ABL Intercreditor Agreement Each Lender hereunder (a) acknowledges that it has received a copy of the ABL Intercreditor Agreement, (b) consents to the terms of the ABL Intercreditor Agreement, (c) agrees that it will be bound by the provisions of the ABL Intercreditor Agreement as if it were a signatory thereto and will take no actions contrary to the provisions of the ABL Intercreditor Agreement and (d) authorizes and instructs the Agent to enter into the ABL Intercreditor Agreement as Collateral Agent and on behalf of such Lender, and any documents relating thereto and (e) agrees that no Lender shall have any right of action whatsoever against the Agent as a result of any action taken by the Agent pursuant to this Section or the ABL Intercreditor Agreement. Each Lender hereby further irrevocably authorizes and directs the Agent (i) to take such actions as shall be required to release Liens on the Collateral in accordance with the terms of the ABL Intercreditor Agreement and this Agreement and (ii) to enter into such amendments, supplements or other modifications to the ABL Intercreditor Agreement in connection with any extension, renewal, refinancing or replacement of any Obligations and any Indebtedness incurred under the ABL Documents as are reasonably acceptable to the Agent to give effect thereto, in each case on behalf of such Lender and without any further consent, authorization or other action by and on behalf of such Lender.
Intercreditor Agreement Each Person that is secured hereunder, by accepting the benefits of the security provided hereby, (i) agrees (or is deemed to agree) that it will be bound by, and will take no actions contrary to, the provisions of any applicable Intercreditor Agreement; provided that such provisions are not in conflict with this Agreement, and (ii) authorizes (or is deemed to authorize) and instructs (or is deemed to instruct) the Collateral Trustee on behalf of such Person to enter into, and perform under, any applicable Intercreditor Agreement on terms that do not conflict with this Agreement. At the direction of the Company pursuant to an Officer’s Certificate, the Collateral Trustee agrees to enter into any Intercreditor Agreement or amendments or joinders to any Intercreditor Agreement, without the consent of any Priority Lien Secured Party, to add additional Indebtedness as Priority Lien Debt (to the extent permitted to be incurred and secured by the applicable Priority Lien Documents) and add other parties (or any authorized agent or trustee therefor) holding such Indebtedness thereto and to establish that the Lien on any Collateral securing such Indebtedness ranks equally with the Liens on such Collateral securing the other Priority Lien Debt then outstanding, subject to the terms of this Agreement, including Section 3.4. Notwithstanding anything to the contrary contained herein, to the extent that any Lien on any Collateral is perfected by the possession or control of such Collateral (including control over any account in which Collateral is held), and if such Collateral (or any such account) is in fact in the possession or under the control of an agent or bailee of the Collateral Trustee (including any Priority Lien Representative or its agents or bailees), the perfection actions and related deliverables described in this Agreement or the other Security Documents (i.e., the Security Documents other than the Security Document giving rise to such Lien, perfection and control) shall not be required. Notwithstanding anything to the contrary contained in this Agreement, to the extent of any conflict between this Agreement and any Intercreditor Agreement, the terms of this Agreement shall prevail.
Intercreditor Agreement Governs Each Lender and Agent (a) hereby agrees that it will be bound by and will take no actions contrary to the provisions of the Pari Passu Intercreditor Agreement any other intercreditor agreement or subordination agreement entered into pursuant to the terms hereof, (b) hereby authorizes and instructs the Administrative Agent and the Collateral Agent to enter into the Pari Passu Intercreditor Agreement and each other intercreditor agreement or subordination agreement and any other intercreditor agreement or subordination agreement entered into pursuant to the terms hereof and to subject the Liens securing the Secured Obligations to the provisions thereof and (c) hereby authorizes and instructs the Administrative Agent and the Collateral Agent to enter into the Pari Passu Intercreditor Agreement and any other intercreditor agreement or subordination agreement that includes, or to amend the Pari Passu Intercreditor Agreement any then existing intercreditor agreement or subordination agreement to provide for, the terms described in the definition of the terms “Permitted First Priority Replacement Debt” or “Permitted Second Priority Replacement Debt” or other “First Lien Senior Secured Note” or the Collateral Agent, as applicable or as otherwise provided for by the terms of this Agreement; provided that in each case, such intercreditor agreement is substantially consistent with the terms set forth on Exhibit K-1 or K-2 annexed hereto together with (A) any immaterial changes and (B) changes implementing additional extensions of credit permitted under this Agreement, in each case in form and substance reasonably satisfactory to the Administrative Agent and/or Collateral Agent (it being understood that junior Liens are not required to be pari passu with other junior Liens, and that Indebtedness secured by junior Liens may secured by Liens that are pari passu with, or junior in priority to, other Liens that are junior to the Liens securing the Obligations).
Intercreditor Provisions (a) Notwithstanding anything herein to the contrary, (i) the Liens and security interests granted to the Collateral Agent for the benefit of the Secured Parties pursuant to this Agreement and (ii) the exercise of any right or remedy by the Collateral Agent hereunder or the application of proceeds (including insurance and condemnation proceeds) of any Collateral, in each case, are subject to the limitations and provisions of any applicable Intercreditor Agreement to the extent provided therein. In the event of any conflict between the terms of such applicable Intercreditor Agreement and the terms of this Agreement, the terms of such applicable Intercreditor Agreement shall govern. (b) Notwithstanding anything contained in this Agreement or any other Security Document, to the extent that the provisions of this Agreement (or any other Security Document) require the delivery of, or granting of control over, or giving notice with respect to, any Collateral in respect of which any other lenders or other secured parties (or representatives thereof) have a security interest therein that is senior priority relative to the security interest of the Collateral Agent pursuant to any Intercreditor Agreement, then until the obligations to such lenders or other secured parties (or representatives thereof) secured by such security interests (excluding contingent obligations as to which no claim has been made or which are otherwise not due) shall have been paid in full in cash and all commitments of such lenders or other secured parties (or representatives thereof) shall have been terminated, delivery of such Collateral (or control or notice with respect thereto) may instead be made to the applicable lender or other secured party (or representative thereof), to be held in accordance with the applicable Intercreditor Agreements, and any Grantor’s obligations hereunder with respect to such delivery, control or notice shall be deemed satisfied by such delivery to such lender or other secured party (or representative thereof). Furthermore, at all times prior to the obligations to such lenders or other secured parties (or representatives thereof) secured by such security interests (excluding contingent obligations as to which no claim has been made or which are otherwise not due) having been paid in full in cash and all commitments of such lenders or other secured parties (or representatives thereof) having been terminated, the Collateral Agent is authorized by the parties hereto to effect transfers of such Collateral at any time in its possession (and any “control” or similar agreements with respect to such Collateral) to the applicable lender or other secured party or representative thereof in accordance with the applicable Intercreditor Agreements.
Subordination Agreement Each of (i) the subordination of interest payments to the Noteholders of the Class B Notes to the payment of any First Priority Principal Payment to the Noteholders of the Class A Notes and (ii) the subordination of interest payments to the Noteholders of the Class C Notes to the payment of any Second Priority Principal Payment to the Noteholders of the Class A Notes and the Class B Notes under Section 8.2(c) is a subordination agreement within the meaning of Section 510(a) of the Bankruptcy Code.
Intercreditor Agreements Notwithstanding anything to the contrary set forth herein, this Agreement will be subject to the terms and provisions of the ABL/Bond Intercreditor Agreement and any other applicable Customary Intercreditor Agreement. In the event of any inconsistency between the provisions of this Agreement and the ABL/Bond Intercreditor Agreement or any other such Customary Intercreditor Agreement, the provisions of each Intercreditor Agreement shall govern and control. The Lenders acknowledge and agree that the Administrative Agent is authorized to, and the Administrative Agent agrees that with respect to any applicable secured Indebtedness permitted to be incurred under this Agreement, upon request by the Borrower, it shall, enter into the ABL/Bond Intercreditor Agreement and any other Customary Intercreditor Agreement in accordance with the terms hereof. The Lenders authorize the Administrative Agent to (a) enter into the ABL/Bond Intercreditor Agreement, and any other such Customary Intercreditor Agreement, (b) bind the Lenders on the terms set forth in the ABL/Bond Intercreditor Agreement and such Customary Intercreditor Agreement and (c) perform and observe its obligations under the ABL/Bond Intercreditor Agreement and any such Customary Intercreditor Agreement.
Subordination Agreements Subordination Agreements with respect to all Subordinated Debt.
Termination of Intercreditor Agreement Following payment of Final Distributions with respect to each Class of Certificates and the payment in full of all Liquidity Obligations to the Liquidity Providers and provided that there shall then be no other amounts due to the Certificateholders, the Trustees, the Liquidity Providers and the Subordination Agent hereunder or under the Trust Agreements, and that the commitment of the Liquidity Providers under the Liquidity Facilities shall have expired or been terminated, this Agreement and the trusts created hereby shall terminate and this Agreement shall be of no further force or effect. Except as aforesaid or otherwise provided, this Agreement and the trusts created hereby shall continue in full force and effect in accordance with the terms hereof.
Terms Defined in the Intercreditor Agreement For all purposes of this Agreement, the following terms shall have the respective meanings assigned to such terms in the Intercreditor Agreement:
Standstill Agreement (A) During the Standstill Period, and, if this Agreement is terminated prior to Closing pursuant to Section 10.1(a), for the one year period after the end of the Standstill Period (such one year period, the "Post Termination Standstill Period"), unless the Company shall have materially breached its obligation to nominate Investor Nominees or to appoint any Fully Independent Director pursuant to Section 5 (provided that, with respect to any such material breach that does not concern a Pre-Approved Person, a court of competent jurisdiction shall have determined pursuant to a final non-appealable order that the Company has so materially breached its obligations), the Investor shall not, shall cause each other member of the Investor Group not to, and shall use reasonable commercial efforts to cause other Affiliates and Associates of the Investor not members of the Investor Group ("Other Investor Affiliates") not to, directly or indirectly, alone or in concert with others: (a) acquire, offer or propose to acquire or agree to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other 13D Group or otherwise, Beneficial Ownership of any Voting Securities, Derivative Securities or any other securities of the Company or any rights to acquire (whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or any combination of the foregoing) any Voting Securities, other than (i) the purchase of Shares or other Voting Securities expressly permitted by this Agreement, (ii) the acquisition of Voting Securities as a result of any stock split, stock dividends or other distributions, recapitalizations or offerings made available by the Company to holders of Voting Securities generally or (iii) in a transaction in which the Investor or a Subsidiary of the Investor acquires a previously unaffiliated business entity that, to the knowledge of the Investor after reasonable inquiry, owns shares of Common Stock that represents less than 4% of the Company's outstanding Common Stock and less than 10% of the unaffiliated entity's assets; provided, that all such Voting Securities shall be subject to the terms of this Agreement; provided, further, however, that in the event of a transaction as contemplated by clause (iii) hereof, the Investor will transfer, or cause such Subsidiary to transfer, in a manner consistent with Section 6.3, such shares of Common Stock previously owned by the unaffiliated entity within twelve months following the consummation of such transaction and all such shares of Common Stock, pending their transfer, shall be voted by the Investor or such Subsidiary in accordance with the requirements of clauses (w) through (z) of Section 6.2 and on any other matter in the same proportion as the votes cast by or on behalf of all holders of the Company's Voting Securities other than the Investor Group and Other Investor Affiliates; (b) propose or seek to effect any merger, business combination, restructuring, recapitalization or similar transaction involving the Company or any of its Subsidiaries or the sale or other disposition outside the ordinary course of business of any material portion of the assets of the Company or any of its Subsidiaries except pursuant to Section 8.2 hereof; (c) deposit any Voting Securities in a voting trust or subject any Voting Securities to any arrangement or agreement with respect to the voting of such Voting Securities except pursuant to Section 8.8 hereof; (d) seek election to, seek to place a representative on, or seek the removal of any member of, the Board, except pursuant to Section 5 hereof; (e) engage in any "solicitation" (within the meaning of rule 14a-1 under the Exchange Act) of proxies or consents (whether or not relating to the election or removal of directors) with respect to the Company, or become a "participant" in any "election contest" (within the meaning of Rule 14a-11 under the Exchange Act) or, unless the execution by the Investor, member of the Investor Group or Other Investor Affiliate is first approved by the Board, execute any written consent in lieu of a meeting of the holders of any class of Voting Securities that is solicited by or on behalf of any shareholder of the Company; (f) call or seek to have called any meeting of the shareholders of the Company (except for the exercise by the Investor of its rights pursuant to Section 5.1(d)); (g) initiate, propose or otherwise solicit shareholders for the approval of any shareholder proposal (as described in Rule 14a-8 under the Exchange Act or otherwise) with respect to the Company; (h) form, join or in any way participate in or assist in the formation of a 13D Group with respect to any Voting Securities, other than any such "group" consisting exclusively of the Investor and other wholly-owned United States Subsidiaries of the Investor who have acquired Voting Securities in accordance with Section 2.2(b) or Section 6.3(a); (i) otherwise act, alone or in concert with others, to seek control or influence the management, the Board or the policies of the Company in a manner designed or having the deliberate effect of circumventing the restrictions otherwise imposed under this Section 6.1(A); (j) disclose or publicly announce any intention, plan or arrangement inconsistent with the foregoing; (k) advise, assist or encourage or finance any other persons in connection with any of the foregoing types of activities; or (l) request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Agreement; provided that nothing in this Section 6.1(A) shall limit any rights of the members of the Investor Group under the Joint Venture Agreement or the Research Alliance Agreement, or (I) prohibit any individual who is serving as a Director of the Company, solely in his or her capacity as such Director and provided no public disclosure thereof by the Company would be required, from (x) taking any action or making any statement at any meeting of the Board of Directors or of any committee thereof, (y) making any statement to any Representative of the Company, or (z) making any statement or disclosure required under federal securities laws or other applicable Law, (II) restrict any private communications not requiring public disclosure between the Investor and any Investor Nominee, (III) restrict any disclosure or statements required to be made by any member of the Investor Group under applicable Law to the extent any such requirement does not arise from actions by the Investor Group inconsistent with this Agreement, or (IV) limit the rights of the Investor Group pursuant to Section 6.2, Section 6.9 or Section 8.2. (B) Notwithstanding the foregoing, if this Agreement is terminated prior to Closing pursuant to Section 10.1(a), the provisions of paragraph (A) of this Section 6.1 (other than the provisions of clauses (a) (except as to proposals to the Company as to the matters in clause (b)) and (h) thereof and the provisions of (i), (j), (k) and (l) thereof to the extent such provisions relate to the acquisition of Voting Securities or other securities of the Company) shall cease to apply during the Post-Termination Standstill Period if (i) the Company enters into an agreement contemplating a Change in Control Transaction or a Competing Investment or the Company makes any filing with respect to, or seeks expiration of the waiting period under, the HSR Act with respect to a Change in Control Transaction or Competing Investment; (ii) the Board of Directors publicly announces its intention to solicit or publicly solicits any Proposal or publicly approves, accepts, authorizes or recommends to shareholders of the Company their approval of or the conveyance of shares pursuant to a Change in Control Transaction or Competing Investment; (iii) during or prior to the pendency of a bona fide tender or exchange offer made by any Person or 13D Group (other than a member of the Investor Group), the Board of Directors determines or resolves to, or announces its intention to, or is ordered or directed by any Governmental Entity to, redeem, amend or modify (to render inapplicable (including by taking action to cause a Section 11(a)(ii) Event or Section 13 Event (each as defined in the Amended Rights Agreement as in effect on the date hereof), not to occur that, absent such action, would otherwise have occurred, or to redeem the Preferred Stock Purchase Rights) thereto or otherwise exempt therefrom) the Preferred Stock Purchase Rights or the Amended Rights Agreement (or a Substantially Similar Agreement) or; (iv) any Person other than the Investor or an Excluded Person acquires or agrees to acquire 20% or more of the then outstanding Voting Securities or Common Securities.
