EXHIBIT 10.3
EXECUTION COPY
INTERCREDITOR
AGREEMENT
dated as of July 8, 2005
among
NEFF RENTAL LLC,
NEFF FINANCE CORP.,
NEFF RENTAL, INC.,
THE OTHER GRANTORS FROM TIME TO
TIME PARTY HERETO,
GENERAL ELECTRIC CAPITAL
CORPORATION ,
as Credit Agreement Agent under the Credit Agreement and
Priority Lien Collateral Agent under the Priority Lien Collateral
Documents,
and
WELLS FARGO BANK, NATIONAL
ASSOCIATION,
as Trustee and Parity Junior Lien Collateral
Agent under the Indenture
THIS IS THE INTERCREDITOR AGREEMENT REFERRED TO
IN (A) THE AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
JULY 8, 2005, AMONG NEFF RENTAL LLC, NEFF FINANCE CORP., NEFF
RENTAL, INC., THE OTHER CREDIT PARTIES FROM TIME TO TIME PARTY
THERETO, THE LENDERS FROM TIME TO TIME PARTY THERETO AND GENERAL
ELECTRIC CAPITAL CORPORATION, AS AGENT, (B) THE INDENTURE
DATED AS OF JULY 8, 2005, AMONG NEFF RENTAL LLC, NEFF FINANCE
CORP., NEFF RENTAL, INC., THE OTHER GUARANTORS FROM TIME TO TIME
PARTY THERETO AND WELLS FARGO BANK, NATIONAL ASSOCIATION, AS
TRUSTEE, (C) THE INTERCREDITOR AGREEMENT DATED AS OF
JUNE 3, 2005, AMONG NEFF CORP., NEFF RENTAL, INC., THE OTHER
CREDIT PARTIES THERETO, GENERAL ELECTRIC CAPITAL CORPORATION, AS
FIRST LIEN AGENT, AND CREDIT SUISSE, AS SECOND LIEN AGENT, AS THE
“SUCCESSOR INTERCREDITOR AGREEMENT” AND (D) THE
OTHER COLLATERAL DOCUMENTS REFERRED TO IN THE CREDIT DOCUMENTS
REFERRED TO HEREIN.
TABLE OF CONTENTS
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INTERCREDITOR AGREEMENT dated as of
July 8, 2005 (together with each Intercreditor Agreement
Joinder, this “ Agreement ”), among NEFF
RENTAL LLC, a Delaware limited liability company (“
Neff LLC ”), NEFF FINANCE CORP., a Delaware
corporation (“ Finance Corp. ” and, together
with Neff LLC, “ Holdings ”), NEFF
RENTAL, INC., a Florida corporation (“ Neff
Rental ”), the Grantors (as defined below) from time
to time party hereto, GENERAL ELECTRIC CAPITAL CORPORATION (“
GECC ”), as Credit Agreement Agent (in such
capacity and together with its successors in such capacity, the
“ Credit Agreement Agent ”) and as
collateral agent for the Priority Lien Lenders (as defined below)
and the other Secured Parties (as defined in the Credit Agreement
(as defined below)) (in such capacity and together with its
successors in such capacity, the “ Priority Lien
Collateral Agent ”), and WELLS FARGO BANK, NATIONAL
ASSOCIATION (“ Wells Fargo ”), as Trustee
(in such capacity and together with its successors in such
capacity, the “ Trustee ”) and as
collateral agent for the holders of the Notes (as defined below)
(in such capacity and together with its successors in such
capacity, the “ Parity Junior Lien Collateral
Agent ”).
PRELIMINARY STATEMENT
Reference is made to (a) the
Amended and Restated Credit Agreement dated as of July 8, 2005
(together with the related documents thereto (including any
guarantee agreements and security documents), in each case, as
amended, restated, supplemented, modified, increased, renewed,
refunded, replaced (whether upon or after termination or otherwise)
or refinanced (including by means of sales of debt securities to
institutional investors) in whole or in part from time to time, the
“ Credit Agreement ”), among Holdings,
Neff Rental, the other Grantors from time to time party thereto,
the lenders from time to time party thereto (the “
Priority Lien Lenders ”) and GECC, as Credit
Agreement Agent, (b) the Indenture dated as of July 8,
2005 (as amended, extended, renewed, restated, supplemented or
otherwise modified (in whole or in part, and without limitation as
to amount, terms, conditions, covenants and other provisions) from
time to time, and any Refinancing (as defined below) thereof,
whether in whole or in part, or a successor indenture, whether by
the same or any other holders or trustee or group of holders and
whether by the same trustee or a different trustee, the “
Indenture ”), among Holdings, Neff Rental, the
other Guarantors (as defined in the Indenture) from time to time
party thereto, and Wells Fargo, as Trustee, (c) the Priority
Lien Documents (such term and each other capitalized term used in
this Agreement having the meaning given it in Article I) and
(d) the Parity Junior Lien Documents.
RECITALS
A. The Priority Lien Lenders
agreed to make loans to Neff Rental pursuant to the Credit
Agreement, upon, among other terms and conditions, the condition
that the Priority Lien Obligations under the Credit Agreement shall
be secured by first priority Liens on, and security interests in,
the Collateral.
B. The holders of the Note
Obligations have agreed to purchase the Notes issued pursuant to
the Indenture, which Notes shall be secured by Parity Junior Liens
on, and security interests in, the Collateral.
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C. The Credit Agreement and
the Indenture 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.
D. The parties hereto desire
to provide that future secured creditors of Holdings, Neff Rental
and any other Grantors may become party to, and have their
respective Liens and security interests governed by, the provisions
of this Agreement in accordance with all applicable Secured Debt
Documents.
Accordingly, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS; PRINCIPLES OF CONSTRUCTION
SECTION 1.1.
Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified
below:
“ Additional Secured
Debt ” has the meaning set forth in
Section 3.2(a).
“ Affiliate
” has the meaning specified in the Indenture.
“ Agents ”
means the Priority Lien Collateral Agent and the Parity Junior Lien
Collateral Agent.
“ Agreement
” has the meaning assigned to such term in the preamble to
this Agreement.
“ 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 similar Federal,
state or foreign bankruptcy, insolvency or receivership
law.
“ Capital Stock
” has the meaning assigned to such term in the Indenture in
effect on the date hereof (or any similar term in any subsequent
Indenture).
“ Class ”
means (1) in the case of Parity Junior Lien Debt, every
Series of Parity Junior Lien Debt, taken together, and
(2) in the case of Priority Lien Debt, every Series of
Priority Lien Debt, taken together.
“ Collateral
” means, collectively, the Priority Lien Collateral and the
Parity Junior Lien Collateral.
“ Credit
Agreement ” has the meaning set forth in the
preliminary statement.
“ Credit Agreement
Agent ” means, at any time, the Person serving at
such time as the “Agent” or “Administrative
Agent” under the Credit Agreement or any other representative
then
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most recently designated in accordance with the
applicable provisions of the Credit Agreement, together with its
successors in such capacity.
“ Credit
Documents ” means the Priority Lien Documents and the
Parity Junior Lien Documents.
“ Credit
Facilities ” means (1) the Credit Agreement and
(2) one or more other debt facilities or commercial paper
facilities, with banks, institutional lenders or other Persons
providing for revolving credit loans, term loans, receivables
financing (including through the sale of receivables to such
lenders or to special purpose entities formed to borrow from such
lenders against such receivables) or letters of credit, bank
guarantees or banker’s acceptances, in each case, as amended,
restated, supplemented, modified, increased, renewed, refunded,
replaced (whether upon or after termination or otherwise) or
refinanced (including by means of sales of debt securities to
institutional investors) in whole or in part from time to
time.
“ DIP Financing
” has the meaning set forth in
Section 5.1(a)(2).
“ DIP Financing
Liens ” has the meaning set forth in
Section 5.1(a)(2).
“ Discharge of Priority
Lien Obligations ” means, subject to
Section 6.25, the occurrence of all of the
following:
(a)
termination or expiration of all
commitments to extend credit that would constitute Priority Lien
Debt;
(b)
payment in full in cash of the
principal of and interest and premium (if any) on all Priority Lien
Debt (other than any undrawn letters of credit);
(c)
discharge or cash
collateralization (to the extent of any letters of credit
constituting Priority Lien Debt (i) in the case of the Credit
Agreement, in the manner and pursuant to the procedures specified
in the Credit Agreement or if not so specified at 105% of the
aggregate undrawn amount and (ii) in the case of any other
Priority Lien Document, at the lesser of the amount specified in
such document and 105% of the aggregate undrawn amount) of all such
outstanding letters of credit constituting Priority Lien Debt;
and
(d)
payment in full in cash of all
other Priority Lien Obligations that are then outstanding and
unpaid at the time the Priority Lien Debt is paid in full in cash
(other than any obligations for taxes, costs, indemnifications,
reimbursements, damages and other liabilities in respect of which
no claim or demand for payment has been made at such
time).
“ Disposition
” means any sale, lease, rental, exchange, transfer,
conveyance, license or other disposition. “
Dispose ” shall have a correlative
meaning.
“ Finance Corp.
” has the meaning assigned to such term in the preamble to
this Agreement.
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“ GECC ”
has the meaning assigned to such term in the preamble to this
Agreement.
“ Grantors
” means Holdings, Neff Rental and each other Person (if any)
that grants a Lien on all or part of its assets or properties to
secure all or part of the Secured Obligations.
“ Holdings
” has the meaning assigned to such term in the preamble to
this Agreement.
“ Indebtedness
” means and includes all obligations that constitute
Indebtedness as defined in the Indenture as in effect on the date
of this Agreement.
“ Indenture
” has the meaning set forth in the preliminary
statement.
“ 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 receiver, trustee, custodian,
sequestrator, conservator or similar official for any Grantor or
for 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.
“ Intercreditor
Agreement Joinder ” means an agreement substantially
in the form of Exhibit A .
“ Interest Swap
Obligations ” means the obligations of any Person
pursuant to any arrangement with any other Person whereby, directly
or indirectly, such Person is entitled to receive from time to time
periodic payments calculated by applying either a floating or a
fixed rate of interest on a stated notional amount in exchange for
periodic payments made by such other Person calculated by applying
a fixed or a floating rate of interest on the same notional amount
and shall include interest rate swaps, caps, floors, collars and
similar agreements.
“ Lien ”
means any mortgage or deed of trust, pledge, hypothecation,
assignment, deposit arrangement, lien, charge, claim, security
interest, easement or encumbrance of any kind or nature whatsoever
(including any lease or title retention agreement, any financing
lease having substantially the same economic effect as any of the
foregoing, and the filing of, or agreement to give, any financing
statement perfecting a security interest under the UCC or
comparable law of any jurisdiction).
“ Neff LLC
” has the meaning assigned to such term in the preamble to
this Agreement.
“ Neff Rental
” has the meaning set forth in the preamble to this
Agreement.
“ Note Documents
” means the Indenture, the Notes and the Note Security
Documents.
“ Note
Obligations ” means the Notes and all other
Obligations in respect thereof.
“ Note Security
Documents ” has the meaning specified in the
Indenture.
“ Notes ”
means all 11¼% Second Priority Senior Secured Notes due 2012
issued under the Indenture.
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“ Obligations
” means, with respect to any Indebtedness, any principal
(including reimbursement obligations with respect to letters of
credit whether or not drawn), interest (including all interest
accrued thereon after the commencement of any Insolvency or
Liquidation Proceeding at the rate, including any applicable
post-default rate, specified in (1) in the case of Priority
Lien Debt, the Priority Lien Documents or (2) in the case of
other Indebtedness, the documentation governing such Indebtedness,
in each case, even if such interest is not enforceable, allowable
or allowed as a claim in such Insolvency or Liquidation
Proceeding), premium (if any), fees, indemnifications,
reimbursements, expenses and other liabilities payable under the
documentation governing such Indebtedness; provided, however
, that Obligations with respect to the Notes shall not include the
fees and indemnifications in favor of the Trustee and other third
parties other than the holders of such Notes.
“ Officer’s
Certificate ” means a certificate with respect to
compliance with a condition or covenant provided for in this
Agreement, signed on behalf of Neff LLC, Finance Corp. or Neff
Rental, as applicable, by one officer of Neff LLC, Finance Corp. or
Neff Rental, who must be the Chairman of the Board, the President,
any Vice-President, the Treasurer or the Secretary of Neff LLC,
Finance Corp. or Neff Rental, as applicable, including:
(a)
a statement that the Person making
such certificate has read such condition or covenant;
(b)
a brief statement as to the nature
and scope of the examination or investigation upon which the
statements or opinions contained in such certificate are
based;
(c)
a statement that, in the opinion
of such Person, he or she has made such examination or
investigation as is necessary to enable him or her to express an
informed opinion as to whether or not such condition or covenant
has been satisfied; and
(d)
a statement as to whether or not,
in the opinion of such Person, such condition or covenant has been
satisfied.
“ Parity Junior
Lien ” means any Lien granted pursuant to any Parity
Junior Lien Security Document to the Parity Junior Lien Collateral
Agent, at any time, upon any property of Holdings or any other
Grantor to secure Parity Junior Lien Obligations.
“ Parity Junior Lien
Collateral ” means all Collateral (as defined in the
Indenture) and any other assets or property of Holdings or any
other Grantor now or at any time hereafter subject to Liens
securing any Parity Junior Lien Obligations.
“ Parity Junior Lien Collateral
Agent ” means Wells Fargo and its successors as
collateral agent under the Indenture and any other Person
designated as a collateral agent with respect to any other
Series of Parity Junior Lien Debt; provided that, until
such time that the Note Obligations have been discharged or paid in
full, Wells Fargo and its successors as collateral agent under the
Indenture shall be the sole authorized Person to act as the Parity
Junior Lien Collateral Agent with respect to the Note
Obligations.
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“ Parity Junior Lien
Debt ” means:
(a)
the Notes, which Notes (whether
issued on the date hereof or in the future) shall be treated as a
single class or Series for all purposes of this Agreement;
and
(b)
any other Indebtedness of Holdings
or any other Grantor that is secured equally and ratably with the
Notes by a Parity Junior Lien that was permitted to be incurred and
so secured under each applicable Secured Debt Document;
provided that such Indebtedness is (i) if incurred by
Holdings, guaranteed by each Restricted Subsidiary of Neff LLC
that, on the date of incurrence of such Indebtedness, is a
Guarantor (as defined in the Indenture) or (ii) if incurred by
Neff LLC or Finance Corp. or any other Grantor, guaranteed by
Finance Corp. or Neff LLC, as applicable, and each Restricted
Subsidiary of Neff LLC that, on the date of incurrence of such
Indebtedness, is a Guarantor (as defined in the Indenture);
provided , further , in the case of any Indebtedness
referred to in this clause (b), that on or before the date on which
such Indebtedness is incurred by Holdings, Neff Rental or such
other Grantor, such Indebtedness is designated by Neff LLC, in an
Officer’s Certificate delivered to each Parity Junior Lien
Representative and the Priority Lien Collateral Agent, as
“Parity Junior Lien Debt” for the purposes of the
Indenture and this Agreement; provided that no
Series of Secured Debt may be designated as both Parity Junior
Lien Debt and Priority Lien Debt.
“ Parity Junior Lien
Documents ” means, collectively, (a) the Note
Documents and (b) each indenture, credit agreement or other
agreement governing each other Series of Parity Junior Lien
Debt and the related Parity Junior Lien Security
Documents.
“ Parity Junior Lien
Obligations ” means the Parity Junior Lien Debt and
all Obligations in respect of Parity Junior Lien Debt.
“ Parity Junior Lien
Permitted Actions ” has the meaning set forth in
Section 2.6(b).
“ Parity Junior Lien
Representative ” means:
(a)
in the case of the Notes, the
Parity Junior Lien Collateral Agent; and
(b)
in the case of any other
Series of Parity Junior Lien Debt, the trustee, agent or
representative of the holders of such Series of Parity Junior
Lien Debt who maintains the transfer register for such
Series of Parity Junior Lien Debt and (i) is appointed as
a Parity Junior Lien Representative (for purposes related to the
administration of the security documents) pursuant to the
applicable indenture, credit agreement or other agreement governing
such Series of Parity Junior Lien Debt, together with its
successors in such capacity and (ii) has become a party to
this Agreement by executing an Intercreditor Agreement
Joinder.
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“ Parity Junior Lien
Secured Party ” means, at any time, each holder of
Parity Junior Lien Obligations and their successors and
assigns.
“ Parity Junior Lien
Security Documents ” means this Agreement, each Note
Security Document and all security agreements, pledge agreements,
collateral assignments, mortgages, deeds of trust, collateral
agency agreements, control agreements, documents, instruments or
other grants or transfers for security executed and delivered by
Holdings, Neff Rental or any other Grantor creating (or purporting
to create) a Lien upon Collateral for the benefit of the Parity
Junior Lien Collateral Agent, in each case, as amended, modified,
renewed, restated or replaced, in whole or in part, from time to
time, in accordance with its terms, the Indenture and this
Agreement.
“ Permitted
Liens ” has the meaning specified in the
Indenture.
“ Person ”
or “ person ” means an individual,
partnership, corporation, limited liability company, unincorporated
organization, trust or joint venture, governmental agency or
political subdivision thereof.
“ Pledged or Controlled
Collateral ” has meaning set forth in
Section 2.12(a).
“ Priority Lien
” means any Lien granted by any Priority Lien Security
Document to any Priority Lien Representative, at any time, upon any
property of Holdings or any other Grantor to secure Priority Lien
Obligations.
“ Priority Lien
Cap ” means, as of any date, the principal amount
outstanding under the Credit Agreement, together with the
Indebtedness outstanding under any other Credit Facility that is
secured by a Priority Lien, in an aggregate principal amount not to
exceed the sum of the amount permitted to be incurred pursuant to
clause (2) of the definition of “Permitted
Indebtedness” in the Indenture, as of any date, plus
$15,000,000, less the amount of Parity Junior Lien Debt
incurred after the date of the Credit Agreement pursuant to clause
(2) or (13) of the definition of “Permitted
Indebtedness” in the Indenture the net proceeds of which are
used to Refinance Priority Lien Debt and for which there is a
reduction in the commitments in respect of such Priority Lien Debt
in an amount equal to the amount of such Parity Junior Lien
Debt. For purposes of this definition, all letters of credit
will be valued at the face amount thereof, whether or not drawn
(but without duplication of the principal amount of any other
Indebtedness), and all Interest Swap Obligations will be valued at
zero.
“ Priority Lien
Collateral ” means all Collateral (as defined in the
Credit Agreement) and any other assets or property of Holdings or
any other Grantor now or at any time hereafter subject to Liens
securing any Priority Lien Obligations.
“ Priority Lien
Collateral Agent ” means the Credit Agreement Agent
and its successors, each in its capacity as Priority Lien
Collateral Agent under the Credit Agreement and any other Person
designated as a collateral agent with respect to any other
Series of Priority Lien Debt; provided that, until the
Discharge of Priority Lien Obligations in respect of the
Obligations under the Credit Agreement has occurred, the Credit
Agreement Agent and its successors, each in its capacity as
Priority Lien Collateral Agent under the Credit Agreement shall be
the sole authorized Person to act as the Priority Lien Collateral
Agent with respect to the Obligations
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under the Credit Agreement and each other
Series of Priority Lien Debt unless otherwise determined by
the Credit Agreement Agent or such successor, Holdings and the
Required Priority Lien Debtholders at the time such other
Series of Priority Lien Debt is incurred (such determination
to be evidenced in the Intercreditor Agreement Joinder executed and
delivered in connection with the issuance of such Series of
Priority Lien Debt).
“ Priority Lien
Debt ” means:
(a)
Indebtedness of Holdings, Neff
Rental or any other Grantor under the Credit Agreement (to the
extent such Indebtedness is not Refinanced with Parity Junior Lien
Debt that would reduce the Priority Lien Cap) that was permitted to
be incurred and secured under each applicable Secured Debt
Document, which for purposes of the Indenture, shall be
Indebtedness that is incurred under clause (2) or
clause (13) of the definition of “Permitted
Indebtedness” in the Indenture;
(b)
Indebtedness of Holdings, Neff
Rental or any other Grantor under any other Credit Facility that is
secured equally and ratably (or on such other basis as may be
agreed by the relevant holders of the Priority Lien Obligations)
with the Credit Agreement by a Priority Lien that was permitted to
be incurred and so secured under each applicable Secured Debt
Document, which for purposes of the Indenture, shall be
Indebtedness that is incurred under clause (2) or
clause (13) of the definition of “Permitted
Indebtedness” in the Indenture; provided , that, in
the case of any Indebtedness referred to in this clause (2),
that on or before the date on which such Indebtedness is incurred
by Holdings, Neff Rental or such other Grantor, such Indebtedness
is designated by Neff LLC in an Officer’s Certificate
delivered to each Priority Lien Representative, the Priority Lien
Collateral Agent and the Parity Junior Lien Collateral Agent, as
“Priority Lien Debt” for the purposes of the Secured
Debt Documents; provided , that no Series of Secured
Debt may be designated as both Parity Junior Lien Debt and Priority
Lien Debt; and
(c)
Interest Swap Obligations of
Holdings, Neff Rental or any other Grantor that are incurred
pursuant to clause (4) of the definition of
“Permitted Indebtedness” in the Indenture and permitted
to be incurred under the Credit Agreement and any other Priority
Lien Documents; provided , that:
(i) such
Interest Swap Obligations are secured by a Priority Lien on all or
substantially all of the assets and properties that secure
Indebtedness under the Credit Facility in respect of which security
for such Interest Swap Obligations was obtained; and
(ii) such
Priority Lien is pari passu with the Priority Liens securing
Indebtedness under the Credit Facility in respect of which security
for such Interest Swap Obligations was obtained.
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“ Priority Lien
Documents ” means the Credit Agreement and any other
Credit Facility pursuant to which any Priority Lien Debt is
incurred and the applicable Priority Lien Security
Documents.
“ Priority Lien
Lenders ” has the meaning set forth in the
preliminary statement.
“ Priority Lien
Obligations ” means the Priority Lien Debt and all
other Obligations in respect of Priority Lien Debt.
“ Priority Lien
Representative ” means:
(a)
in the case of Priority Lien
Collateral, each applicable Priority Lien Collateral
Agent;
(b)
in the case of the Credit
Agreement, the Credit Agreement Agent; and
(c)
in the case of any other
Series of Priority Lien Debt, the trustee, agent or
representative of the holders of such Series of Priority Lien
Debt who maintains the transfer register for such Series of
Priority Lien Debt and is appointed as a representative of the
Priority Lien Debt (for purposes related to the administration of
the applicable Priority Lien Security Documents) pursuant to a
credit agreement or other agreement governing such Series of
Priority Lien Debt, and who has executed an Intercreditor Agreement
Joinder.
“ Priority Lien Secured
Party ” means, at any time, (a) each Secured
Party (as defined in the Credit Agreement), (b) each other
person to whom any of the Priority Lien Obligations (including
indemnification obligations) is owed and (c) the successors
and assigns of each of the foregoing.
“ Priority Lien Security
Documents ” means this Agreement, the Collateral
Documents (as defined in the Credit Agreement), and all security
agreements, pledge agreements, collateral assignments, mortgages,
deeds of trust, collateral agency agreements, control agreements,
documents, instruments or other grants or transfers for security
executed and delivered by Holdings, Neff Rental or any other
Grantor creating (or purporting to create) a Priority Lien upon
Collateral in favor of the Priority Lien Representatives, in each
case, as amended, modified, renewed, restated or replaced, in whole
or in part, from time to time, in accordance with its
terms.
“ Refinance
” means, in respect of any Indebtedness, to refinance,
extend, renew, restructure, refund or replace (including by
prepayment, redemption, defeasance or otherwise) or to issue other
Indebtedness or commitments pursuant to which Indebtedness may be
incurred in exchange or replacement for or in addition to such
Indebtedness or any such commitments (whether or not any
Indebtedness is outstanding thereunder and whether or not in
connection therewith such Indebtedness or commitments are
increased), in each case in whole or in part. “
Refinanced ” and “
Refinancing ” shall have correlative
meanings.
“ Release
” shall have the meaning assigned to such term in
Section 2.9(a).
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“ Required Parity Junior
Lien Debtholders ” means, at any time, (a) with
respect to the Note Obligations, as determined in accordance with
the Indenture and (b) with respect to all other Parity Junior
Lien Obligations, at any time, the holders of more than 50% of the
sum of:
(i) the
aggregate outstanding principal amount of Parity Junior Lien Debt
(including outstanding letters of credit whether or not then
available or drawn); and
(ii) other
than in connection with the exercise of remedies, the aggregate
unfunded commitments to extend credit which, when funded, would
constitute Parity Junior Lien Debt.
For purposes of this definition,
(a) Parity Junior Lien Debt registered in the name or, or
beneficially owned by, Holdings or any Affiliate of Holdings will
be deemed not to be outstanding and (b) votes will be
determined in accordance with the applicable Parity Junior Lien
Documents.
“ Required Priority Lien
Debtholders ” means (a) with respect to the
Obligations under the Credit Agreement, the “Required
Lenders” under and as defined in the Credit Agreement (or any
similar term in any subsequent Credit Agreement) and (b) with
respect to all other Priority Lien Obligations, at any time, the
holders of more than 50% of the sum of:
(i) the
aggregate outstanding principal amount of Priority Lien Debt
(including outstanding letters of credit whether or not then
available or drawn);
(ii) the
aggregate unfunded commitments to extend credit which, when funded,
would constitute Priority Lien Debt.
For purposes of this definition,
(x) Priority Lien Debt registered in the name of, or
beneficially owned by, Holdings or any Affiliate of Holdings will
be deemed not to be outstanding and (y) votes will be
determined in accordance with the applicable documents governing
such Priority Lien Debt.
“ Restricted
Subsidiary ” has the meaning assigned to such term in
the Indenture in effect on the date hereof (or any similar term in
any subsequent Indenture).
“ Secured Debt
” means Parity Junior Lien Debt and Priority Lien
Debt.
“ Secured Debt
Acceleration Event ” means any event or condition
which, under the terms of any credit agreement, indenture or other
agreement governing any Series of Secured Debt causes, or
permits holders of Secured Debt outstanding thereunder (with or
without the giving of notice or lapse of time, or both, and whether
or not notice has been given or time has lapsed) to cause, the
Secured Debt outstanding thereunder to become immediately due and
payable.
“ Secured Debt
Documents ” means the Parity Junior Lien Documents
and the Priority Lien Documents.
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“ Secured Debt
Representative ” means each Parity Junior Lien
Representative and each Priority Lien Representative.
“ Secured
Obligations ” means the Parity Junior Lien
Obligations and the Priority Lien Obligations.
“ Secured
Parties ” means the holders of Secured Obligations
and the Secured Debt Representatives.
“ Security
Documents ” means the Priority Lien Security
Documents and the Parity Junior Lien Security Documents.
“ Series of Parity
Junior Lien Debt ” means, severally, the Notes and
each other issue or series of Parity Junior Lien Debt for which a
single transfer register is maintained.
“ Series of
Priority Lien Debt ” means, severally, the
Indebtedness outstanding under the Credit Agreement and any other
Credit Facility pursuant to which any Grantor incurs Priority Lien
Debt.
“ Series of Secured
Debt ” means each series of Parity Junior Lien Debt
and each Series of Priority Lien Debt.
“ Subsidiary
” with respect to any specified Person, means:
(a)
any corporation, of which Capital
Stock having at least a majority of the votes entitled to be cast
in the election of directors under ordinary circumstances shall at
the time be owned, directly or indirectly, by such Person;
or
(b)
any other Person of which at least
a majority of the voting interest under ordinary circumstances is
at the time, directly or indirectly owned by such
Person.
“ Trustee
” has the meaning assigned to such term in the preamble to
this Agreement.
“ Uniform Commercial
Code ” or “ UCC ” means the
Uniform Commercial Code as the same may, from time to time, be
enacted and in effect in the State of New York; provided ,
that to the extent that the UCC is used to define any term herein
or in any Credit Document and such term is defined differently in
different Articles of the UCC, the definition of such term
contained in Article 9 shall govern; provided
further , that in the event that, by reason of mandatory
provisions of law, any or all of the attachment, perfection or
priority of, or remedies with respect to, any Agent’s or any
Secured Party’s Lien on any Collateral is governed by the
Uniform Commercial Code as enacted and in effect in a jurisdiction
other than the State of New York, the terms “ Uniform
Commercial Code ” and “ UCC
” shall mean the Uniform Commercial Code as enacted and in
effect in such other jurisdiction solely for purposes of the
provisions thereof relating to such attachment, perfection,
priority or remedies and for purposes of definitions related to
such provisions.
11
“ Wells Fargo
” has the meaning assigned to such term in the preamble to
this Agreement.
SECTION 1.2.
Rules of Interpretation. (a) The
definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed
to be followed by the phrase “without
limitation”. The word “will” shall be
construed to have the same meaning and effect as the word
“shall”. The word “or” is not
exclusive.
(b)
Unless the
context requires otherwise (i) any definition of or
reference to any statute or regulation or any agreement, instrument
or other document herein shall be construed as referring to such
statute or regulation or such agreement, instrument or other
document as from time to time amended, restated, supplemented or
otherwise modified subject, in the case of the Credit Documents, to
this Agreement, (ii) any reference herein (A) to any
person shall be construed to include such person’s successors
and assigns and (B) to any Grantor shall be construed to
include such Grantor as debtor and debtor-in-possession and any
receiver or trustee for any Grantor, as the case may be, in any
Insolvency or Liquidation Proceeding, (iii) the words
“herein” , “hereof” and
“hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any
particular provision hereof, (iv) all references herein to
Articles, Sections, clauses, recitals and preamble shall be
construed to refer to Articles, Sections, clauses, recitals or
preamble of this Agreement and (v) the words “asset
“ and “property” shall be construed to have the
same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities,
accounts and contract rights.
Notwithstanding anything to the
contrary in this Agreement, any references contained herein to any
Section, clause, paragraph or other provision of the Indenture
(including any definition contained therein) shall be deemed to be
a reference to such Section, clause, paragraph or other provision
as in effect on the date of this Agreement; provided , that
any reference to any such Section, clause, paragraph or other
provision shall refer to such Section, clause, paragraph or other
provision of the Indenture (including any definition contained
therein) as amended or modified from time to time if such amendment
or modification has been (1) made in accordance with the
Indenture and this Agreement and (2) prior to the Discharge of
Priority Lien Obligations, approved in a writing delivered to the
Priority Lien Collateral Agent and the Parity Junior Lien
Collateral Agent by, or on behalf of, and with the consent of, the
requisite holders of Priority Lien Obligations as are needed (if
any) under the terms of the applicable Priority Lien Documents to
approve such amendment or modification.
(c)
Notwithstanding
anything to the contrary in this Agreement, any references
contained herein to any Section, clause, paragraph or other
provision of the Credit Agreement (including any definition
contained therein) shall be deemed to be a reference to such
Section, clause, paragraph or other provision as in effect from
time to time.
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ARTICLE II
THE LIENS
SECTION 2.1.
Priority of Liens. Notwithstanding anything else
contained herein or in any of the other Credit Documents, it is the
intent of the parties that:
(a)
the grant of
Priority Liens pursuant to the Priority Lien Security Documents and
the grant of Parity Junior Liens pursuant to the Parity Junior Lien
Security Documents, respectively, create two separate and distinct
Liens: the Priority Liens securing the payment and performance of
the Priority Lien Obligations and the Parity Junior Liens securing
the payment and performance of the Parity Junior Lien Obligations,
respectively; and
(b)
the Parity Junior
Liens securing the Parity Junior Lien Obligations are subject and
subordinate to the Priority Liens securing the Priority Lien
Obligations.
SECTION 2.2.
Relative Priorities. Notwithstanding (a) the
date, time, method, manner or order of grant, attachment or
perfection of any Parity Junior Lien or any Priority Lien,
(b) the order or time of filing or recordation of any document
or instrument for perfecting the Liens in favor the Priority Lien
Collateral Agent (or any Priority Lien Secured Party) or the Parity
Junior Lien Collateral Agent (or any Parity Junior Lien Secured
Party), or (c) any provision of the UCC or any other
applicable law or the provisions of any Credit Document, any
alleged or actual defect or deficiency in any of the foregoing or
any other circumstance whatsoever, the Parity Junior Lien
Collateral Agent, for itself and on behalf of the other Parity
Junior Lien Secured Parties, hereby agrees that, so long as the
Discharge of Priority Lien Obligations has not occurred,
(i) any Priority Lien now or hereafter held by or for the
benefit of any Priority Lien Secured Party shall be senior in
right, priority, operation, effect and all other respects to any
and all Parity Junior Liens and (ii) any Parity Junior Lien
now or hereafter held by or for the benefit of any Parity Junior
Lien Secured Party shall be junior and subordinate in right,
priority, operation, effect and all other respects to any and all
Priority Liens. The Priority Liens shall be and remain senior
in right, priority, operation, effect and all other respects to any
Parity Junior Liens for all purposes, whether or not any Priority
Liens are subordinated in any respect to any other Lien securing
any other obligation of any Grantor or any other person and
irrespective of the date, time, method, manner or order of grant,
attachment or perfection of any such Liens and security interests
and whether or not the Priority Liens are valid, perfected or
enforceable.
SECTION 2.3.
Prohibition on Contesting Liens. Each of the Priority
Lien Collateral Agent, for itself and on behalf of the other
Priority Lien Secured Parties, and the Parity Junior Lien
Collateral Agent, for itself and on behalf of the other Parity
Junior Lien Secured Parties, agrees that it will not, and hereby
waives any right to, contest or challenge (or support any other
person in contesting or challenging), directly or indirectly, in
any proceeding (including any Insolvency or Liquidation
Proceeding), the perfection, priority, validity or enforceability
of any Parity Junior Lien or any Priority Lien, as the case may be,
and the Parity Junior Lien Collateral Agent, for itself and on
behalf of the other Parity Junior Lien Secured Parties, agrees that
it will not, and hereby waives any right to, demand, request, plead
or otherwise assert or claim the benefit of any marshalling,
approval, valuation or similar right which it may have in respect
of the Collateral or the Parity Junior Liens; provided that
nothing in this Agreement shall be
13
construed to prevent or
impair the rights of the Priority Lien Collateral Agent, the
Priority Lien Representative or any Priority Lien Secured Party to
enforce this Agreement.
SECTION 2.4.
No New Liens. The parties hereto agree that, so long
as the Discharge of Priority Lien Obligations has not occurred,
none of the Grantors shall, or shall permit any of its Subsidiaries
to, (a) grant or permit any additional Liens on any asset or
property of any Grantor to secure any Parity Junior Lien Obligation
unless it has granted, or concurrently therewith grants, a Lien on
such asset or property of any Grantor to secure the Priority Lien
Obligations or (b) subject to Section 10.01(b) of
the Indenture, grant or permit any additional Liens on any asset or
property to secure any Priority Lien Obligations unless it has
granted, or concurrently therewith grants, a Lien on such asset to
secure the Parity Junior Lien Obligations, with each such Lien to
be subject to the provisions of this Agreement; provided ,
that the Parity Junior Lien Collateral Agent agrees (on behalf of
itself and the holders of Parity Junior Lien Obligations) that no
holder of Parity Junior Lien Obligations shall obtain, permit or
suffer to exist any Lien on any assets or property of any Grantor
not subject to a Lien in favor of the Priority Lien Collateral
Agent or any other Priority Lien Secured Party unless (i) the
Priority Lien Collateral Agent, for the benefit of itself and the
Priority Lien Secured Parties, also obtains a Lien on such assets
or property or (ii) the Priority Lien Collateral Agent
declines in a writing to the Parity Junior Lien Collateral Agent to
obtain a Lien on such assets; and provided, further , that
in the event that the Parity Junior Lien Collateral Agent or any
holder of Parity Junior Lien Obligations obtains such a Lien on any
assets or property of Holdings or any other Grantor in
contravention of this Section 2.4 that do not also secure the
Priority Lien Obligations, the Parity Junior Lien Collateral Agent
will immediately notify the Priority Lien Collateral Agent in
writing of such Lien and shall either (i) release such Lien or
(ii) assign such Lien to the Priority Lien Collateral Agent
for the benefit of the Priority Lien Secured Parties as security
for the Priority Lien Obligations (unless Holdings or the
applicable Grantor, as applicable, shall promptly grant a similar
Lien on such assets or property to the Priority Lien Collateral
Agent for the benefit of the Priority Lien Secured Parties and such
Lien shall be prior to the Lien of the Parity Junior Lien
Collateral Agent on such assets or property as a result of this
Agreement or otherwise). 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 the
Priority Lien Collateral Agent or the other Priority Lien Secured
Parties, the Parity Junior Lien Collateral Agent agrees, for itself
and on behalf of the holders of Parity Junior Lien Obligations,
that any amounts received by or distributed to the Parity Junior
Lien Collateral Agent or any holder of Parity Junior Lien
Obligations pursuant to or as a result of any Lien granted in
contravention of this Section shall be subject to
Section 2.11.
SECTION 2.5.
Similar Liens and Agreements. Subject to
Section 10.01(b) of the Indenture, each of the parties
hereto acknowledges and agrees that it is its intention that the
Priority Lien Collateral and the Parity Junior 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 by
the Priority Lien Collateral Agent or the Parity Junior Lien
Collateral Agent, the specific assets included in the Priority Lien
Collateral and the Parity Junior Lien Collateral, the steps taken
to perfect the Priority Liens and the Parity Junior Liens thereon
and the identity of
14
the respective Grantors
obligated under the Priority Lien Documents and the Parity Junior
Lien Documents; and
(b)
that the
documents, agreements and instruments creating or evidencing the
Parity Junior Lien Collateral and the Parity Junior Liens shall be
in all material respects in the same form as the documents,
agreements and instruments creating or evidencing the Priority Lien
Collateral and the 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 2.6.
Restrictions on Enforcement of Parity Junior Liens.
(a) Until the Discharge of Priority Lien Obligations, the
Priority Lien Representatives and the holders of Priority Lien
Obligations will have, subject to the exceptions set forth below in
clauses (1) through (4), the exclusive right to act with
respect to the Security Documents and the Collateral, including the
exclusive right to enforce, collect or realize on any Collateral or
exercise any other right or remedy with respect to the Collateral
and neither the Parity Junior Lien Collateral Agent nor the holders
of Parity Junior Lien Obligations may authorize or direct the
Priority Lien Representatives or any other Person with respect to
such matters. Notwithstanding the foregoing, the Parity
Junior Lien Representatives and the holders of Parity Junior Lien
Obligations may direct the Parity Junior Lien Collateral
Agent:
(1)
without any
condition or restriction whatsoever, at any time after the
Discharge of Priority Lien Obligations;
(2)
subject to the
prior Discharge of Priority Lien Obligations, as necessary to
redeem any Collateral in a creditor’s redemption permitted by
law or to deliver any notice or demand necessary to enforce any
right to claim, take or receive proceeds of Collateral remaining
after the Discharge of Priority Lien Obligations in the event of
foreclosure or other enforcement of any Permitted Lien;
(3)
as necessary to
perfect or establish the second priority (subject to Priority Liens
and other Permitted Liens and other than with respect to the
possession or control of the Pledged or Controlled Collateral) of
the Parity Junior Liens upon any Collateral; provided, that
unless otherwise agreed to by the Parity Junior Lien Collateral
Agent in the Security Documents, the Parity Junior Lien
Representatives and the holders of Parity Junior Lien Obligations
may not require the Parity Junior Lien Collateral Agent to take any
action to perfect any Collateral through possession or control;
or
(4)
as necessary to
create, prove, preserve or protect (but not enforce) the Parity
Junior Liens upon any Collateral.
(b)
So long as the
Discharge of Priority Lien Obligations has not occurred, whether or
not any Insolvency or Liquidation Proceeding has been commenced,
the Priority Lien Collateral Agent, the Priority Lien
Representatives and the holders of Priority Lien Obligations 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 (including the
enforcement of any right
15
under any account control
agreement, landlord waiver or bailee’s letter or any similar
agreement or arrangement to which the Parity Junior Lien Collateral
Agent or any other Parity Junior Lien Secured Party is a party), or
to commence or seek to commence any action or proceeding with
respect to such rights or remedies (including any foreclosure
action or proceeding or any Insolvency or Liquidation Proceeding),
in each case, without any consultation with or any consent of the
Parity Junior Lien Collateral Agent, any Parity Junior Lien
Representative or any holder of Parity Junior Lien Obligations;
provided that, notwithstanding the foregoing:
(i) in any
Insolvency or Liquidation Proceeding, the Parity Junior Lien
Collateral Agent may file a proof of claim or statement of interest
with respect to the Parity Junior Lien Obligations;
(ii) the
Parity Junior Lien Collateral Agent may take any action (other than
actions relating to enforcement of Parity Junior Liens) to preserve
or protect the validity, perfection, second priority and
enforceability of the Parity Junior Liens, provided that no
such action is, or could reasonably be expected to be,
(A) adverse in any respect to the Priority Liens or the rights
of the Priority Lien Collateral Agent, the Priority Lien
Representatives or any holders of Priority Lien Obligations to
exercise remedies in respect thereof or (B) otherwise
inconsistent with the terms of this Agreement, including the
automatic release of Parity Junior Liens provided in
Section 2.9 and the automatic amendment of the Parity Junior
Lien Security Documents provided in
Section 2.15(c);
(iii) the
holders of Parity Junior Lien Obligations may file any responsive
or defensive pleadings in opposition to any
