to any Lien or Foreign Collateral
Document granted or delivered in favour of the Foreign Collateral Agent shall include any Lien or Foreign Collateral Document granted to any sub-agent of the Foreign Collateral Agent.
SECTION 6.06 Resignation of Foreign Collateral Agent.
(a) The
Foreign Collateral Agent may at any time give notice of its resignation to the Representatives and the Grantors. Upon receipt of any such notice of resignation, the Secured Parties, acting through their Collateral Agents, shall have the right
(provided no Event of Default has occurred and is continuing under any LC Document or Notes Document at the time of such resignation) to appoint a successor, which shall be as jointly designated by Notes Collateral Agent and LC Collateral Agent. If
no such successor shall have been so appointed in accordance with the preceding sentence and shall have accepted such appointment within 30 days after the retiring Foreign Collateral Agent gives notice of its resignation (or such earlier day as
shall be agreed by the Representatives) (the “Resignation Effective Date”), then the retiring Foreign Collateral Agent may (but shall not be obligated to), on behalf of the Secured Parties, appoint a successor Foreign Collateral Agent
meeting the qualifications set forth above. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.
(b) With
effect from the Resignation Effective Date, (1) the retiring Foreign Collateral Agent shall be discharged from its duties and obligations hereunder and under the other Foreign Collateral Documents (except that in the case of any collateral security
held by the Foreign Collateral Agent on behalf of the Secured Parties under any of the Foreign Collateral Documents, the retiring Foreign Collateral Agent shall continue to hold such collateral security until such time as a successor Foreign
Collateral Agent is appointed but in any event, no more than sixty (60) days following the Resignation Effective Date) and (2) except for any indemnity payments owed to the retiring Foreign Collateral Agent, all payments, communications and
determinations provided to be made by, to or through the Foreign Collateral Agent shall instead be made by or to each Representative directly, until such time, if any, the relevant Collateral Agents appoint a successor Foreign Collateral Agent as
provided for above. Upon the acceptance of a successor’s appointment as Foreign Collateral Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Foreign Collateral
Agent (other than any rights to indemnity payments owed to the retiring Foreign Collateral Agent), and the retiring Foreign Collateral Agent shall be discharged from all of its duties and obligations hereunder or under the other Foreign Collateral
Documents. After the retiring Foreign Collateral Agent’s resignation or removal hereunder and under the other Foreign Collateral Documents, the provisions of this Article shall continue in effect for the benefit of such retiring Foreign Collateral
Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Foreign Collateral Agent was acting as Foreign Collateral Agent.
SECTION 6.07 Non-Reliance on Foreign Collateral Agent and Other Secured Parties. Each Collateral Agent acknowledges that it has, independently and without reliance upon
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the Foreign Collateral Agent or any of its related parties and based on such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement, the LC Documents, and the Notes Documents, as applicable. Each Collateral Agent also acknowledges that it will, independently and without reliance upon the Foreign Collateral Agent or its related
parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any Foreign Collateral Document or any related
agreement or any document furnished hereunder or thereunder.
SECTION 6.08 Collateral Matters.
Each of the Collateral Agents irrevocably authorize the Foreign Collateral Agent, at its option and in its
Permitted Discretion;to release any Lien or any other claim on any Foreign Collateral granted to or held by the Foreign Collateral Agent, for the benefit of the Secured Parties, under any Foreign Collateral Document (A) upon the Discharge of the
Notes Obligations and the Discharge of the LC Obligations, as applicable, in which case such Lien shall only be released with respect to the Obligations so Discharged; (B) that is sold or otherwise disposed of or to be sold or otherwise disposed of
as part of or in connection with any sale or other disposition permitted hereunder or under the Foreign Collateral Documents, Notes Documents and LC Documents or (C) if approved, authorized or ratified in writing in accordance with Section
6.08(b).
(a) Upon
request by the Foreign Collateral Agent at any time, the Controlling Parties will confirm in writing the Foreign Collateral Agent’s authority to release or subordinate its interest in particular types or items of property or take any other action
necessary to administer the Foreign Collateral. In each case, as specified in this Section 6.08, the Foreign Collateral Agent will, at the Grantors’ joint and several expense, execute and deliver to the applicable Grantor such documents as
such Grantor may reasonably request to evidence the release of such item of Foreign Collateral from the assignment and security interest granted under the Foreign Collateral Documents or to subordinate its interest in such item, or to release such
Grantor from its obligations under the Foreign Collateral Documents, in each case in accordance with the terms hereof and the terms of the Foreign Collateral Documents.
(b) The
Foreign Collateral Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Foreign Collateral, the existence, priority or perfection of
the Foreign Collateral Agent’s Lien thereon, or any certificate prepared by any Grantor in connection therewith, nor shall the Foreign Collateral Agent be responsible or liable to the Secured Parties for any failure to monitor or maintain any
portion of the Foreign Collateral.
SECTION 6.09 Discretionary Rights. The Foreign Collateral Agent may:
(a) assume
(unless it has received actual notice to the contrary from the Collateral Agents) that (i) no default or Event of Default has occurred and no Grantor is in breach of or default under its obligations under any of the Foreign Collateral Documents,
Notes Documents, or LC Documents, and (ii) any right, power, authority or discretion vested by any
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Foreign Collateral Documents, Notes Documents, or LC Documents in any person has not been exercised;
(b) if
it receives any instructions or directions to take any action in relation to the Foreign Collateral, assume that all applicable conditions under this Agreement, LC Documents and Notes Documents for taking that action have been satisfied;
(c) engage
and pay for the advice or services of accountants, tax advisers, surveyors or other professional advisers or experts and a single legal counsel in each applicable jurisdiction (in addition to the Foreign Collateral Agent’s general outside counsel);
(d) without
prejudice for the generality of paragraph (c) above, at any time engage and pay for the services of a single additional counsel in each applicable jurisdiction to act as independent counsel to the Foreign Collateral Agent (in addition to the
Foreign Collateral Agent’s general outside counsel) (and so separate from any lawyers instructed by the other Secured Parties) if the Foreign Collateral Agent in its reasonable opinion deems this to be desirable and the Collateral Agent shall not
be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying on the advice or services of any professional engaged under this Section 6.09; and
(e) refrain
from acting in accordance with the instructions of any Secured Party or Controlling Party (including bringing any legal action or proceeding arising out of or in connection with the Foreign Collateral Documents) until it has received any
indemnification and/or security that it may in its reasonable discretion require which may be greater in extent than that contained for the benefit of any Representative in the Notes Documents or LC Documents. Notwithstanding any provision of any
Notes Documents or LC Documents to the contrary, the Foreign Collateral Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the
exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.
SECTION 6.10 Indemnification of Foreign Collateral Agent.
(a) The
Secured Parties (other than the LC Australian Collateral Agent and the Notes Collateral Agent) shall jointly and severally indemnify the Foreign Collateral Agent within three Business Days of demand, and keep the Foreign Collateral Agent
indemnified against any demands, damages, expenses, costs, losses or liabilities made against or incurred by it in acting as Foreign Collateral Agent on behalf of the Secured Parties under this Agreement, the Foreign Collateral Documents, the LC
Documents, or the Notes Documents (provided that any indemnification obligations arising solely due to the instructions of a Controlling Party shall be borne solely by the Class represented by such
Controlling Party), unless the Foreign Collateral Agent (i) has been reimbursed by a Grantor pursuant to any of the Foreign Collateral Documents or (ii) such liabilities, losses, demands, damages, expenses or costs are incurred by or made against
the Foreign Collateral Agent as a result of willful misconduct or gross negligence as determined by a court of competent jurisdiction by a final nonappealable judgment. The Grantors hereby jointly and severally indemnify the Secured Parties against
any payment made by them under this Section 6.10(a) and agree that any payments made by or costs attributable to any Notes Secured
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Party on account of the Foreign Collateral Agent shall be added to the Notes Obligations and any payments made by or costs attributable to any LC Secured
Party on account of the Foreign Collateral Agent shall be added to the LC Obligations.
(b) The
Grantors covenant and agree that they shall defend and be jointly and severally liable to reimburse and indemnify the Foreign Collateral Agent (and its Affiliates, officers, directors, employees, attorneys and agents (“Foreign Collateral Agent
Related Persons”)) for any and all reasonable expenses and other charges actually incurred by the Foreign Collateral Agent on behalf of the Secured Parties in connection with the execution, delivery, administration and enforcement of this
Agreement and the Foreign Collateral Documents (or any of them) and from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, actual reasonable expenses or disbursements of any kind and
nature whatsoever that may be imposed on, incurred by or asserted against the Foreign Collateral Agent, in any way relating to or arising out of this Agreement, any Foreign Collateral Document, or any other document delivered in connection herewith
or therewith or the transactions contemplated hereby or thereby, or the enforcement of any of the terms hereof or thereof, in each case, except to the extent caused by the Foreign Collateral Agent’s or the Foreign Collateral Agent Related Person’s
willful misconduct or gross negligence as determined by a court of competent jurisdiction by a final nonappealable judgment.
(c) The
obligations under this Section 6.10 shall survive the Discharge of the Notes Obligations, the Discharge of the LC Obligations, the resignation of any Foreign Collateral Agent, and termination of this Agreement and all of the Foreign Collateral
Documents.
(d) Notwithstanding
anything else in this Section 6.10, the Grantors shall have no obligation to indemnify or reimburse any Person for any Taxes unless such Taxes would be subject to indemnification or reimbursement under the LC Credit Agreement or Notes Indenture.
SECTION 6.11 Treatment of Proceeds of Foreign Collateral.
(a) All
amounts from time to time received or recovered by the Foreign Collateral Agent pursuant to the terms of any Foreign Collateral Document or in connection with the realization or enforcement of all or any part of the Foreign Collateral (the “Foreign
Recoveries”) shall be held by the Foreign Collateral Agent in trust and applied, to the extent permitted by applicable law, in the following order:
First, in discharging any sums owing to the Foreign Collateral Agent (in its capacity as such), including
(i) amounts owing to Foreign Collateral Agent to indemnify Foreign Collateral Agent for claims against it or claims that, in the reasonable discretion of Foreign Collateral Agent, may be asserted against Foreign Collateral Agent and are subject to
the indemnification provisions of this Agreement and (ii) any deductions and withholdings (on account of taxes or otherwise) which Foreign Collateral Agent is or may be required by any applicable law to make from any distribution or payment made by
it under this Agreement and to pay all taxes which may be assessed against it in respect of any of the Foreign Collateral Documents, or as a consequence of performing its duties, or by virtue of its capacity as Foreign Collateral Agent (other than in
connection with its remuneration for performing its
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duties under this Agreement); provided that any Foreign Collateral or proceeds
thereof that is LC Priority Collateral may only be applied or retained by Foreign Collateral Agent to secure indemnification obligations or other amounts owing (or potentially owing) by the LC Secured Parties and Foreign Collateral or proceeds
thereof that is Notes Priority Collateral may only be applied or retained by Foreign Collateral Agent to secure indemnification obligations or other amounts owing (or potentially owing) by the Notes Secured Parties;
Second, to the Representatives to be applied in accordance with Section 2.01(a) hereof.
For the avoidance of doubt, following acceleration of any of the Notes Obligations or the LC Obligations, Foreign Collateral Agent
may, in its Permitted Discretion, hold any amount of the Foreign Recoveries (subject to the proviso set forth in subclause “first” above) in a non-interest bearing account(s) in the name of the Foreign Collateral Agent with such financial institution
as it may select (including itself) and for so long as the Foreign Collateral Agent shall think appropriate in its Permitted Discretion for later application as set forth herein in respect of any sum owing to the Foreign Collateral Agent that the
Foreign Collateral Agent reasonably considers might become due or owing at any time in the future.
SECTION 6.12 Currency Conversion. The Foreign Collateral Agent is under no obligation to make the payments to the Secured Parties above in the same currency as that in which the obligations and
liabilities owing to the Secured Parties are denominated. To the extent any payment from Foreign Collateral Agent to a Representative causes a currency conversion, the provisions of the Notes Documents or the LC Documents (as applicable, based on
the Representative receiving payment) relating to currency conversions shall apply.
SECTION 6.13 Swiss Collateral.
(a) In
relation to Foreign Collateral which is subject to a security document governed by Swiss law, the LC Collateral Agent in its capacity as Foreign Collateral Agent shall:
(i) hold and administer any non-accessory Collateral (nicht-akzessorische Sicherheit) governed by Swiss law as fiduciary (treuhänderisch) in its own name
but for the benefit of the Secured Parties; and
(ii) hold and administer any accessory Collateral (akzessorische Sicherheit) governed by Swiss law as direct representative (direkter Stellvertreter)
in the name and on behalf of the Secured Parties.
(b) The
LC Collateral Agent in its capacity as Foreign Collateral Agent shall be empowered to:
(i) exercise such rights, remedies, powers and discretions as are specifically delegated to or conferred upon the Foreign Collateral Agent under the relevant security documents governed by Swiss law together with such powers and
discretions as are reasonably incidental thereto;
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(ii) take
such action on its behalf as may from time to time be authorized under or in accordance with the relevant Foreign Collateral Documents governed by Swiss law; and
(iii) accept, enter into and execute, as its direct representative (direkter Stellvertreter) any pledge or other creation of any accessory security right granted in favor of any Secured
Party under Swiss law in connection with the Notes Documents and/or the LC Documents and to agree to and execute in its name and on its behalf as its direct representative (direkter Stellvertreter) any
amendments, confirmations and/or alterations to any security document governed by Swiss law which creates a pledge or any other accessory security right (akzessorische Sicherheit) including the release or
confirmation of release of such Collateral, all subject to the provisions of this Agreement.
SECTION 6.14 Scottish Collateral.
(a) The
Foreign Collateral Agent declares that it holds on trust for the Secured Parties, on the terms contained in this Article VI: (i) the Foreign Collateral expressed to be subject to the Liens created in favor of the Foreign Collateral Agent as
trustee for the Secured Parties by or pursuant to each Foreign Collateral Document which is governed by or subject to the laws of Scotland, and all proceeds of that Foreign Collateral; (ii) all obligations expressed to be undertaken by any Grantor
to pay amounts in respect of the Obligations to the Foreign Collateral Agent as trustee for the Secured Parties and secured by any Foreign Collateral Document which is governed by or subject to the laws of Scotland together with all representations
and warranties expressed to be given by any Grantor or any other person in favour of the Foreign Collateral Agent as trustee for the Secured Parties; and (iii) any other amounts or property, whether rights, entitlements, choses in action or
otherwise, actual or contingent, which the Foreign Collateral Agent is required by the terms of the Notes Documents or the LC Documents to hold as trustee on trust for the Secured Parties.
(b) Without
prejudice to the other provisions of this Article VI, each other Collateral Agent hereby irrevocably authorizes the Foreign Collateral Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers,
authorities and discretions specifically given to the Foreign Collateral Agent as trustee for the Secured Parties under or in connection with the Notes Documents and the LC Documents together with any other incidental rights, powers, authorities
and discretions. For the avoidance of doubt, the Foreign Collateral Agent in its capacity as trustee for the Secured Parties shall have the same rights, powers, immunities, indemnities and exclusions from liability as are prescribed in favor of the
Foreign Collateral Agent in this Agreement, which shall apply mutatis mutandis.
SECTION 6.15 Benefits of Foreign Collateral Agent
The provisions of this Article VI granting rights, privileges, immunities and indemnities to the LC Collateral
Agent or Notes Collateral Agent, as applicable, when acting as Foreign Collateral Agent, are intended to be in addition to, and shall not impair, the rights, privileges, immunities and indemnities granted to the LC Collateral Agent and Notes
Collateral Agent, as applicable, under the LC Documents and Notes Documents, as the case may be.
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ARTICLE VII
Miscellaneous
Miscellaneous
SECTION 7.01 Legends. Each Security Document shall (and, to the extent already in existence, shall be amended to) include a legend, substantially
similar to the form provided below, describing this Agreement (except in the case of any foreign jurisdiction, where such legend is not customary or where otherwise prohibited by applicable law):
Reference is made to the Intercreditor Agreement (the “Intercreditor Agreement”), dated as of
August 28, 2020, among BTA Institutional Services Australia Limited (ABN 48 002 916 396), in its capacity as trustee of the LC Australian Security Trust referred to herein (when joined to such agreement, in such capacity, together with its successors
in substantially the same capacity as may from time to time be appointed, the “LC Australian Collateral Agent”), Deutsche Bank Trust Company Americas (“DBTCA”), as administrative agent and collateral agent for the LC Secured Parties referred to
herein (in such capacity, together with its successors and co-agents and, as applicable, sub-agents (including with respect to the LC Australian Collateral, the LC Australian Collateral Agent), in substantially the same capacity as may from time to
time be appointed, the “LC Collateral Agent”), Wilmington Trust, National Association (“Wilmington Trust”), as collateral agent for the Notes Secured Parties referred to herein (in such capacity, together with its successors and co-agents and, as
applicable, sub-agents, in substantially the same capacity as may from time to time be appointed, the “Notes Collateral Agent”), Weatherford International plc (“Parent”) and the other Subsidiaries of the Parent from time to time party thereto. Each
[Notes Secured Party] [LC Secured Party], through its Collateral Agent, by obtaining the benefits of this Agreement, (a) consents to the subordination of Liens provided for in the Intercreditor Agreement, (b) agrees that it will be bound by, and will
take no actions contrary to, the provisions of the Intercreditor Agreement and (c) authorizes and instructs the [Notes Collateral Agent] [LC Collateral Agent] to enter into the Intercreditor Agreement as [Notes Collateral Agent ] [LC Collateral
Agent] on behalf of such Secured Party. The foregoing provisions are intended as an inducement to the [Notes Secured Parties] [LC Secured Parties] to extend credit to [LC Borrowers] [Notes Issuer] or to acquire any notes or other evidence of any
debt obligation owing from the [LC Borrowers] [Notes Issuer] and such [Notes Secured Parties] [LC Secured Parties] are intended third party beneficiaries of such provisions and the provisions of the Intercreditor Agreement.
Notwithstanding any other provision contained herein, this Agreement, the Liens created hereby
and the rights, remedies, duties and obligations provided for herein are subject in all respects to the provisions of the Intercreditor Agreement and, to the extent provided therein, the applicable Notes Security Documents and LC Security Documents
(as defined in the ntercreditor Agreement). In the event of any conflict or inconsistency between the
42
provisions of this Agreement and the Intercreditor Agreement, the provisions of the Intercreditor Agreement shall
control.
SECTION 7.02 Notices. All notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Notes
Collateral Agent, to it at:
Wilmington Trust, National Association
Global Capital Markets
50 South Sixth Street, Suite 1290
Minneapolis, Minnesota 55402
USA
Attention: Weatherford International Notes Administrator
Fax: 612-217-5651
(b) if to the LC Collateral
Agent, to it at:
Deutsche Bank Trust Company Americas
Trust and Agency Services
60 Wall Street, 24th Floor
Mail Stop: NYC60 - 2410
New York, NY 10005
USA
Attention: Project Finance Agency Services, Weatherford, SF0580
Fax: (646) 961-3317
Trust and Agency Services
60 Wall Street, 24th Floor
Mail Stop: NYC60 - 2410
New York, NY 10005
USA
Attention: Project Finance Agency Services, Weatherford, SF0580
Fax: (646) 961-3317
(c) if to the LC Australian
Collateral Agent, to it at:
BTA Institutional Services Australia Limited
Level 2, 1 Bligh Street
Sydney NSW 2000
Australia
Attention: Global Client Services
Fax: +61 2 9260 6009
Email: BNYM_CT_Aus_RMG@bnymellon.com
Level 2, 1 Bligh Street
Sydney NSW 2000
Australia
Attention: Global Client Services
Fax: +61 2 9260 6009
Email: BNYM_CT_Aus_RMG@bnymellon.com
(d) if to the Grantors, to
them at:
c/o Weatherford International, LLC
2000 St. James Place
Houston, TX 77056
USA
Attention: General Counsel
Telephone: (713) 836-4000
Email: LegalWeatherford@weatherford.com
2000 St. James Place
Houston, TX 77056
USA
Attention: General Counsel
Telephone: (713) 836-4000
Email: LegalWeatherford@weatherford.com
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with a copy to:
c/o Weatherford International, LLC
2000 St. James Place
Houston, TX 77056
USA
Attention: Treasurer
Telephone: (713) 836-7460
Email: Mark.Rothleitner@weatherford.com; Josh.Silverman@weatherford.com
2000 St. James Place
Houston, TX 77056
USA
Attention: Treasurer
Telephone: (713) 836-7460
Email: Mark.Rothleitner@weatherford.com; Josh.Silverman@weatherford.com
Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other
parties hereto (and for this purpose a notice to the Parent shall be deemed to be a notice to each Grantor). All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have
been given on the date of receipt (if a Business Day) and on the next Business Day thereafter (in all other cases) if delivered by hand or overnight courier service or sent by telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in this Section 7.02 or in accordance with the latest unrevoked direction from such party given in accordance with this Section 7.02. As
agreed to in writing among the Parent, the Notes Collateral Agent, the LC Collateral Agent, notices and other communications may also be delivered by e-mail to the e-mail address of a representative of the applicable Person provided from time to time
by such Person.
SECTION 7.03 Waivers; Amendment.
(a) No
failure or delay on the part of any party hereto in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the parties hereto are cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or consent to any departure by any party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 7.03, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any party hereto in any case shall entitle such party to any other or further notice or demand in similar or other circumstances.
(b) Subject
to Sections 2.03, 2.10, 2.11, Article 6 and 7.15 hereof, and except as set forth in Section 7.18, neither this Agreement nor any provision hereof may be terminated, waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by each Representative, each Collateral Agent and the Parent (for and on behalf of each of the other Grantors).
SECTION 7.04 Parties in Interest. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, all of whom are intended to
be bound by this Agreement.
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SECTION 7.05 Survival of Agreement. All covenants, agreements, representations and warranties made by any party in this Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement.
SECTION 7.06 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract.
Delivery of an executed signature page to this Agreement by facsimile transmission or any other electronic means shall be as effective as delivery of a manually signed counterpart of this Agreement.
SECTION 7.07 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. The parties 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.
SECTION 7.08 Governing Law; Jurisdiction; Consent to Service of Process.
(a) This
Agreement and any claim, controversy or dispute arising under or related to such Agreement shall be governed by, and construed in accordance with, the law of the State of New York, without giving effect to conflict of law provisions, other than
5-1401 and 5‑1402 of the New York General Obligations Law.
(b) Each
party hereto 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 of the parties hereto 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 of the parties hereto 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 any party hereto may
otherwise have to bring any action or proceeding relating to this Agreement in the courts of any jurisdiction.
(c) Each
party hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which 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 (b) of this Section 7.08. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
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(d) Each party to this
Agreement irrevocably consents to service of process in the manner provided for notices in Section 7.02. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
SECTION 7.09 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 7.10 Headings. Article, Section and Annex headings used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be
taken into consideration in interpreting, this Agreement.
SECTION 7.11 Conflicts. In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of any of the Notes Documents and/or any of the LC Documents,
the provisions of this Agreement shall control, except with respect to provisions governing the rights, privileges, immunities and indemnities of the Collateral Agents and Representatives, in their capacities as such, in which case the applicable
Notes Documents or LC Documents shall control.
SECTION 7.12 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 Notes Secured
Parties and the LC Secured Parties in relation to one another. None of the Grantors shall have any rights or obligations hereunder, except as expressly provided in this Agreement (provided that nothing in this Agreement (other than Sections
2.05, 2.06, 2.10, 2.11, Article V and Article VI) is intended to or will amend, waive or otherwise modify the provisions of the Notes Documents or any LC Documents), and none of the Grantors may rely on the terms hereof. Nothing in this Agreement
is intended to or shall impair or relieve the obligations of the Grantors, which are absolute and unconditional, to pay the Obligations as and when the same shall become due and payable in accordance with their terms. Notwithstanding anything to
the contrary herein or in any Notes Document or any LC Obligations Document, the Grantors shall not be required to act or refrain from acting (a) pursuant to this Agreement or any LC Obligations Document with respect to any Notes Priority
Collateral in any manner that would cause a default under any Notes Document, or (b) pursuant to this Agreement or any Notes Document with respect to any LC Priority Collateral in any manner that would cause a default under any LC Obligations
Document. For the avoidance of doubt, the provisions of this agreement shall apply to the Notes Secured Parties solely in their capacity as Notes Secured Parties and not in any other capacity.
SECTION 7.13 Agent Capacities. Except as expressly set forth herein, neither the Notes Collateral Agent, nor the LC Collateral Agent (including the LC Australian Collateral
46
Agent), shall have (i) any duties or obligations in respect of any of the Collateral, all of such duties and obligations, if any, being subject to and
governed by the Notes Documents and the LC Documents, as the case may be, or (ii) any liability or responsibility for the actions or omissions of any other Secured Party or for any other Secured Party’s compliance with (or failure to comply with) the
terms of this Agreement. Neither the Notes Collateral Agent, nor the LC Collateral Agent (including the LC Australian Collateral Agent) shall have individual liability to any Person if it shall mistakenly pay over or distribute to any Secured Party
(or Grantor) any amounts in violation of the terms of this Agreement, so long as such Person is acting in good faith and without willful misconduct. Furthermore, and notwithstanding anything to the contrary contained herein, the LC Australian
Collateral Agent shall act or refrain from acting with respect to the LC Australian Collateral only at the direction of the LC Administrative Agent.
SECTION 7.14 Supplements. Upon the execution by any Subsidiary of Parent of a supplement hereto in form and substance satisfactory to the Collateral Agents, such subsidiary shall be a party to
this Agreement and shall be bound by the provisions hereof to the same extent as each Grantor are so bound. The Parent shall cause any Subsidiary that becomes a Grantor to execute and deliver such supplement.
SECTION 7.15 Collateral Agent Rights, Protections and Immunities.
In acting under or by virtue of this Agreement, the LC Collateral Agent and the LC Australian Collateral Agent
shall have the rights, protections, immunities and indemnities granted to the “Administrative Agent” and its respective sub-agents under the LC Credit Agreement, all of which are incorporated by reference herein, mutatis
mutandis. In acting under or by virtue of this Agreement, the Notes Collateral Agent shall have the rights, protections, immunities and indemnities granted to the “Collateral Agent” under the Notes Indenture, all of which are incorporated by
reference herein, mutatis mutandis. In acting under or by virtue of this Agreement, the LC Australian Collateral Agent shall have the rights, protections and immunities granted to the “LC Australian
Collateral Agent” under the LC Australian Security Trust Deed.
SECTION 7.16 Other Junior Intercreditor Agreements.
In addition, in the event that the Parent or any Subsidiary incurs any obligations secured by a lien on any
Collateral that is junior to the LC Obligations or the Notes Obligations, then the Notes Collateral Agent and the LC Collateral Agent shall enter into an intercreditor agreement (at the sole cost and expense of the Grantors) with the agent or
trustee for the secured parties with respect to such secured obligation to reflect the relative lien priorities of such parties with respect to the Collateral and governing the relative rights, benefits and privileges as among such parties in respect
of the Collateral, including as to application of proceeds of the Collateral, voting rights, control of the Collateral and waivers with respect to the Collateral, in each case so long as such secured obligations are permitted under, and the terms of
such intercreditor agreement do not violate or conflict with, the provisions of this Agreement or the other Notes Documents or LC Documents, as the case may be. Each party hereto agrees that the Notes Secured Parties (as among themselves) and the LC
Secured Parties (as among themselves) may each enter into intercreditor agreements (or similar arrangements) with the Applicable Senior Collateral Agent governing the rights, benefits and privileges as among the Notes Secured Parties or the LC
Secured Parties, as the case may be, in respect of the Collateral, this Agreement and the applicable Senior
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Secured Obligations Collateral Documents, as the case may be, including as to the application of proceeds of the Collateral, voting rights, control of
the Collateral and waivers with respect to the Collateral, in each case so long as the terms thereof do not violate or conflict with the provisions of this Agreement or the other applicable Senior Secured Obligations Collateral Documents, as the case
may be. If any such intercreditor agreement (or similar arrangement) is entered into, the provisions thereof shall not be (or be construed to be) an amendment, modification or other change to this Agreement or any other Notes Document or LC Document,
and the provisions of this Agreement and the other Notes Documents and LC Documents shall remain in full force and effect in accordance with the terms hereof and thereof (as such provisions may be amended, modified or otherwise supplemented from time
to time in accordance with the terms thereof, including to give effect to any intercreditor agreement (or similar arrangement)).
SECTION 7.17 Additional Grantors.
Promptly upon request by any Collateral Agent, any Person that becomes a Grantor after the date hereof will
provide to the Collateral Agents a fully signed acknowledgement, substantially in the form attached hereto as Exhibit B, consenting to the provisions of this Agreement and the intercreditor arrangements provided for herein; provided
that no failure on the part of any Collateral Agent to request or obtain such acknowledgement will in any way diminish or impair any of the rights of the Secured Parties hereunder.
SECTION 7.18 Joinder of LC Australian Collateral Agent.
Substantially concurrently with its entry into the LC Australian Security Trust Deed, BTA Institutional Services
Australia Limited shall, without requiring the consent of any other party hereto, join to this Agreement by executing and delivering a joinder agreement substantially in the form attached hereto as Exhibit C.
SECTION 7.19 Purchase Right.
(a) Without
prejudice to the enforcement of the LC Secured Parties’ rights and remedies, the LC Secured Parties agree that following the occurrence of (i) the occurrence of an Event of Default and acceleration of the LC Obligations in accordance with the terms
of the LC Documents, (ii) any enforcement action by any LC Secured Party with respect to any material portion of the Collateral, (iii) any Insolvency or Liquidation Proceeding, or (iv) any bankruptcy or payment default under the Notes Indenture
(each such event, a “Purchase Option Event”), then some or all of the Notes Secured Parties shall have the right to elect to purchase all but not less than all of the outstanding LC Obligations, at par, without regard to any prepayment
penalty or premium and without warranty, representation or recourse, for the Purchase Price (defined below); provided, with respect to any LC Obligations constituting Bank Product Obligations, at the time of any such purchase pursuant to this
Section 7.19, the Bank Product Obligations shall have been terminated in accordance with their terms. The participating Notes Secured Parties shall irrevocably exercise each such purchase right by delivery of written notice of their intent to
purchase the LC Obligations to the LC Collateral Agent at any time following the Purchase Option Event; provided, unless the LC Collateral Agent otherwise consents, such written notice must be
received by the LC Collateral Agent no later than the earlier to occur of (A) 10 Business Days after the LC Collateral Agent delivers to the Notes Trustee written notice of the occurrence of any
48
Purchase Option Event described in clause (i), (ii) or (iii) above, or (B) if any bankruptcy or payment default under the Notes Indenture has occurred
and is continuing, 10 Business Days after LC Collateral Agent delivers written notice to the Notes Trustee that the LC Facility Secured Parties desire to sell or assign the LC Obligations and are actively seeking to identify one or more Persons to
purchase and acquire its LC Obligations from such LC Facility Secured Parties. The parties shall close such purchase and sale within 20 Business Days (or such shorter time as reasonably specified by the participating Notes Secured Parties in such
notice) after such delivery of such notice. To the extent that more than one Notes Secured Party elects to purchase the LC Obligations in accordance with this Section 7.19, unless otherwise agreed upon by such Notes Secured Parties electing
to purchase the LC Obligations, such Notes Secured Parties shall purchase all of the LC Obligations in accordance with this Section 7.19 on a ratable basis based on their outstanding Notes Obligations.
(b) On
the date of such purchase and sale (the “Purchase Date”), the participating Notes Secured Parties shall (i) pay to LC Collateral Agent (on behalf of all LC Facility Secured Parties) as the purchase price therefor, the full amount of all the
LC Obligations (other than LC Obligations cash collateralized in accordance with clause (b)(ii) below) then outstanding and unpaid, and (ii) furnish cash collateral to the LC Collateral Agent in such amounts as the LC Collateral Agent determines is
reasonably necessary to secure the LC Secured Parties in connection with any issued and outstanding Letters of Credit (as defined in the LC Credit Agreement) (but not in any event in an amount greater than (I) 105% of the face amount of letters of
credit denominated in a currency other than U.S. dollars and (II) 103% of the face amount with respect to letters of credit denominated in U.S. dollars. Such purchase price and cash collateral (collectively, the “Purchase Price”) shall be
remitted by wire transfer in federal funds to such bank account of the LC Collateral Agent as the LC Collateral Agent may designate in writing to the participating Notes Secured Parties for such purpose. Interest shall be calculated to but exclude
the Business Day on which such purchase and sale shall occur.
(c) Such
purchase shall be expressly made without representation or warranty of any kind by the LC Secured Parties as to the LC Obligations or LC Documents so purchased or otherwise and without recourse to any LC Secured Party; except that each LC Secured
Party shall represent and warrant: (i) the amount of the LC Obligations being purchased from such LC Secured Party, (ii) that such LC Secured Party owns the LC Obligations free and clear of any Liens, and (iii) that such LC Secured Party has the
right to assign such LC Obligations and the assignment is duly authorized.
(d) In
the event that the participating Notes Secured Parties exercise and consummate the purchase option set forth in this Section 7.19, (i) LC Collateral Agent and any other agent under the LC Documents shall have the right, but not the
obligation, to immediately resign under the LC Documents, and (ii) the participating Notes Secured Parties shall have the right, but not the obligation, to require LC Collateral Agent and such other agent to immediately resign under the LC
Documents.
(e) With
respect to any cash collateral held under Section 7.4(b)(ii) above, after giving effect to any payment made and applied to amounts coming due with respect to any letters of credit (or termination thereof without a drawing thereon), the
amount of any cash collateral then on deposit with the LC Collateral Agent with respect to such obligations which exceeds the sum
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of (x) 105% of the face amount of letters of credit denominated in a currency other than U.S. dollars and (y) 103% of the face amount with respect to
letters of credit denominated in U.S. dollars, shall promptly be returned to the Notes Collateral Agent (for the benefit of the applicable Notes Secured Parties).
(f) For
the avoidance of doubt, notwithstanding anything to the contrary herein, (i) any obligations to pay the purchase price or furnish cash collateral in connection with the exercise of the purchase option set forth herein shall be obligations of the
participating Notes Secured Parties (and not the Notes Trustee or the Notes Collateral Agent) and (ii) the Notes Trustee and the Notes Collateral Agent shall have no obligations under this Section 7.19 except to the extent they are
required to act in an administrative agent capacity for the applicable Notes Secured Parties in accordance with the applicable Notes Documents.
[Remainder of this page intentionally left blank; signatures follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective
authorized officers as of the day and year first above written.
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WILMINGTON TRUST, NATIONAL ASSOCIATION,
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as Notes Collateral Agent
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By:
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/s/ Jane Y. Schweiger
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Name: Jane Y. Schweiger
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Title: Vice President
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|||
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DEUTSCHE BANK TRUST COMPANY AMERICAS, as LC Collateral Agent
|
|||
|
By:
|
/s/ Robert Peschler
|
||
|
Name: Robert Peschler
|
|||
|
Title: Vice President
|
|||
|
By:
|
/s/ Bridgette Casasnovas
|
||
|
Name: Bridgette Casasnovas
|
|||
|
Title: Vice President
|
|||
AUSTRALIA INITIAL GUARANTOR
|
Executed by WEATHERFORD AUSTRALIA PTY LIMITED ACN 008 947 395 in
accordance with section 127 of the Corporations Act 2001 (Cth):
|
|||
|
/s/ Bruno Teixeira Bezarra
|
/s/ Robert Antonio De Gasperis
|
||
|
Signature of director
|
Signature of company secretary
|
||
|
Bruno Teixeira Bezarra
|
Robert Antonio De Gasperis
|
||
|
Full name of director
|
Full name of company secretary
|
BERMUDA INITIAL GUARANTORS
|
WEATHERFORD INTERNATIONAL LTD.
|
|||
|
By:
|
/s/ Mohammed Dadhiwala
|
||
|
Name: Mohammed Dadhiwala
|
|||
|
Title: Vice President
|
|||
|
WEATHERFORD INTERNATIONAL HOLDING (BERMUDA) LTD.
|
|||
|
By:
|
/s/ Mohammed Dadhiwala
|
||
|
Name: Mohammed Dadhiwala
|
|||
|
Title: Vice President
|
|||
|
WEATHERFORD PANGAEA HOLDINGS LTD.
|
|||
|
By:
|
/s/ Mohammed Dadhiwala
|
||
|
Name: Mohammed Dadhiwala
|
|||
|
Title: Vice President
|
|||
|
SABRE DRILLING LTD.
|
|||
|
By:
|
/s/ Mohammed Dadhiwala
|
||
|
Name: Mohammed Dadhiwala
|
|||
|
Title: Vice President
|
|||
|
KEY INTERNATIONAL DRILLING COMPANY LIMITED
|
|||
|
By:
|
/s/ Mohammed Dadhiwala
|
||
|
Name: Mohammed Dadhiwala
|
|||
|
Title: President
|
|||
|
WEATHERFORD BERMUDA HOLDINGS LTD.
|
|||
|
By:
|
/s/ Mohammed Dadhiwala
|
||
|
Name: Mohammed Dadhiwala
|
|||
|
Title: Vice President
|
|||
|
WEATHERFORD SERVICES, LTD.
|
|||
|
By:
|
/s/ Mohammed Dadhiwala
|
||
|
Name: Mohammed Dadhiwala
|
|||
|
Title: Vice President
|
|||
|
WOFS ASSURANCE LIMITED
|
|||
|
By:
|
/s/ Mohammed Dadhiwala
|
||
|
Name: Mohammed Dadhiwala
|
|||
|
Title: Vice President
|
|||
|
WEATHERFORD HOLDINGS (BERMUDA) LTD.
|
|||
|
By:
|
/s/ Mohammed Dadhiwala
|
||
|
Name: Mohammed Dadhiwala
|
|||
|
Title: Vice President
|
|||
BRITISH VIRGIN ISLANDS INITIAL GUARANTORS
| WEATHERFORD DRILLING | |||
|
WEATHERFORD DRILLING INTERNATIONAL HOLDINGS (BVI) LTD.
|
|||
|
By:
|
/s/ Mohammed Dadhiwala
|
||
|
Name: Mohammed Dadhiwala
|
|||
|
Title:
|
|||
|
WEATHERFORD DRILLING INTERNATIONAL (BVI) LTD.
|
|||
|
By:
|
/s/ Mohammed Dadhiwala
|
||
|
Name: Mohammed Dadhiwala
|
|||
|
Title: Vice President
|
|||
|
WEATHERFORD COLOMBIA LIMITED
|
|||
|
By:
|
/s/ Mohammed Dadhiwala
|
||
|
Name: Mohammed Dadhiwala
|
|||
|
Title: Vice President
|
|||
|
WEATHERFORD HOLDINGS (BVI) LTD.
|
|||
|
By:
|
/s/ Mohammed Dadhiwala
|
||
|
Name: Mohammed Dadhiwala
|
|||
|
Title: Senior Vice President
|
|||
|
WEATHERFORD OIL TOOL MIDDLE EAST LIMITED
|
|||
|
By:
|
/s/ Mohammed Dadhiwala
|
||
|
Name: Mohammed Dadhiwala
|
|||
|
Title: Senior Vice President
|
|||
CANADA INITIAL GUARANTORS
|
WEATHERFORD CANADA LTD.
|
|||
|
By:
|
/s/ Pamela M. Webb
|
||
|
Name: Pamela M. Webb
|
|||
|
Title: Vice President
|
|||
|
WEATHERFORD (NOVA SCOTIA) ULC
|
|||
|
By:
|
/s/ Pamela M. Webb
|
||
|
Name: Pamela M. Webb
|
|||
|
Title: Vice President
|
|||
|
PRECISION ENERGY SERVICES ULC
|
|||
|
By:
|
/s/ Pamela M. Webb
|
||
|
Name: Pamela M. Webb
|
|||
|
Title: Vice President
|
|||
|
PRECISION ENERGY INTERNATIONAL LTD.
|
|||
|
By:
|
/s/ Pamela M. Webb
|
||
|
Name: Pamela M. Webb
|
|||
|
Title: Vice President
|
|||
|
PRECISION ENERGY SERVICES COLOMBIA LTD.
|
|||
|
By:
|
/s/ Pamela M. Webb
|
||
|
Name: Pamela M. Webb
|
|||
|
Title: Vice President
|
|||
ENGLAND INITIAL GUARANTORS
|
SIGNED for and on behalf of
|
|||
|
WEATHERFORD EURASIA LIMITED
|
|||
|
By:
|
/s/ Richard Strachan
|
||
|
Name: Richard Strachan
|
|||
|
Title: Director
|
|||
|
SIGNED for and on behalf of
|
|||
|
WEATHERFORD U.K. LIMITED
|
|||
|
By:
|
/s/ Richard Strachan
|
||
|
Name: Richard Strachan
|
|||
|
Title: Director
|
|||
GERMANY INITIAL GUARANTORS
|
SIGNED for and on behalf of
|
|||
|
WEATHERFORD OIL TOOL GMBH
|
|||
|
By:
|
/s/ Kerstin Hartmann-Miß
|
||
|
Name: Kerstin Hartmann-Miß
|
|||
|
Title: Managing Director
|
|||
IRELAND INITIAL GUARANTORS
GIVEN under the COMMON SEAL
of WEATHERFORD INTERNATIONAL PUBLIC LIMITED COMPANY
and this Deed was delivered:
|
By:
|
/s/ Stuart Fraser
|
||
|
Name: Stuart Fraser
|
|||
|
Title: Vice President and Chief Accounting Officer
|
LUXEMBOURG INITIAL GUARANTORS
|
WEATHERFORD INTERNATIONAL (LUXEMBOURG) HOLDINGS S.À R.L.
|
|||
|
société à responsabilité limitée
|
|||
|
8-10, avenue de la Gare
|
|||
|
L-1610 Luxembourg
|
|||
|
R.C.S. Luxembourg B146.622
|
|||
|
By:
|
/s/ Mathias Neuenschwander
|
||
|
Name: Mathias Neuenschwander
|
|||
|
Title: Manager A
|
|||
|
WEATHERFORD EUROPEAN HOLDINGS (LUXEMBOURG) S.À R.L.
|
|||
|
société à responsabilité limitée
|
|||
|
8-10, avenue de la Gare
|
|||
|
L-1610 Luxembourg
|
|||
|
R.C.S. Luxembourg B150.992
|
|||
|
By:
|
/s/ Mathias Neuenschwander
|
||
|
Name: Mathias Neuenschwander
|
|||
|
Title: Manager A
|
|||
|
NETHERLANDS INITIAL GUARANTOR
|
|||
|
WEATHERFORD NETHERLANDS B.V.
|
|||
|
By:
|
/s/ August Willem Versteeg
|
||
|
Name: August Willem Versteeg
|
|||
|
Title: Managing Director
|
|||
NORWAY INITIAL GUARANTOR
|
WEATHERFORD NORGE AS
|
|||
|
By:
|
/s/ Geir Egil Moller Olsen
|
||
|
Name: Geir Egil Moller Olsen
|
|||
|
Title: Chairman of the Board
|
|||
PANAMA INITIAL GUARANTOR
|
WEATHERFORD SERVICES S. DE R.L.
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Administrator
|
|||
SWITZERLAND INITIAL GUARANTORS
|
WOFS INTERNATIONAL FINANCE GMBH
|
|||
|
By:
|
/s/ Valentin Mueller
|
||
|
Name: Valentin Mueller
|
|||
|
Title: Managing Officer
|
|||
|
WEATHERFORD WORLDWIDE HOLDINGS GMBH
|
|||
|
By:
|
/s/ Valentin Mueller
|
||
|
Name: Valentin Mueller
|
|||
|
Title: Managing Officer
|
|||
|
WEATHERFORD SWITZERLAND TRADING AND DEVELOPMENT GMBH
|
|||
|
By:
|
/s/ Mathias Neuenschwander
|
||
|
Name: Mathias Neuenschwander
|
|||
|
Title: Managing Officer
|
|||
|
WEATHERFORD MANAGEMENT COMPANY SWITZERLAND SÀRL
|
|||
|
By:
|
/s/ Valentin Mueller
|
||
|
Name: Valentin Mueller
|
|||
|
Title: Managing Officer
|
|||
|
WEATHERFORD PRODUCTS GMBH
|
|||
|
By:
|
/s/ Andrzej Puchala
|
||
|
Name: Andrzej Puchala
|
|||
|
Title: Managing Officer
|
|||
|
WEATHERFORD HOLDINGS (SWITZERLAND) GMBH
|
|||
|
By:
|
/s/ Valentin Mueller
|
||
|
Name: Valentin Mueller
|
|||
|
Title: Managing Officer
|
|||
UNITED STATES INITIAL GUARANTORS
|
WEATHERFORD INTERNATIONAL, LLC
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
WEUS HOLDING, LLC
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
WEATHERFORD ARTIFICIAL LIFT SYSTEMS, LLC
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
PD HOLDINGS (USA), L.P.
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
PRECISION ENERGY SERVICES, INC.
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
WEATHERFORD U.S., L.P.
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
WEATHERFORD/LAMB, INC.
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
WEATHERFORD INVESTMENT INC.
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
PRECISION OILFIELD SERVICES, LLP
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
VISUAL SYSTEMS, INC.
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
COLUMBIA OILFIELD SUPPLY, INC.
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
EPRODUCTION SOLUTIONS, LLC
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
ADVANTAGE R&D, INC.
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
DISCOVERY LOGGING, INC.
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
CASE SERVICES, INC.
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
WARRIOR WELL SERVICES, INC.
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
DATALOG ACQUISITION, LLC
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
EDINBURGH PETROLEUM SERVICES AMERICAS INCORPORATED
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
WEATHERFORD GLOBAL SERVICES LLC
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
INTERNATIONAL LOGGING S.A., LLC
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
IN-DEPTH SYSTEMS, INC.
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
BENMORE IN-DEPTH CORP.
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
WEATHERFORD TECHNOLOGY HOLDINGS, LLC
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
STEALTH OIL & GAS, INC.
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
WEATHERFORD MANAGEMENT, LLC
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
WEATHERFORD (PTWI), L.L.C.
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
WEATHERFORD LATIN AMERICA LLC
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
WIHBV LLC
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
WUS HOLDING, L.L.C.
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
WEATHERFORD DISC INC.
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
HIGH PRESSURE INTEGRITY, INC.
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
TOOKE ROCKIES, INC.
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
COLOMBIA PETROLEUM SERVICES CORP.
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
INTERNATIONAL LOGGING LLC
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
PRECISION DRILLING GP, LLC
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
VISEAN INFORMATION SERVICES INC.
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
|
WEATHERFORD URS HOLDINGS, LLC
|
|||
|
By:
|
/s/ Christine M. Morrison
|
||
|
Name: Christine M. Morrison
|
|||
|
Title: Vice President
|
|||
EXHIBIT A
Exhibit A – Joinder to Intercreditor Agreement
Exhibit A-1
JOINDER AGREEMENT
(LC Obligations)
(LC Obligations)
This JOINDER AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), dated as of [___], is among [____], as a LC Collateral Agent (the “New Collateral Agent”), Wilmington Trust, as Notes
Collateral Agent, DBTCA, as LC Collateral Agent, and Parent (on behalf of itself and its Subsidiaries).
This Agreement is supplemental to that certain Intercreditor Agreement, dated as of August 28, 2020 (as the same
may be amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), by and among the parties (other than the New Collateral Agent) referred to
above. This Agreement has been entered into to record the accession of the New Collateral Agent as LC Collateral Agent under the Intercreditor Agreement.
ARTICLE I
Definitions
Definitions
SECTION 1.01 Capitalized
terms used but not defined herein shall have the meanings assigned thereto in the Intercreditor Agreement.
ARTICLE II
Accession
Accession
SECTION 2.01 The New
Collateral Agent agrees to become, with immediate effect, a party to and agrees to be bound by the terms of, the Intercreditor Agreement as the LC Collateral Agent as if it had originally been party to the Intercreditor Agreement as an LC
Collateral Agent.
SECTION 2.02 The New
Collateral Agent confirms that its address details for notices pursuant to the Intercreditor Agreement are as follows: [_____________].
SECTION 2.03 Each party
to this Agreement (other than the New Collateral Agent) confirms the acceptance of the New Collateral Agent as the LC Collateral Agent for purposes of the Intercreditor Agreement.
SECTION 2.04 [________]
is acting in its capacity as LC Collateral Agent solely for the Secured Parties under [_____________].
ARTICLE III
Miscellaneous
Miscellaneous
SECTION 3.01 This
Agreement and any claim, controversy or dispute arising under or related to such Agreement shall be governed by, and construed in accordance with, the law of the State of New York.
A-1-1
SECTION 3.02 This Agreement may be executed in
counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by facsimile transmission or any other electronic means
shall be as effective as delivery of a manually signed counterpart of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective
authorized officers as of the day and year first above written.
[INSERT SIGNATURE BLOCKS]
A-1-2
Exhibit A-2
JOINDER AGREEMENT
(Notes Obligations)
(Notes Obligations)
This JOINDER AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), dated as of [___], is among [_____], as a Notes Collateral Agent (the “New Collateral Agent”), Wilmington Trust, as Notes
Collateral Agent, DBTCA, as LC Collateral Agent, and Parent (on behalf of itself and its Subsidiaries).
This Agreement is supplemental to that certain Intercreditor Agreement, dated as of August 28, 2020 (as the same
may be amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), by and among the parties (other than the New Collateral Agent) referred to
above. This Agreement has been entered into to record the accession of the New Collateral Agent as Notes Collateral Agent under the Intercreditor Agreement.
ARTICLE I
Definitions
Definitions
SECTION 1.01 Capitalized
terms used but not defined herein shall have the meanings assigned thereto in the Intercreditor Agreement.
ARTICLE II
Accession
Accession
SECTION 2.01 The New
Collateral Agent agrees to become, with immediate effect, a party to and agrees to be bound by the terms of, the Intercreditor Agreement as the Notes Collateral Agent as if it had originally been party to the Intercreditor Agreement as a Notes
Collateral Agent.
SECTION 2.02 The New
Collateral Agent confirms that its address details for notices pursuant to the Intercreditor Agreement are as follows: [_____________].
SECTION 2.03 Each party
to this Agreement (other than the New Collateral Agent) confirms the acceptance of the New Collateral Agent as the Notes Collateral Agent for purposes of the Intercreditor Agreement.
SECTION 2.04 [________]
is acting in its capacity as Notes Collateral Agent solely for the Secured Parties under [_____________].
ARTICLE III
Miscellaneous
Miscellaneous
SECTION 3.01 This
Agreement and any claim, controversy or dispute arising under or related to such Agreement shall be governed by, and construed in accordance with, the law of the State of New York.
A-2-1
SECTION 3.02 This Agreement may be executed in
counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by facsimile transmission or any other electronic means
shall be as effective as delivery of a manually signed counterpart of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective
authorized officers as of the day and year first above written.
[INSERT SIGNATURE BLOCKS]
A-2-2
EXHIBIT B
Exhibit B – Grantor Acknowledgement to Intercreditor Agreement
INTERCREDITOR AGREEMENT ACKNOWLEDGMENT
1. Acknowledgement.
[______________] (“New Grantor”) acknowledges, as of [___], that it has received a copy of the Intercreditor Agreement dated as of August 28, 2020, between Wilmington Trust, National Association, as Notes Collateral Agent, Deutsche Bank
Trust Company Americas as LC Collateral Agent, and Weatherford International PLC and certain of its affiliates party thereto as Grantors (the “Intercreditor Agreement”) as in effect on the date hereof, and consents thereto, agrees to
recognize all rights granted thereby to the Notes Collateral Agent, the other Notes Secured Parties, the LC Collateral Agent and the other LC Secured Parties, and agrees that it shall not do any act or perform any obligation which is not in
accordance with the agreements set forth in the Intercreditor Agreement as in effect on the date hereof (as amended or otherwise modified in accordance with the provisions thereof, including any necessary consents by each Grantor to the extent
required thereby). New Grantor further acknowledges and agrees that (a) New Grantor is not a beneficiary or third party beneficiary of the Intercreditor Agreement, (b) New Grantor has no rights under the Intercreditor Agreement, and New Grantor may
not rely on the terms of the Intercreditor Agreement, and (c) that the obligations of the New Grantor under the Notes Security Documents, the LC Security Documents or the Foreign Collateral Documents will in no way be diminished or otherwise
affected by the provisions or arrangements in the Intercreditor Agreement.
2. Notices. The
address of the New Grantor and the other Grantors for purposes of Section 7.02 of the Intercreditor Agreement is:
[_____________]
[_____________]
[_____________]
[_____________]
[_____________]
with a copy to:
[_____________]
[_____________]
[_____________]
[_____________]
[_____________]
3. Counterparts.
This Acknowledgement may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute one document. Delivery of an executed signature page to this Acknowledgement by
facsimile transmission or by email as a “.pdf” or “.tif” attachment shall be as effective as delivery of a manually signed counterpart of this Acknowledgement.
4. Governing Law.
THIS ACKNOWLEDGEMENT AND ANY CLAIM CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THE INTERCREDITOR AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICT OF
LAWS PROVISIONS OTHER THAN SECTIONS 5-1401
B-1
AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW. Sections 7.08 and 7.09 of the Intercreditor Agreement are hereby incorporated by reference herein, mutatis mutandis.
5. Credit Document.
This Acknowledgement shall constitute a Notes Document and a LC Document and as a “Loan Document” under the LC Credit Agreement and an “Indenture Document” under the Notes Indenture.
6. Miscellaneous.
The Notes Collateral Agent, the other Notes Secured Parties, the LC Collateral Agent, the other LC Secured Parties, and the Foreign Collateral Agent are the intended beneficiaries of this Acknowledgement. Capitalized terms used but not otherwise
defined herein shall have the meanings assigned thereto in the Intercreditor Agreement.
[signature page follows]
B-2
Exhibit C
Exhibit C – Joinder Agreement (LC Australian Collateral Agent)
JOINDER AGREEMENT
(LC Australian Collateral Agent)
(LC Australian Collateral Agent)
This JOINDER AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this “Joinder”), dated as of [___], is provided by BTA INSTITUTIONAL SERVICES AUSTRALIA LIMITED ABN 48 002 916 396 in its capacity as trustee of the LC Australian Security Trust (the “LC Australian Collateral Agent”).
This Joinder is supplemental to that certain Intercreditor Agreement, dated as of August 28, 2020 (as the same
may be amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), by and among Wilmington Trust, DBTCA, the Parent and its Subsidiaries party
thereto. This Joinder has been entered into to record the joinder of BTA INSTITUTIONAL SERVICES AUSTRALIA LIMITED ABN 48 002 916 396 in its capacity as trustee of the LC Australian Security Trust as LC Australian Collateral Agent under the
Intercreditor Agreement.
ARTICLE I
Definitions
Definitions
SECTION 1.01 Capitalized
terms used but not defined herein shall have the meanings assigned thereto in the Intercreditor Agreement.
ARTICLE II
Accession
Accession
SECTION 2.01 The LC
Australian Collateral Agent agrees to become, with immediate effect, a party to and agrees to be bound by the terms of, the Intercreditor Agreement as the LC Australian Collateral Agent as if it had originally been party to the Intercreditor
Agreement as an LC Australian Collateral Agent.
SECTION 2.02 The LC
Australian Collateral Agent confirms that its address details for notices pursuant to the Intercreditor Agreement are as follows: [_____________].
ARTICLE III
Miscellaneous
Miscellaneous
SECTION 3.01 This
Joinder and any claim, controversy or dispute arising under or related to such Joinder shall be governed by, and construed in accordance with, the law of the State of New York.
SECTION 3.02 This
Joinder may be executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract.
C-1
Delivery of an executed signature page to this Joinder by facsimile transmission or any other electronic means shall be as effective as delivery of a
manually signed counterpart of this Joinder.
SECTION 3.03 Clause
[___] (Limitation of liability of LC Australian Collateral Agent) of the LC Australian Security Trust Deed is incorporated by reference in this Joinder as if set out in full herein, mutatis mutandis.
[Remainder of this page intentionally left blank; signatures follow.]
C-2
IN WITNESS WHEREOF, the parties hereto have caused this Joinder to be duly executed by their respective
authorized officers as of the day and year first above written.
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BTA INSTITUTIONAL SERVICES AUSTRALIA LIMITED (ABN 48 002 916 396) in its capacity as trustee of the LC Australian Security Trust, as LC Australian Collateral Agent
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By attorney:
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Name:
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Title:
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under power of attorney dated 1 September 2007 in the presence of:
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Witness:
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Name:
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C-3
SCHEDULE I
Schedule I – Foreign Collateral Documents
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Agreement
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Jurisdiction of Guarantor
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Jurisdiction of Collateral
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1
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Amendment Agreement by Weatherford Oil Tool GmbH, Weatherford Technology Holdings, LLC, Weatherford/Lamb, Inc., Weatherford U.K. Limited, Weatherford Norge AS,
Weatherford Worldwide Holdings GmbH, Weatherford Holding GmbH
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Germany,
US, England, Norway, Switzerland
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Germany
|
|
2
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Assignment Agreement in relation to receivables (trade receivables, intra group receivables) to be entered into by Weatherford Oil Tool GmbH
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Germany
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Germany
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3
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German law governed inventory transfer agreement to be entered into by Weatherford Oil Tool GmbH
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Germany
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Germany
|
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4
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Assignment Agreement in relation to IP Rights to be entered into by Weatherford Technology Holdings LLC, Weatherford / Lamb Inc., Weatherford UK Limited, Weatherford
Norge AS
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US, England, Norway
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Germany
|
|
5
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Account Pledge Agreement to be entered into by Weatherford Oil Tool GmbH
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Germany
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Germany
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6
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Share Pledge Agreement in relation to shares in Weatherford Central Europe GmbH to be entered into by Weatherford Worldwide Holdings GmbH
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Switzerland
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Germany
|
|
7
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Share Pledge Agreement in relation to shares in Weatherford Oil Tool GmbH to be entered into by Weatherford Holding GmbH
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Germany
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Germany
|
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9
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Quota pledge agreement regarding quotas in Weatherford Worldwide Holdings GmbH, entered into by Weatherford Irish Holdings Limited, as amended on the date hereof by a
confirmation and amendment agreement to quota pledge agreements
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Ireland
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Switzerland
|
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10
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Security assignment agreement regarding trade receivables, intra-group receivables, insurance receivables and bank account claims, to be entered into by Weatherford
Management Company Switzerland Sàrl
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Switzerland
|
Switzerland
|
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11
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Security assignment agreement regarding trade receivables, intra-group receivables, insurance receivables and bank account claims, to be entered into by Weatherford
Products GmbH
|
Switzerland
|
Switzerland
|
|
12
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Security assignment agreement regarding trade receivables, intra-group receivables, insurance receivables and bank account claims, to be entered into by Weatherford
Switzerland Trading and Development GmbH
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Switzerland
|
Switzerland
|
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13
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Security assignment agreement regarding trade receivables, intra-group receivables, insurance receivables and bank account claims, to be entered into by Weatherford
Worldwide Holdings GmbH
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Switzerland
|
Switzerland
|
| Agreement |
Jurisdiction of Guarantor | Jurisdiction of Collateral | |
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14
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Quota pledge agreement regarding quotas in Weatherford South America GmbH, entered into by Weatherford Worldwide Holdings GmbH, as amended as of the date hereof by a
confirmation and amendment agreement to quota pledge agreements
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Switzerland
|
Switzerland
|
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15
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Quota pledge agreement regarding quotas in Weatherford Products GmbH, entered into by Weatherford Worldwide Holdings GmbH, as amended as of the date hereof by a
confirmation and amendment agreement to quota pledge agreements
|
Switzerland
|
Switzerland
|
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16
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Quota pledge agreement regarding quotas in Weatherford Switzerland Trading and Development GmbH, entered into by Weatherford Worldwide Holdings GmbH, as amended as of
the date hereof by a confirmation and amendment agreement to quota pledge agreements
|
Switzerland
|
Switzerland
|
|
17
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Quota pledge agreement regarding quotas in Weatherford Management Company Switzerland Sàrl, entered into by Weatherford Worldwide Holdings GmbH, as amended as of the
date hereof by a confirmation and amendment agreement to quota pledge agreements
|
Switzerland
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Switzerland
|
|
18
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Quota pledge agreement regarding quotas in WOFS International Finance GmbH, entered into by Weatherford Holdings (Switzerland) GmbH, as amended as of the date hereof
by a confirmation and amendment agreement to quota pledge agreements
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Switzerland
|
Switzerland
|
|
19
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Quota pledge agreement regarding quotas in Weatherford Holdings (Switzerland) GmbH, entered into by Weatherford Worldwide Holdings GmbH, as amended as of the date
hereof by a confirmation and amendment agreement to quota pledge agreements
|
Switzerland
|
Switzerland
|
|
20
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Security assignment agreement regarding trade receivables, intra-group receivables, insurance receivables and bank account claims, to be entered into by WOFS
International Finance GmbH
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Switzerland
|
Switzerland
|
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21
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Security assignment agreement regarding trade receivables, intra-group receivables, insurance receivables and bank account claims, to be entered into by Weatherford
Holdings (Switzerland) GmbH,
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Switzerland
|
Switzerland
|
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22
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IP pledge agreement regarding existing and future IP rights in Switzerland, entered into by Weatherford Holdings (Switzerland) GmbH, as amended as of the date hereof
by a confirmation and amendment agreement to pledge agreements
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Switzerland
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Switzerland
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| Agreement | Jurisdiction of Guarantor | Jurisdiction of Collateral | |
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23
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IP pledge agreement regarding existing and future IP rights in Switzerland, entered into by Weatherford Management Company Switzerland Sàrl, as amended as of the date
hereof by a confirmation and amendment agreement to pledge agreements
|
Switzerland
|
Switzerland
|
|
24
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IP pledge agreement regarding existing and future IP rights in Switzerland, entered into by Weatherford Products GmbH, as amended as of the date hereof by a
confirmation and amendment agreement to pledge agreements
|
Switzerland
|
Switzerland
|
|
265
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IP pledge agreement regarding existing and future IP rights in Switzerland, entered into by Weatherford Switzerland Trading and Development GmbH, as amended as of the
date hereof by a confirmation and amendment agreement to pledge agreements
|
Switzerland
|
Switzerland
|
|
26
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IP pledge agreement regarding existing and future IP rights in Switzerland, entered into by Weatherford Worldwide Holdings GmbH, as amended as of the date hereof by a
confirmation and amendment agreement to pledge agreements
|
Switzerland
|
Switzerland
|
|
27
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IP pledge agreement regarding existing and future IP rights in Switzerland, entered into by WOFS International Finance GmbH, as amended as of the date hereof by a
confirmation and amendment agreement to pledge agreements
|
Switzerland
|
Switzerland
|
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28
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Pledge agreements regarding Rental Tools, to be entered into by Weatherford Products GmbH,
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Switzerland
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Switzerland
US |
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29
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IP pledge agreement regarding certain IP rights in Switzerland, entered into by Weatherford Technology Holdings, LLC, as amended as of the date hereof by a
confirmation and amendment agreement to pledge agreements
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US
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Switzerland
|
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30
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IP pledge agreement regarding certain IP rights in Switzerland, entered into by Visual Systems, Inc., as amended as of the date hereof by a confirmation and amendment
agreement to pledge agreements
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US
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Switzerland
|
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31
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IP pledge agreement regarding certain IP rights in Switzerland, entered into by Weatherford U.S., L.P., as amended as of the date hereof by a confirmation and
amendment agreement to pledge agreements
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US
|
Switzerland
|