JOINDER AGREEMENT (Additional First Lien Obligations)
EXHIBIT
10.6
EXECUTION
VERSION
(Additional
First Lien Obligations)
This
JOINDER AGREEMENT (this “Joinder”), dated as of May 9,
2019, is among WILMINGTON TRUST, NATIONAL ASSOCIATION, as an
Additional First Lien Obligations Representative (in such capacity,
the “Super Senior
Representative”), WILMINGTON TRUST, NATIONAL
ASSOCIATION, as First Lien Representative, WILMINGTON TRUST,
NATIONAL ASSOCIATION, as Second Lien Representative, and
acknowledged by FUSION CONNECT, INC. (the “Company”) and the other Grantors
named on the signature pages hereto.
WHEREAS, the
Company and certain of its subsidiaries have entered into a Super
Senior Secured Credit Agreement, dated as of the date hereof, among
the Company, as Borrower, certain subsidiaries of the Company, as
Guarantor Subsidiaries, the lenders party thereto from time to
time, and Wilmington Trust, National Association, as Administrative
Agent and Collateral Agent (as amended, restated, supplemented or
otherwise modified from time to time, the “Super Senior Credit
Agreement”);
WHEREAS, the Super
Senior Representative wishes to become a party as an
“Additional First Lien Obligations Representative“ to
that certain Intercreditor Agreement, dated as of May 4, 2018 (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 Super Senior Representative)
referred to above and acknowledged by the Grantors party
thereto;
WHEREAS, this
Joinder is supplemental to the Intercreditor Agreement and has been
entered into to effectuate the Joinder of the Super Senior
Representative as an Additional First Lien Obligations
Representative under the Intercreditor Agreement pursuant to
Section 10.05(b)(iii) of the Intercreditor Agreement;
and
WHEREAS, the lien
priorities and rights and obligations as among the holders and
beneficiaries of the First Priority Liens will be governed by a
separate Super Senior Intercreditor Agreement, dated as of the date
hereof (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the “Super Senior Intercreditor
Agreement”), between the Super Senior Representative
and the First Lien Representative and acknowledged by the Company
and the other Grantors.
ARTICLE
I
Definitions
SECTION
1.01 Capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Intercreditor
Agreement.
ARTICLE
II
Joinder
SECTION
2.01 The Super Senior Representative agrees to become, with
immediate effect, a party to and agrees to be bound by the terms
of, the Intercreditor Agreement as an Additional First Lien
Obligations Representative as if it had originally been party to
the Intercreditor Agreement as an Additional First Lien Obligations
Representative.
SECTION
2.02 Each party to this Joinder (other than the Super Senior
Representative) confirms the acceptance of the Super Senior
Representative as an Additional First Lien Obligations
Representative for purposes of the Intercreditor Agreement.
Pursuant to Section 10.05(b)(iii), and solely for the purpose of
providing the Super Senior Representative and the holders of such
Additional First Lien Obligations rights and obligations that are
substantially identical to those of the First Lien Representative
and the other First Lien Secured Parties and otherwise to treat
such Additional First Lien Obligations and any Liens on any assets
of the Borrower or any Subsidiary securing such Additional First
Lien Obligations in a manner that is substantially identical to the
treatment under the Intercreditor Agreement of the First Lien
Secured Obligations and the First Priority Liens, the Intercreditor
Agreement is hereby amended to delete the stricken text (indicated
textually in the same manner as the following example: stricken
text) and to add the double-underlined text (indicated
textually in the same manner as the following example:
underlined text) as set forth in the marked blacklined copy
of the Intercreditor Agreement attached as Annex I attached
hereto.
ARTICLE
III
Miscellaneous
SECTION
3.01 (a) THIS JOINDER AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT
LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS
WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES
THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN
THE LAW OF THE STATE OF NEW YORK.
(b) ALL
JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY HERETO OR ANY OTHER
SECURED PARTY OR GRANTOR ARISING OUT OF OR RELATING TO THIS JOINDER
SHALL BE BROUGHT EXCLUSIVELY IN ANY FEDERAL COURT OF THE UNITED
STATES OF AMERICA SITTING IN THE BOROUGH OF MANHATTAN OR, IF THAT
COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, IN ANY STATE COURT
LOCATED IN THE CITY AND COUNTY OF NEW YORK. BY EXECUTING AND
DELIVERING THIS JOINDER, EACH REPRESENTATIVE, FOR ITSELF AND ITS
RELATED SECURED PARTIES AND ITS AND THEIR PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS, (II) WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS, (III) AGREES THAT SERVICE OF ALL PROCESS IN
ANY SUCH
PROCEEDING IN ANY
SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, TO THE APPLICABLE PARTY AT ITS ADDRESS PROVIDED
IN ACCORDANCE WITH SECTION 10.01 OF THE INTERCREDITOR AGREEMENT OR
SECTION 2.02 HEREOF, (IV) AGREES THAT SERVICE AS PROVIDED IN
CLAUSE (III) ABOVE IS SUFFICIENT TO CONFER PERSONAL
JURISDICTION OVER IT AND ITS PROPERTY IN ANY SUCH PROCEEDING IN ANY
SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE
IN EVERY RESPECT AND (V) AGREES THAT A FINAL JUDGMENT IN ANY
SUCH PROCEEDING MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON
THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION
3.02 This Joinder may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall
constitute an original but all of which when taken together shall
constitute a single contract. Delivery of an executed signature
page to this Joinder by facsimile or in electronic format (i.e.,
“pdf” or “tif”) shall be as effective as
delivery of a manually signed counterpart of this
Joinder.
[Remainder of this page intentionally left
blank; signatures follow.]
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.
|
WILMINGTON
TRUST, NATIONAL ASSOCIATION, as First Lien
Representative
|
|
|
By
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇
|
|
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇
Title:
Vice President
|
|
|
|
|
WILMINGTON
TRUST, NATIONAL ASSOCIATION, as Second Lien
Representative
|
|
|
By
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇
|
|
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇
Title:
Vice President
|
|
|
|
|
WILMINGTON
TRUST, NATIONAL ASSOCIATION, as New Representative
|
|
|
By
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇
|
|
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇
Title:
Vice President
|
[Fusion
Connect – Acknowledgment to Intercreditor Agreement
Joinder]
ACKNOWLEDGED AS OF THE DATE FIRST WRITTEN ABOVE:
|
FUSION NBS ACQUISITION CORP.
FUSION LLC
FUSION BCHI ACQUISITION LLC
FUSION CLOUD SERVICES, LLC
FUSION CB HOLDINGS, INC.
FUSION COMMUNICATIONS, LLC
FUSION MANAGEMENT SERVICES LLC
FUSION TELECOM, LLC
FUSION TEXAS HOLDINGS, INC.
FUSION TELECOM OF KANSAS, LLC
FUSION TELECOM OF OKLAHOMA, LLC
FUSION TELECOM OF MISSOURI, LLC
BIRCAN HOLDINGS, LLC
FUSION PM HOLDINGS, INC.
FUSION CLOUD COMPANY LLC
FUSION MPHC GROUP, INC.
FUSION MPHC HOLDING CORPORATION
|
||
|
by
|
||
|
|
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
|
|
|
|
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Executive
Vice President and General Counsel
|
|
|
|
|
|
|
FUSION TELECOM OF TEXAS, LTD.,
L.L.P., as
Grantor
By:
Fusion Texas Holdings, Inc., its general partner
|
|
|
By: /s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
|
|
|
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Executive
Vice President and General Counsel
|
|
|
|
|
[Fusion
Connect – Acknowledgment to Intercreditor Agreement
Joinder]
ANNEX
I
INTERCREDITOR
AGREEMENT
dated
as of
May 4,
2018,
among
WILMINGTON
TRUST, NATIONAL ASSOCIATION,
as
First Lien Representative,
WILMINGTON
TRUST, NATIONAL ASSOCIATION,
as
Second Lien Representative,
EACH
ADDITIONAL FIRST LIEN OBLIGATIONS REPRESENTATIVE
and
EACH
ADDITIONAL SECOND LIEN OBLIGATIONS REPRESENTATIVE
[CS&M Ref. No. 4025-110]
TABLE
OF CONTENTS
Page
ARTICLE
I
DEFINITIONS
SECTION
1.01. Defined Terms 2
SECTION
1.02. Terms Generally 1617
ARTICLE
II
LIEN
PRIORITIES
SECTION
2.01. Relative Priorities 1718
SECTION
2.02. Prohibition on Contesting Liens 1719
SECTION
2.03. Similar Liens and Agreements 1819
SECTION
2.04. No Separate Liens 1819
SECTION
2.05. Perfection of Liens 1820
SECTION
2.06. Certain Cash Collateral 1920
ARTICLE
III
ENFORCEMENT
OF RIGHTS; MATTERS RELATING TO COLLATERAL
SECTION
3.01. Exercise of Rights and Remedies 1921
SECTION
3.02. No Interference 2224
SECTION
3.03. Rights as Unsecured Creditors 2426
SECTION
3.04. Automatic Release of Second Priority
Liens 2427
SECTION
3.05. Insurance and Condemnation
Awards 2628
ARTICLE
IV
PAYMENTS
SECTION
4.01. Application of Proceeds 2629
SECTION
4.02. Payment Over 2730
SECTION
4.03.Certain Agreements with Respect to Invalid or Unenforceable
Liens 2831
ARTICLE
V
BAILMENT
FOR PERFECTION OF CERTAIN SECURITY INTERESTS
ARTICLE
VI
INSOLVENCY
OR LIQUIDATION PROCEEDINGS
SECTION
6.01. Finance and Sale Matters 3033
SECTION
6.02. Relief from the Automatic Stay 3336
SECTION
6.03. Reorganization Securities 3337
SECTION
6.04. Post-Petition Interest 3437
SECTION
6.05. Certain Waivers by the Second Lien Secured
Parties 3438
SECTION
6.06. Certain Voting Matters 3438
SECTION
6.07. Subordination Agreement 3538
ARTICLE
VII
OTHER
AGREEMENTS
SECTION
7.01. Matters Relating to Loan
Documents 3538
SECTION
7.02.Effect of Refinancing of Indebtedness under Loan
Documents 3842
SECTION
▇.▇▇.▇▇ Waiver by First Lien Secured Parties 39and
Super Senior Secured Parties 44
SECTION
7.04. Reinstatement 3944
SECTION
7.05. Further Assurances 4044
ARTICLE
VIII
REPRESENTATIONS
AND WARRANTIES
ARTICLE
IX
NO
RELIANCE; NO LIABILITY; OBLIGATIONS ABSOLUTE
SECTION
9.01. No Reliance; Information 4045
SECTION
9.02. No Warranties or Liability 4146
SECTION
9.03. Obligations Absolute 4247
ARTICLE
X
MISCELLANEOUS
SECTION
10.01. Notices 4248
SECTION
10.02. Conflicts 4348
SECTION
10.03. Effectiveness; Survival 4348
SECTION
10.04. Severability 4349
SECTION
10.05. Amendments; Waivers 4349
SECTION
10.06. Subrogation 4652
SECTION
10.07.APPLICABLE LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS;
WAIVERS 4753
SECTION
10.08. WAIVER OF JURY TRIAL 4854
SECTION
10.09. Parties in Interest 4854
SECTION
10.10. Specific Performance 4955
SECTION
10.11. Headings 4955
SECTION
10.12. Counterparts 4955
SECTION
10.13. Provisions Solely to Define Relative
Rights 4955
SECTION
10.14. Intercreditor Agreement
Acknowledgement 4955
SECTION
10.15. Dealings with Borrower, Grantors and
Guarantors 5056
SECTION
10.16. Agents and Representatives 5056
ANNEXES
Annex
I
-
Second Lien Security Documents Legends
Annex III
-
Form of
Intercreditor Agreement Acknowledgement
Annex
II
-
Second Lien Security Documents Legends
INTERCREDITOR
AGREEMENT dated as of May 4, 2018 (this “Agreement”), among WILMINGTON
TRUST, NATIONAL ASSOCIATION (“Wilmington Trust”), as collateral
agent for the First Lien Lenders (as defined below) (in such
capacity, the “First Lien
Representative”), WILMINGTON TRUST, as collateral
agent for the Second Lien Lenders (as defined below) (in such
capacity, the “Second Lien
Representative”), and each ADDITIONAL FIRST LIEN
OBLIGATIONS REPRESENTATIVE and each ADDITIONAL SECOND LIEN
OBLIGATIONS REPRESENTATIVE that, in each case, shall have become a
party hereto pursuant to Section 10.05(b).
Reference is made
to (a) the First Lien Credit and Guaranty Agreement dated as
of May 4, 2018 (as amended, supplemented or otherwise modified from
time to time in accordance with the terms hereof, the
“First Lien Credit
Agreement”), among Fusion Connect, Inc., a Delaware
corporation (the “Borrower”), certain Subsidiaries
of the Borrower from time to time party thereto, the lenders from
time to time party thereto (the “First Lien Lenders”) and
Wilmington Trust, as administrative agent and collateral agent,
(b) the Second Lien Credit and Guaranty Agreement dated as of
May 4, 2018 (as amended, supplemented or otherwise modified from
time to time in accordance with the terms hereof, the
“Second Lien Credit
Agreement” and, together with the First Lien Credit
Agreement, the “Credit
Agreements”), among the Borrower, certain Subsidiaries
of the Borrower from time to time party thereto, the lenders from
time to time party thereto (the “Second Lien Lenders”) and
Wilmington Trust, as administrative agent and collateral agent,
(c) the First Lien Pledge and Security Agreement dated as of
May 4, 2018 (as amended, supplemented or otherwise modified from
time to time in accordance with the terms hereof, the
“First Lien Pledge and
Security Agreement”), among the Borrower, certain
Subsidiaries of the Borrower from time to time party thereto and
the First Lien Representative, (d) the Second Lien Pledge and
Security Agreement dated as of May 4, 2018 (as amended,
supplemented or otherwise modified from time to time in accordance
with the terms hereof, the “Second Lien Pledge and Security
Agreement”), among the Borrower, certain Subsidiaries
of the Borrower from time to time party thereto and the Second Lien
Representative, and (e) the other Security Documents referred
to in the Credit Agreements.
WHEREAS, the First
Lien Lenders have agreed to make loans and other extensions of
credit to the Borrower pursuant to the First Lien Credit Agreement
on the condition, among others, that the First Lien Secured
Obligations shall be secured by first priority Liens on, and
security interests in, the Collateral.
WHEREAS,
the Super Senior Lenders (as defined below) have agreed to make
loans and other extensions of credit to the Borrower pursuant to
the Super Senior Credit Agreement (as defined below) on the
condition, among others, that the Super Senior Secured Obligations
(as defined below) shall be secured by first priority Liens on, and
security interests in, the Collateral as Additional First Lien
Obligations;
WHEREAS, the Second
Lien Lenders have agreed to make loans to the Borrower pursuant to
the Second Lien Credit Agreement on the condition, among others,
that the Second Lien Secured Obligations shall be secured by second
priority Liens on, and security interests in, the
Collateral.
WHEREAS, the Credit
Agreements and the Super Senior Credit
Agreement require, among other things, that the parties
thereto set forth in this Agreement, among other things, their
respective rights, obligations and remedies with respect to the
Collateral.
NOW,
THEREFORE, the parties hereto agree as follows:
ARTICLE
I.
DEFINITIONS
SECTION
1.01. Defined Terms. As used in the Agreement
(including the preliminary statements hereto), the following terms
shall have the meanings specified below:
“Account(s)” means
“accounts” as defined in Article 9 of the Uniform
Commercial Code and also means a right to payment of a monetary
obligation, whether or not earned by performance, (a) for property
that has been or is to be sold, leased, licensed, assigned, or
otherwise disposed of, (b) for services rendered or to be rendered,
or (c) arising out of the use of a credit or charge card or
information contained on or for use with the card.
“Account Debtor” means any Person
that is or that may become obligated to any Grantor under, with
respect to or on account of an Account or a “payment
intangible” as defined in Article 9 of the Uniform Commercial
Code.
“Additional First Lien Obligations”
means Indebtedness of the Grantors incurred following the date of
this Agreement (together with all obligations in respect of such
Indebtedness, including all principal, premium, interest, fees,
attorney’s fees, costs, charges, expenses, reimbursement
obligations, indemnities, guarantees, and all other amounts payable
under or secured by any Additional First Lien Obligations Agreement
(including, in each case, any such Additional First Lien
Obligations arising or accruing during the pendency of any
Insolvency or Liquidation Proceeding), notwithstanding that any
such Additional First Lien Obligations or claims therefor shall be
disallowed, voided or subordinated in any Insolvency or Liquidation
Proceeding or under any Bankruptcy Law or other applicable law) to
the extent (a) such Indebtedness and such obligations in respect of
such Indebtedness are permitted by the terms of the First Lien
Credit Agreement, the Super
Senior Credit Agreement, the Second Lien Credit Agreement,
each Additional Second Lien Obligations Agreement then in effect
and each other Additional First Lien Obligations Agreement then in
effect to be secured by Liens on the Collateral ranking pari passu
in priority with the First Priority Liens and the Liens on the
Collateral securing other Additional First Lien Obligations
(without regard to the control of remedies) and senior in priority
to the Second Priority Liens and to the Liens on the Collateral
securing any Additional Second Lien Obligations, (b) the Grantors
have granted Liens on the Collateral to secure such Indebtedness
and such obligations in respect of such Indebtedness (it being
agreed that First Lien Secured Obligations incurred or issued after
the date hereof (i) under the First Lien Loan Documents, (ii) in
respect of “Specified Hedge Obligations” (as defined in
the First Lien Credit Agreement) and (iii) in respect of
“Specified Cash Management Services Obligations” (as
defined in the First Lien Credit Agreement) shall not constitute
Additional First Lien Obligations) and (c) neither any Grantor nor
any Affiliate thereof has granted any Lien on any property, asset,
right or interest other than the Collateral to secure such
Indebtedness unless the First Lien Secured Obligations and Super Senior Secured Obligations, as
applicable, incurred or issued (i) under the First Lien Loan
Documents and the Super Senior Loan
Documents, as applicable, (ii) in respect of
“Specified Hedge Obligations” (as defined in the First
Lien Loan Documents) and (iii) in respect of “Specified Cash
Management Services Obligations” (as defined in the First
Lien Credit Agreement) have been secured by a pari passu Lien
granted by such Grantor or Affiliate on such other property, asset,
right or interest.
2
“Additional First Lien Obligations
Agreement” means the indenture, credit agreement or
other definitive agreement under which any Additional First Lien
Obligations are incurred.
“Additional First Lien Obligations
Representative” means any Person appointed to act as
trustee, collateral agent or a similar representative for the
holders of Additional First Lien Obligations pursuant to any
Additional First Lien Obligations Agreement.
“Additional Second Lien
Obligations” means Indebtedness of the Grantors
incurred following the date of this Agreement (together with all
obligations in respect of such Indebtedness, including all
principal, premium, interest, fees, attorney’s fees, costs,
charges, expenses, reimbursement obligations, indemnities,
guarantees, and all other amounts payable under or secured by any
Additional Second Lien Obligations Agreement (including, in each
case, any such Additional Second Lien Obligations arising or
accruing during the pendency of any Insolvency or Liquidation
Proceeding), notwithstanding that any such Additional Second Lien
Obligations orclaims therefor shall be disallowed, voided or
subordinated in any Insolvency or Liquidation Proceeding or under
any Bankruptcy Law or other applicable law) to the extent (a) such
Indebtedness and such obligations in respect of such Indebtedness
are permitted by the terms of the First Lien Credit Agreement, the
Super Senior Credit Agreement,
the Second Lien Credit Agreement, each Additional First Lien
Obligations Agreement then in effect and each other Additional
Second Lien Obligations Agreement then in effect to be secured by
Liens on the Collateral ranking junior in priority to the First
Priority Liens and to the Liens on the Collateral securing
Additional First Lien Obligations and pari passu in priority to the
Second Priority Liens and to the Liens on the Collateral securing
any Additional Second Lien Obligations (without regard to the
control of remedies) and (b) the Grantors have granted Liens on the
Collateral to secure such Indebtedness and such obligations in
respect of such Indebtedness (it being agreed that Second Lien
Secured Obligations incurred or issued after the date hereof under
the Second Lien Loan Documents shall not constitute Additional
Second Lien Obligations).
“Additional Second Lien Obligations
Agreement” means the indenture, credit agreement or
other definitive agreement under which any Additional Second Lien
Obligations are incurred.
“Additional Second Lien Obligations
Representative” means any Person appointed to act as
trustee, collateral agent or a similar representative for the
holders of Additional Second Lien Obligations pursuant to any
Additional Second Lien Obligations Agreement.
“Affiliate” means, with respect to
a specified Person, another Person that directly or indirectly
Controls or is Controlled by or is under common Control with the
Person specified.
“Agreement” has the meaning
assigned to such term in the preamble hereto.
3
“Bankruptcy Code” means
Title 11 of the United States Code entitled
“Bankruptcy,” as now and hereinafter in effect, or any
successor statute.
“Bankruptcy Law” means the
Bankruptcy Code and any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law.
“Borrower” has the meaning assigned
to such term in the preliminary statement of this
Agreement.
“Business Day” means any day other
than a Saturday or Sunday, a day that is a legal holiday under the
laws of the State of New York or a day on which banking
institutions located in such State are authorized or required by
law to remain closed.
“Capped First Lien Loan Document
Obligations” means First Lien Loan Document
Obligations and Super Senior Loan
Document Obligations (or any Refinancing thereof
constituting New First Lien Obligations in accordance with the
provisions of Section 7.02(a)) in the form of (a) the
principal amount of loans outstanding under the First Lien Credit
Agreement (or under any Refinancing thereof constituting New First
Lien Obligations in accordance with the provisions of Section
7.02(a)) and,
(b) the principal amount of loans
outstanding under the Super Senior Credit Agreement (or under any
Refinancing thereof constituting New First Lien Obligations in
accordance with the provisions of Section 7.02(a)), and (c)
the “Letter of Credit Usage” (as defined in the First
Lien Credit Agreement) (or any comparable successor term)
outstanding under the First Lien Credit Agreement (or under any
Refinancing thereof constituting New First Lien Obligations in
accordance with the provisions of Section 7.02(a)). For the
avoidance of doubt, Capped First Lien Loan Document Obligations
shall not include First Lien Secured Obligations in respect of
“Hedge Agreements” (as defined in the First Lien Credit
Agreement) (or any comparable successor term) and the First Lien
Secured Cash Management Obligations or, in each case, any
comparable successor terms under any indenture, credit agreement or
other definitive agreement evidencing any Refinancing of the First
Lien Secured Obligations or Super
Senior Secured Obligations constituting New First Lien
Obligations in accordance with the provisions of Section
7.02(a).
“Collateral” means the First Lien
Collateral and the Second Lien Collateral.
“Control” means the possession,
directly or indirectly, of the power to direct or cause the
direction of the management or policies, or the dismissal or
appointment of the management, of a Person, whether through the
ability to exercise voting power, by contract or otherwise.
“Controlling”
and “Controlled”
have meanings correlative thereto.
“Controlling First Lien
Representative” means the
First Lien Representative or the Super Senior Representative as
determined (as between the Super Senior Representative and the
First Lien Representative) pursuant to the Super Senior
Intercreditor Agreement, and which for purposes of this Agreement
shall initially be the Super Senior Representative and, after the
Discharge of the First Lien Secured Obligations in respect of the
Super Senior Secured Obligations, shall be the First Lien
Representative.
4
“Credit Agreements” has the meaning
assigned to such term in the preliminary statement of this
Agreement.
“DIP Financing” has the meaning
assigned to such term in Section 6.01(a).
“DIP Financing Liens” has the
meaning assigned to such term in Section 6.01(a).
“Discharge of Excess First Lien
Obligations” means, subject to Sections 7.02(a)
and 7.04, (a) payment in full in cash or immediately
available funds of the principal of and interest (including
interest accruing during the pendency of any Insolvency or
Liquidation Proceeding, regardless of whether allowed or allowable
in such Insolvency or Liquidation Proceeding) and premium, if any,
on the Excess First Lien Obligations, (b) payment in full in
cash or immediately available funds of all other Excess First Lien
Obligations that are due and payable or otherwise accrued and owing
at or prior to the time such principal and interest are paid
(excluding, for the avoidance of doubt, contingent expense
reimbursement and indemnification obligations that are not yet due
and payable), (c) cancellation of or the entry into
arrangements satisfactory to the First Lien Representative and the
applicable Issuing Bank (as defined in the First Lien Credit
Agreement) with respect to all letters of credit issued and
outstanding under the First Lien Credit Agreement that constitute
Excess First Lien Obligations and (d) termination or
expiration of all commitments to lend and all obligations to issue
or extend letters of credit under the First Lien Credit Agreement
and the Super Senior Credit
Agreement that constitute Excess First Lien
Obligations.
“Discharge of First Lien Loan Document
Obligations” means, subject to Sections 7.02(a)
and 7.04, (a) payment in full in cash or immediately
available funds of the principal of and interest (including
interest accruing during the pendency of any Insolvency or
Liquidation Proceeding, regardless of whether allowed or allowable
in such Insolvency or Liquidation Proceeding) and premium, if any,
on the First Lien Loan Document Obligations and the Super Senior Loan Document
Obligations, (b) payment in full in cash or immediately
available funds of all other First Lien Loan Document Obligations and Super Senior Loan Document
Obligations that are due and payable or otherwise accrued and owing
at or prior to the time such principal and interest are paid
(excluding, for the avoidance of doubt, contingent expense
reimbursement and indemnification obligations that are not yet due
and payable), (c) cancellation of or the entry into
arrangements satisfactory to the First Lien Representative and the
applicable Issuing Bank (as defined in the First Lien Credit
Agreement) with respect to all letters of credit issued and
outstanding under the First Lien Credit Agreement and
(d) termination or expiration of all commitments to lend and
all obligations to issue or extend letters of credit under the
First Lien Credit Agreement and the
Super Senor Credit Agreement.
5
“Discharge of First Lien Secured
Obligations” means, subject to Sections 7.02(a)
and 7.04, the occurrence of (a) the Discharge of First Lien
Loan Document Obligations, (b) cancellation of or the entry into
arrangements satisfactory to the First Lien Representative and each
applicable hedging counterparty with respect to all obligations
under Hedge Agreements (as defined in the First Lien Credit
Agreement) that constitute First Lien Secured Obligations,
(c) payment in full in cash or immediately available funds of
all First Lien Secured Cash Management Obligations that constitute
First Lien Secured Obligations, (d) payment in full in cash or
immediately available funds of all other First Lien Secured
Obligations and Super Senior Secured
Obligations that are due and payable or otherwise accrued
and owing at or prior to the time the foregoing payments are made
(excluding, in the case of this clause (d), contingent expense
reimbursement and indemnification obligations that are not yet due
and payable) and (e) adequate provision reasonably satisfactory to
the applicable First Lien Secured Parties and Super Senior Secured Parties having
been made for any contingent or unliquidated First Lien Secured
Obligations and Super Senior Loan
Document Obligations related to claims, causes of action or
liabilities that have theretofore been asserted in writing by the
First Lien Secured Parties or the
Super Senior Secured Parties, as applicable, and for which
reimbursement or indemnification is required under the First Lien
Loan Documents or the Super Senior
Loan Documents, as applicable.
“Discharge of Second Lien Secured
Obligations” means, subject to Section 7.02(b),
(a) payment in full in cash or immediately available funds of
the principal of and interest (including interest accruing during
the pendency of any Insolvency or Liquidation Proceeding,
regardless of whether allowed or allowable in such Insolvency or
Liquidation Proceeding) and premium, if any, on the Second Lien
Secured Obligations, (b) payment in full in cash or immediately
available funds of all other Second Lien Secured Obligations that
are due and payable or otherwise accrued and owing at or prior to
the time such principal and interest are paid (excluding, for the
avoidance of doubt, contingent expense reimbursement and
indemnification obligations that are not yet due and payable) and
(c) adequate provision reasonably satisfactory to the applicable
Second Lien Secured Parties having been made for any contingent or
unliquidated Second Lien Secured Obligations related to claims,
causes of action or liabilities that have theretofore been asserted
in writing by the Second Lien Secured Parties and for which
reimbursement or indemnification is required under the Second Lien
Loan Documents.
“Disposition” means any sale,
lease, exchange, transfer or other disposition. “Dispose” has a correlative
meaning.
6
“Enforcement Action” means any
action under applicable law to: (a) foreclose, execute, levy
or collect on, take possession or control of, sell or otherwise
realize upon (judicially or non-judicially), or lease, license or
otherwise exercise or enforce remedial rights with respect to
Collateral (including by way of set-off, notification of a public
or private sale or other disposition under the Uniform Commercial
Code or other applicable law, notification to Account Debtors,
notification to third parties under control agreements, or exercise
of rights under landlord or bailee consents or similar
arrangements, if applicable), (b) solicit bids from third parties
to conduct the liquidation or Disposition of any Collateral, or,
solely to the extent such action is not a Second Lien Permitted
Action, to engage or retain sales brokers, marketing agents,
investment bankers, accountants, appraisers, auctioneers or other
third parties for the purposes of marketing, promoting and selling
any Collateral, (c) to credit bid in respect of any Collateral in
satisfaction of Indebtedness or other First Lien Secured
Obligations, Super Senior Secured
Obligations or Second Lien Secured Obligations secured
thereby or (d) to otherwise enforce a security interest or
exercise another right or remedy as a secured creditor pertaining
to any Collateral (other than, to the extent the Grantors fail to
perform any action required under any protective covenant relating
to the Collateral under any Security Document, the performance
thereof by the First Lien Representative, the Super Senior Representative or the
Second Lien Representative, in each case to the extent permitted by
the applicable Security Documents) at law, in equity or pursuant to
the First Lien Loan Documents, the
Super Senior Loan Documents or Second Lien Loan Documents
(including the commencement of applicable legal proceedings or
other actions with respect to all or any portion of the Collateral,
including seeking relief from or modification of an automatic stay
or any other stay in an Insolvency or Liquidation Proceeding, to
facilitate the actions described in the preceding clause (a), (b)
or (c), and exercising voting rights in respect of Equity Interests
comprising Collateral).
“Equity Interests” means any and
all shares, interests, participations or other equivalents (however
designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a
corporation), including partnership interests and membership
interests, and any and all warrants, rights or options to purchase
or acquire any of the foregoing (other than, prior to the date of
such conversion, Indebtedness that is convertible into any such
Equity Interests).
“Excess First Lien Obligations”
means the sum of (a) the portion of the Capped First Lien Loan
Document Obligations that is in excess of the Maximum First Lien
Principal Amount, plus (b) without duplication, unpaid interest and
fees solely to the extent accrued with respect to such portion of
the Capped First Lien Loan Document Obligations.
“Excess Second Lien Obligations”
means the sum of (a) the portion of principal of the Second Lien
Secured Obligations that is in excess of the Maximum Second Lien
Principal Amount, plus (b) without duplication, unpaid interest and
fees solely to the extent accrued with respect to such portion of
the Second Lien Secured Obligations.
7
“First Lien Collateral” means all
“Collateral”, as defined in the First Lien Credit Agreement and all “Collateral”,
as defined in the Super Senior Credit Agreement, and any
other assets of any Grantor now or at any time hereafter subject,
or purported under the terms of any First Lien Security Document to
be made subject, to any Lien securing any First Lien Secured
Obligations or any Super Senior
Secured Obligations.
“First Lien Credit Agreement” has
the meaning assigned to such term in the preliminary statement of
this Agreement.
“First Lien Lenders” has the
meaning assigned to such term in the preliminary statement of this
Agreement.
“First Lien Loan Documents” means
the “Credit Documents”, as defined in the First Lien
Credit Agreement.
“First Lien Loan Document
Obligations” means the “Obligations”, as
defined in the First Lien Credit Agreement, set forth in clause (a)
of the definition of such term in the First Lien Credit Agreement
(including any such “Obligations” arising or accruing
under Section 2.1, 2.2, 2.3, 2.23, 2.24 or 2.25 of the First
Lien Credit Agreement or during the pendency of any Insolvency or
Liquidation Proceeding), notwithstanding that any such
“Obligations” or claims therefor shall be disallowed,
voided or subordinated in any Insolvency or Liquidation Proceeding
or under any Bankruptcy Law or other applicable law.
Notwithstanding the foregoing, for all purposes under this
Agreement (other than the definition of “Capped First Lien
Loan Document Obligations”), Excess First Lien Obligations
shall not be included in the First Lien Loan Document
Obligations.
“First Lien Mortgages” means,
collectively, each mortgage, deed of trust, leasehold mortgage,
assignment of leases and rents, modifications and any other
agreement, document or instrument pursuant to which a Lien on real
property is granted to secure any First Lien Secured Obligations or
under which rights or remedies with respect to any such Lien are
governed.
“First Lien Pledge and Security
Agreement” has the meaning assigned to such term in
the preliminary statement of this Agreement.
“First Lien Refinancing Notice” has
the meaning assigned to such term in Section 7.02(a).
“First Lien Representative” has the
meaning assigned to such term in the preamble to this
Agreement.
“First Lien Required Lenders” means
the “Requisite Lenders”, as defined in the First Lien
Credit Agreement.
8
“First Lien Secured Cash Management
Obligations” means the “Specified Cash
Management Services Obligations”, as defined in the First
Lien Credit Agreement (including any such “Specified Cash
Management Services Obligations” arising or accruing during
the pendency of any Insolvency or Liquidation Proceeding),
notwithstanding that any such “Specified Cash Management
Services Obligations” or claims therefor shall be disallowed,
voided or subordinated in any Insolvency or Liquidation Proceeding
or under any Bankruptcy Law or other applicable law.
“First Lien Secured Obligations”
means the “Secured Obligations”, as defined in the
First Lien Pledge and Security Agreement (including any such
“Secured Obligations” arising or accruing under Section
2.1, 2.2, 2.3, 2.23, 2.24 or 2.25 of the First Lien Credit
Agreement or during the pendency of any Insolvency or Liquidation
Proceeding), notwithstanding that any such “Secured
Obligations” or claims therefor shall be disallowed, voided
or subordinated in any Insolvency or Liquidation Proceeding or
under any Bankruptcy Law or other applicable law. Notwithstanding
the foregoing, for all purposes under this Agreement (other than
the definition of “First Priority Liens” and Sections
3.02(a)(vii), 6.03, 9.01 and 10.13), Excess First Lien Obligations
shall not be included in the First Lien Secured
Obligations.
“First Lien Secured Parties” means
the “Secured Parties”, as defined in the First Lien
Pledge and Security Agreement.
“First Lien Security Documents”
means the “Collateral Documents”, as defined in the
First Lien Credit Agreement, and any other agreement, document or
instrument pursuant to which a Lien is granted or purported to be
granted to secure any First Lien Secured Obligations or under which
rights or remedies with respect to any such Lien are
governed.
“First Priority Liens” means all
Liens on the First Lien Collateral securing the First Lien Secured
Obligations or the Super Senior Loan
Document Obligations, respectively, whether created under
the First Lien Security Documents or
the Super Senior Security Documents or acquired by
possession, statute (including any judgment lien), operation of
law, subrogation or otherwise.
“Governmental Authority” means any
federal, state, municipal, national, supranational or other
government, governmental department, commission, board, bureau,
court, agency or instrumentality or political subdivision thereof
or any entity, officer or examiner exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to anygovernment or any court, in each case whether
associated with the United States of America, any State thereof or
the District of Columbia or a foreign entity or government
(including any supra-national body exercising such powers or
functions, such as the European Union or the European Central
Bank).
9
“Grantors” means the Borrower, each
other Guarantor and each other Person that shall have created or
purported to create any First Priority Lien or any Second Priority
Lien on all or any part of its assets to secure any First Lien
Secured Obligations, Super Senior
Secured Obligations or any Second Lien Secured
Obligations.
“Guarantors” means the Borrower and
each Subsidiary that has guaranteed, or that may from time to time
hereafter guarantee, the First Lien Secured Obligations, the Super Senior Secured Obligations or
the Second Lien Secured Obligations, whether by executing and
delivering the First Lien Credit
Agreement, the Super Senior Credit Agreement or the Second
Lien Credit Agreement, as applicable, a counterpart agreement
thereto or otherwise.
“Indebtedness” means and includes
all obligations that constitute “Indebtedness”, as
defined in the First Lien Credit Agreement, the Super Senior Credit Agreement or the
Second Lien Credit Agreement, as applicable.
“Insolvency or Liquidation
Proceeding” means (a) any voluntary or
involuntary proceeding under the Bankruptcy Code or any other
Bankruptcy Law with respect to any Grantor, (b) any voluntary
or involuntary appointment of a trustee, examiner, custodian,
receiver, liquidator or similar official for any Grantor or for all
or a substantial part of the property or assets of any Grantor,
(c) any voluntary or involuntary winding-up or liquidation of
any Grantor, or (d) a general assignment for the benefit of
creditors by any Grantor.
“Lien” means any lien, mortgage,
pledge, assignment, security interest, hypothecation, charge or
encumbrance of any kind (including any conditional sale or other
title retention agreement, and any lease or license in the nature
thereof) and any option, trust or other preferential arrangement
having the practical effect of any of the foregoing.
“Loan Documents” means the First
Lien Loan Documents, the Super Senior
Loan Documents and the Second Lien Loan
Documents.
10
“Maximum First Lien Principal
Amount” means the sum of (a) the excess of (i) 110% of
the amount equal to the sum of (A) $595,000,000 plus (B) the
aggregate amount of “Incremental Commitments” (as
defined in the First Lien Credit Agreement) (or any comparable
successor term) established from time to time under Section 2.23 of
the First Lien Credit Agreement (or any comparable successor
provision) or pursuant to any comparable successor provisions in
any Refinancing thereof, in each case, to the extent (1) if the
establishment of such Incremental Commitments (or any comparable
successor term) is conditioned upon the absence of any event of
default under the First Lien Credit Agreement (or any event of
default under any Refinancing thereof), no such event of default
(or event of default under any such Refinancing) shall have
occurred and be continuing at the time of establishment of such
Incremental Commitments (or any comparable successor term) (it
being understood and agreed that any such event of default (or
event of default under any such Refinancing) may be waived prior to
the establishment of such Incremental Commitments (or any
comparable successor term)) and (2) such First Lien Credit
Agreement provisions and such comparable successor provisions,
taken as a whole, do not permitan aggregate amount of such
Incremental Commitments (or any such comparable successor term) in
excess of the amount that would have been permitted to be
established as Incremental Commitments under such First Lien Credit
Agreement provisions as in effect on the date hereof, it being
understood that any such Incremental Commitments (or any such
comparable successor term) established as permitted under such
First Lien Credit Agreement provisions as in effect on the date
hereof (or as permitted pursuant to such comparable successor
provisions, subject to the foregoing limitations in this definition
on the amount thereof) shall be included in the Maximum First Lien
Principal Amount under this clause (B) whether or not such
Incremental Commitments shall have subsequently terminated or been
Refinanced and whether or not any financial ratio tests the
satisfaction of which were a condition to such establishment
continue to be satisfied on the date of determination of
“Maximum First Lien Principal Amount” so long as such
financial ratio tests were satisfied as of the time set forth in
such condition, over (ii) the sum of (A) the aggregate principal
amount of all repayments and prepayments of term loans outstanding
under the Super Senior Credit
Agreement or the First Lien Credit Agreement or under any
Refinancing thereof that are First Lien Loan Document Obligations or Super Senior
Loan Document Obligations actually made from and after the date
hereof, (B) permanent reductions of commitments under the
revolving credit facility provided for in the First Lien Credit
Agreement or in any Refinancing thereof actually made from and
after the date hereof (excluding any permanent reductions of such
commitments resulting from the commencement of any Insolvency or
Liquidation Proceeding or resulting from the exercise by any or all
of the First Lien Secured Parties of their right to reduce or
terminate such commitments following the occurrence and during the
continuance of any event of default under the First Lien Credit
Agreement (or any event of default under any Refinancing thereof),
but only if the principal amount of revolving credit loans shall
have been prepaid and any “Letter of Credit Usage” (as
defined in the First Lien Credit Agreement) (or any comparable
successor term) shall have been reduced (and all accrued and unpaid
interest and fees in respect thereof have been paid in full), in
each case, to the extent required in order for the sum thereof not
to exceed the revolving credit commitments as so reduced and
(C) permanent reductions of unfunded commitments under any
incremental term loan facility provided for in the First Lien
Credit Agreement or in any Refinancing thereof actually made from
and after the date hereof, and excluding, in the case of each of
clauses (A), (B) and (C) above, repayments, prepayments and
reductions in connection with a Refinancing thereof or a
“roll-up” of such First Lien Loan Document Obligations
(or such Refinancing thereof) or such revolving credit commitments
in connection with a DIP Financing, plus (b) the sum, without
duplication, of (i) the aggregate amount of all interest, fees and
premiums, in each case, accrued in respect of or attributable to
any First Lien Loan Document Obligations that has been paid in-kind
or capitalized and (ii) the aggregate amount of all interest, fees
and premium (if any) in respect of or attributable to any First
Lien Loan Document Obligations that are included in the principal
amount of any Refinancing thereof, any original issue discount
applicable to any such Refinancing and any fees (including upfront
fees), costs and expenses relating to such Refinancing. It is
understood and agreed that any Incremental Commitments (or any such
comparable successor term) that are established by the First Lien
Lenders in goodfaith in reliance on any written determination or
certification by or on behalf of the Borrower or the other Grantors
that any financial ratio test or other condition (including as to
the absence of any event of default) to the establishment thereof
has been satisfied shall be included under clause (a)(i)(B) above
even if subsequently to the establishment thereof it shall be
determined that such written determination or certification was
inaccurate and such financial ratio test or other condition was not
in fact satisfied.
11
“Maximum Second Lien Principal
Amount” means the sum of (a) the excess of (i) 110% of
the amount equal to the sum of (A) $85,000,000 plus (B) the
aggregate amount of “Incremental Commitments” (as
defined in the Second Lien Credit Agreement) (or any comparable
successor term) established from time to time under Section 2.23 of
the Second Lien Credit Agreement (or any comparable successor
provision) or pursuant to any comparable successor provisions in
any Refinancing thereof, in each case, to the extent (1) if the
establishment of such Incremental Commitments (or any comparable
successor term) is conditioned upon the absence of any event of
default under the Second Lien Credit Agreement (or any event of
default under any Refinancing thereof), no such event of default
(or event of default under any such Refinancing) shall have
occurred and be continuing at the time of establishment of such
Incremental Commitments (or any comparable successor term) (it
being understood and agreed that any such event of default (or
event of default under any such Refinancing) may be waived prior to
the establishment of such Incremental Commitments (or any
comparable successor term)) and (2) such Second Lien Credit
Agreement provisions and such comparable successor provisions,
taken as a whole, do not permit an aggregate amount of such
Incremental Commitments (or any such comparable successor term) in
excess of the amount that would have been permitted to be
established as Incremental Commitments under such Second Lien
Credit Agreement provisions as in effect on the date hereof, it
being understood that any such Incremental Commitments (or any such
comparable successor term)established as permitted under such
Second Lien Credit Agreement provisions as in effect on the date
hereof (or as permitted pursuant to such comparable successor
provisions, subject to the foregoing limitations in this definition
on the amount thereof) shall be included in the Maximum Second Lien
Principal Amount under this clause (B) whether or not such
Incremental Commitments shall have subsequently terminated or been
Refinanced and whether or not any financial ratio tests the
satisfaction of which were a condition to such establishment
continue to be satisfied on the date of determination of
“Maximum Second Lien Principal Amount” so long as such
financial ratio tests were satisfied as of the time set forth in
such condition, over (ii) the sum of (A) the aggregate
principal amount of all repayments and prepayments of term loans
outstanding under the Second Lien Credit Agreement or under any
Refinancing thereof that are Second Lien Secured Obligations
actually made from and after the date hereof and (B) permanent
reductions of unfunded commitments under any incremental term loan
facility provided for in the Second Lien Credit Agreement or in any
Refinancing thereof actually made from and after the date hereof,
and excluding, in the case of each of clauses (A) and (B) above,
repayments, prepayments and reductions in connection with a
Refinancing thereof or a “roll-up” of such Second Lien
Secured Obligations (or such Refinancing thereof) in connection
with a DIP Financing, plus (b) the sum, without duplication,
of (i) the aggregate amount of all interest, fees and premiums, in
each case, accrued in respect of or attributable to any Second Lien
Secured Obligations that has been paid in-kind or capitalized and
(ii) the aggregate amount of all interest, fees and premium (if
any) in respect of or attributable to any Second Lien Secured
Obligations that are included in the principal amount of any
Refinancing thereof, any original issue discount applicable to any
such Refinancing and any fees (including upfront fees),costs and
expenses relating to such Refinancing. It is understood and agreed
that any Incremental Commitments (or any such comparable successor
term) that are established by the Second Lien Lenders in good faith
in reliance on any written determination or certification by or on
behalf of the Borrower or the other Grantors that any financial
ratio test or other condition (including as to the absence of any
event of default) to the establishment thereof has been satisfied
shall be included under clause (a)(i)(B) above even if
subsequently to the establishment thereof it shall be determined
that such written determination or certification was inaccurate and
such financial ratio test or other condition was not in fact
satisfied.
12
“New First Lien Loan Documents” has
the meaning assigned to such term in
Section 7.02(a).
“New First Lien Obligations” has
the meaning assigned to such term in
Section 7.02(a).
“New First Lien Representative” has
the meaning assigned to such term in
Section 7.02(a).
“New Second Lien Loan Documents”
has the meaning assigned to such term in Section
7.02(b).
“New Second Lien Obligations” has
the meaning assigned to such term in Section 7.02(b).
“New Second Lien Representative”
has the meaning assigned to such term in Section
7.02(b).
“Officer’s Certificate” has
the meaning assigned to such term in
Section 10.15.
“Person” means any natural person,
corporation, limited partnership, general partnership, limited
liability company, limited liability partnership, joint stock
company, joint venture, association, company, trust, bank, trust
company, land trust, business trust or other organization, whether
or not a legal entity, and any Governmental Authority.
“Pledged or Controlled Collateral”
means Collateral as to which perfection can be accomplished by the
possession or control (as such term is defined in the Uniform
Commercial Code) of such Collateral or of any account in which such
Collateral is held.
“Proceeds” means (a) all
“proceeds” as defined in Article 9 of the Uniform
Commercial Code and (b) whatever is recovered when Collateral is
sold, exchanged, collected, or Disposed of, whether voluntarily or
involuntarily, including any additional or replacement collateral
provided during any Insolvency or Liquidation Proceeding and any
payment or property received in any Insolvency or Liquidation
Proceeding under Section 1129 of the Bankruptcy Code on
account of any “secured claim” (within the meaning of
Section 506(b) of the Bankruptcy Code or similar Bankruptcy
Law).
“Purchase” has the meaning assigned
to such term in Section 3.01(d).
13
“Purchase Event” means the
occurrence of any of the following: (a) receipt by the Second
Lien Representative (i) of
written notice from the First Lien Representative that the
Indebtedness then outstanding under the First Lien Credit Agreement has been accelerated and (ii) of
written notice from the Super Senior Representative that the
Indebtedness then outstanding under the Super Senior Credit
Agreement has been accelerated, (b) the commencement of an
Insolvency or Liquidation Proceeding with respect to any Grantor,
(c) the exercise of remedies following an event of default under
the applicable First Lien Loan Documents undertaken by any First
Lien Representative or any First Lien Secured Party and the Super Senior Representative or any Super
Senior Secured Party, against any material portion of the
Collateral under the First Lien Loan Documents and the Super Senior Loan Documents, or (d)
an event of default under any First Lien Loan Document and any Super Senior Loan
Document as a result of any Grantor’s failure to pay any
principal or interest in respect of First Lien Secured Obligations and the Super Senior
Secured Obligations when due and such failure to pay remains
unremedied and event of default remains unwaived for a period of 30
days.
“Purchase Notice” means an
irrevocable notice delivered by the Second Lien Representative
indicating the intention of the applicable Second Lien Secured
Parties to exercise the purchase option under Section 3.01(d) and
setting forth the date of the intended purchase, which shall be (a)
not fewer than five days, nor more than 10 days, after the delivery
of such notice to the First Lien Representative and the Super Senior Representative and (b) not
more than 30 days after (i) the Second Lien Representative
received written notice from the First Lien Representative
or the Super Senior
Representative of any Purchase Event set forth in clause
(a), (c) or (d) of the definition thereof or (ii) the occurrence of
any Purchase Event set forth in clause (b) of the definition
thereof.
“Recovery” has the meaning assigned
to such term in Section 7.04.
“Refinance” means, in respect of
any Indebtedness or commitment, to refinance, extend, renew,
restructure or replace or to issue other Indebtedness or commitment
in exchange or replacement for, such Indebtedness or commitment, in
whole or in part. “Refinanced” and
“Refinancing”
have correlative meanings.
“Release” has the meaning assigned
to such term in Section 3.04.
“Reorganization Securities” has the
meaning assigned to such term in Section 6.03.
“Representatives” means the
Super Senior Representative,
the First Lien Representative and the Second Lien
Representative.
“Second Lien Collateral” means all
“Collateral”, as defined in the Second Lien Credit
Agreement, and any other assets of any Grantor now or at any time
hereafter subject, or purported under the terms of any Second Lien
Security Document to be made subject, to any Lien securing any
Second Lien Secured Obligations.
14
“Second Lien Credit Agreement” has
the meaning assigned to such term in the preliminary statement of
this Agreement.
“Second Lien Lenders” has the
meaning assigned to such term in the preliminary statement of this
Agreement.
“Second Lien Loan Documents” means
the “Credit Documents”, as defined in the Second Lien
Credit Agreement.
“Second Lien Mortgages” means,
collectively, each mortgage, deed of trust, leasehold mortgage,
assignment of leases and rents, modifications and any other
agreement, document or instrument pursuant to which any Lien on
real property is granted to secure any Second Lien Secured
Obligations or under which rights or remedies with respect to any
such Lien are governed.
“Second Lien Permitted Actions” has
the meaning assigned to such term in
Section 3.01(a).
“Second Lien Pledge and Security
Agreement” has the meaning assigned to such term in
the preliminary statement of this Agreement.
“Second Lien Refinancing Notice”
has the meaning assigned to such term in Section
7.02(b).
“Second Lien Representative” has
the meaning assigned to such term in the preamble to this
Agreement.
“Second Lien Required Lenders”
means the “Requisite Lenders”, as defined in the Second
Lien Credit Agreement.
“Second Lien Secured Obligations”
means the “Secured Obligations”, as defined in the
Second Lien Pledge and Security Agreement (including any such
“Secured Obligations” arising or accruing under
Section 2.1, 2.23, 2.24 or 2.25 of the Second Lien Credit
Agreement or during the pendency of any Insolvency or Liquidation
Proceeding) (or any Refinancing thereof constituting New Second
Lien Obligations in accordance with the provisions of Section
7.02(b)) notwithstanding that any such “Secured
Obligations” or claims therefor shall be disallowed, voided
or subordinated in any Insolvency or Liquidation Proceeding or
under any Bankruptcy Law or other applicable law.
“Second Lien Secured Parties” means
the “Secured Parties”, as defined in the Second Lien
Pledge and Security Agreement.
“Second Lien Security Documents”
means the “Collateral Documents”, as defined in the
Second Lien Credit Agreement, and any other agreement, document or
instrument pursuant to which a Lien is granted or purported to be
granted to secure any Second Lien Secured Obligations or under
which rights or remedies with respect to any such Lien are
governed.
15
“Second Priority Liens” means all
Liens on the Second Lien Collateral securing the Second Lien
Secured Obligations, whether created under the Second Lien Security
Documents or acquired by possession, statute (including any
judgment lien), operation of law, subrogation or
otherwise.
“Secured Parties” means the
Super Senior Secured Parties,
the First Lien Secured Parties and the Second Lien Secured
Parties, or any one of them.
“Security Documents” means the
Super Senior Security Documents,
the First Lien Security Documents and the Second Lien
Security Documents.
“Standstill Period” has the meaning
assigned to such term in Section 3.02(a).
“Subsidiary” means, with respect to
any Person (the “parent”) at any date, (a) any
Person the accounts of which would be consolidated with those of
the parent in the parent’s consolidated financial statements
if such financial statements were prepared in conformity with
United States generally accepted accounting principles as of such
date and (b) any other Person of which Equity Interests
representing more than 50% of the equity value or more than 50% of
the ordinary voting power or, in the case of a partnership, more
than 50% of the general partnership interests are, as of such date,
owned, controlled or held, by the parent or one or more
Subsidiaries of the parent or by the parent and one or more
Subsidiaries of the parent. Unless otherwise specified, all
references herein to Subsidiaries shall be deemed to refer to
Subsidiaries of the Borrower.
“Super Senior Credit
Agreement” means the
Super Senior Secured Credit Agreement dated as of May 9, 2019,
among the Borrower, certain Subsidiaries of the Borrower from time
to time party thereto, the lenders from time to time party thereto
(the “Super Senior
Lenders”) and Wilmington
Trust, as administrative agent and collateral
agent.
“Super Senior Intercreditor
Agreement” means the
Super Senior Intercreditor Agreement, dated as of May 9, 2019,
between the Super Senior Representative and the First Lien
Representative and acknowledged by the Borrower and each other
Grantor.
“Super Senior
Lenders” has the meaning
assigned to such term in the definition of “Super Senior
Credit Agreement”.
“Super Senoir Loan
Documents” means the
“Credit Documents” under the Super Senior Credit
Agreement.
“Super Senior Loan Document
Obligations” means the
“Obligations”, as defined in the Super Senior Credit
Agreement, notwithstanding that any such “Obligations”
or claims therefor shall be disallowed, voided or subordinated in
any Insolvency or Liquidation Proceeding or under any Bankruptcy
Law or other applicable law. Notwithstanding the foregoing, for all
purposes under this Agreement (other than the definition of
“Capped First Lien Loan Document Obligations”), Excess
First Lien Obligations shall not be included in the Super Senior
Loan Document Obligations.
16
“Super Senior Pledge and
Security Agreement” means
the “Pledge and Security Agreement”, as defined in the
Super Senior Credit Agreement.
“Super Senior
Representative” means
Wilmington Trust, in its capacity as collateral agent under the
Super Senior Loan Documents, together with its successors in such
capacity, as an Additional First Lien Obligations
Representative.
“Super Senior Required
Lenders” means the
“Requisite Lenders”, as defined in the Super Senior
Credit Agreement.
“Super
Senior Secured Obligations” means the
“Secured Obligations”, as defined in the Super Senior
Pledge and Security Agreement (including any such “Secured
Obligations” arising or accruing under Section 2.1 of the
Super Senior Credit Agreement or during the pendency of any
Insolvency or Liquidation Proceeding), notwithstanding that any
such “Secured Obligations” or claims therefor shall be
disallowed, voided or subordinated in any Insolvency or Liquidation
Proceeding or under any Bankruptcy Law or other applicable law.
Notwithstanding the foregoing, for all purposes under this
Agreement (other than the definition of “First Priority
Liens” and Sections 3.02(a)(vii), 6.03, 9.01 and 10.13),
Excess First Lien Obligations shall not be included in the Super
Senior Secured Obligations.
“Super Senior Secured
Parties” means the
“Secured Parties”, as defined in the Super Senior
Pledge and Security Agreement.
“Super Senior Security
Documents” means the
“Collateral Documents”, as defined in the Super Senior
Credit Agreement, and any other agreement, document or instrument
pursuant to which a Lien is granted or purported to be granted to
secure any Super Senior Secured Obligations or under which rights
or remedies with respect to any such Lien are
governed.
“Uniform Commercial Code” or
“UCC” means the
Uniform Commercial Code (or any similar or equivalent legislation)
as in effect from time to time in any applicable
jurisdiction.
“Wilmington Trust” has the meaning
assigned to such term in the preamble to this
Agreement.
SECTION
1.02. Terms Generally. The definitions of
terms herein shall apply equally to the singular and plural forms
of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter
forms. The words “include”, “includes” and
“including” shall be deemed to be followed by the
phrase “without limitation”. The word
“will” shall be construed to have the same meaning and
effect as the word “shall”. The words
“asset” and “property” shall be construed
to have the same meaning and effect and to refer to any and all
real and personal, tangible and intangible assets and properties,
including cash, securities, accounts and contract rights. The word
“law” shall be construed as referring to all statutes,
rules, regulations, codes and other laws (including official
rulings and interpretations thereunder having the force of law or
with which affected Persons customarily comply), and all judgments,
orders, writs and decrees, of all Governmental Authorities. Unless
the context requires otherwise, (a) any definition of or reference
to any agreement, instrument or other document (including this
Agreement and the Loan Documents) shall be construed as referring
to such agreement, instrument or other document as from time to
time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set
forth herein), (b) any definition of or reference to any
statute, rule or regulation shall be construed as referring thereto
as from time to time amended, supplemented or otherwise modified
(including by succession of comparable successor laws), (c) any
reference herein to (i) any Person shall be construed to
include such Person’s successors and assigns (subject to any
restrictions on assignment set forth herein), (ii) the Borrower or
any other Grantor shall be construed to include the Borrower or
such Grantor as debtor and debtor-in-possession and any receiver or
trustee for the Borrower or any other Grantor, as the case may be,
in any Insolvency or Liquidation Proceeding, and (iii) in the case
of any Governmental Authority, any other Governmental Authority
that shall have succeeded to any or all functions thereof, (d) 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 and (e) all references herein to
Articles or Sections shall be construed to refer to Articles or
Sections of this Agreement.
17
ARTICLEII.
LIEN PRIORITIES
SECTION
2.01. Relative Priorities. Notwithstanding the
date, manner or order of grant, attachment or perfection of any
Second Priority Lien or any First Priority Lien, and
notwithstanding any provision of the UCC or any other applicable
law or the provisions of any Security Document or any other Loan
Document or any other circumstance whatsoever, the Second Lien
Representative, for itself and on behalf of the other Second Lien
Secured Parties, and the
First Lien Representative, for itself and on behalf of the other
First Lien Secured Parties, and the
Super Senior Representative, for itself and on behalf of the other
Super Senior Secured Parties, hereby agrees that so long as
the Discharge of First Lien Secured Obligations has not occurred,
(a) any First Priority Lien now or hereafter held by or for
the benefit of any First Lien Secured
Party or any Super Senior Secured Party shall be senior in
right, priority, operation, effect and all other respects to any
and all Second Priority Liens, and the First Priority Liens shall
be and remain senior in right, priority, operation, effect and all
other respects to any Second Priority Liens for all purposes,
whether or not any First Priority Liens are subordinated in any
respect to any other Lien securing any other obligation of the
Borrower, any other Grantor or any other Person and (b) any
Second Priority Lien now or hereafter held by or for the benefit of
any Second Lien Secured Party shall be junior and subordinate in
right, priority, operation, effect and all other respects to any
and all First Priority Liens;provided that, so long as the
Discharge of Second Lien Secured Obligations (other than Excess
Second Lien Obligations) has not occurred, any Lien on the
Collateral securing any Excess First Lien Obligations now or
hereafter held by or on behalf of any First Lien Secured Party
or Super Senior Secured Party
shall be junior and subordinate in right, priority, operation,
effect and all other respects to any and all Liens on the
Collateral securing any of the Second Lien Secured Obligations
(other than any Excess Second Lien Obligations);provided further that, so long as the
Discharge of Excess First Lien Obligations has not occurred, any
Lien on the Collateral securing any Excess Second Lien Obligations
now or hereafter held by or on behalf of any Second Lien Secured
Party shall be junior and subordinate in right, priority,
operation, effect and all other respects to any and all Liens on
the Collateral securing any of the Excess First Lien
Obligations.
SECTION
2.02. Prohibition on Contesting Liens. Each of
the First Lien Representative, for itself and on behalf of the
other First Lien Secured Parties, the
Super Senior Representative, for itself and on behalf of the other
Super Senior Secured Parties, and the Second Lien
Representative, for itself and on behalf of the other Second Lien
Secured Parties, agrees that it will not, and hereby waives any
right to, contest or join or otherwise support any other Person in
contesting, in any proceeding (including any Insolvency or
Liquidation Proceeding), the existence, validity, enforceability,
perfection or priority of any Second Priority Lien or any First
Priority Lien, as the case may be;provided that (a) nothing
in this Agreement shall be construed to prevent or impair the
rights of the First Lien Representative or any other First Lien
Secured Party or the Super Senior
Representative or any other Super Senior Secured Party to
enforce this Agreement, including the priority of the Liens
securing the First Lien Secured
Obligations or the Super Senior Secured Obligations or the
provisions for exercise of remedies, and (b) nothing in this
Agreement shall be construed to prevent or impair the rights of the
Second Lien Representative or any other Second Lien Secured Party
to enforce this Agreement.
18
SECTION
2.03. Similar Liens and Agreements. The
parties hereto acknowledge and agree that it is their intention
that the First Lien Collateral and the Second Lien Collateral be
identical. In furtherance of the foregoing, the parties hereto
agree:
(a) to cooperate in
good faith in order to determine, upon any reasonable request in
writing by the First Lien Representative, the Super Senior Representative or the
Second Lien Representative, the specific assets included in the
First Lien Collateral and the Second Lien Collateral, the steps
taken to perfect the First Priority Liens and the Second Priority
Liens thereon and the identity of the respective parties obligated
under the First Lien Loan Documents,
the Super Senior Loan Documents and the Second Lien Loan
Documents; and
(b) that the documents,
agreements and instruments creating or evidencing the Second Lien
Collateral and the Second Priority Liens shall be in all material
respects in the same form as the documents, agreements and
instruments creating or evidencing the First Lien Collateral and
the First Priority Liens, other than with respect to the first
priority and second priority nature of the Liens created or
evidenced thereunder, the identity of the Secured Parties that are
parties thereto or secured thereby and other matters contemplated
by this Agreement.
SECTION
2.04. No Separate Liens. The parties hereto
agree that, so long as the Discharge of First Lien Secured
Obligations has not occurred, (a) neither the Second Lien
Representative nor any other Second Lien Secured Party shall
acquire or hold, or accept from any Grantor or any of its
Subsidiaries, any Lien on any asset or property of any Grantor or
any of its Subsidiaries (and none of the Grantors shall, or shall
permit any of its Subsidiaries to, grant any such Lien) securing
any Second Lien Secured Obligations unless such asset or property
is also subject to a Lien securing the First Lien Secured
Obligations and a Lien securing the
Super Senior Secured Obligations, (b) neither the First
Lien Representative nor any other First Lien Secured
Party, shall acquire or hold,
or accept from any Grantor or any of its Subsidiaries, any Lien on
any asset or property of any Grantor or any of its Subsidiaries
(and none of the Grantors shall, or shall permit any of its
Subsidiaries to, grant any such Lien) securing any First Lien
Secured Obligations unless such asset or property is also subject
to a Lien securing the Second Lien Secured Obligations (including
on account of the agreements of the First Lien Representative
pursuant to Article V hereof), and (c)
neither the Super Senior Representative nor any other Super Senior
Secured Party, shall acquire or hold, or accept from any Grantor or
any of its Subsidiaries, any Lien on any asset or property of any
Grantor or any of its Subsidiaries (and none of the Grantors shall,
or shall permit any of its Subsidiaries to, grant any such Lien)
securing any Super Senior Secured Obligations unless such asset or
property is also subject to a Lien securing the Second Lien Secured
Obligations (including on account of the agreements of the First
Lien Representative pursuant to Article V hereof), in each
case with each such Lien to be subject to the provisions of
this Agreement. To the extent that the provisions of the
immediately preceding sentence are not complied with for any
reason, without limiting any other right or remedy available to any
Secured Party hereunder, the Second Lien Representative agrees, for
itself and on behalf of the other Second Lien Secured Parties, that
any amounts received by or distributed to any Second Lien Secured
Party pursuant to or as a result of any Lien acquired, held,
accepted or granted in contravention of this Section 2.04
shall be subject to Section 4.02.
19
SECTION
2.05. Perfection of Liens. Except for the
agreements of the First Lien Representative, the Super Senior Representative and the
Second Lien Representative pursuant to Article V hereof, (a) none
of the First Lien Representative and the other First Lien
Secured Parties or the Super Senior
Representative and the other Super Senior Secured Parties
shall be responsible for perfecting and maintaining the perfection
of Liens with respect to the Collateral for the benefit of the
Second Lien Representative or the other Second Lien Secured Parties
and (b) none of the Second Lien Representative and the other Second
Lien Secured Parties shall be responsible for perfecting and
maintaining the perfection of Liens with respect to the Collateral
for the benefit of the First Lien Representative or the other First
Lien Secured Parties or the Super
Senior Representative and the other Super Senior Secured
Parties. The provisions of this Agreement are intended
solely to govern the respective Lien priorities as among the First
Lien Secured Parties and the Super
Senior Secured Parties, on the one hand, and the Second Lien
Secured Parties, on the other
hand, and shall not impose on either Representative or the
other Secured Parties represented by such Representative any
obligations in respect of the disposition of Proceeds of any
Collateral which would conflict with any prior perfected claims in
such Proceeds in favor of any other Person or any order or decree
of any court or governmental authority or any applicable
law.
SECTION
2.06. Certain Cash Collateral. Notwithstanding
anything in this Agreement or any other First Lien Loan Document, Super Senior Loan Document
or Second Lien Loan Document to the contrary, collateral consisting
of cash and cash equivalents pledged to secure First Lien Loan
Document Obligations under any First Lien Loan Document consisting
of reimbursement obligations in respect of letters of credit issued
thereunder shall be applied as specified in the relevant First Lien
Loan Document and will not constitute Collateral (or First Lien
Collateral or Second Lien Collateral) hereunder.
20
ARTICLEIII.
ENFORCEMENT OF RIGHTS; MATTERS RELATING TO COLLATERAL
SECTION
3.01. Exercise of Rights and Remedies. (a) So
long as the Discharge of First Lien Secured Obligations has not
occurred, whether or not any Insolvency or Liquidation Proceeding
has been commenced, the First Lien Representative and the other
First Lien Secured Parties and the
Super Senior Representative and the other Super Senior
Secured Parties shall have the exclusive right to enforce rights
and exercise remedies (including any right of setoff) with respect
to the Collateral (including making determinations regarding the
release, Disposition or restrictions with respect to the
Collateral), or to commence or seek to commence and maintain or
seek to maintain any Enforcement Action, in each case, without any
consultation with or the consent of the Second Lien Representative
or any other Second Lien Secured Party;provided that, notwithstanding
the foregoing, (i) in any Insolvency or Liquidation
Proceeding, any Second Lien Secured Party may file a proof of claim
or statement of interest with respect to the Second Lien Secured
Obligations and vote on a plan of reorganization (including a vote
to accept or reject a plan of partial or complete liquidation,
reorganization, arrangement, composition or extension), in each
case, to the extent not in contravention of the terms of this
Agreement;provided
that no Second Lien Secured Party shall be a petitioning creditor
or otherwise make any filing or take any action (or join any other
Person in making any filing or taking any action) to commence any
Insolvency or Liquidation Proceeding; (ii) the Second Lien
Representative may take any action to preserve or protect the
validity, enforceability and perfection of the Second Priority
Liens (but not to enforce such Liens), provided that no such action
is, or could reasonably be expected to be, (A) adverse to the
First Priority Liens or the rights of the First Lien Representative
or any other First Lien Secured Party or the Super Senior Representative or any other
Super Senior Secured Parties to exercise remedies in respect
thereof or (B) otherwise in contravention of the terms of this
Agreement, including the automatic release of the Second Priority
Liens provided in Section 3.04; (iii) the Second Lien
Secured Parties may file any 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, subordination or recharacterization of the claims of
any of the Second Lien Secured Parties, including any claims
secured by the Collateral, or the avoidance or subordination of any
Second Priority Lien (other than pursuant to the terms of this
Agreement) or otherwise make any agreements or file any motions
pertaining to the Second Lien Secured Obligations or the Second
Priority Liens, in each case, to the extent not in contravention of
the terms of this Agreement; (iv) the Second Lien Secured
Parties may exercise rights and remedies available to unsecured
creditors to the extent (and only to the extent) provided in
Section 3.03; (v) the Second Lien Secured Parties may
join (but not exercise any control over) a judicial foreclosure or
Lien enforcement proceeding with respect to the Collateral
initiated by the First Lien Representative or the Super Senior Representative, to the
extent that such action does not, and could not reasonably be
expected to, materially interfere with any Enforcement Action by
the First Lien Secured Parties or the
Super Senior Secured Parties and otherwise is not in
contravention of the terms of this Agreement, it being further
agreed that no Second Lien Secured Party may receive any Proceeds
thereof unless expressly permitted herein; (vi) the Second Lien
Secured Parties may bid for or purchase any Collateral at any
public, private or judicial foreclosure upon such Collateral
initiated by the First Lien Representative or the Super Senior Representative, or any
sale of any Collateral during an Insolvency or Liquidation
Proceeding;provided
that such bid may not include a “credit bid” in respect
of any Second Lien Secured Obligations unless the proceeds of such
bid are otherwise sufficient to cause the Discharge of First Lien
Secured Obligations; (vii) subject to Section 3.02(a),
the Second Lien Representative and the other Second Lien Secured
Parties may commence or seek to commence, and maintain or seek to
maintain, any Enforcement Action after the termination of the
Standstill Period; (viii) the Second Lien Representative may
inspect or appraise the Collateral so long as such actions do not
interfere with, hinder or delay, in any manner, any enforcement or
exercise of any rights or remedies of the First Lien Secured
Parties under the First Lien Loan Documents or this Agreement
or of the Super Senior Secured Parties
under the Super Senior Loan Documents or this Agreement and
otherwise are not in contravention of the terms of this
Agreement;(ix) the Second Lien Secured Parties may seek or
commence an action to obtain specific performance or injunctive
relief to compel a Grantor to comply with the delivery of financial
information, the further assurances regarding perfection of Liens
and the maintenance of insurance covenants under the Second Lien
Loan Documents, to the extent such action is not an Enforcement
Action, does not seek to enjoin a Disposition of Collateral
consented to or approved by the First Lien Representative and
the Super Senior Representative
and otherwise is not in contravention of the terms of this
Agreement; (x) the Second Lien Secured Parties may accelerate the
Indebtedness under the Second Lien Loan Documents in accordance
with the terms thereof; and (xi) the Second Lien Secured
Parties may take any action or exercise any right to the extent
(and only to the extent) provided in Article VI (the permitted
actions described in clauses (i) through (xi) are collectively
referred to herein as the “Second Lien Permitted Actions”).
Except for the Second Lien Permitted Actions, unless and until the
Discharge of First Lien Secured Obligations has occurred, the sole
right of the Second Lien Representative and the other Second Lien
Secured Parties with respect to the Collateral shall be to receive
the Proceeds of the Collateral, if any, remaining after the
Discharge of First Lien Secured Obligations has occurred and in
accordance with the Second Lien Loan Documents and applicable
law.
21
(a) In exercising
rights and remedies with respect to the Collateral, the First Lien
Representative and the other First Lien Secured Parties may enforce
the provisions of the First Lien Loan Documents, and the Super Senior Representative and the other
Super Senior Secured Parties may enforce the provisions of the
Super Senior Loan Documents, exercise remedies thereunder
and under applicable law and take other Enforcement Actions,
in each case all in such order
and in such manner as they may determine in their sole discretion.
Such exercise and enforcement shall include the rights of an agent
appointed by them to Dispose of Collateral upon foreclosure, to
incur expenses in connection with any such Disposition and to
exercise all the rights and remedies of a secured creditor under
the Uniform Commercial Code, the Bankruptcy Code or any other
Bankruptcy Law or any other applicable law.
(b) The Second Lien
Representative, for itself and on behalf of the other Second Lien
Secured Parties, hereby acknowledges and agrees that no covenant,
agreement or restriction contained in any Second Lien Security
Document or any other Second Lien Loan Document shall be deemed to
restrict in any way the rights and remedies of the First Lien
Representative or the other First Lien Secured Parties with respect
to the Collateral as set forth in this Agreement and the other
First Lien Loan Documents or the
rights and remedies of the Super Senior Representative or the other
Super Senior Secured Parties with respect to the Collateral as set
forth in this Agreement and the other Super Senior Loan
Documents.
(c) Notwithstanding
anything in this Agreement to the contrary, within 30 days
following the occurrence of a Purchase Event, the Second Lien
Representative or another representative acting on behalf of the
Second Lien Secured Parties may, at the sole expense and effort of
the Second Lien Secured Parties, upon delivery of a Purchase Notice
to the Borrower and the First Lien Representative and the Super Senior Representative,
require the First Lien Secured Parties
and the Super Senior Secured Parties to transfer and assign
to the Second Lien Secured Parties on the date specified in such
Purchase Notice in accordance with the definition thereof, without
warranty or representation or recourse, all (but not less than all)
of the First Lien Secured Obligations and all (but not less than all) Super Senior
Secured Obligations (such transfer and assignment
of (but not less than all) of the
First Lien Secured Obligations and all (but not less than all)
Super Senior Secured Obligations, the “Purchase”);provided that (i) such
assignment shall not conflict with any law, rule or regulation or
order of any court or other Governmental Authority having
jurisdiction and shall be effected pursuant to an
assignment agreements in form
reasonably satisfactory to the First Lien Representative
and the Super Senior
Representative, (ii) the Second Lien Secured Parties shall
have paid to the First Lien Representative, for the account of the
First Lien Secured Parties, in cash or immediately available funds,
an amount equal to 100% of the principal of such Indebtedness
(including any unreimbursed drawings under letters of credit but
excluding any undrawn letters of credit) plus all accrued and
unpaid interest thereon plus all accrued and unpaid fees plus all
the other First Lien Secured Obligations then outstanding (other
than any acceleration prepayment penalties or premiums) (which
shall include (A) with respect to any letters of credit outstanding
under the First Lien Credit Agreement, an amount in cash or
immediately available funds equal to 103% of the aggregate face
amount thereof (other than any portion of such amount that
represents unreimbursed drawings thereunder), (B) with respect
to Hedge Agreements (as defined in the First Lien Credit Agreement)
that constitute First Lien Secured Obligations, 100% of the
aggregate amount of such First Lien Secured Obligations (giving
effect to any netting arrangements) that the applicable Grantor
would be required to pay if such Hedge Agreements were terminated
at such time, (C) with respect to Specified Cash Management
Services Agreements (as defined in the First Lien Credit
Agreement), the net aggregate amount then owing to creditors
thereunder to the extent constituting First Lien Secured
Obligations, including all amounts owing to such creditors as a
result of the termination (or early termination) thereof, and (D)
an amount reasonably calculated by the First Lien Representative
with respect to any contingent or unliquidated First Lien Secured
Obligations related to claims, causes of action or liabilities that
have theretofore been asserted in writing by the First Lien Secured
Parties and for which indemnification or reimbursement is required
under the First Lien Loan Documents) and,
(iii) the Second Lien Secured Parties
shall have paid to the Super Senior Representative, for the account
of the Super Senior Secured Parties, in cash or immediately
available funds, an amount equal to 100% of the principal of such
Indebtedness plus all accrued and unpaid interest thereon plus all
accrued and unpaid fees plus all the other Super Senior Secured
Obligations then outstanding (other than any acceleration
prepayment penalties or premiums) which shall include an amount
reasonably calculated by the Super Senior Representative with
respect to any contingent or unliquidated Super Senior Secured
Obligations related to claims, causes of action or liabilities that
have theretofore been asserted in writing by the Super Senior
Secured Parties and for which indemnification or reimbursement is
required under the Super Senior Loan Documents, (iv) each
First Lien Secured Party is permitted to retain all rights to
indemnification provided in the relevant First Lien Loan Documents
for all claims and other amounts relating to periods prior to such
transfer of the First Lien Secured
Obligations (provided that such rights and claims shall not be
secured by the Collateral after the consummation of the Purchase)
and (v) each Super Senior Secured Party is permitted to retain all
rights to indemnification provided in the relevant Super Senior
Loan Documents for all claims and other amounts relating to periods
prior to such transfer of the Super Senior Secured
Obligations (provided that such rights and
claims shall not be secured by the Collateral after the
consummation of the Purchase). In order to effectuate the Purchase,
the First Lien Representative shall calculate, upon the written
request of the Second Lien Representative from time to time, the
amount in cash or immediately available funds that would be
necessary so to purchase the First Lien Secured Obligations
(and
the Super Senior Representative shall calculate, upon the written
request of the Second Lien Representative from time to time, the
amount in cash or immediately available funds that would be
necessary so to purchase the Super Senior Secured Obligations (in
each case based on information available to it, and shall
use commercially reasonable efforts to obtain information not
available to it necessary to perform such
calculation).
22
(d) The First
LienAny Representative
shall provide to the Second Lien
Representative, and the Second Lien
Representative shall
provide to the First Lien
Representative, reasonable
prior notice of its initial material Enforcement Action
to each other
Representative.
SECTION
3.02. No Interference. (a) The Second Lien
Representative, for itself and on behalf of the other Second Lien
Secured Parties, agrees that, so long as the Discharge of First
Lien Secured Obligations has not occurred, and whether or not any
Insolvency or Liquidation Proceeding has been commenced, the Second
Lien Secured Parties:
(i) except for Second
Lien Permitted Actions, will not (A) commence (or file with any
court documents that seek to commence) or maintain or seek to
maintain any Enforcement Action, (B) commence (or file with any
court documents that seek to commence) or join with any Person
(other than the First Lien Representative or the Super Senior Representative) in
commencing, or petition for or vote in favor of any resolution for,
any action or proceeding with respect to any Enforcement Action or
(C) commence (or file with any court documents that seek to
commence) or join with any Person (other than the First Lien
Representative or the Super Senior
Representative) in commencing any involuntary case or
proceeding under any Insolvency or Liquidation Proceeding with
respect to any Grantor;provided, however, that the Second Lien
Representative may commence or seek to commence, and maintain or
seek to maintain, any Enforcement Action, or join with any Person
in commencing, or petition for or vote in favor of any resolution
for, any such action or proceeding, after a period of 150 days
has elapsed (which period shall be tolled during any period in
which the First Lien Representative or
the Super Senior Representative is not entitled, on behalf
of the First Lien Secured Parties or
the Super Senior Secured Parties, as applicable, to take any
Enforcement Action with respect to any Collateral as a result of
(x) any injunction issued by a court of competent jurisdiction
(which the First Lien Representative or the Super Senior Representative, as
applicable, is diligently seeking to vacate) or (y) the
automatic stay or any other stay or prohibition in any Insolvency
or Liquidation Proceeding) since the date on which the Second Lien
Representative has delivered to the First Lien Representative and the Super Senior
Representative written notice (with a copy to the Borrower) of the
occurrence of an event of default under the Second Lien Loan
Documents (the “Standstill
Period”); provided that all other
provisions of this Agreement (including the turnover provisions of
Article IV or Article VI) are complied with;provided further, however, that notwithstanding
the expiration of the Standstill Period or anything herein to the
contrary, in no event shall the Second Lien Representative or any
other Second Lien Secured Party commence (or file with any court
documents that seek to commence) or maintain or seek to maintain
any Enforcement Action, or commence (or file with any court
documents that seek to commence), join with any Person in
commencing, or petition for or vote in favor of any resolution for,
any action or proceeding with respect to any Enforcement Action, if
the First Lien Representative or any other First Lien Secured Party
or the Super Senior Representative or
any other Super Senior Secured Party shall have commenced,
and shall be diligently pursuing any Enforcement Action with
respect to any Collateral or any such action or
proceeding;
23
(ii) will
not contest, protest or object to any Enforcement Action sought or
maintained by the First Lien Representative or any other First Lien
Secured Party or the Super Senior
Representative or any other Super Senior Secured Party
relating to the Collateral under the First Lien Loan Documents, the Super Senior Loan
Documents or otherwise, so long as the Second Priority Liens attach
to the Proceeds thereof subject to the relative priorities set
forth in Section 2.01 and such Enforcement Action is not in
contravention of the terms of this Agreement and applicable
law;
(iii) subject
to the rights of the Second Lien Secured Parties under
clause (i) above, will not contest, protest or object to
the forbearance by the First Lien Representative or any other First
Lien Secured Party or the Super Senior
Representative or any other Super Senior Secured Party from
commencing or pursuing any Enforcement Action or to the terms or
conditions applicable to any such forbearance;
(iv) will
not, except for the Second Lien Permitted Actions, take or receive
any Collateral, or any Proceeds thereof or payment with respect
thereto (other than, subject to Sections 6.01 and 6.03,
Reorganization Securities), in connection with any Enforcement
Action with respect to any Collateral or in connection with any
insurance policy award under a policy of insurance relating to any
Collateral or any condemnation award (or deed in lieu of
condemnation) relating to any Collateral;
(v) will not, except
for the Second Lien Permitted Actions, take any action that would,
or could reasonably be expected to, hinder, in any material
respect, any enforcement or exercise of any rights or remedies
under the First Lien Loan Documents or
the Super Senior Loan Documents, including any Disposition
of any Collateral, whether by foreclosure or
otherwise;
(vi) will
not, except for the Second Lien Permitted Actions, contest, protest
or object to the manner in which the First Lien Representative or
any other First Lien Secured Party or
the Super Senior Representative or any other Super Senior Secured
Party may seek to enforce or collect the First Lien
Secured Obligations, the Super
Senior Secured Obligations or the First Priority Liens,
regardless of whether any action or failure to act by or on behalf
of the First Lien Representative or any other First Lien Secured
Party or the Super Senior
Representative or any other Super Senior Secured Party is,
or could be, adverse to the interests of the Second Lien Secured
Parties, provided
that any such action or failure to act is not in contravention of
this Agreement and applicable law, and will not assert, and hereby
waive, to the fullest extent permitted by law, any right to demand,
request, plead or otherwise assert or claim the benefit of any
marshalling, appraisal, valuation or other similar statutory right
that may be available under applicable law with respect to the
Collateral or any similar rights a junior secured creditor may have
under applicable law; and
24
(vii) will
not attempt, directly or indirectly, whether by judicial proceeding
or otherwise, and hereby waive any right, to contest, challenge or
question the validity or enforceability of any First Lien Secured
Obligation or,
any First Lien Security Document, any
Super Senior Secured Obligations or any Super Senior
Security Document, including this Agreement, or the validity or
enforceability of the priorities, rights or obligations established
by this Agreement.
SECTION
3.03. Rights as Unsecured Creditors. The
Second Lien Representative and the other Second Lien Secured
Parties may, in accordance with the terms of the Second Lien Loan
Documents and applicable law, enforce rights and exercise remedies
against the Borrower and any Guarantor that are available to
unsecured creditors (other than initiating or joining in an
involuntary case or proceeding under any Insolvency or Liquidation
Proceeding with respect to any Grantor or taking any other
Enforcement Action);provided that no such action is
in contravention of the terms of this Agreement (including Article
VI hereof). Nothing in this Agreement shall prohibit the receipt by
the Second Lien Representative or any other Second Lien Secured
Party of the required payments of principal, premium, interest,
fees and other amounts due under the Second Lien Loan Documents so
long as such receipt is not the direct or indirect result of a
distribution or recovery in any Insolvency or Liquidation
Proceeding in contravention of this Agreement (but subject to
Section 4.02), any Enforcement Action by the Second Lien
Representative or any other Second Lien Secured Party in
contravention of this Agreement or any other enforcement or
exercise by the Second Lien Representative or any other Second Lien
Secured Party of rights or remedies as a secured creditor
(including any right of setoff) in contravention of this Agreement
or enforcement in contravention of this Agreement of any Second
Priority Lien (including any judgment lien resulting from the
exercise of remedies available to an unsecured creditor, to the
extent such judgment lien applies to Collateral), with the Second
Lien Representative, on behalf of itself and the other Second Lien
Secured Parties, hereby agreeing that any amounts received by or
distributed to any Second Lien Secured Party in contravention of
the foregoing shall be subject to Section 4.02.
25
SECTION
3.04. Automatic Release of Second Priority
Liens. (a) If, in connection with (i) any Disposition
of any Collateral permitted under the terms of the First Lien
Loan Documents and the Super Senior Loan Documents or
(ii) the enforcement or exercise of any rights or remedies
with respect to the Collateral, including any Disposition of
Collateral, the First Lien Representative, for itself and on behalf
of the other First Lien Secured
Parties and the Super Senior Representative, for itself and on
behalf of the other Super Senior Secured Parties,
(A) releases the First Priority Liens on any Collateral or (B)
releases any Guarantor the Equity Interests in which are subject to
such Disposition or such enforcement or exercise from its
obligations under its guarantee of the First Lien Secured Obligations and the Super Senior
Secured Obligations (in each case, a “Release”), other than any such
Release granted (except as a result of the enforcement or exercise
of any rights or remedies pursuant to clause (ii) above) in
connection with the Discharge of First Lien Loan Document
Obligations, then the Second Priority Liens on such Collateral, and
the obligations of such Guarantor under its guarantee of the Second
Lien Secured Obligations, shall be immediately, automatically,
unconditionally and simultaneously released, and upon delivery to
the Second Lien Representative of an Officer’s Certificate
stating that any such Release in respect of the First Lien Secured
Obligations and the Super Senior
Secured Obligations has become effective (or shall become
effective concurrently with such release of the Second Priority
Liens on such Collateral granted to the Second Lien Secured Parties
and the Second Lien Representative or the release of the
obligations of such Guarantor under its guarantee of the Second
Lien Secured Obligations, as the case may be) and any necessary or
proper instruments of termination or release prepared by the
Borrower or any other Grantor or Guarantor, the Second Lien
Representative shall, for itself and on behalf of the other Second
Lien Secured Parties, promptly execute and deliver to the First
Lien Representative and the Super
Senior Representative, the relevant Grantor or such
Guarantor, at the Borrower’s or the other Grantor’s or
Guarantor’s sole cost and expense and without any
representation or warranty, such termination statements, releases
and other documents as the First Lien Representative, the Super Senior Representative or the
relevant Grantor or Guarantor may reasonably request to effectively
confirm such Release;provided that, in the case of any
Disposition of Collateral, notwithstanding the release of the
Second Priority Liens thereon, the Second Priority Liens shall
attach to the Proceeds thereof subject to the relative priorities
set forth in Section 2.01 (and, for the avoidance of doubt, nothing
in the foregoing shall be deemed to be a release of the Second
Priority Liens on any such Proceeds, it being the express intent of
the Second Lien Secured Parties that the Second Priority Liens
attach to such Proceeds);provided further that (x) in the
case of any Disposition of any Collateral (other than any such
Disposition in connection with the enforcement or exercise of any
rights or remedies with respect to such Collateral or pursuant to
an Insolvency or Liquidation Proceeding), the Second Priority Liens
on such Collateral shall not be so released if such Disposition is
not permitted under the terms of the Second Lien Credit Agreement
or such Disposition is to the Borrower or any of its Affiliates and
(y) in the case of any Disposition of any Collateral, the Second
Priority Liens shall not be so released without the consent of the
Second Lien Representative unless the net cash Proceeds of such
Disposition will be applied (if applicable, upon judicial approval
of such application) to permanently repay or prepay (or otherwise
reduce, in the case of a “credit bid”) (1) the First
Lien Secured Obligations, it being understood that any such
repayment or prepayment of principal of Capped First Lien Loan
Document Obligations shall reduce the Maximum First Lien Principal
Amount by an equal amount, or (2)
the Super Senior Secured Obligations,
it being understood that any such repayment or prepayment of
principal of Capped First Lien Loan Document Obligations shall
reduce the Maximum First Lien Principal Amount by an equal amount
or (3) any DIP Financing. In the case of any Disposition of
any Collateral by the First Lien Representative or the Super Senior Representative (other
than pursuant to any Insolvency or Liquidation Proceeding), the
First Lien Representative or the Super
Senior Representative, as applicable, (I) shall provide the
Second Lien Representative with at least 10 Business Days’
prior written notice of such Disposition and (II) shall take
reasonable care (as determined in the reasonable credit judgment of
the First Lien Representative or the
Super Senior Representative, as applicable) to conduct such
Disposition in a commercially reasonable manner (it being
understood that the First Lien Representative or the Super Senior Representative, as
applicable, shall have no obligation to postpone any such
Disposition in order to achieve a higher price).
26
(a) Until the Discharge
of First Lien Loan Document Obligations occurs, the Second Lien
Representative, for itself and on behalf of each other Second Lien
Secured Party, hereby appoints the First Lien Representative
and the Super Senior
Representative, and any officer or agent of the First Lien
Representative and the Super Senior
Representative, with full power of substitution, as the
attorney-in-fact of each Second Lien Secured Party for the purpose
of carrying out the express provisions of this Section 3.04
and taking any action and executing any instrument that the First
Lien Representative or the Super
Senior Representative reasonably deems necessary to
accomplish the purposes of this Section 3.04 (including any
endorsements or other instruments of transfer or release), which
appointment is irrevocable and coupled with an
interest.
SECTION
3.05. Insurance and Condemnation Awards. So
long as the Discharge of First Lien Secured Obligations has not
occurred, the First Lien Representative and the other First Lien
Secured Parties and the Super Senior
Representative and the other Super Senior Secured Parties
shall have the exclusive right, subject in each case to the rights of the Grantors
under the First Lien Loan Documents
and the Super Senior Loan Documents, to settle and adjust
claims in respect of Collateral under policies of insurance
covering Collateral and to approve any award granted in any
condemnation or similar proceeding, or any deed in lieu of
condemnation, in respect of the Collateral. All Proceeds of any
such policy and any such award, or any payments with respect to a
deed in lieu of condemnation, shall (a) first, prior to the
Discharge of First Lien Secured Obligations and subject to the
rights of the Grantors under the First Lien Loan Documents
and the Super Senior Loan
Documents, be paid to the Controlling First Lien Representative for
the benefit of the Super Senior
Secured Parties and the First Lien Secured Parties pursuant
to the terms of the Super Senior Loan
Documents and the First Lien Loan Documents,
(b) second, after the Discharge of First Lien Secured
Obligations and subject to the rights of the Grantors under the
Second Lien Loan Documents, be paid to the Second Lien
Representative for the benefit of the Second Lien Secured Parties
pursuant to the terms of the Second Lien Loan Documents until the
Discharge of Second Lien Secured Obligations (other than Excess
Second Lien Obligations), (c) third, after the Discharge of Second
Lien Secured Obligations (other than Excess Second Lien
Obligations), be paid to the Controlling First Lien Representative for
the benefit of the First Lien Secured Parties and the Super Senior Secured Parties
pursuant to the terms of the First Lien Loan Documents and the Super Senior Loan
Documents on account of the Excess First Lien Obligations, (d)
fourth, after the Discharge of Excess First Lien Obligations, be
paid to the Second Lien Representative for the benefit of the
Second Lien Secured Parties pursuant to the terms of the Second
Lien Loan Documents on account of the Excess Second Lien
Obligations and (e) fifth, be paid to the owner of the subject
property, such other Person as may be entitled thereto or as a
court of competent jurisdiction may otherwise direct. Until the
Discharge of First Lien Secured Obligations has occurred, if the
Second Lien Representative or any other Second Lien Secured Party
shall, at any time, receive any proceeds of any such insurance
policy or any such award or payment, it shall transfer and pay over
such proceeds to the Controlling First Lien Representative in
accordance with Section 4.02.
27
ARTICLE IV.
PAYMENTS
SECTION
4.01. Application of Proceeds. So long as the
Discharge of First Lien Secured Obligations has not occurred, any
Collateral or Proceeds thereof received by the First Lien
Representative or the Super Senior
Representative in connection with any Enforcement Action or
in connection with any Insolvency or Liquidation Proceeding shall
be applied by the First Lien Representative or the Super Senior Representative, as
applicable, to the First Lien Secured Obligations and the Super Senior
Secured Obligations in accordance with the terms of the First Lien
Loan Documents, the Super Senior Loan
Documents and the Super Senior Intercreditor Agreement. Upon
the Discharge of First Lien Secured Obligations, (a) if the
Discharge of Second Lien Secured Obligations (other than Excess
Second Lien Obligations) has not occurred, subject to
Section 2.05, the First Lien Representative or the Super Senior Representative, as
applicable, shall deliver (without any representation,
warranty or recourse) to the Second Lien Representative any
remaining Collateral and any Proceeds thereof then held by it in
the same form as received, together with any necessary
endorsements, or as a court of competent jurisdiction may otherwise
direct, to be applied by the Second Lien Representative to the
Second Lien Secured Obligations (other than Excess Second Lien
Obligations) and (b) so long as the Discharge of Second Lien
Secured Obligations (other than Excess Second Lien Obligations) has
not occurred, any Collateral or Proceeds thereof received by the
Second Lien Representative pursuant to clause (a) of this sentence
or in connection with any Enforcement Action or in connection with
any Insolvency or Liquidation Proceeding shall be applied by the
Second Lien Representative to the Second Lien Secured Obligations
(other than Excess Second Lien Obligations) in accordance with the
terms of the Second Lien Loan Documents. Upon the Discharge of
Second Lien Secured Obligations (other than Excess Second Lien
Obligations), (i) if the Discharge of Excess First Lien Obligations
has not occurred, subject to Section 2.05, the Second Lien
Representative shall deliver (without any representation, warranty
or recourse) to the Controlling
First Lien Representative any remaining Collateral and any Proceeds
thereof then held by it in the same form as received, together with
any necessary endorsements, or as a court of competent jurisdiction
may otherwise direct, to be applied by the First Lien
Representative to the Excess First Lien Obligations and (ii) so
long as the Discharge of Excess First Lien Obligations has not
occurred, any Collateral or Proceeds thereof received by the First
Lien Representative or the Super
Senior Representative pursuant to clause (i) of this
sentence or in connection with any Enforcement Action or in
connection with any Insolvency or Liquidation Proceeding shall be
applied by the First Lien Representative or the Super Senior Representative, as
applicable, to the Excess First Lien Obligations in
accordance with the terms of the First Lien Loan
Documents, the Super Senior Loan
Documents and the Super Senior Intercreditor Agreement. Upon
the Discharge of Excess First Lien Obligations, (A) if the
Discharge of Second Lien Secured Obligations has not occurred,
subject to Section 2.05, the First Lien Representative
or the Super Senior Representative, as
applicable, shall deliver (without any representation,
warranty or recourse) to the Second Lien Representative any
remaining Collateral and any Proceeds thereof then held by it in
the same form as received, together with any necessary
endorsements, or as a court of competent jurisdiction may otherwise
direct, to be applied by the Second Lien Representative to the
Excess Second Lien Obligations and (B) if the Discharge of Second
Lien Secured Obligations has also occurred, the First Lien
Representative, the Super Senior
Representative or the Second Lien Representative, as
applicable, shall deliver (without any representation, warranty or
recourse) to the Person entitled thereto any remaining Collateral
and any Proceeds thereof then held by it in the same form as
received, together with any necessary endorsements, or as a court
of competent jurisdiction may otherwise direct.
28
SECTION
4.02. Payment Over. So long as the Discharge
of First Lien Secured Obligations has not occurred, any Collateral,
or any Proceeds thereof or payment in connection therewith or on
account thereof (together with assets or Proceeds subject to Liens
referred to in the final sentence of Section 2.04 or in the
final proviso of Section 6.01(b) or amounts referred to in the
parenthetical at the end of Section 3.03 or Collateral, Proceeds or
distributions referred to in the last two sentences of Section
7.04), received by the Second Lien Representative or any other
Second Lien Secured Party as a distribution or recovery in any
Insolvency or Liquidation Proceeding (other than any post-petition
amounts received by the Second Lien Secured Parties as contemplated
by Section 6.04(b) or Reorganization Securities), or in connection
with any Enforcement Action, or in connection with any insurance
policy claim or any condemnation award (or deed in lieu of
condemnation), shall be segregated and held in trust and promptly
transferred or paid over to the Controlling First Lien Representative for
the benefit of the First Lien Secured
Parties and the Super Senior Secured Parties in the same
form as received, together with any necessary endorsements, or as a
court of competent jurisdiction may otherwise direct. Until the
Discharge of First Lien Secured Obligations occurs, the Second Lien
Representative, for itself and on behalf of each other Second Lien
Secured Party, hereby appoints the First Lien Representative
and the Super Senior
Representative, and any officer or agent of the First Lien
Representative and the Super Senior
Representative, with full power of substitution, the
attorney-in-fact of each Second Lien Secured Party for the purpose
of carrying out the express provisions of this Section 4.02
and taking any action and executing any instrument that the First
Lien Representative or the Super
Senior Representative reasonably deems necessary to
accomplish the purposes of this Section 4.02, which
appointment is irrevocable and coupled with an
interest.
SECTION
4.03. Certain Agreements with Respect to Invalid or
Unenforceable Liens. 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 valid, perfected or enforceable for any reason,
or is subordinated in any respect to any other Liens, then the
Second Lien Representative and the other Second Lien Secured
Parties agree that any distribution or recovery they may receive
with respect to, or on account of, the value of the assets intended
to constitute such Collateral or any Proceeds thereof shall (for so
long as the Discharge of First Lien Secured Obligations has not
occurred) be segregated and held in trust and promptly paid over to
the Controlling First Lien
Representative for the benefit of the First Lien Secured Parties and the Super Senior
Secured Parties in the same form as received without recourse,
representation or warranty (other than a representation of the
Second Lien Representative 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 until such time as the Discharge of First Lien Secured
Obligations has occurred. Until the Discharge of First Lien Secured
Obligations occurs, the Second Lien Representative, for itself and
on behalf of each other Second Lien Secured Party, hereby appoints
the First Lien Representative, the
Super Senior Representative, and any officer or agent of the
First Lien Representative and the
Super Senior Representative, with full power of
substitution, the attorney-in-fact of each Second Lien Secured
Party for the limited purpose of carrying out the express
provisions of this Section 4.03 and taking any action and
executing any instrument that the First Lien Representative
or the Super Senior
Representative reasonably deems necessary to accomplish the
purposes of this Section 4.03, which appointment is
irrevocable and coupled with an interest.
29
ARTICLE V.
BAILMENT FOR PERFECTION OF CERTAIN SECURITY INTERESTS
(a) Each of Tthe
First Lien Representative and the
Super Senior Representative agrees that if it shall at any
time hold a First Priority Lien on any Pledged or Controlled
Collateral and if such Pledged or Controlled Collateral is in fact
in the possession or under the control of the First Lien
Representative or the Super Senior
Representative, or of agents or bailees of the First Lien
Representative or the Super Senior
Representative, as applicable, the First Lien Representative
or Super Senior Representative, as
applicable, shall, solely for the purpose of perfecting by
possession or control, as applicable, the Second Priority Liens
granted under the Second Lien Loan Documents and subject to the
terms and conditions of this Article V, also hold and control such
Pledged or Controlled Collateral as gratuitous bailee and
gratuitous agent for the Second Lien Representative and hereby
acknowledges that it has control of any Pledged or Controlled
Collateral in its control on behalf of and for the benefit of the
Second Lien Representative.
(b) So long as the
Discharge of First Lien Secured Obligations has not occurred, the
First Lien Representative and the
Super Senior Representative shall be entitled to deal with
the Pledged or Controlled Collateral in accordance with the terms
of this Agreement and the other First Lien Loan
Documents, the Super Senior Loan
Documents and applicable law as if the Second Priority Liens
did not exist. The obligations and responsibilities of the First
Lien Representative and the Super
Senior Representative to the Second Lien Representative and
the other Second Lien Secured Parties under this Article V shall be
limited solely to holding or controlling the Pledged or Controlled
Collateral as gratuitous bailee or gratuitous agent for the Second
Lien Representative, and transferring the Pledged or Controlled
Collateral, in each case, subject to the terms and conditions of
this Article V. Without limiting the foregoing, the First Lien
Representative and the Super Senior
Representative shall have no obligation or responsibility to
ensure that any Pledged or Controlled Collateral is genuine or
owned by any of the Grantors or to preserve the rights or benefits
of any Person. The First Lien Representative and the Super Senior Representative acting
pursuant to this Article V shall not, by reason of this Agreement,
any other Security Document or any other document, have a fiduciary
relationship in respect of any other First Lien Secured Party,
Super Senior Secured Party, the
Second Lien Representative or any other Second Lien Secured Party.
The parties recognize that the interest of the First Lien
Representative and the Super Senior
Representative, on the one hand, and the Second Lien
Representative and the other Second Lien Secured Parties, on the
other hand, may differ, and the First Lien Representative
and the Super Senior
Representative may act in its own interest without taking
into account the interest of the Second Lien Representative or any
other Second Lien Secured Party.
(c) Upon the Discharge
of First Lien Secured Obligations, the First Lien Representative
and the Super Senior
Representative shall transfer the possession and control of
the Pledged or Controlled Collateral (other than with respect to
any deposit account as to which control is maintained pursuant to
Section 9-104(a)(1) of the Uniform Commercial Code), together with
any necessary endorsements but without recourse, representation or
warranty, (i) if the Second Lien Secured Obligations are
outstanding at such time, to the Second Lien Representative, and
(ii) if no Second Lien Secured Obligations are outstanding at
such time, to the applicable Grantor, in each case so as to allow
such Person to obtain possession and control of such Pledged or
Controlled Collateral. In connection with any transfer under
clause (i) of the immediately preceding sentence, each of the First Lien Representative
and the Super Senior
Representative agrees to take all commercially reasonable
actions as shall be reasonably requested by the Second Lien
Representative to permit the Second Lien Representative to obtain,
for the benefit of the Second Lien Secured Parties, a first
priority security interest in the Pledged or Controlled
Collateral.
30
(d) The Second Lien
Representative agrees that if it shall at any time prior to the
Discharge of First Lien Secured Obligations hold a Second Priority
Lien on any Pledged or Controlled Collateral and if,
notwithstanding the provisions of this Agreement (and disregarding
any control the Second Lien Representative might have solely as a
result of the foregoing provisions of this Article V), such Pledged
or Controlled Collateral is in fact in the possession or under the
control of the Second Lien Representative, or of agents or bailees
of the Second Lien Representative, the Second Lien Representative
shall (i) solely for the purpose of perfecting by possession or
control, as applicable, the First Priority Liens granted under the
First Lien Loan Documents, also hold and control such Pledged or
Controlled Collateral as gratuitous bailee and gratuitous agent for
the First Lien Representative (and hereby acknowledges that it has
control of any Pledged or Controlled Collateral in its control on
behalf of and for the benefit of the First Lien Representative),
(ii) solely for the purpose of
perfecting by possession or control, as applicable, the First
Priority Liens granted under the Super Senior Loan Documents, also
hold and control such Pledged or Controlled Collateral as
gratuitous bailee and gratuitous agent for the Super Senior
Representative (and hereby acknowledges that it has control of any
Pledged or Controlled Collateral in its control on behalf of and
for the benefit of the Super Senior Representative),
(iii) promptly inform the First Lien Representative
and the Super Senior
Representative thereof and (iiiiv) other
than with respect to any deposit account as to which control is
maintained pursuant to Section 9-104(a)(1) of the Uniform
Commercial Code, transfer the possession and control of such
Pledged or Controlled Collateral, together with any necessary
endorsements but without recourse, representation or warranty, to
the Controlling First Lien
Representative and, in connection therewith, take all commercially
reasonable actions as shall be reasonably requested by the
Controlling First Lien
Representative to permit the Controlling First Lien Representative to
obtain, for the benefit of the First Lien Secured Parties and the Super Senior
Secured Parties, a first priority security interest in such Pledged
or Controlled Collateral.
ARTICLE
VI.
INSOLVENCY OR LIQUIDATION PROCEEDINGS
SECTION
6.01. Finance and Sale Matters. (a) Until the
Discharge of First Lien Loan Document Obligations has occurred, the
Second Lien Representative, for itself and on behalf of the other
Second Lien Secured Parties, agrees that, in the event of any
Insolvency or Liquidation Proceeding, the Second Lien Secured
Parties:
(i) will be deemed to
have consented to, and will not oppose or object to (or support any
other Person in opposing or objecting to), the use of any
Collateral constituting cash collateral under Section 363 of
the Bankruptcy Code, or any comparable provision of any other
Bankruptcy Law, that is consented to, or not opposed or objected
to, by the First Lien Representative or any other representative
authorized by the First Lien Secured Parties or the Super Senior Representative or any other
representative authorized by the Super Senior Secured
Parties (and neither the Second Lien Representative nor any
Second Lien Secured Party shall seek any relief in connection
therewith that is in conflict with the relief being sought by the
First Lien Secured Parties or Super
Senior Secured Parties (it being understood that the
foregoing shall not affect the rights of the Second Lien Secured
Parties to seek adequate protection as provided in Section
6.01(b)));
31
(ii) will
be deemed to have consented to, and will not oppose or object to
(or support any other Person in opposing or objecting to), any
post-petition financing provided by one or more of the First Lien
Secured Parties or one or more of the
Super Senior Secured Parties under Section 364 of the
Bankruptcy Code, or any comparable provision of any other
Bankruptcy Law (a “DIP
Financing”), or the Liens securing any DIP Financing
(“DIP Financing
Liens”), that is consented to, or not opposed or
objected to, by the First Lien Representative, the Super Senior Representative or any
other representative authorized by the First Lien Secured Parties or the Super Senior Secured
Parties and, to the extent that (A) such DIP Financing Liens are
senior to, or rank pari passu with, the First Priority Liens
securing the First Lien Secured
Obligations and Super Senior Secured Obligations, (B) the
economic terms of such DIP Financing (i.e., the interest rate,
fees, original issue discount and other similar terms) and the
scheduled amortization applicable to such DIP Financing are on
commercially reasonable terms, (C) such DIP Financing does not
compel the Borrower or any other Grantor to seek confirmation of a
specific plan of reorganization of which the material terms are set
forth in the DIP Financing documentation or a relateddocument (it
being agreed that the inclusion of termination events or milestones
in the DIP Financing documentation shall not be deemed to
constitute such a condition), (D) the DIP Financing documentation
does not expressly require the sale, disposition or liquidation of
all or any material portion of the Collateral prior to a default
under the DIP Financing documentation, (E) the Second Lien Secured
Parties are not required to release their Liens on the Collateral
as a condition to such DIP Financing and (F) the sum of (x) the
aggregate outstanding principal amount of loans and letters of
credit under, together with the aggregate amount of undrawn
commitments under, any DIP Financing (after giving effect to any
Refinancing or “roll-up” of First Lien Loan Document
Obligations and/or the Super Senior
Loan Document Obligations) plus (y) the aggregate
outstanding amount of the Capped First Lien Loan Document
Obligations does not exceed the Maximum First Lien Principal
Amount, the Second Lien Representative will, for itself and on
behalf of the other Second Lien Secured Parties, subordinate (and
will be deemed to have subordinated) the Second Priority Liens to
(1) the First Priority Liens and the DIP Financing Liens on the
terms of this Agreement and (2) any customary
“carve-out” for U.S. trustee fees specified in the
financing order relating to such DIP Financing;
(iii) except
to the extent permitted by Section 6.01(b), in connection with
the use of cash collateral as described in clause (i) above or
a DIP Financing, will not request adequate protection or any other
relief in connection with such use of cash collateral, DIP
Financing or DIP Financing Liens; and
(iv) will
be deemed to have consented to, and will not oppose or object to
(or support any other Person in opposing or objecting to) any
Disposition of any Collateral free and clear of the Second Priority
Liens or other claims under Section 363 of the Bankruptcy Code
(provided that the
Second Lien Representative may object to the Disposition on any
grounds that may be asserted by an unsecured creditor), or any
comparable provision of any other Bankruptcy Law, if the First Lien
Secured Parties, or a representative authorized by the First Lien
Secured Parties, and the Super Senior
Secured Parties, or a representative authorized by the Super Senior
Secured Parties, shall consent to, or not oppose or object
to, such Disposition;provided that, in the case of any such
Disposition, notwithstanding the release of the Second Priority
Liens thereon, the Second Priority Liens shall attach to the
Proceeds thereof subject to the relative priorities set forth in
Section 2.01 (and, for the avoidance of doubt, nothing in the
foregoing shall be deemed to be a release of the Second Priority
Liens on any such Proceeds, it being the express intent of the
Second Lien Secured Parties that the Second Priority Liens attach
to such Proceeds).
32
Notwithstanding
anything to the contrary contained herein, nothing in this
Section 6.01(a) shall prohibit any Second Lien Secured Party
from proposing a DIP Financing so long as (A) no First Lien Secured
Party and no Super Senior Secured
Party has offered to provide a DIP Financing within three
days of commencement of any Insolvency or Liquidation Proceeding,
(B) the DIP Financing Liens with respect to such DIP Financing are
junior to the First Priority Liens securing the First Lien
Secured Obligations and the Super
Senior Secured Obligations, (C) the economic terms of such
DIP Financing (i.e., the interest rate, fees, original issue
discount and other similar terms) and the scheduled amortization
applicable to such DIP Financing are on commercially reasonable
terms, (D) such DIP Financing does not compel the Borrower or any
other Grantor to seek confirmation of a specific plan of
reorganization of which the material terms are set forth in the DIP
Financing documentation or a related document (it being agreed that
the inclusion of termination events or milestones in the DIP
Financing documentation shall not be deemed to constitute such a
condition), (E) the DIP Financing documentation does not expressly
require the sale, disposition or liquidation of all or any material
portion of the Collateral prior to a default under the DIP
Financing documentation, (F) the First Lien Secured Parties
and the Super Senior Secured
Parties are not required to release their Liens on the
Collateral as a condition to such DIP Financing and (G) the sum of
(x) the aggregate outstanding principal amount of loans and
letters of credit under, together with the aggregate amount of
undrawn commitments under, any such DIP Financing (after giving
effect to any Refinancing or “roll-up” of Second Lien
Secured Obligations) plus (y) the aggregate outstanding principal
amount of the Second Lien Secured Obligations does not exceed the
Maximum Second Lien Principal Amount plus $30,000,000.
(a) The Second Lien
Representative, for itself and on behalf of the other Second Lien
Secured Parties, agrees that, until the Discharge of First Lien
Loan Document Obligations has occurred, no Second Lien Secured
Party shall contest, or join or otherwise support any other Person
in contesting, (i) any request by the First Lien
Representative or any other First Lien Secured Party or the Super Senior Representative or any other
Super Senior Secured Party for adequate protection or
(ii) any objection, based on a claim of a lack of adequate
protection, by the First Lien Representative or any other First
Lien Secured Party or the Super Senior
Representative or any other Super Senior Secured Party to
any motion, relief, action or proceeding. Notwithstanding the
immediately preceding sentence, (A) if any First Lien Secured
Party or Super Senior Secured
Party is granted adequate protection in the form of a replacement
Lien or a Lien on additional collateral, the Second Lien
Representative may, for itself and on behalf of the other Second
Lien Secured Parties, seek or request adequate protection in the
form of a replacement Lien or a Lien on such additional collateral,
which Liens will be subordinated to the First Priority Liens and
DIP Financing Liens on the same basis as the other Second Priority
Liens are subordinated to the First Priority Liens under this
Agreement, and (B) the Second Lien Representative and other Second
Lien Secured Parties may seek adequate protection with respect to
their rights in the Collateral in any Insolvency or Liquidation
Proceeding in the form of (x) Liens on additional collateral or
replacement Liens on the Collateral, provided that, in either such
case, as adequate protection for the First Lien Secured
Obligations, the First Lien Representative, on behalf of the First
Lien Secured Parties, and as adequate
protection for the Super Senior Secured Obligations, the Super
Senior Representative, on behalf of the Super Senior Secured
Parties, is also granted (or has previously been granted) a
senior Lien on such additional collateral or senior replacement
Liens on the Collateral, as applicable, (y) an administrative
expense claim (including a superpriority administrative claim),
provided that, as
adequate protection for the First Lien Secured Obligations, the
First Lien Representative, on behalf of the First Lien Secured Parties and as adequate protection for the
Super Senior Secured Obligations, the Super Senior Representative,
on behalf of the Super Senior Secured Parties, is also
granted (or has previously been granted) an administrative expense
claim that is senior and prior to the administrative expense claim
(including any superpriority administrative claim) of the Second
Lien Representative and the Second Lien Secured Parties, or (z) the
current payment of out-of-pocket fees and expenses of counsel and
advisors incurred by the Second Lien Representative;provided further that, in the case of
each of clauses (x) and (y), (I) to the extent the First
Lien Secured Parties and the Super
Senior Secured Parties are not granted such adequate
protection in the applicable form, any amounts recovered by or
distributed to any Second Lien Secured Party pursuant to or as a
result of any such Lien on additional collateral, any such
replacement Lien or any such administrative expense claim granted
to or for the benefit of the Second Lien Secured Parties shall be
subject to Section 4.02 and (II) the Second Lien Secured
Parties shall have agreed (and by virtue of accepting any such
adequate protection shall be deemed to have agreed) pursuant to
Section 1129(a)(9) of the Bankruptcy Code that any Section
507(b) claims arising in respect of any adequate protection granted
to the Second Lien Secured Parties may be paid under a plan of
reorganization in any form having a value on the effective date of
such plan equal to the allowed amount of such claims (i.e., are not
required to be paid solely in cash). It is understood and agreed
that nothing in clause (B) above shall modify or otherwise affect
the other agreements by or on behalf of the Second Lien
Representative or the Second Lien Secured Parties set forth in this
Agreement (including the agreements to consent to or not to oppose
or object that are set forth in Section 6.01(a)). Until the
Discharge of First Lien Loan Document Obligations has occurred, the
Second Lien Representative, for itself and on behalf of the other
Second Lien Secured Parties, agrees that, in the event of any
Insolvency or Liquidation Proceeding, except to the extent
permitted by the foregoing provisions of this Section 6.01(b),
the Second Lien Secured Parties will not assert any claim (or
support any other Person in asserting any claim) under
Section 507(b) of the Bankruptcy Code.
33
SECTION
6.02. Relief from the Automatic Stay. The
Second Lien Representative, for itself and on behalf of the other
Second Lien Secured Parties, agrees that, so long as the Discharge
of First Lien Loan Document Obligations has not occurred, no Second
Lien Secured Party shall, without the prior written consent of the
First Lien Representative and the
Super Senior Representative, seek or request relief from or
modification of the automatic stay or any other stay in any
Insolvency or Liquidation Proceeding in respect of any part of the
Collateral, any Proceeds thereof or any Second Priority
Lien.
SECTION
6.03. Reorganization Securities. Nothing in
this Agreement prohibits or limits the right of the Second Lien
Representative or any other Second Lien Secured Party to receive
and retain any debt or equity obligations or securities that are
issued by a reorganized debtor pursuant to a plan of reorganization
or similar dispositive restructuring plan in connection with any
Insolvency or Liquidation Proceeding (any such debt or equity
obligations or securities, “Reorganization Securities”). If,
in any Insolvency or Liquidation Proceeding, Reorganization
Securities are so permitted to be distributed on account of
both the
First Lien Secured Obligations, the
Super Senior Secured Obligations and the Second Lien Secured
Obligations, then, to the extent the Reorganization Securities
distributed on account of the First Lien Secured
Obligations, the Super Senior Secured
Obligations and on account of the Second Lien Secured
Obligations are secured by Liens upon the same assets or property,
the provisions of this Agreement will survive the distribution of
such Reorganization Securities pursuant to such plan and will apply
with like effect to the Liens securing such Reorganization
Securities.
SECTION
6.04. Post-Petition Interest. (a) The Second
Lien Representative, for itself and on behalf of the other Second
Lien Secured Parties, agrees that no Second Lien Secured Party
shall oppose or seek to challenge (or support any other Person in
opposing or challenging) any claim by the First Lien Representative
or any other First Lien Secured Party or the Super Senior Representative or any other
Super Senior Secured Party for allowance in any Insolvency
or Liquidation Proceeding of First Lien Secured Obligations or Super Senior Secured
Obligations consisting of post-petition interest, fees, expenses or
indemnities to the extent of the value of the First Priority Liens
(it being understood and agreed that such value shall be determined
without regard to the existence of the Second Priority Liens on the
Collateral).
(a) The First Lien
Representative, for itself and on behalf of the other First Lien
Secured Parties, agrees that no First Lien Secured Party shall
oppose or seek to challenge (or support any other Person in
opposing or challenging) any claim by the Second Lien
Representative or any other Second Lien Secured Party for allowance
in any Insolvency or Liquidation Proceeding of Second Lien Secured
Obligations consisting of post-petition interest, fees, expenses or
indemnities to the extent of the value of the Second Priority Liens
(it being understood and agreed that such value shall be determined
taking into account the First Priority Liens on the Collateral and
the amount of the First Lien Secured Obligations secured thereby).
The Super Senior Representative, for
itself and on behalf of the other Super Senior Secured Parties,
agrees that no Super Senior Secured Party shall oppose or seek to
challenge (or support any other Person in opposing or challenging)
any claim by the Second Lien Representative or any other Second
Lien Secured Party for allowance in any Insolvency or Liquidation
Proceeding of Second Lien Secured Obligations consisting of
post-petition interest, fees, expenses or indemnities to the extent
of the value of the Second Priority Liens (it being understood and
agreed that such value shall be determined taking into account the
First Priority Liens on the Collateral and the amount of the Super
Senior Secured Obligations secured thereby).
34
SECTION
6.05. Certain Waivers by the Second Lien Secured
Parties. The Second Lien Representative, for itself and on
behalf of the other Second Lien Secured Parties, waives any claim
any Second Lien Secured Party may hereafter have against any First
Lien Secured Party and any Super
Senior Secured Party arising out of (a) the election by
any First Lien Secured Party or any
Super Senior Secured Party of the application of
Section 1111(b)(2) of the Bankruptcy Code, or any comparable
provision of any other Bankruptcy Law, or (b) any use of cash
collateral or financing arrangement, or any grant of a security
interest in the Collateral, in any Insolvency or Liquidation
Proceeding to the extent that the same is not in contravention of
this Agreement.
SECTION
6.06. Certain Voting Matters. Each of the
First Lien Representative, for itself and on behalf of the other
First Lien Secured Parties and the
Super Senior Representative, for itself and on behalf of the other
Super Senior Secured Parties, on the one hand, and the
Second Lien Representative, for itself and on behalf of the other
Second Lien Secured Parties, on the
other hand, agrees that, without the written consent of the
other, it will not seek to vote with the other as a single class in
connection with any plan of reorganization in any Insolvency or
Liquidation Proceeding.
SECTION
6.07. Subordination Agreement. The parties
hereto expressly acknowledge that this Agreement is intended to
constitute a “subordination agreement” within the scope
of Section 510(a) of the Bankruptcy Code, which will be effective
before, during and after the commencement of an Insolvency or
Liquidation Proceeding. All references in this Agreement to any
Grantor will include such Person as a debtor-in-possession and any
receiver or trustee for such Person in an Insolvency or Liquidation
Proceeding.
35
ARTICLE VII.
OTHER AGREEMENTS
SECTION 7.01. Matters Relating to Loan Documents. (a)
The First Lien Loan Documents may be amended, restated,
supplemented or otherwise modified in accordance with their terms,
and the Indebtedness under the First Lien Credit Agreement may be
Refinanced, in each case, without the consent of any Second Lien
Secured Party;provided,
however,
that, without the consent of the Second Lien Required Lenders, no
such amendment, restatement, supplement, modification or
Refinancing (or successive amendments, restatements, supplements,
modifications or Refinancings) shall (i) contravene the
provisions of this Agreement, (ii) directly increase the
interest rate margins accruing on the principal of loans and
letters of credit under the First Lien Credit Agreement or any
Refinancing thereof (determined on a weighted average basis) to an
amount that would result in a
weighted average interest rate under the First Lien Credit
Agreement and the Super Senior Credit Agreement that is
greater than 3.00% per annum above the applicable interest rate margins accruing on the
principal of loans and letters of credit under the First Lien
Credit Agreement as in effect on the date hereof (excluding,
without limitation, any underlying benchmark rates or any
fluctuations thereof, any benchmark rate “floor” not
exceeding 1.00% per annum in respect of any eurodollar rate
“floor” or 2.00% per annum in respect of any alternate
base rate “floor”, any default rate not exceeding 2.00%
per annum, any interest or fees that are paid-in-kind (and not paid
in cash until the final scheduled maturity date of the First Lien
Secured Obligations or any Refinancing thereof, as applicable), any
original issue discount, upfront fees and prepayment premiums and
any fees payable in connection with any amendment, restatement,
supplement, modification, Refinancing, waiver, consent or similar
agreement), (iii) add or modify in a manner adverse to the
interests of the Second Lien Secured Parties any express
prohibition or restriction on the payment of the Second Lien
Secured Obligations except as set forth in Section 7.01(b) or in
the First Lien Credit Agreement as in effect on the date hereof,
(iv) modify (A) any of the restrictions as set forth in the
First Lien Credit Agreement as in effect on the date hereof on
assignment of, or participation in, all or any portion of the First
Lien Secured Obligations or Excess First Lien Obligations to the
Borrower or any Affiliate (including any Subsidiary) thereof or (B)
any of the requirements as set forth in the First Lien Credit
Agreement as in effect on the date hereof that any First Lien
Secured Obligations or Excess First Lien Obligations acquired by
the Borrower are deemed automatically cancelled and no longer
outstanding, (v) restrict the amendment or other modification of
the Second Lien Loan Documents or impose express restrictions or
conditions on any Refinancing thereof except as set forth in
Section 7.01(b) or in the First Lien Credit Agreement as in
effect on the date hereof or (vi) amend, modify, affect the rights,
duties, privileges, protections, indemnities or immunities of, or
otherwise impose duties that are adverse on, the Second Lien
Representative without its prior written
consent;provided further
that, in the event of a Refinancing, the holders of the
Indebtedness resulting from any such Refinancing, or a duly
authorized agent on their behalf (to the extent such holders and
the agent of such holders, in such capacity, are not already bound
by the terms of this Agreement), agree in writing to be bound by
the terms of this Agreement pursuant to an amendment effected in
accordance with Section 10.05.
(a) The Second Lien
Loan Documents may be amended, restated, supplemented or otherwise
modified in accordance with their terms, in each case, without the
consent of any First Lien Secured Party;provided,
however,
that, without the consent of the First Lien Required Lenders and the Super Senior
Required Lenders, no such amendment,
restatement, supplement, modification or Refinancing (or successive
amendments, restatements, supplements, modifications or
Refinancings) shall (i) contravene the provisions of
this Agreement, (ii) directly
increase the interest rate margins accruing on the principal of
loans under the Second Lien Credit Agreement or any Refinancing
thereof (determined on a weighted average basis) to an amount
greater than 3.00% per annum above the applicable interest rate
margins accruing on the principal of loans under the Second Lien
Credit Agreement as in effect on the date hereof (excluding,
without limitation, any underlying benchmark rates or any
fluctuations thereof, any benchmark rate “floor” not
exceeding 1.00% per annum in respect of any eurodollar rate
“floor” or 2.00% per annum in respect of any alternate
base rate “floor”, any default rate not exceeding 2.00%
per annum, any interest or fees that are paid-in-kind (and not paid
in cash until the final scheduled maturity date of the Second Lien
Secured Obligations or any Refinancing thereof, as applicable), any
original issue discount, upfront fees and prepayment premiums and
any fees payable in connection with any amendment, restatement,
supplement, modification, Refinancing, waiver, consent or similar
agreement), (iii) shorten the final scheduled maturity date or
decrease the weighted average life to maturity of any Indebtedness
constituting Second Lien Secured Obligations or any Refinancing
thereof, (iv) provide for new affirmative covenants, new negative
covenants, new financial maintenance covenants, new events of
default or modifications of existing exceptions, baskets, levels or
thresholds in negative covenants, financial maintenance covenants
or events of default that are more restrictive on the Grantors,
unless, in each case, the Borrower has provided written notice
thereof to the First Lien Representative and the Super Senior Representative and
has offered to make (and, at the
request of the First Lien Representative or the Super Senior
Representative, the Borrower
has made) a corresponding change to the First Lien Loan
Documents and/or the Super
Senior Loan Documents, as applicable (with the same percentage “cushion”
applicable to such covenants or events of default as in effect on
the date hereof), (v) add any express prohibition or restriction on
the payment of the First Lien Secured Obligations
or Super Senior Secured
Obligations, (vi) restrict
the amendment or other modification of the First Lien Loan
Documents or the Super Senior
Loan Documents or impose
express restrictions or conditions on any Refinancing thereof
except as set forth in Section 7.01(a) or in the Second Lien Credit
Agreement as in effect on the date hereof or (vii) amend, modify,
affect the rights, duties, privileges, protections, indemnities or
immunities of, or otherwise impose duties that are adverse on, the
First Lien Representative or
the Super Senior Representative without its prior written
consent, as
applicable;provided further that, in the event of a
Refinancing, the holders of the Indebtedness resulting from any
such Refinancing, or a duly authorized agent on their behalf (to
the extent such holders and the agent of such holders, in such
capacity, are not already bound by the terms of this Agreement),
agree in writing to be bound by the terms of this Agreement
pursuant to an amendment effected in accordance with Section
10.05.
36
(b) The
Super Senior Loan Documents may be amended, restated, supplemented
or otherwise modified in accordance with their terms, and the
Indebtedness under the Super Senior Credit Agreement may be
Refinanced, in each case, without the consent of any Second Lien
Secured Party; provided, however, that, without the consent of the Second
Lien Required Lenders, no such amendment, restatement, supplement,
modification or Refinancing (or successive amendments,
restatements, supplements, modifications or Refinancings) shall
(i) contravene the provisions of this Agreement,
(ii) directly increase the interest rate margins accruing on
the principal of loans and letters of credit under the Super Senior
Credit Agreement or any Refinancing thereof (determined on a
weighted average basis) to an amount that would result in a
weighted average interest rate under the First Lien Credit
Agreement and the Super Senior Credit Agreement that is greater
than 3.00% per annum above the applicable interest rate margins
accruing on the principal of loans and letters of credit under the
First Lien Credit Agreement as in effect on the date hereof
(excluding, without limitation, any underlying benchmark rates or
any fluctuations thereof, any benchmark rate “floor”
not exceeding 1.00% per annum in respect of any eurodollar rate
“floor” or 2.00% per annum in respect of any alternate
base rate “floor”, any default rate not exceeding 2.00%
per annum, any interest or fees that are paid-in-kind (and not paid
in cash until the final scheduled maturity date of the Super Senior
Secured Obligations or any Refinancing thereof, as applicable), any
original issue discount, upfront fees and prepayment premiums and
any fees payable in connection with any amendment, restatement,
supplement, modification, Refinancing, waiver, consent or similar
agreement), (iii) add or modify in a manner adverse to the
interests of the Second Lien Secured Parties any express
prohibition or restriction on the payment of the Second Lien
Secured Obligations except as set forth in Section 7.01(b) or in
the Super Senior Credit Agreement as in effect on the effective
date thereof, (iv) modify (A) any of the restrictions as set
forth in the Super Senior Credit Agreement as in effect on the
effective date thereof on assignment of, or participation in, all
or any portion of the Super Senior Secured Obligations or Excess
First Lien Obligations to the Borrower or any Affiliate (including
any Subsidiary) thereof or (B) any of the requirements as set forth
in the Super Senior Credit Agreement as in effect on the effective
date thereof that any Super Senior Secured Obligations or Excess
First Lien Obligations acquired by the Borrower are deemed
automatically cancelled and no longer outstanding, (v) restrict the
amendment or other modification of the Second Lien Loan Documents
or impose express restrictions or conditions on any Refinancing
thereof except as set forth in Section 7.01(b) or in the Super
Senior Credit Agreement as in effect on the effective date thereof
or (vi) amend, modify, affect the rights, duties, privileges,
protections, indemnities or immunities of, or otherwise impose
duties that are adverse on, the Second Lien Representative without
its prior written consent; provided further that, in the event of a Refinancing, the
holders of the Indebtedness resulting from any such Refinancing, or
a duly authorized agent on their behalf (to the extent such holders
and the agent of such holders, in such capacity, are not already
bound by the terms of this Agreement), agree in writing to be bound
by the terms of this Agreement pursuant to an amendment effected in
accordance with Section 10.05.
37
(c) (c) The
Second Lien Representative agrees that the Second Lien Credit
Agreement shall contain provisions substantially similar to those
set forth in Section 10.24 of the Second Lien Credit Agreement
as in effect on the date hereof, or similar provisions approved by
the First Lien Representative and the
Super Senior Representative, which approval shall not be
unreasonably withheld or delayed, and each Second Lien Security
Document shall contain the provisions set forth on Annex I hereto,
or similar provisions approved by the First Lien Representative
and the Super Senior
Representative, which approval shall not be unreasonably
withheld or delayed. The Second Lien Representative further agrees
that each Second Lien Mortgage covering any Collateral shall
contain such other language as the First Lien Representative
or the Super Senior
Representative may reasonably request to reflect the
subordination of such Second Lien Mortgage to the First Lien
Security Document and/or Super Senior
Security Documents covering such Collateral pursuant to this
Agreement.
(d) [Reserved].
(d) The Second Lien Representative, for itself and on
behalf of the other Second Lien Secured Parties,
and
the First Lien Representative, for
itself and on behalf of the other First Lien Secured
Parties, and the Super Senior
Representative, for itself and on behalf of the other Super Senior
Secured Parties acknowledge and
agree that (i) the grants of Liens pursuant to the First Lien
Security Documents, the Super
Senior Security Documents and
the Second Lien Security Documents constitute twothree
separate and distinct grants of Liens,
and (ii) because of, among other things, their differing
rights in the Collateral, the Second Lien Secured Obligations are
fundamentally different from the First Lien Secured
Obligations (as defined without
reference to the final sentence of the definition of such term) and
the Super Senior Secured Obligations (as defined without reference to the
final sentence of the definition of such term) and
must be separately classified in any plan of reorganization
proposed or adopted 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 First Lien Secured Parties,
the Super Senior Secured Parties and the Second Lien Secured Parties in respect of
the Collateral constitute only one secured claim (rather than
separate classes of senior and junior secured claims), then each of
the parties hereto hereby acknowledges and agrees that, subject to
the provisions hereof (including Sections 2.01 and 4.01), all
distributions shall be made as if there were separate classes of
senior and junior secured claims against the Grantors in respect of
the Collateral (with the effect being that, to the extent that the
aggregate value of the Collateral is sufficient (for this purpose
ignoring all Second Lien Secured Obligations held by the Second
Lien Secured Parties) to satisfy the First Lien Secured
Obligations and the Super
Senior Secured Obligations, the
First Lien Secured Parties and
the Super Senior Secured
Parties shall be entitled to receive, in addition to amounts
otherwise distributed to them in respect of principal, pre-petition
interest and other claims constituting First Lien Secured
Obligations and Super Senior
Secured Obligations, all
amounts owing in respect of post-petition interest, including any
additional interest payable pursuant to the First Lien Credit
Agreement and the Super Senior
Credit Agreement, arising from
or related to a default, which is included in the First Lien
Secured Obligations and/or the
Super Senior Secured Obligations but which is disallowed as a claim in
any Insolvency or Liquidation Proceeding) before any distribution
is made in respect of the claims held by the Second Lien Secured
Parties with respect to the Collateral, and the Second Lien
Representative, for itself and on behalf of the other Second Lien
Secured Parties, hereby acknowledges and agrees to turn over to
the Controlling
First Lien
Representative,
for itself and on behalf of the other
First Lien Secured Parties and/or the other Super Senior Secured Parties, as
applicable, amounts otherwise
received or receivable by the Second Lien Secured Parties to the
extent necessary to effectuate the intent of this sentence (with
respect to the payment of post-petition interest), even if such
turnover has the effect of reducing the claim or recovery of the
Second Lien Secured Parties.
38
SECTION
7.02. Effect of Refinancing of Indebtedness under
Loan Documents. (a) If, substantially contemporaneously with
the Discharge of First Lien Loan Document Obligations, the Borrower
Refinances the Indebtedness outstanding under the First Lien Loan
Documents and/or Super Senior
Loan Documents and provided that (i) such
Refinancing is permitted hereby, (ii) the Borrower gives to
the Second Lien Representative advance written notice (the
“First Lien Refinancing
Notice”) electing the application of the provisions of
this Section 7.02(a) to such Refinancing Indebtedness,
provided that no
First Lien Refinancing Notice shall be required to be given in
respect of, and the provisions of this Section 7.02(a) shall
apply automatically to, any Refinancing Indebtedness incurred under
the First Lien Credit Agreement (including pursuant to
Section 2.25 thereof), and (iii) the holders of such
Refinancing Indebtedness, and the trustee, collateral agent or
similar representative of such holders (to the extent such holders
and the trustee, collateral agent or similar representative of such
holders, in such capacity, are not already bound by the terms of
this Agreement), agree in writing to be bound by the terms of this
Agreement pursuant to an amendment effected in accordance with
Section 10.05, then (A) such Discharge of First Lien Loan
Document Obligations shall automatically be deemed not to have
occurred for all purposes of this Agreement, (B) such
Refinancing Indebtedness and all other obligations under the
indenture, credit agreement or other definitive agreement
evidencing such Refinancing Indebtedness (the “New First Lien Obligations”) shall
automatically be treated as First Lien Secured Obligations
and/or Super Senior Secured
Obligations, as applicable, for all purposes of this
Agreement (but, for the avoidance of doubt, shall be subject to the
cap limitations in the definitions of the terms “First Lien
Loan Document Obligations” and,
“First Lien Secured
Obligations”, “Super Senior Loan Document
Obligations” and “Super Senior Secured
Obligations”), including for purposes of the Lien priorities
and rights in respect of Collateral set forth herein, (C) the
indenture, credit agreement or other definitive agreement
evidencing such Refinancing Indebtedness and the security and other
documents relating thereto (the “New First Lien Loan Documents”)
shall automatically be treated as the First Lien Credit Agreement
and the First Lien Loan Documents and/or the Super Senior Credit Agreement and the
Super Senior Loan Documents, as applicable, and, in the case
of New First Lien Loan Documents that are security documents, as
the First Lien Security Documents and/or Super Senior Security Agreements, as
applicable, for all purposes of this Agreement, (D) the
trustee, collateral agent or similar representative for the holders
of the New First Lien Obligations under the New First Lien Loan
Documents (the “New First
Lien Representative”) shall be deemed to be the First
Lien Representative and/or the Super
Senior Representative for all purposes of this Agreement and
(E) the holders of the Indebtedness under the New First Lien Loan
Documents shall be deemed to be the First Lien Lenders and/or Super Senior Lenders, as applicable,
for all purposes of this Agreement.
39
(a) If, substantially
contemporaneously with the Discharge of Second Lien Secured
Obligations, the Borrower Refinances the Indebtedness outstanding
under the Second Lien Loan Documents and provided that (i) such
Refinancing is permitted hereby, (ii) the Borrower gives to the
First Lien Representative and the
Super Senior Representative advance written notice (the
“Second Lien Refinancing
Notice”) electing the application of the provisions of
this Section 7.02(b) to such Refinancing Indebtedness, provided that no Second Lien
Refinancing Notice shall be required to be given in respect of, and
the provisions of this Section 7.02(b) shall apply automatically
to, any Refinancing Indebtedness incurred under the Second Lien
Credit Agreement (including pursuant to Section 2.25 thereof), and
(iii) the holders of such Refinancing Indebtedness, and the
trustee, collateral agent or similar representative of such holders
(to the extent such holders and the trustee, collateral agent or
similar representative of such holders, in such capacity, are not
already bound by the terms of this Agreement), agree in writing to
be bound by the terms of this Agreement pursuant to an amendment
effected in accordance with Section 10.05, then (A) such Discharge
of Second Lien Secured Obligations shall automatically be deemed
not to have occurred for all purposes of this Agreement, (B) such
Refinancing Indebtedness and all other obligations under the
indenture, credit agreement or other definitive agreement
evidencing such Refinancing Indebtedness (the “New Second Lien Obligations”)
shall automatically be treated as Second Lien Secured Obligations
for all purposes of this Agreement (but, for the avoidance of
doubt, shall be subject to the cap limitation in the definition of
the term “Maximum Second Lien Principal Amount”),
including for purposes of the Lien priorities and rights in respect
of Collateral set forth herein, (C) the indenture, credit agreement
or other definitive agreement evidencing such Refinancing
Indebtedness and the security and other documents relating thereto
(the “New Second Lien Loan
Documents”) shall automatically be treated as the
Second Lien Credit Agreement and the Second Lien Loan Documents
and, in the case of New Second Lien Loan Documents that are
security documents, as the Second Lien Security Documents for all
purposes of this Agreement, (D) the trustee, collateral agent or
similar representative for the holders of the New Second Lien
Obligations under the New Second Lien Loan Documents (the
“New Second Lien
Representative”) shall be deemed to be the Second Lien
Representative for all purposes of this Agreement and (E) the
holders of the Indebtedness under the New Second Lien Loan
Documents shall be deemed to be the Second Lien Lenders for all
purposes of this Agreement.
SECTION
7.03. No Waiver by First Lien Secured Parties and Super
Senior Secured
Parties. Other than with respect to the Second Lien
Permitted Actions, nothing contained herein shall prohibit or in
any way limit the First Lien Representative or any other First Lien
Secured Party or the Super Senior
Representative or any other Super Senior Secured Party from
opposing, challenging or objecting to, in any Insolvency or
Liquidation Proceeding or otherwise, any action taken, or any claim
made, by the Second Lien Representative or any other Second Lien
Secured Party, including any request by the Second Lien
Representative or any other Second Lien Secured Party for adequate
protection or any exercise by the Second Lien Representative or any
other Second Lien Secured Party of any of its rights and remedies
under the Second Lien Loan Documents or otherwise, or any proposal
by the Second Lien Representative or any other Second Lien Secured
Party to provide any DIP Financing.
40
SECTION
7.04. Reinstatement. If, in any Insolvency or
Liquidation Proceeding or otherwise, all or part of any payment
with respect to the First Lien Secured
Obligations or Super Senior Secured Obligations previously
made shall be rescinded, invalidated, avoided, declared to be
fraudulent or preferential, set aside, or otherwise required to be
transferred to a debtor-in-possession, trustee, receiver or similar
Person or the estate of any Grantor (a “Recovery”) for any reason
whatsoever, then the First Lien Secured Obligations or Super Senior Secured Obligations, as
applicable, shall be reinstated to the extent of the amount
so subject to Recovery as if such payment had not occurred (and the
Discharge of First Lien Secured Obligations shall be deemed not to
have occurred) and, if theretofore terminated, this Agreement shall
be reinstated in full force and effect and such prior termination
shall not diminish, release, discharge, impair or otherwise affect
the Lien priorities and the relative rights and obligations of the
First Lien Secured Parties, the Super
Senior Secured Parties and the Second Lien Secured Parties
provided for herein. Upon any such reinstatement of First Lien
Secured Obligations, or Super Senior
Secured Obligations, as applicable, each Second Lien Secured
Party will deliver to the Controlling First Lien Representative, in
accordance with Section 4.02, any Collateral or Proceeds thereof
received between the Discharge of First Lien Secured Obligations
and such reinstatement.
SECTION
7.05. Further Assurances. Each of the First
Lien Representative, for itself and on behalf of the other First
Lien Secured Parties, the Super Senior
Representative, for itself and on behalf of the other Super
Senior Secured Parties, and the Second Lien Representative,
for itself and on behalf of the other Second Lien Secured Parties,
agrees that it will execute, or will cause to be executed, any and
all further documents, agreements and instruments, and take all
such further actions, as may be required under any applicable law,
or which the First Lien Representative, the Super Senior Representative or the
Second Lien Representative may reasonably request, to effectuate
the terms of this Agreement, including the relative Lien priorities
provided for herein.
ARTICLE VIII.
REPRESENTATIONS AND WARRANTIES
Each
Representative party hereto represents and warrants to the other
Representative as follows:
(a) Such Representative
is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization and has all requisite
power and authority to execute and deliver this Agreement and
perform its obligations hereunder.
(b) This Agreement has
been duly executed and delivered by such Representative and
constitutes a legal, valid and binding obligation of such
Representative, enforceable in accordance with its
terms.
(c) Such Representative
has been authorized by the First Lien Lenders (in the case of First
Lien Representative) and,
the Second Lien Lenders (in the case of the Second Lien
Representative) and the Super Senior
Lenders (in the case of the Super Senior Representative) to
enter into this Agreement.
41
ARTICLE IX.
NO RELIANCE; NO LIABILITY; OBLIGATIONS ABSOLUTE
SECTION
9.01. No Reliance; Information. Each
Representative, for itself and on behalf of the applicable other
Secured Parties, acknowledges that (a) it and such Secured
Parties have, independently and without reliance upon, in the case
of the First Lien Secured Parties, any Second Lien Secured Party
or any Super Senior Secured Party, in
the case of the Super Senior Secured Parties, any First Lien
Secured Party or Second Lien Secured Party, and, in the case
of the Second Lien Secured Parties, any First Lien Secured
Party or any Super Senior
Secured Party, and based on such documents and information
as they have deemed appropriate, made their own credit analysis and
decision to enter into the Loan Documents to which they are party
and (b) it and such Secured Parties will, independently and
without reliance upon, in the case of the First Lien Secured
Parties, any Second Lien Secured Party or Super Senior Secured Party, in the case of the
Super Senior Secured Parties, any First Lien Secured Party or
Second Lien Secured Party, and, in the case of the Second
Lien Secured Parties, any First Lien Secured Party or Super Senior Secured
Party, and based on such documents and information as they shall
from time to time deem appropriate, continue to make their own
credit decision in taking or not taking any action under this
Agreement or any other Loan Document to which they are party. The
First Lien Secured Parties, the Super
Senior Secured Parties and the Second Lien Secured Parties
shall have no duty to disclose to any Second Lien Secured Party, any Super Senior Secured
Party or to any First Lien Secured Party, respectively, any
information relating to the Borrower or any of the Subsidiaries, or
any other circumstance bearing upon the risk of nonpayment of any
of the First Lien Secured Obligations,
the Super Senior Secured Obligations or the Second Lien
Secured Obligations, as the case may be, that is known or becomes
known to any of them or any of their Affiliates. In the event any
First Lien Secured Party, any Super
Senior Secured Party or any Second Lien Secured Party, in
its sole discretion, undertakes at any time or from time to time to
provide any such information to, respectively, any Second Lien
Secured Party, any Super Senior
Secured Party or any First Lien Secured Party, it shall be
under no obligation (i) to make, and shall not make or be
deemed to have made, any express or implied representation or
warranty, including with respect to the accuracy, completeness,
truthfulness or validity of the information so provided,
(ii) to provide any additional information or to provide any
such information on any subsequent occasion or (iii) to
undertake any investigation.
SECTION
9.02. No Warranties or Liability. (a) The
First Lien Representative, for itself and on behalf of the other
First Lien Secured Parties, acknowledges and agrees that, except
for the representations and warranties set forth in
Article VIII, neither the Second Lien Representative nor any
other Second Lien Secured Party and
neither the Super Senior Representative nor any other Super Senior
Secured Party has made any express or implied representation
or warranty, including with respect to the execution, validity,
legality, completeness, collectability or enforceability of any of
the Second Lien Loan Documents or the
Super Senior Loan Documents, the ownership of any Collateral
or the perfection or priority of any Liens thereon. The Second Lien
Representative, for itself and on behalf of the other Second Lien
Secured Parties, acknowledges and agrees that, except for the
representations and warranties set forth in Article VIII,
neither the First Lien Representative nor any other First Lien
Secured Party and neither the Super
Senior Representative nor any other Super Senior Secured
Party has made any express or implied representation or
warranty, including with respect to the execution, validity,
legality, completeness, collectability or enforceability of any of
the First Lien Loan Documents or the
Super Senior Loan Documents, the ownership of any Collateral
or the perfection or priority of any Liens thereon. The Super Senior Representative, for itself and on
behalf of the other Super Senior Secured Parties, acknowledges and
agrees that, except for the representations and warranties set
forth in Article VIII, neither the First Lien Representative
nor any other First Lien Secured Party and neither the Second Lien
Representative nor any other Second Lien Secured Party has made any
express or implied representation or warranty, including with
respect to the execution, validity, legality, completeness,
collectability or enforceability of any of the First Lien Loan
Documents or the Second Lien Loan Documents, the ownership of any
Collateral or the perfection or priority of any Liens
thereon.
42
(a) The Second Lien
Representative and the other Second Lien Secured Parties shall have
no express or implied duty to the First Lien Representative or any
other First Lien Secured Party, and
or the Super Senior Representative or
any other Super Senior Secured Party, the First Lien
Representative and the other First Lien Secured Parties shall have
no express or implied duty to the Second Lien Representative or any
other Second Lien Secured Party,
or the Super Senior Representative or
any other Super Senior Secured Party, and the Super Senior
Representative and the other Super Senior Secured Parties shall
have no express or implied duty to the First Lien
Representative or any other
First Lien Secured Party or the Second Lien Representative or any
other Second Lien Secured Party to act or refrain from
acting in a manner which allows, or results in, the occurrence or
continuance of a default or an event of default under any First
Lien Loan Document, Super Senior Loan
Document and any Second Lien Loan Document (other than, in
each case, this Agreement), regardless of any knowledge thereof
which they may have or be charged with.
(b) The Second Lien
Representative, for itself and on behalf of the other Second Lien
Secured Parties, agrees no First Lien Secured Party or Super Senior Secured Party
shall have any liability to the Second Lien Representative or any
other Second Lien Secured Party, and hereby waives any claim
against any First Lien Secured Party and any Super Senior Secured Party, arising
out of any and all actions which the First Lien Representative or
the other First Lien Secured Parties or the Super Senior Representative or any other
Super Senior Secured Party may take or permit or omit to
take with respect to (i) the First Lien Loan Documents
or the Super Senior Loan
Documents (other than this Agreement), (ii) the
collection of the First Lien Secured
Obligations or the Super Senior Secured Obligations or
(iii) the maintenance of, the preservation of, the foreclosure
upon or the Disposition of any Collateral.
SECTION
9.03. Obligations Absolute. The Lien
priorities provided for herein and the respective rights,
interests, agreements and obligations hereunder of the First Lien
Representative and the other First Lien Secured Parties, the Super Senior Representative and the other
Super Senior Secured Parties and the Second Lien
Representative and the other Second Lien Secured Parties shall
remain in full force and effect irrespective of:
(a) any lack of
validity or enforceability of any Loan Document;
(b) any change in the
time, place or manner of payment of, or in any other term of
(including, subject to the limitations set forth in Section
7.01(a), the Refinancing of), all or any portion of the First Lien
Secured Obligations and/or the Super
Senior Secured Obligations, it being specifically
acknowledged that a portion of the First Lien Secured Obligations and/or the Super 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;
(c) any amendment,
waiver or other modification, whether by course of conduct or
otherwise, of any Loan Document;
43
(d) the securing of any
First Lien Secured Obligations or,
any Super Senior Secured Obligations or any Second Lien
Secured Obligations with any additional collateral or guarantees,
or any exchange, release, voiding, avoidance or non-perfection of
any security interest in any Collateral or any other collateral or
any release of any guarantee securing any First Lien Secured
Obligations, Super Senior Secured
Obligations or Second Lien Secured Obligations;
or
(e) the commencement of
an Insolvency or Liquidation Proceeding or any other circumstances
that otherwise might constitute a defense available to, or a
discharge of, the Borrower, any other Grantor or any other Person
in respect of the First Lien Secured Obligations, Super Senior Secured Obligations or this
Agreement, or any of the Second Lien Secured Parties in respect of
this Agreement.
ARTICLE
X.
MISCELLANEOUS
SECTION
10.01. Notices. 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 fax or email, as
follows:
(a) if to the First
Lien Representative, to Wilmington Trust, National Association, as
Collateral Agent, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇, Attention: Fusion First Lien Loan Administrator, Email:
▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇,
and
(b) if
to the Super Senior Representative, to Wilmington Trust, National
Association, as Collateral Agent: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Attention: Fusion Super Senior Loan
Administrator. Email: ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇; and
(c) (b) if to
the Second Lien Representative, to Wilmington Trust, National
Association, as Collateral Agent, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Fusion Second Lien Loan
Administrator, Email: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
All
notices and other communications given to any party hereto in
accordance with the provisions of this Agreement sent by hand or
overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices and
other communications sent by fax shall be deemed to have been given
when sent; and notices and other communications sent to an email
address shall be deemed received upon the sender’s receipt of
an acknowledgement from the intended recipient (such as by the
“return receipt requested” function, as available,
return email or other written acknowledgement), except that, if not
given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next
business day for the recipient.
44
SECTION
10.02. Conflicts. In the event of any conflict
or inconsistency between the provisions of this Agreement and the
provisions of the other Loan Documents, the provisions of this
Agreement shall control.
SECTION
10.03. Effectiveness; Survival. This Agreement
shall become effective when executed and delivered by the parties
hereto. 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. The terms of this
Agreement shall survive, and shall continue in full force and
effect, in any Insolvency or Liquidation Proceeding. The Second
Lien Representative, for itself and on behalf of the other Second
Lien Secured Parties, hereby waives any and all rights the Second
Lien Secured Parties may now or hereafter have under applicable law
to revoke this Agreement or any of the provisions of this
Agreement.
SECTION
10.04. Severability. In the event any one or
more of the provisions contained in this Agreement should be held
invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby (it
being understood that the invalidity of a particular provision in a
particular jurisdiction shall not in and of itself affect the
validity of 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
10.05. Amendments; Waivers. (a) No failure or
delay on the part of any party hereto in exercising any power or
right 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 Section 10.05(b), and then such waiver
or consent shall be effective only in the specific instance and for
the purpose for which given.
(a) Neither this
Agreement nor any provision hereof may be waived, amended or
modified except pursuant to an agreement or agreements in writing
entered into by the First Lien Representative, the Super Senior Representative and the
Second Lien Representative;provided that:
(i) no such
agreement shall amend, modify or otherwise affect the rights or
obligations of any Grantor without the Borrower’s prior
written consent;
45
(ii) in
connection with any Refinancing contemplated by
Section 7.01(a) or 7.01(b), the First Lien
Representative, the Super Senior
Representative and the Second Lien Representative shall
enter (and are hereby authorized to enter without the consent of
any other Secured Party), at the written request and expense of the
Borrower, into such amendments or other modifications or
supplements of this Agreement as are reasonably necessary or
appropriate to add the new trustee, collateral agent or similar
representative in respect of such Refinancing Indebtedness as a
party hereto and to provide such new trustee, collateral agent or
similar representative, and the other holders of such Refinancing
Indebtedness, the rights and obligations hereunder of the
Representative in respect of, or the holders of, the Indebtedness
or other First Lien Secured Obligations, Super Senior Secured Obligations or
Second Lien Secured Obligations being Refinanced and to otherwise
reflect such Refinancing (and in connection therewith to provide
for technical modifications to this Agreement to facilitate the
foregoing), it being the intent that such amendments or other
modifications (A) establish that the Liens on any Collateral
securing any Refinancing Indebtedness in respect of First Lien
Secured Obligations and/or Super
Senior Secured Obligations will have the same priorities
relative to the Liens on such Collateral securing Second Lien
Secured Obligations as the Liens that secured the Indebtedness
being Refinanced had immediately prior to such Refinancing,
(B) establish that the Liens on any Collateral securing any
Refinancing Indebtedness in respect of Second Lien Secured
Obligations will have the same priorities relative to the Liens on
such Collateral securing First Lien Secured Obligations
and/or Super Senior Secured
Obligations as the Liens that secured the Indebtedness being
Refinanced had immediately prior to such Refinancing,
(C) provide to the parties benefited by the Liens on any
Collateral securing such Refinancing Indebtedness in respect of
First Lien Secured Obligations and/or
Super Senior Secured Obligations the same rights and
obligations relative to the parties holding Liens on such
Collateral securing Second Lien Secured Obligations as the parties
that were benefited by the Liens that secured such Indebtedness or
other First Lien Secured Obligations and/or Super Senior Secured Obligations
being Refinanced had immediately prior to such Refinancing and
(D) provide to the parties benefited by the Liens on any
Collateral securing such Refinancing Indebtedness in respect of
Second Lien Secured Obligations the same rights and obligations
relative to the parties holding Liens on such Collateral securing
First Lien Secured Obligations and/or
Super Senior Secured Obligations as the parties that were
benefited by the Liens that secured such Indebtedness or other
Second Lien Secured Obligations being Refinanced had immediately
prior to such Refinancing;
46
(iii) in
connection with the incurrence of any Additional First Lien
Obligations, the First Lien Representative, the Super Senior Representative and the
Second Lien Representative shall enter (and are hereby authorized
to enter without the consent of any other Secured Party), at the
written request and expense of the Borrower, into such amendments
or other modifications or supplements of this Agreement as are
reasonably necessary or appropriate to add an Additional First Lien
Obligations Representative as a party hereto, to provide such
Additional First Lien Obligations Representative and the other
holders of such Additional First Lien Obligations rights and
obligations hereunder substantially identical to those of the First
Lien Representative and the other First Lien Secured Parties
and the Super Senior Representative
and the other Super Senior Secured Parties (subject, with
respect to the exercise of remedies and certain other rights set
forth herein, to the allocation of control between the First Lien
Secured Parties, the Super
Senior Secured Parties and the holders of such Additional
First Lien Obligations in the manner agreed by them) and otherwise
to treat such Additional First Lien Obligations and any Liens on
any assets of the Borrower or any Subsidiary securing such
Additional First Lien Obligations in a manner that is substantially
identical to the treatment hereunder of the First Lien Secured Obligations, the Super Senior
Secured Obligations and the First Priority Liens (and in connection
therewith to provide for technical modifications to this Agreement
to facilitate the foregoing, including, for the avoidance of doubt,
modifications to the cap limitations (but not any increase in the
aggregate amount of such cap limitations, except to the extent
otherwise permitted by the Second Lien Loan Documents then extant)
in the definition of the term “Maximum First Lien Principal
Amount” and in Section 6.01(a)(ii) (and modifications to
related definitions) to include such Additional First Lien
Obligations in such cap limitations in a manner that is
substantially identical to the treatment hereunder of the First
Lien Loan Document Obligations and the First Lien Secured
Obligations and the Super Senior Loan
Document Obligations and the Super Senior Secured
Obligations); and
(iv) in
connection with the incurrence of any Additional Second Lien
Obligations, the First Lien Representative, the Super Senior Representative and the
Second Lien Representative shall enter (and are hereby authorized
to enter without the consent of any other Secured Party), at the
written request and expense of the Borrower, into such amendments
or other modifications or supplements of this Agreement as are
reasonably necessary or appropriate to add an Additional Second
Lien Obligations Representative as a party hereto, to provide such
Additional Second Lien Obligations Representative and the other
holders of such Additional Second Lien Obligations rights and
obligations substantially similar to those of the Second Lien
Representative and the other Second Lien Secured Parties (subject,
with respect to the exercise of remedies and certain other rights
set forth herein, to the allocation of control between the Second
Lien Secured Parties and the holders of such Additional Second Lien
Obligations in the manner agreed by them) and otherwise to treat
such Additional Second Lien Obligations and any Liens on any assets
of the Borrower or any Subsidiary securing such AdditionalSecond
Lien Obligations in a manner that reflects the status thereof as
Additional Second Lien Obligations secured on a basis, and Liens
that are, junior to the First Priority Liens and the Liens securing
any Additional First Lien Obligations (and in connection therewith
to provide for technical modifications to this Agreement to
facilitate the foregoing).
47
(b) Notwithstanding the
terms of Section 10.05(b), in the event that the Second Lien
Representative has not commenced the actions contemplated by
Section 10.05(b)(ii) or 10.05(b)(iii) in connection with any
permitted Refinancing of the First Lien Secured Obligations or
Super Senior Secured Obligations
or the incurrence of any Additional First Lien Obligations,
as applicable, within 10 Business Days after the delivery by the
Borrower to the Second Lien Representative of a written request to
do so, then, unless the Second Lien Representative has provided
written notice to the Borrower and,
the First Lien Representative and the
Super Senior Representative within such 10 Business Day
period setting forth in reasonable detail the basis for its
determination that it is not required to take such action in
accordance with Section 10.05(b)(ii) or 10.05(b)(iii), as
applicable, any of the First
Lien Representative or the Super
Senior Representative, without the consent of the Second
Lien Representative, is authorized to amend or otherwise modify
this Agreement in the manner set forth in Section 10.05(b)(ii) or
10.05(b)(iii), as applicable;provided that such Refinancing
or Additional First Lien Obligations, as applicable (and any Liens
relating thereto), are permitted under the Second Lien Loan
Documents then extant.
(c) Notwithstanding the
terms of Section 10.05(b), in the event that the First Lien
Representative does not take the actions contemplated by Section
10.05(b)(ii) or 10.05(b)(iv) in connection with any permitted
Refinancing of the Second Lien Secured Obligations or the
incurrence of any Additional Second Lien Obligations, as
applicable, within 10 Business Days after the delivery by the
Borrower to the First Lien Representative of a written request to
do so, then, unless the First Lien Representative has provided
written notice to the Borrower and the Second Lien Representative
within such 10 Business Day period setting forth in reasonable
detail the basis for its determination that it is not required to
take such action in accordance with Section 10.05(b)(ii) or
10.05(b)(iv), as applicable, the Second Lien Representative,
without the consent of the First Lien Representative, is authorized
to amend or otherwise modify this Agreement in the manner set forth
in Section 10.05(b)(ii) or 10.05(b)(iv), as applicable;provided that such Refinancing
or Additional Second Lien Obligations, as applicable (and any Liens
relating thereto), are permitted under the First Lien Loan
Documents then extant.
(d) Notwithstanding
the terms of Section 10.05(b), in the event that the Super Senior
Representative does not take the actions contemplated by Section
10.05(b)(ii) or 10.05(b)(iv) in connection with any permitted
Refinancing of the Second Lien Secured Obligations or the
incurrence of any Additional Second Lien Obligations, as
applicable, within 10 Business Days after the delivery by the
Borrower to the Super Senior Representative of a written request to
do so, then, unless the Super Senior Representative has provided
written notice to the Borrower and the Second Lien
Representative within such 10
Business Day period setting forth in reasonable detail the basis
for its determination that it is not required to take such action
in accordance with Section 10.05(b)(ii) or 10.05(b)(iv), as
applicable, the Second Lien Representative, without the consent of
the Super Senior Representative, is authorized to amend or
otherwise modify this Agreement in the manner set forth in Section
10.05(b)(ii) or 10.05(b)(iv), as applicable; provided that such
Refinancing or Additional Second Lien Obligations, as applicable
(and any Liens relating thereto), are permitted under the Super
Senior Loan Documents then extant.
SECTION
10.06. Subrogation. The Second Lien
Representative, for itself and on behalf of the other Second Lien
Secured Parties, hereby waives any rights of subrogation it or they
may acquire as a result of any payment hereunder until the
Discharge of First Lien Secured Obligations has
occurred;provided, however, that, as between the
Borrower and the other Grantors, on the one hand, and the Second
Lien Secured Parties, on the other hand, any such payment that is
paid over to the First Lien Representative or the Super Senior Representative pursuant
to this Agreement shall be deemed not to reduce any of the Second
Lien Secured Obligations unless and until the Discharge of First
Lien Secured Obligations shall have occurred and the First Lien
Representative or the Super Senior
Representative, as applicable, delivers any such payment to
the Second Lien Representative.
48
SECTION10.7. APPLICABLE
LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS; WAIVERS.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT
LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS
WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES
THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN
THE LAW OF THE STATE OF NEW YORK.
(a) ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST ANY PARTY HERETO OR ANY OTHER SECURED
PARTY OR GRANTOR ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL
BE BROUGHT EXCLUSIVELY IN ANY FEDERAL COURT OF THE UNITED STATES OF
AMERICA SITTING IN THE BOROUGH OF MANHATTAN OR, IF THAT COURT DOES
NOT HAVE SUBJECT MATTER JURISDICTION, IN ANY STATE COURT LOCATED IN
THE CITY AND COUNTY OF NEW YORK. BY EXECUTING AND DELIVERING THIS
AGREEMENT, EACH REPRESENTATIVE, FOR ITSELF AND ITS RELATED SECURED
PARTIES AND ITS AND THEIR PROPERTIES, IRREVOCABLY (I) ACCEPTS
GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE JURISDICTION AND VENUE
OF SUCH COURTS, (II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS,
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN
ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, TO THE APPLICABLE PARTY AT ITS ADDRESS PROVIDED
IN ACCORDANCE WITH SECTION 10.01, (IV) AGREES THAT SERVICE AS
PROVIDED IN CLAUSE (III) ABOVE IS SUFFICIENT TO CONFER
PERSONAL JURISDICTION OVER IT AND ITS PROPERTY IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE
AND BINDING SERVICE IN EVERY RESPECT AND (V) AGREES THAT A
FINAL JUDGMENT IN ANY SUCH PROCEEDING MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW.
(b) BY EXECUTING AND
DELIVERING THIS AGREEMENT, EACH REPRESENTATIVE, FOR ITSELF AND ITS
RELATED SECURED PARTIES AND ITS AND THEIR PROPERTIES, IRREVOCABLY
AGREES THAT THE ONLY NECESSARY PARTIES TO ANY AND ALL JUDICIAL
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE
THE PARTIES HERETO, EXCEPT WHERE IN ANY SUCH JUDICIAL PROCEEDING
RELIEF (INCLUDING INJUNCTIVE RELIEF OR THE RECOVERY OF MONEY) IS
BEING SOUGHT DIRECTLY AGAINST OR FROM A PERSON THAT IS NOT A PARTY.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND CONSISTENT
WITH THE PROVISIONS OF SECTIONS 10.13, NONE OF THE FIRST LIEN
SECURED PARTIES (OTHER THAN THE FIRST LIEN
REPRESENTATIVE), SUPER SENIOR SECURED
PARTIES (OTHER THAN THE SUPER SENIOR REPRESENTATIVE) OR THE
SECOND LIEN SECURED PARTIES (OTHER THAN THE SECOND LIEN
REPRESENTATIVE) SHALL BE NECESSARY OR OTHERWISE APPROPRIATE PARTIES
TO ANY SUCH JUDICIAL PROCEEDINGS, UNLESS IN SUCH JUDICIAL
PROCEEDING SUMS ARE BEING SOUGHT TO BE RECOVERED DIRECTLY FROM SUCH
PERSONS, INCLUDING PURSUANT TO SECTION 4.02, OR THE PROVISIONS OF
THIS AGREEMENT ARE SOUGHT TO BE ENFORCED DIRECTLY AGAINST SUCH
PERSONS.
49
SECTION
10.08. WAIVER OF JURY TRIAL. EACH
REPRESENTATIVE, FOR ITSELF AND ON BEHALF OF ITS RELATED SECURED
PARTIES, HEREBY WAIVES ITS AND THEIR RESPECTIVE RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING UNDER
THIS AGREEMENT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY
COURT AND THAT RELATE TO THE SUBJECT MATTER HEREOF, INCLUDING
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS. EACH REPRESENTATIVE, FOR ITSELF
AND ON BEHALF OF ITS RELATED SECURED PARTIES, ACKNOWLEDGES THAT
THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO THIS AGREEMENT
AND THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO
THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER
IN ITS RELATED FUTURE DEALINGS. EACH REPRESENTATIVE, FOR ITSELF AND
ON BEHALFOF ITS RELATED SECURED PARTIES, FURTHER WARRANTS AND
REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL
AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR
IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY
REFERRING TO THIS SECTION 10.08 AND EXECUTED BY EACH OF THE PARTIES
HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS, OR MODIFICATIONS HERETO. IN THE EVENT OF
LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A
TRIAL BY THE COURT.
SECTION
10.09. Parties in Interest. (a) The provisions
of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, as
well as the other First Lien Secured
Parties, Super Senior Secured Parties and Second Lien
Secured Parties, all of whom are intended to be bound by, and to be
third party beneficiaries of, this Agreement. Other than with
respect to Sections 7.02, 10.05(b), 10.05(c), and 10.05(d), which
shall also inure to the benefit of the Borrower, no other Person,
including any trustee, debtor-in-possession, creditor trust or
other representative of an estate or creditor of any Grantor
(including where such estate or creditor representative is the
beneficiary of a Lien securing Collateral by virtue of the
avoidance of such Lien in an Insolvency or Liquidation Proceeding),
shall have or be entitled to assert rights or benefits
hereunder.
(a) If eitherany
of the First Lien Representative, the Super Senior Representative or the
Second Lien Representative resigns or is replaced pursuant to the
First Lien Loan Documents, the Super
Senior Loan Documents or the Second Lien Loan Documents, as
applicable, its successor will be party to this Agreement with all
the rights, and subject to all the obligations of the predecessor
First Lien Representative, Super
Senior Representative or the Second Lien Representative, as
applicable, of this Agreement.
50
SECTION
10.10. Specific Performance. Each
Representative may demand specific performance of this Agreement
and, on behalf of itself and the respective other Secured Parties,
hereby irrevocably waives any defense based on the adequacy of a
remedy at law and any other defense that might be asserted to bar
the remedy of specific performance in any action which may be
brought by the respective Secured Parties. No bond shall be
required as a condition to the specific performance by any Secured
Parties.
SECTION
10.11. Headings. Article and Section headings
used herein and the Table of Contents hereto 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
10.12. Counterparts. This Agreement may be
executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original
but all of which when taken together shall constitute a single
contract, and shall become effective as provided in
Section 10.03. Delivery of an executed signature page to this
Agreement by facsimile or in electronic format (i.e.,
“pdf” or “tif”) shall be as effective as
delivery of a manually signed counterpart of this
Agreement.
SECTION
10.13. Provisions Solely to Define Relative
Rights. The provisions of this Agreement are and are
intended solely for the purpose of defining the relative rights of
the First Lien Secured Parties and the
Super Senior Secured Parties, on the one hand, and the
Second Lien Secured Parties, on the other hand. Except as expressly
provided in Section 10.09(a), none of the Borrower or any other
Grantor or any other creditor thereof shall have any rights or
obligations, and none of the Borrower, any other Grantor or any
Guarantor may rely on the terms hereof. Nothing in this Agreement
is intended to or shall impair the obligations of the Borrower or
any other Grantor or any Guarantor, which are absolute and
unconditional, to pay the First Lien Secured
Obligations, the Super Senior Secured
Obligations and the Second Lien Secured Obligations as and
when the same shall become due and payable in accordance with their
terms.
SECTION
10.14. Intercreditor Agreement
Acknowledgement. Reference is made to the
Intercreditor Agreement Acknowledgement, substantially in the form
of Annex II hereto, executed and delivered in respect of this
Agreement (a) on the date hereof by the Borrower and each other
Grantor that is a Grantor on the date hereof and (b) after the date
hereof, pursuant to the terms of the Credit Agreements and the Super Senior Credit Agreement, by
each Subsidiary that becomes a Grantor after the date
hereof.
SECTION
10.15. Dealings with Borrower, Grantors and
Guarantors. Upon any application, demand or request by the
Borrower or any other Grantors or Guarantors to any Representative
to take or permit any action under any of the provisions of this
Agreement or under any Security Document (if such action is subject
to the provisions hereof), the Borrower or such other Grantor or
Guarantor, as appropriate, shall furnish to such Representative a
certificate of an authorized officer (an “Officer’s Certificate”)
stating that all conditions precedent, if any provided for in this
Agreement or such Security Document, as the case may be, relating
to the proposed action have been complied with, except that in the
case of any such application, demand or request as to which the
furnishing of such document is specifically required by any
provisions of this Agreement or any Security Document relating to
such particular application, demand or request, no additional
certificate or opinion need be furnished.
51
SECTION
10.16. Agents and Representatives. It is
understood and agree that (a) the First Lien Representative is
entering into this Agreement in its capacity as administrative
agent and collateral agent under the First Lien Credit Agreement
and the provisions of Section 9 of the First Lien Credit Agreement
applicable to the Agents (as defined therein) thereunder shall also
apply to the First Lien Representative hereunder and
(b) the Super Senior Representative is
entering into this Agreement in its capacity as administrative
agent and collateral agent under the Super Senior Credit Agreement
and the provisions of Section 9 of the Super Senior Credit
Agreement applicable to the Agents (as defined therein) thereunder
shall also apply to the Super Senior Representative hereunder and
(c) the Second Lien Representative is entering into this
Agreement in its capacity as administrative agent and collateral
agent under the Second Lien Credit Agreement and the provisions of
Section 9 of the Second Lien Credit Agreement applicable to the
Agents (as defined therein) thereunder shall also apply to the
Second Lien Representative hereunder.
[Signature
pages follow.]
52
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.
|
WILMINGTON
TRUST, NATIONAL ASSOCIATION, as First Lien
Representative,
|
|
|
By
|
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Banking Officer
|
|
|
|
|
WILMINGTON
TRUST, NATIONAL ASSOCIATION, as Second Lien
Representative,
|
|
|
By
|
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Banking Officer
|
|
|
|
[Signature
Page to Fusion Intercreditor Agreement]
ANNEX I
INTERCREDITOR AGREEMENT ACKNOWLEDGEMENT
Reference is made
to the Intercreditor Agreement dated as of May 4, 2018 (as amended,
supplemented or otherwise modified from time to time, the
“Intercreditor
Agreement”), among Wilmington Trust, National
Association, as First Lien Representative, Wilmington Trust,
National Association, as Second Lien Representative, each
Additional First Lien Obligations Representative that may become a
party thereto and each Additional Second Lien Obligations
Representative that may become a party thereto. Capitalized terms
used but not defined herein have the meanings assigned thereto in
the Intercreditor Agreement.
1. Acknowledgements
and Agreements. Each of Fusion Connect, Inc., a Delaware
corporation (the “Borrower”), and each of the
undersigned Subsidiaries of the Borrower (together with the
Borrower, collectively, the “Grantors”) acknowledges that it
has received a copy of the Intercreditor Agreement and consents
thereto, agrees to recognize all rights granted thereby to the
First Lien Representative, the other First Lien Secured Parties, the Super Senior Representative,
the other Super Senior Secured Parties, the Second Lien
Representative and the other Second Lien Secured Parties, and
agrees that it will not do any act or perform any obligation that
is not in accordance with the agreements set forth in the
Intercreditor Agreement. Each Grantor further acknowledges and
agrees that (i) as between the Grantors and the First Lien
Representative and the other First Lien Secured Parties, the First
Lien Loan Documents remain in full force and effect as written and
are in no way modified by the Intercreditor Agreement and nothing
in the Intercreditor Agreement shall impair the obligations of the
Grantors to pay principal, interest, fees and other amounts as
provided in the First Lien Loan Documents, (ii) as between the
Grantors and the Super Senior
Representative and the other Super Senior Secured Parties, the
Super Senior Loan Documents remain in full force and effect as
written and are in no way modified by the Intercreditor Agreement
and nothing in the Intercreditor Agreement shall impair the
obligations of the Grantors to pay principal, interest, fees and
other amounts as provided in the Super Senior Loan Documents, (iii)
as between the Grantors and the Second Lien Representative
and the other Second Lien Secured Parties, the Second Lien Loan
Documents remain in full force and effect as written and are in no
way modified by the Intercreditor Agreement and nothing in the
Intercreditor Agreement shall impair the obligations of the
Grantors to pay principal, interest, fees and other amounts as
provided in the Second Lien Loan Documents, (iii)
except as expressly provided in Section 10.09(a) of the
Intercreditor Agreement, no Grantor is a beneficiary or
third party beneficiary of the Intercreditor Agreement and
(iv) except as expressly provided in Section 10.09(a) of the
Intercreditor Agreement, no Grantor is a beneficiary or
third party beneficiary of the Intercreditor Agreement and
(v) except as
expressly provided in Section 10.09(a) of the Intercreditor
Agreement, no Grantor has any rights under the Intercreditor
Agreement, no Grantor may assert or enforce any rights or benefits
under the Intercreditor Agreement, and no Grantor may rely on the
terms of the Intercreditor Agreement.
2. Notices.
Notices and other communications to the Borrower or any other
Grantor hereunder and under the Intercreditor Agreement shall be in
writing and shall be delivered by hand or overnight courier
service, or mailed by certified or registered mail to it at (or to
it in c/o) Fusion Connect, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇., Executive Vice President and General
Counsel.
All
notices and other communications given to the Borrower or any other
Grantor in accordance with the provisions hereof sent by hand or
overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; except
that, if not given during normal business hours for the recipient,
shall be deemed to have been given at the opening of business on
the next business day for the recipient.
3. Counterparts.
This Acknowledgement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which
shall constitute an original but all of which when taken together
shall constitute a single contract. Delivery of an executed
signature page to this Acknowledgement by facsimile transmission or
in electronic format (i.e., “pdf” or “tif”)
shall be as effective as delivery of a manually signed counterpart
of this Acknowledgement.
4. Additional
Subsidiaries. Pursuant to the Credit Agreements and the Super Senior Credit Agreement,
certain Subsidiaries not party hereto on the date hereof may be
required to enter into this Acknowledgement. Upon execution and
delivery to the Representatives after the date hereof by any
Subsidiary of a counterpart signature page hereto, such Subsidiary
shall become a party hereto with the same force and effect as if
originally named as such herein. The execution and delivery of such
a counterpart signature page shall not require the consent of any
party hereto. The rights and obligations under this Acknowledgement
of each other party hereto shall remain in full force and effect
notwithstanding the addition of any new Subsidiary as a party to
this Acknowledgement.
5. APPLICABLE
LAW. THIS ACKNOWLEDGEMENT
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING
ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE
SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO
POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF
THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW
OF THE STATE OF NEW YORK.
6. Credit
Document. This Acknowledgement shall constitute a First Lien
Loan Document, a Super Senior Loan
Document and a Second Lien Loan Document.
7. Miscellaneous.
The provisions of Sections 10.07(b), 10.07(c) and 10.08 of the
Intercreditor Agreement will apply with like effect to this
Acknowledgement, mutatis mutandis, as though the
references therein to each party thereto or each Representative
refer instead to each Grantor. The First Lien Representative, the
other First Lien Secured Parties, the Super Senior Representative, the other Super
Senior Secured Parties, the Second Lien Representative and
the other Second Lien Secured Parties are the intended
beneficiaries of this Acknowledgement.
[Signature
pages follow.]
ACKNOWLEDGED AS OF THE DATE FIRST WRITTEN ABOVE:
|
FUSION
CONNECT, INC.,FUSION NBS ACQUISITION CORP.,FUSION LLC,FUSION BCHI
ACQUISITION LLC,BIRCH COMMUNICATIONS, LLC,CBEYOND, INC.,CBEYOND
COMMUNICATIONS, LLC,
BIRCH
MANAGEMENT LLC,BIRCH TELECOM, LLC,BIRCH TEXAS HOLDINGS, INC.,BIRCH
TELECOM OF KANSAS, LLC,BIRCH TELECOM OF OKLAHOMA, LLC,BIRCH TELECOM
OF MISSOURI, LLC,BIRCH TELECOM OF TEXAS LTD., L.L.P.,BIRCAN
HOLDINGS, LLC,
PRIMUS
HOLDINGS, INC.,
FUSION
MPHC ACQUISITION CORP.,
|
||
|
|
||
|
by
|
||
|
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇.
|
|
|
|
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Executive
Vice President and General Counsel
|
|
|
|
|
|
[Signature
Page to Acknowledgment to Fusion Intercreditor
Agreement]
ANNEX
III
Provision for the Second Lien Security Documents
“Reference is made to the Intercreditor Agreement dated as of
May 4, 2018 (as amended, restated, supplemented or otherwise
modified from time to time, the “Intercreditor
Agreement”), among Wilmington Trust, National
Association, as First Lien Representative (as defined therein),
Wilmington Trust, National Association, as Second Lien
Representative (as defined therein), each Additional First Lien
Obligations Representative (as defined therein) that may become a
party thereto and each Additional Second Lien Obligations
Representative (as defined therein) that may become a party
thereto. Notwithstanding anything herein to the contrary, the lien
and security interest granted to the [Collateral Agent], for the
benefit of the [Secured Parties], pursuant to this Agreement and
the exercise of any right or remedy by the [Collateral Agent] and
the other [Secured Parties] hereunder are subject to the provisions
of the Intercreditor Agreement. In the event of any conflict or
inconsistency between the provisions of the Intercreditor Agreement
and this Agreement, the provisions of the Intercreditor Agreement
shall control.”