Common use of Intercreditor and Subordination Agreements Clause in Contracts

Intercreditor and Subordination Agreements. Each Lender (a) understands, acknowledges and agrees that Liens have already been or will be created on the Collateral pursuant to the Second Lien Notes Documents and the Revolving Credit Facility Documents and may otherwise be created on the Collateral as permitted hereunder, which Liens shall be subject to the terms and conditions of the applicable Intercreditor Agreements or such other intercreditor arrangement or subordination arrangement otherwise contemplated hereunder, (b) hereby agrees that it will be bound by and will take no actions contrary to the provisions of any Intercreditor Agreement or such other intercreditor arrangement or subordination arrangement contemplated hereunder, (c) hereby agrees that, in the event of any direct conflict between the provisions of any Intercreditor Agreement or such other intercreditor arrangement or subordination arrangement on the one hand and the Loan Documents on the other hand, the provisions of the applicable Intercreditor Agreement or such other intercreditor arrangement or subordination arrangement shall govern to the extent of such conflict and (d) hereby authorizes and instructs the Administrative Agent to enter into each Intercreditor Agreement or such other intercreditor arrangement or subordination arrangement (and any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to such agreement) in connection with the incurrence by any Loan Party of the Revolving Credit Facility, any Second Lien Notes Document, Ratio Debt, Permitted Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness, or other Indebtedness contemplated herein to be subordinated to the Obligations, or in each case any Permitted Refinancing thereof, in order to permit such Indebtedness to be secured by a valid, perfected Liens on the Collateral with the priority contemplated hereby or to provide for the subordination thereof to the Obligations as contemplated hereby.

Intercreditor and Subordination Agreements. Each Lender (a) understands, acknowledges and agrees that Liens have already been or will be created on the Collateral pursuant to the Second Lien Notes Documents and the Revolving Credit Facility Term Loan Documents and may otherwise be created on the Collateral as permitted hereunder, which Liens shall be subject to the terms and conditions of the applicable Intercreditor Agreements or such other intercreditor arrangement or subordination arrangement otherwise contemplated hereunder, (b) hereby agrees that it will be bound by and will take no actions contrary to the provisions of any Intercreditor Agreement or such other intercreditor arrangement or subordination arrangement contemplated hereunder, (c) hereby agrees that, in the event of any direct conflict between the provisions of any Intercreditor Agreement or such other intercreditor arrangement or subordination arrangement on the one hand and the Loan Documents on the other hand, the provisions of the applicable Intercreditor Agreement or such other intercreditor arrangement or subordination arrangement shall govern to the extent of such conflict and (d) hereby authorizes and instructs the Administrative Agent to enter into each Intercreditor Agreement or such other intercreditor arrangement or subordination arrangement (and any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to such agreement) in connection with the incurrence by any Loan Party of the Revolving Credit Term Loan Facility, any Second Lien Notes Document, Ratio Debt, Permitted Incremental Equivalent Debt, Debt or Credit Agreement Refinancing Indebtedness, or other Indebtedness contemplated herein to be subordinated to the Obligations, or in each case any Permitted Refinancing thereof, in order to permit such Indebtedness to be secured by a valid, perfected Liens on the Collateral with the priority contemplated hereby or to provide for the subordination thereof to the Obligations as contemplated hereby.

Intercreditor and Subordination Agreements. Each Lender (a) understands, acknowledges and agrees that Liens have already been or will be created on the Collateral pursuant Notwithstanding anything contained herein to the Second Lien Notes Documents contrary, this Agreement and the Revolving Credit Facility Documents rights and may otherwise be created on obligations of the Collateral as permitted hereunder, which Liens shall be parties hereunder are subject to the terms and conditions of the applicable Intercreditor Agreements and Subordination Agreements. Very truly yours, [NAME OF ADDITIONAL GRANTOR] By Title: Address for notices: The undersigned hereby (a) acknowledges notice of, and consents to the terms and provisions of, the Third Amended and Restated Security Agreement dated as of March 29, 2005 (as amended, amended and restated, supplemented or such otherwise modified from time to time, the “Security Agreement,” the terms defined therein being used herein as therein defined) from (the “Grantor”), and certain other intercreditor arrangement or subordination arrangement otherwise contemplated hereundergrantors from time to time party thereto to ▇▇▇▇▇ Fargo Bank, N.A., as Collateral Agent (the “Collateral Agent”) for the Secured Parties referred to therein, (b) hereby agrees that it will be bound by and will take no actions contrary consents in all respects to the provisions pledge and assignment to the Collateral Agent of any Intercreditor all of the Grantor’s right, title and interest in, to and under the Assigned Agreement or such other intercreditor arrangement or subordination arrangement contemplated hereunder(as defined below) pursuant to the Security Agreement, (c) hereby agrees that, acknowledges that the Grantor has provided it with notice of the right of the Collateral Agent in the event exercise of any direct conflict between its rights and remedies under the provisions of any Intercreditor Security Agreement or such other intercreditor arrangement or subordination arrangement on the one hand to make all demands, give all notices, take all actions and the Loan Documents on the other hand, the provisions exercise all rights of the applicable Intercreditor Agreement or such other intercreditor arrangement or subordination arrangement shall govern to Grantor under the extent of such conflict Assigned Agreement, and (d) hereby authorizes agrees with the Collateral Agent that: (i) Upon its receipt from the Collateral Agent of a notice specifying that an Event of Default under the Third Amended Credit Agreement has occurred and instructs is continuing, the Administrative Agent undersigned shall make all payments to enter into each Intercreditor Agreement be made by it under or such other intercreditor arrangement or subordination arrangement (and any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to such agreement) in connection with the incurrence by any Loan Party Agreement dated , (the “Assigned Agreement”) between the undersigned and the Grantor directly to the Collateral Agent or otherwise in accordance with the instructions of the Revolving Credit FacilityCollateral Agent. (ii) All payments referred to in paragraph (i) above shall be made by the undersigned irrespective of, and without deduction for, any Second Lien Notes Documentcounterclaim, Ratio Debtdefense, Permitted Incremental Equivalent Debtrecoupment or set-off and shall be final, and the undersigned shall not seek to recover from any Secured Party for any reason any such payment once made. (iii) Upon the occurrence and during the continuance of an Event of Default, the Collateral Agent or its designee shall be entitled to exercise any and all rights and remedies of the Grantor under the Assigned Agreement in accordance with the terms of the Security Agreement, and the undersigned shall comply in all respects with such exercise. (iv) The undersigned shall not, without the prior written consent of the Collateral Agent, (A) cancel or terminate the Assigned Agreement or consent to or accept any cancellation or termination thereof, or (B) amend, amend and restate, supplement or otherwise modify the Assigned Agreement, except, in each case, to the extent otherwise permitted under the Third Amended Credit Agreement Refinancing Indebtednessreferred to in the Security Agreement. (v) In the event of a default by the Grantor in the performance of any of its obligations under the Assigned Agreement, or other Indebtedness contemplated herein to be subordinated to upon the Obligationsoccurrence or non-occurrence of any event or condition under the Assigned Agreement which would immediately or with the passage of any applicable grace period or the giving of notice, or in each case any Permitted Refinancing thereofboth, in order enable the undersigned to permit such Indebtedness to be secured by a validterminate or suspend its obligations under the Assigned Agreement, perfected Liens on the Collateral with undersigned shall not terminate the priority contemplated hereby or to provide for the subordination Assigned Agreement until it first gives written notice thereof to the Obligations Collateral Agent and permits the Grantor and the Collateral Agent the period of time afforded to the Grantor under the Assigned Agreement to cure such default. (vi) The undersigned shall deliver to the Collateral Agent, concurrently with the delivery thereof to the Grantor, a copy of each notice, request or demand given by the undersigned pursuant to the Assigned Agreement. (vii) Except as contemplated herebyspecifically provided in this Consent and Agreement, neither the Collateral Agent nor any other Secured Party shall have any liability or obligation under the Assigned Agreement as a result of this Consent and Agreement, the Security Agreement or otherwise. In order to induce the Lenders to maintain the Loans under the Third Amended Credit Agreement, the undersigned repeats and reaffirms for the benefit of the Secured Parties the representations and warranties made by it in the Assigned Agreement. This Consent and Agreement shall be binding upon the undersigned and its successors and assigns, and shall inure, together with the rights and remedies of the Collateral Agent hereunder, to the benefit of the Secured Parties and their successors, transferees and assigns. This Consent and Agreement shall be governed by and construed in accordance with the laws of the State of New York.

Intercreditor and Subordination Agreements. Each Lender and Issuing Bank irrevocably (a) understands, acknowledges and agrees that Liens have already been or will be created on the Collateral pursuant to the Second Lien Notes Documents and the Revolving Credit Facility Documents and may otherwise be created on the Collateral as permitted hereunder, which Liens shall be subject consents to the terms and conditions of the applicable Intercreditor Agreements or such other any intercreditor arrangement agreement or subordination arrangement otherwise contemplated hereunderagreement, (b) hereby authorizes and directs Agent to execute and deliver such intercreditor agreement or subordination agreement, in each case, on behalf of such Lender or such Issuing Bank and to take all actions (and execute all documents) required (or deemed advisable) by it in accordance with the terms of such intercreditor agreement or subordination agreement, in each case, and without any further consent, authorization or other action by such Lender or such Issuing Bank, (c) agrees that it that, subject to the approval of the Required Lenders, upon execution and delivery thereof, each Lender and each Issuing Bank will be bound by the provisions of such intercreditor agreement or subordination agreement as if it were a signatory thereto and will take no actions contrary to the provisions of any Intercreditor Agreement or such other intercreditor arrangement agreement or subordination arrangement contemplated hereunderagreement, (c) hereby agrees that, in the event of any direct conflict between the provisions of any Intercreditor Agreement or such other intercreditor arrangement or subordination arrangement on the one hand and the Loan Documents on the other hand, the provisions of the applicable Intercreditor Agreement or such other intercreditor arrangement or subordination arrangement shall govern to the extent of such conflict and (d) agrees that no Lender or Issuing Bank shall have any right of action whatsoever against Agent as a result of any action taken by Agent pursuant to this Section or in accordance with the terms of any intercreditor agreement or subordination agreement. Each Lender hereby further irrevocably authorizes and instructs the Administrative directs Agent to enter into each Intercreditor Agreement or such other intercreditor arrangement or subordination arrangement (and any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to any intercreditor agreement or subordination agreement as are approved by Agent (except as to any amendment that expressly requires the approval of the Required Lenders or all Lenders as set forth herein); provided, that, Agent may execute and deliver such agreement) amendments, supplements and modifications thereto as are contemplated by such intercreditor agreement or subordination agreement in connection with the incurrence by any Loan Party extension, renewal, refinancing or replacement of the Revolving Credit Facility, this Agreement or any Second Lien Notes Document, Ratio Debt, Permitted Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness, or other Indebtedness contemplated herein to be subordinated to refinancing of the Obligations, in each case, on behalf of such Lender and Issuing Bank and without any further consent, authorization or other action by any Lender or Issuing Bank. Agent shall have the benefit of each of the provisions of Section 15 with respect to all actions taken by it pursuant to this Section 15.19 or in each case any Permitted Refinancing thereof, in order to permit such Indebtedness to be secured by a valid, perfected Liens on the Collateral accordance with the priority contemplated hereby terms of an intercreditor agreement or to provide for the subordination thereof to the Obligations as contemplated herebyagreement.

Intercreditor and Subordination Agreements. Each Lender (a) understands, acknowledges and agrees that Liens have already been or will be created on the Collateral pursuant Notwithstanding anything contained herein to the Second Lien Notes Documents contrary, this Agreement and the Revolving Credit Facility Documents rights and may otherwise be created on obligations of the Collateral as permitted hereunder, which Liens shall be parties hereunder are subject to the terms and conditions of the applicable Intercreditor Agreements and Subordination Agreements. Very truly yours, [NAME OF ADDITIONAL GRANTOR] By Title: Address for notices: The undersigned hereby (a) acknowledges notice of, and consents to the terms and provisions of, the Amended and Restated Security Agreement dated as of March 29, 2005 (as amended, amended and restated, supplemented or such otherwise modified from time to time, the “Security Agreement,” the terms defined therein being used herein as therein defined) from (the “Grantor”), and certain other intercreditor arrangement or subordination arrangement otherwise contemplated hereundergrantors from time to time party thereto to General Electric Capital Corporation, as Collateral Agent (the “Collateral Agent”) for the Secured Parties referred to therein, (b) hereby agrees that it will be bound by and will take no actions contrary consents in all respects to the provisions pledge and assignment to the Collateral Agent of any Intercreditor all of the Grantor’s right, title and interest in, to and under the Assigned Agreement or such other intercreditor arrangement or subordination arrangement contemplated hereunder(as defined below) pursuant to the Security Agreement, (c) hereby agrees that, acknowledges that the Grantor has provided it with notice of the right of the Collateral Agent in the event exercise of any direct conflict between its rights and remedies under the provisions of any Intercreditor Security Agreement or such other intercreditor arrangement or subordination arrangement on the one hand to make all demands, give all notices, take all actions and the Loan Documents on the other hand, the provisions exercise all rights of the applicable Intercreditor Agreement or such other intercreditor arrangement or subordination arrangement shall govern to Grantor under the extent of such conflict Assigned Agreement, and (d) hereby authorizes agrees with the Collateral Agent that: (i) Upon its receipt from the Collateral Agent of a notice specifying that an Event of Default under the Credit Agreement has occurred and instructs is continuing, the Administrative Agent undersigned shall make all payments to enter into each Intercreditor Agreement be made by it under or such other intercreditor arrangement or subordination arrangement (and any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to such agreement) in connection with the incurrence by any Loan Party _______________ Agreement dated _______________, ____ (the “Assigned Agreement”) between the undersigned and the Grantor directly to the Collateral Agent or otherwise in accordance with the instructions of the Revolving Credit FacilityCollateral Agent. (ii) All payments referred to in paragraph (i) above shall be made by the undersigned irrespective of, and without deduction for, any counterclaim, defense, recoupment or set-off and shall be final, and the undersigned shall not seek to recover from any Secured Party for any reason any such payment once made. (iii) Upon the occurrence and during the continuance of an Event of Default, the Collateral Agent or its designee shall be entitled to exercise any and all rights and remedies of the Grantor under the Assigned Agreement in accordance with the terms of the Security Agreement, and the undersigned shall comply in all respects with such exercise. (iv) The undersigned shall not, without the prior written consent of the Collateral Agent, (A) cancel or terminate the Assigned Agreement or consent to or accept any cancellation or termination thereof, or (B) amend, amend and restate, supplement or otherwise modify the Assigned Agreement, except, in each case, to the extent otherwise permitted under the First Amended Second Lien Notes Document, Ratio Debt, Permitted Incremental Equivalent Debt, Credit Agreement Refinancing Indebtednessreferred to in the Security Agreement. (v) In the event of a default by the Grantor in the performance of any of its obligations under the Assigned Agreement, or other Indebtedness contemplated herein to be subordinated to upon the Obligationsoccurrence or non-occurrence of any event or condition under the Assigned Agreement which would immediately or with the passage of any applicable grace period or the giving of notice, or in each case any Permitted Refinancing thereofboth, in order enable the undersigned to permit such Indebtedness to be secured by a validterminate or suspend its obligations under the Assigned Agreement, perfected Liens on the Collateral with undersigned shall not terminate the priority contemplated hereby or to provide for the subordination Assigned Agreement until it first gives written notice thereof to the Obligations Collateral Agent and permits the Grantor and the Collateral Agent the period of time afforded to the Grantor under the Assigned Agreement to cure such default. (vi) The undersigned shall deliver to the Collateral Agent, concurrently with the delivery thereof to the Grantor, a copy of each notice, request or demand given by the undersigned pursuant to the Assigned Agreement. (vii) Except as contemplated herebyspecifically provided in this Consent and Agreement, neither the Collateral Agent nor any other Secured Party shall have any liability or obligation under the Assigned Agreement as a result of this Consent and Agreement, the Security Agreement or otherwise. In order to induce the Lenders to maintain the Loans under the First Amended Second Lien Credit Agreement, the undersigned repeats and reaffirms for the benefit of the Secured Parties the representations and warranties made by it in the Assigned Agreement. This Consent and Agreement shall be binding upon the undersigned and its successors and assigns, and shall inure, together with the rights and remedies of the Collateral Agent hereunder, to the benefit of the Secured Parties and their successors, transferees and assigns. This Consent and Agreement shall be governed by and construed in accordance with the laws of the State of New York.

Intercreditor and Subordination Agreements. Each Lender and Issuing Bank irrevocably (a) understands, acknowledges and agrees that Liens have already been or will be created on the Collateral pursuant to the Second Lien Notes Documents and the Revolving Credit Facility Documents and may otherwise be created on the Collateral as permitted hereunder, which Liens shall be subject consents to the terms and conditions of the applicable Intercreditor Agreements or such other any intercreditor arrangement agreement or subordination arrangement otherwise agreement expressly contemplated hereunderhereunder (including the Intercreditor Agreement), (b) hereby authorizes and directs Agent to execute and deliver such intercreditor agreement or subordination agreement, in each case, on behalf of such Lender or such Issuing Bank and to take all actions (and execute all documents) required (or deemed advisable) by it in accordance with the terms of such intercreditor agreement or subordination agreement, in each case, and without any further consent, authorization or other action by such Lender or such Issuing Bank, (c) agrees that it that, subject to the approval of the Required Lenders, upon execution and delivery thereof, each Lender and each Issuing Bank will be bound by the provisions of such intercreditor agreement or subordination agreement as if it were a signatory thereto and will take no actions contrary to the provisions of any Intercreditor Agreement or such other intercreditor arrangement agreement or subordination arrangement contemplated hereunderagreement, (c) hereby agrees that, in the event of any direct conflict between the provisions of any Intercreditor Agreement or such other intercreditor arrangement or subordination arrangement on the one hand and the Loan Documents on the other hand, the provisions of the applicable Intercreditor Agreement or such other intercreditor arrangement or subordination arrangement shall govern to the extent of such conflict and (d) agrees that no Lender or Issuing Bank shall have any right of action whatsoever against Agent as a result of any action taken by Agent pursuant to this Section or in accordance with the terms of any intercreditor agreement or subordination agreement. Each Lender hereby further irrevocably authorizes and instructs the Administrative directs Agent to enter into each Intercreditor Agreement or such other intercreditor arrangement or subordination arrangement (and any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to any intercreditor agreement or subordination agreement as are approved by Agent (except as to any amendment that expressly requires the approval of the Required Lenders or all Lenders as set forth herein); provided, that, Agent may execute and deliver such agreement) amendments, supplements and modifications thereto as are contemplated by such intercreditor agreement or subordination agreement in connection with the incurrence by any Loan Party extension, renewal, refinancing or replacement of the Revolving Credit Facility, this Agreement or any Second Lien Notes Document, Ratio Debt, Permitted Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness, or other Indebtedness contemplated herein to be subordinated to refinancing of the Obligations, in each case, on behalf of such Lender and Issuing Bank and without any further consent, authorization or other action by any Lender or Issuing Bank. Agent shall have the benefit of each of the provisions of Section 15 with respect to all actions taken by it pursuant to this Section 15.19 or in each case any Permitted Refinancing thereof, in order to permit such Indebtedness to be secured by a valid, perfected Liens on the Collateral accordance with the priority contemplated hereby terms of an intercreditor agreement or to provide for the subordination thereof to the Obligations as contemplated herebyagreement.