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Exhibit
10.7
COLLATERAL AGENT AND
INTERCREDITOR AGREEMENT
This Collateral Agent and Intercreditor
Agreement (this “Agreement”) dated as of May 5,
2006, is entered into by and among BANK OF AMERICA, N. A. ,
as Collateral Agent hereunder (the “Collateral Agent”);
STANDARD PACIFIC CORP. , a Delaware corporation (the
“Company”); and those subsidiaries of the Company
listed on the signature pages hereof or which may hereafter become
a party hereto pursuant to Section 12 (each of which is a
“Pledgor Subsidiary” as defined below); and each of the
following persons (each, in the capacities described below
(together with the representatives of any future Additional Covered
Obligations), a “Creditor Representative”):
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(A) |
Bank of America, N.A. , in its capacity as
Administrative Agent under the Revolving Credit Agreement, Term
Loan A Credit Agreement and Term Loan B Credit Agreement referred
to below; and |
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(B) |
J.P. Morgan Trust Company, National Association (as
successor in interest to Bank One Trust Company, N.A. and The First
National Bank of Chicago), in its capacity as trustee under the
Indenture referred to below, pursuant to which the Company’s
7% Senior Notes Due 2015, 6-1/4% Senior Notes Due 2014, 7-3/4%
Senior Notes due 2013, 6-7/8% Senior Notes due 2011, 6-1/2% Senior
Notes due 2010, 5-1/8% Senior Notes due 2009 and 6-1/2% Senior
Notes due 2008 (collectively the “Existing Notes”) each
were issued. |
The parties hereto hereby agree with
reference to the following facts:
RECITALS
| A. |
Pursuant to the Credit Documents described herein, the Company
and certain of its Pledgor Subsidiaries and other Subsidiaries have
incurred indebtedness for borrowed money, or have guaranteed such
indebtedness incurred by the Company. |
| B. |
The Term Loan B Credit Agreement referred to below requires
that the Company and the Pledgor Subsidiaries grant liens in the
stock (or other equity interests) of certain Subsidiaries of the
Company to secure the obligations of the Company and the respective
Pledgor Subsidiaries under the Term Loan B Credit
Agreement. |
| C. |
The Revolving Credit Agreement, the Term Loan A Credit
Agreement and the Indenture permit the liens securing Term Loan B
Credit Agreement but only if such liens secure the obligations
under the Revolving Credit Agreement, the Term Loan A Credit
Agreement and the Indenture on an equal and ratable
basis. |
| D. |
Substantially concurrently herewith, the Company and the
Pledgor Subsidiaries shall enter into the Pledge Agreement to grant
the liens in the Collateral to the Collateral Agent for the mutual
benefit of the Creditors. |
| E. |
The Company and the Creditor Representatives party hereto as of
the date hereof desire to provide that the liens granted under the
Pledge Agreement and contemplated hereby shall, to the extent of
the Qualified Obligations, be equal, ratable and pari passu and to
make provision for future Qualified Obligations incurred by the
Company to have the benefit of such liens on the same equal,
ratable and pari passu basis. |
| F. |
The Company and its Pledgor Subsidiaries may hereafter become
entitled to the release of the Collateral subject to this
Agreement, and further provision is made herein for the
effectuation of such a release. |
NOW, THEREFORE, the parties hereto
hereby agree as follows:
1. Definitions . As used herein,
the following terms have the meanings set forth after
each:
“ Additional Covered
Obligations ” has the meaning set forth in Section 4
of this Agreement.
“ Administrative
Agent ” means Bank of America, N.A., in its capacity as
Administrative Agent and its successors, assigns and replacements
in such capacity, under the Revolving Credit Agreement, the Term
Loan A Credit Agreement and the Term Loan B Credit Agreement,
respectively.
“ Bankruptcy
Proceeding ” means any bankruptcy or insolvency case or
proceeding arising out of an occurrence described in clause
(a) of the definition of Trigger Event.
“ Cash Equivalent
Investments ” means (a) direct obligations of the
United States Government or any agencies thereof and obligations
guaranteed by the United States Government, in each case having
remaining terms to maturity of not more than 30 days; and
(b) certificates of deposit, time deposits and acceptances,
having remaining terms to maturity of not more than 60 days issued
by United States banks which have a combined capital and surplus of
at least $1,000,000,000 and having an “A” rating or
better assigned thereto by Standard & Poor’s Ratings
Group, a Division of The McGraw Hill Companies, Inc. or
Moody’s Investors Service, Inc.
“ Collateral
” means the property of the Company and the Pledgor
Subsidiaries which is at any time subject to the Pledge
Agreement.
“ Collateral
Agent ” means Bank of America, N.A., in its capacity as
Collateral Agent and its successors, assigns and replacements in
such capacity.
“ Covered
Obligations ” means any Obligations (including
Obligations owed to the Creditors under the Existing Credit
Documents and Additional Covered Obligations) that would be
Qualified Obligations from and after delivery of a Trigger
Notice.
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“ Credit
Documents ” means, in respect of each Creditor Group, the
instruments, documents and agreements evidencing the obligations
and indebtedness of the Company and the Pledgor Subsidiaries owed
to such Creditor Group under the respective “Loan
Documents” (as defined in the Revolving Credit Agreement, the
Term Loan A Credit Agreement or the Term Loan B Credit Agreement)
or under the Indenture and the respective series of Notes, in each
case together with any respective guarantees thereof, or evidencing
Additional Covered Obligations, and in any event includes the
Existing Credit Documents.
“ Creditor
” means each Person which is the holder of, or Creditor
Representative with respect to, any indebtedness or other
obligation represented by Credit Documents representing
Obligations, including (a) Bank of America, N.A., as
Administrative Agent under the Revolving Credit Agreement, together
with the “Lenders,” “Issuing Banks,” and
“Swing Line Lender” referenced in such credit agreement
or from time to time party thereto, and those Persons entitled to
indemnification of any character under such credit agreement,
(b) Bank of America, N.A., as Administrative Agent under the
Term Loan A Credit Agreement, together with the
“Lenders” referenced in such loan agreement or from
time to time party thereto, and those Persons entitled to
indemnification of any character under such credit agreement,
(c) Bank of America, N.A., as Administrative Agent under the
Term Loan B Credit Agreement, together with the
“Lenders” referenced in such credit agreement or from
time to time party thereto, and those Persons entitled to
indemnification of any character under such credit agreement,
(d) J.P. Morgan Trust Company, National Association, as
Trustee under the Indenture in respect of each series of Notes
referred to in the definition of “Creditor Groups” and
the holders of such Notes, and (e) any Creditor Representative
in respect of any Additional Covered Obligations and the holders of
such obligations, in each case including their respective
successors, assigns and replacements.
“ Creditor Group
” means any of each of the following groups:
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(a) |
the Administrative Agent, the Lenders, the Issuing Banks and
the Swing Line Lender under the Revolving Credit
Agreement; |
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(b) |
the Administrative Agent and the Lenders under the Term Loan A
Credit Agreement; |
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(c) |
the Administrative Agent and the Lenders under the Term Loan B
Credit Agreement; |
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(d) |
the Trustee for and the holders of the Company’s 7%
Senior Notes Due 2015; |
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(e) |
the Trustee for and the holders of the Company’s 6-1/4%
Senior Notes Due 2014; |
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(f) |
the Trustee for and the holders of the Company’s 7-3/4%
Senior Notes Due 2013; |
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(g) |
the Trustee for and the holders of the Company’s 6-7/8%
Senior Notes due 2011; |
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(h) |
the Trustee for and the holders of the Company’s 6-1/2%
Senior Notes due 2010; |
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(i) |
the Trustee for and the holders of the Company’s , 5-1/8%
Senior Notes due 2009; |
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(j) |
the Trustee for and the holders of the Company’s 6-1/2%
Senior Notes due 2008; and |
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(k) |
the Creditor Representative for and the holders of each other
class of senior indebtedness of the Company which is hereafter
registered as Additional Covered Obligations pursuant to
Section 4 hereof; |
in each case together with
any trustee, administrative agent or other creditor representative
thereof, and any issuing banks, swap counterparties, indemnitees,
or other Persons entitled to the benefit of the Collateral
described in the relevant Credit Documents.
“ Enforcement
Order ” has the meaning set forth in Section 8(a) of
this Agreement.
“ Event of
Default ” means the occurrence of any Event of Default or
defined event of default under any Credit Document.
“ Existing Credit
Documents ” means (a) the Revolving Credit Agreement
and the “Loan Documents” (as such term is defined in
the Revolving Credit Agreement), (b) the Term Loan A Credit
Agreement and the “Loan Documents” (as such term is
defined in the Term Loan A Credit Agreement), (c) the Term
Loan B Credit Agreement and the “Loan Documents” (as
such term is defined in the Term Loan B Credit Agreement),
(d) the Indenture and the Existing Notes of the Company, and
(e) all guarantees of such obligations issued by the Company
or any of its Subsidiaries in respect of the foregoing, including
the Existing Guarantees.
“ Existing
Guarantees ” means guaranties or guarantees of the
Obligations entered into by certain subsidiaries of the Company
dated as of a date on or prior to this Agreement, including the
following guaranties or guarantees by the subsidiaries of the
Company named therein, in each case as at any time amended,
modified, supplemented, renewed or extended:
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(a) |
Continuing Guaranty dated as of August 31, 2005 (as
supplemented as of the date hereof) with respect to the Revolving
Credit Agreement; |
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(b) |
Continuing Guaranty of even date herewith with respect to the
Term Loan A Credit Agreement; |
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(c) |
Continuing Guaranty of even date herewith with respect to the
Term Loan B Credit Agreement; and |
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(c) |
the guarantee obligations contained in the Eleventh
Supplemental Indenture dated as of February 22, 2006 included
in the Indenture with respect to the Existing Notes. |
“ Hedge
Obligations ” means all obligations and indebtedness of
the Company or any of its Subsidiaries under any Swap Contract (as
defined in the Revolving Credit Agreement as in effect on the date
hereof) entered into with any Person who is entitled to the
benefits of this Agreement pursuant to Section 4.
“ Indenture
” means that certain Indenture dated as of April 1,
1999, as supplemented by that certain First Supplemental Indenture
dated as of April 13, 1999, Second Supplemental Indenture
dated as of September 5, 2000, Third Supplemental Indenture
dated as of December 28, 2001, Fourth Supplemental Indenture
dated as of March 4, 2003, Fifth Supplemental Indenture dated
as of May 12, 2003, Sixth Supplemental Indenture dated as of
September 23, 2003, Seventh and Eighth Supplemental
Indentures, each dated as of March 11, 2004, Ninth and Tenth
Supplemental Indentures, each dated as of August 1, 2005 and
Eleventh Supplemental Indenture dated as of February 22, 2006,
as at any time amended, modified, supplemented, renewed or
extended.
“ Majority
Representatives ” means, as of each date of
determination, those Creditor Representatives representing
(a) prior to any Trigger Event, Creditors holding a majority
of the principal amount of the Covered Obligations (including for
this purpose the amount of any unfunded credit commitments
(including undrawn letters of credit) which are Covered Obligations
and, with respect to any Hedge Obligations, the net close-out
amount and unpaid amounts owed to the respective Creditors,
calculated by the Collateral Agent as of the date of
determination), and (b) following any Trigger Event and
subject to Section 8(a), Creditors holding a majority of the
principal amount of the outstanding Qualified Obligations
(including without duplication the amount of any letters of credit
and related reimbursement obligations or other liquidated or
contingent obligations issued or arising under the related Credit
Documents and, with respect to any Hedge Obligations, the close-out
amount (and, if applicable, any unpaid amount) calculated by the
Collateral Agent as of the date of determination).
“ New Guarantee
” means a guaranty of any Obligations hereafter executed by
any Subsidiary of the Company, in each case as at any time amended,
modified, supplemented, renewed or extended.
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“ Obligations
” means, collectively, all obligations and indebtedness of
the Company or any of the Pledgor Subsidiaries which are owed to
any Creditors under the Credit Documents.
“ Pledge
Agreement ” means a Pledge Agreement of even date
herewith among the Company, the Pledgor Subsidiaries and the
Collateral Agent, granting a lien to the Collateral Agent for the
benefit of the holders of the Obligations, in each case as at any
time amended, modified, supplemented, renewed or
extended.
“ Pledgee
Subsidiary ” has the meaning set forth in the Pledge
Agreement.
“ Qualified
Obligations ” means:
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(a) |
in the case of each Creditor Group holding Term Credit
Obligations, all principal Obligations owed to such Creditor Group
which are outstanding immediately prior to the delivery of a
Trigger Notice, together with interest, fees, premiums,
indemnification claims, and reasonable costs and expenses allocable
to such principal, whether arising before or after a Trigger
Event; |
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(b) |
in the case of each Creditor Group holding Revolving Credit
Obligations, all principal Obligations owed to such Creditor Group
which are outstanding immediately prior to the delivery of a
Trigger Notice (including without duplication the amount of any
letters of credit and related reimbursement obligations or other
liquidated or contingent obligations issued or arising under the
related Credit Documents (to the extent entitled to the benefit of
the relevant Credit Documents)) together with interest, fees,
premiums, indemnification claims and reasonable costs and expenses
allocable to such principal, whether arising before or after a
Trigger Event; and |
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(c) |
in the case of each Creditor Group holding Hedge Obligations,
the net close-out amount and unpaid amounts owed to such Creditor
Group immediately prior to the delivery of a Trigger Notice (as if
such Hedge Obligations were then terminated), as calculated by the
Collateral Agent, together with any interest, fees, premiums,
indemnification claims and reasonable costs and expenses allocable
to such close-out amount (or unpaid amount) included in the Hedge
Obligations, whether arising before or after a Trigger
Event. |
“ Qualified
Obligations ” shall exclude claims of a Creditor Group
that have been finally determined to be invalid and unenforceable
by a court, or arbitral body, of competent jurisdiction, but shall
include claims that are reinstated, for example in the event that a
payment received by Creditor Group prior to the delivery of the
Trigger Notice is later held to be voidable as a preferential
transfer under applicable bankruptcy law, with the effect that the
Credit Obligations of such Creditor Group are correspondingly
reinstated.
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“ Register
” means a register, in the form of Exhibit A hereto,
maintained by the Collateral Agent in which the Collateral Agent
shall enter the name, address, telephone number, facsimile number,
and representative capacity, if any of each Creditor Representative
together with the original principal amount of the secured
Obligations owed to the related Creditor Group and, in the case of
Revolving Credit Obligations, the commitment amount under the
related Credit Documents.
“ Revolving Credit
Agreement ” means the Revolving Credit Agreement dated as
of August 31, 2005 among the Company, as Borrower, the Lenders
referred to therein, and Bank of America, N.A., as Administrative
Agent, as amended on May 5, 2006 and as at any time amended,
modified, supplemented, renewed or extended, and all restatements
thereof and any agreement that refinances the indebtedness
thereunder.
“ Revolving Credit
Obligations ” means all obligations and indebtedness of
the Company or any of its Subsidiaries under (a) the Revolving
Credit Agreement and the Loan Documents described therein, and
(b) any other Credit Documents hereafter entitled to the
benefits of this Agreement pursuant to Section 4 under (and to
the extent) which revolving credit facilities are provided to the
Company or any of its Subsidiaries.
“ Term Credit
Obligations ” means all obligations and indebtedness of
the Company and its Subsidiaries, the holders of which are entitled
to the benefits of this Agreement pursuant to Section 4 and
which are not Revolving Credit Obligations or Hedge
Obligations.
“ Term Loan A Credit
Agreement ” means the Term Loan A Credit Agreement dated
as of May 5, 2006 among the Company, as Borrower, the Lenders
referred to therein, and Bank of America, N.A., as Administrative
Agent, as at any time amended, modified, supplemented, renewed or
extended, and all restatements thereof and any agreement that
refinances the indebtedness thereunder.
“ Term Loan B Credit
Agreement ” means the Term Loan B Credit Agreement dated
as of May 5, 2006 among the Company, as Borrower, the Lenders
referred to therein, and Bank of America, N.A., as Administrative
Agent, as at any time amended, modified, supplemented, renewed or
extended, and all restatements thereof and any agreement that
refinances the indebtedness thereunder.
“ Trigger Event
” means any of the following:
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(a) |
the occurrence of any default under any Credit Document
consisting of a bankruptcy, insolvency or similar event with
respect to the Company or any Subsidiary having assets in excess of
$100,000,000, provided that in the case of the commencement of any
involuntary bankruptcy with respect to the Company or any such
Subsidiary, no Trigger Event shall be deemed to have occurred
unless and until the shortest period of grace, applicable to an
involuntary bankruptcy default and provided for in the then
applicable Credit Documents, has expired; or |
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(b) |
the actual acceleration of any Obligations in a principal
amount in excess of $100,000,000 by the holder or holders thereof
or their representatives. |
“ Trigger Notice
” means a written notice from any Creditor Representative to
the Collateral Agent that a Trigger Event has occurred.
“ Trustee
” means J.P. Morgan Trust Company, National Association, in
its capacity as trustee under the Indenture and its successors,
assigns and replacements in such capacity.
Unless otherwise indicated,
capitalized terms used but not defined in this Agreement shall have
the meanings given to them in the Revolving Credit Agreement, as in
effect on the date of this Agreement. As used herein,
“liens” includes any liens or security
interests.
2. Granting of the Liens .
Concurrently with the execution and delivery of this Agreement, the
Company and each Pledgor Subsidiary shall execute and deliver to
the Collateral Agent the Pledge Agreement, in form and substance
acceptable to the Creditor Representatives. The Collateral Agent is
hereby authorized and directed to execute the Pledge Agreement,
each instrument, document and agreement contemplated thereby to
which the Collateral Agent is a named party, and each other
instrument, document or agreement with is incidental or reasonably
related thereto. Upon execution and delivery of the Pledge
Agreement, the Company and the Pledgor Subsidiaries shall deliver
to the Collateral Agent the certificates or instruments
representing all of the issued and outstanding capital stock or
other equity securities or partnership interests of each Pledgee
Subsidiary.
3. Liens Equal, Ratable and Pari
Passu .
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(a) |
Subject to Section 4 hereof, the Creditor Representatives
hereby agree on behalf of their respective Creditor Groups that the
liens granted to and held by the Collateral Agent, to the extent
such liens secure Obligations, shall be for the equal, ratable and
pari passu benefit of the Creditor Groups to the extent of their
respective Covered Obligations (and, from and after delivery of a
Trigger Notice, Qualified Obligations). |
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(b) |
In the event
of any Enforcement Order or the payment of proceeds pursuant to
Section 7(b)(ii), each Creditor Group shall be entitled to
equal priority in distribution through its Creditor Representative,
ratably based upon the proportion that the Covered Obligations
(and, from and after delivery of a Trigger Notice, Qualified
Obligations) owed to each of the respective Creditor Groups bears
to the aggregate amount of the Covered Obligations (and, from and
after delivery of a Trigger Notice, Qualified Obligations). In the
event that Additional Covered Obligations become entitled to the
benefits hereof in the manner contemplated by Section 4, the
related Creditors shall be entitled to equal priority, and ratable
and pari
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passu distributions, as if
the Creditor Representatives of such Creditors had been original
parties to this Agreement; provided, however, that Creditors
holding Additional Covered Obligations shall not be entitled to
receive any proceeds of Collateral that were properly distributed
to other Creditors, pursuant to this Agreement, prior to such
Additional Covered Obligations becoming “Additional Covered
Obligations” in accordance with the terms of this
Agreement.
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(c) |
The relative priority of such liens shall apply irrespective of
the time, order or manner of attachment or perfection of such liens
and shall not be affected by any bankruptcy, insolvency or similar
event with respect to the Company or any Subsidiary. |
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(d) |
Because a credit bid by one or more Creditor Representatives or
Creditors at a foreclosure sale with respect to any portion of the
Collateral might be used to evade or otherwise circumvent the
requirements of equal, ratable and pari passu distributions
contemplated by this Agreement, the parties hereto agree that no
sale of any portion of the Collateral shall be subject to credit
bidding unless all Creditor Representatives consent in writing,
such consent not to be unreasonably withheld. Each of the parties
from time to time hereto agrees that this is a commercially
reasonable restriction on sales of the Collateral. |
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(e) |
For purposes of determining the amounts to be distributed
pursuant to Section 3 and Section 8(c), the Collateral
Agent shall be entitled to establish a “record date,”
as the effective date of the calculations upon which distributions
are based, not more than ninety (90) days prior to the
anticipated date of distribution hereunder. Upon request of the
Collateral Agent, the Creditor Representatives shall immediately
furnish to the Collateral Agent all information regarding the
Obligations of the Creditors represented by such Creditor
Representatives, respectively, as Collateral Agent shall reasonably
request. |
4. Designation of Additional Covered
Obligations . The aggregate principal amount of indebtedness
which may become Covered Obligations (and which may become, from
and after delivery of a Trigger Notice, Qualified Obligations) is
unlimited, but indebtedness shall become Covered Obligations (and
thereafter Qualified Obligations) only upon its becoming subject to
the terms and conditions set forth in this Section 4. The
Company may from time to time by resolution of its board of
directors (or any duly authorized committee thereof) designate any
senior indebtedness of Company or other senior obligations of
Company as Covered Obligations hereunder (“Additional Covered
Obligations”). In order to designate any such senior
indebtedness or other obligations as Additional Covered
Obligations, the Company shall deliver to the Collateral
Agent:
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(a) |
a certified copy of a resolution of its board of directors (or
any duly authorized committee thereof) designating the additional
indebtedness as Additional Covered Obligations; |
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(b) |
a certificate of the chief financial officer, controller or
treasurer of the Company (i) stating that, as of the date of
such certificate, immediately after giving effect to the incurrence
of the proposed Additional Covered Obligations, no Trigger Event
has occurred in respect of any then Covered Obligation and that the
incurrence by the Company and its Subsidiaries of such Additional
Covered Obligations does not result in a default under the Credit
Documents evidencing all outstanding Covered Obligations and
(ii) setting forth sufficient details regarding the proposed
Additional Covered Obligations to allow the Collateral Agent to
record such Additional Covered Obligations in the Register,
including the nature of the Additional Covered Obligations and the
name, address and contact information of the Creditor
Representative with respect to such Additional Covered Obligations;
and |
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(c) |
a joinder hereto, substantially in the form of Exhibit B
hereto, executed by any Creditor Representative representing the
interests of the proposed Additional Covered Obligations, or by the
holders of such Additional Covered Obligations and acknowledged by
the Collateral Agent. |
Upon the receipt by the Collateral Agent
of a certificate from the Company’s chief financial officer,
controller or treasurer stating that the foregoing conditions
precedent have been satisfied (the “Obligations
Certificate”), and unless the Collateral Agent has then
received written notice from the Company, any Subsidiary, or any
Creditor Representative that a Trigger Event has occurred, the
Collateral Agent shall promptly record the particulars of the
proposed Additional Covered Obligations in the Register (upon which
recordation they shall constitute Covered Obligations), and shall
promptly inform in writing each of the Company and the Creditor
Representatives of such recordation. The Company may, from time to
time, examine the Register during normal business hours of the
Collateral Agent upon reasonable prior notice.
Each of the Obligations, Creditor
Representatives and like information specifically described in the
Recitals hereto or elsewhere in this Agreement as of the date
hereof shall be deemed to be Covered Obligations and set forth in
the Register. The Collateral Agent shall also note in the Register
changes, additions or deletions to any of the information relating
to the Covered Obligations (or from and after delivery of a Trigger
Notice Qualified Obligations) promptly upon the Collateral
Agent’s receiving written notice thereof from the related
Creditor Representative. The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and
the Collateral Agent and each Creditor may conclusively presume
that each Person whose name is recorded in the Register is
qualified as the Creditor Representative hereunder for the related
Covered Obligations (or Qualified Obligations) for all purposes
under this Agreement. The Register shall be kept as part of the
Collateral Agent’s official records and shall be available
for inspection at the Collateral Agent’s office upon request
by any Creditor Representative during the normal business hours and
with reasonable prior notice. The Collateral Agent may conclusively
rely upon the accuracy of the information certified to it by each
Creditor Representative and shall have no duty whatsoever to
independently confirm its accuracy.
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5. Sharing of Proceeds; Turnover
. Each of the Creditor Representatives agrees on behalf of its
Creditor Group that in the event that such Creditor Group receives,
from any realization upon the liens granted under the Pledge
Agreement, a greater amount than the amount to which that Creditor
Group is entitled pursuant to Sections 3, 7(b) or 8(c), as
applicable, they shall turn over to the Collateral Agent, for
distribution thereto in accordance with Sections 3, 7(b) or 8(c),
as applicable, such excess amount.
6. Amendments to Credit Documents
. Each of the Creditor Groups shall be entitled to enter into any
amendment, modification, supplement or extension of the Credit
Documents to which they are a party with the Company and its
Subsidiaries without affecting the relative priority of their
interests in the Collateral held by the Collateral Agent. Without
limitin
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