AMENDMENT NO. 1 TO INTERCREDITOR AGREEMENT
AMENDMENT NO. 1 TO INTERCREDITOR AGREEMENT (this Amendment) dated as of December 11, 2019, by and between CANTOR FITZGERALD SECURITIES, as agent (in such capacity, with its successors and assigns, and as defined in the Intercreditor Agreement, the ABL Agent), DELAWARE TRUST COMPANY, as administrative agent and collateral agent (in such capacities with its successors and assigns, and as defined in the Intercreditor Agreement, the Term Agent), WILMINGTON SAVINGS FUND SOCIETY, FSB, as trustee and collateral trustee (in such capacities, with its successors and assigns, and as defined in the Intercreditor Agreement, the Convertible Noteholder Trustee), and the ABL Lenders, Term Lenders, and holders of Convertible Notes party hereto.
WHEREAS, the ABL Agent, the Term Agent, and the Convertible Noteholder Trustee entered into that certain Intercreditor Agreement, dated as of September 26, 2018 (the Intercreditor Agreement; capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Intercreditor Agreement), and each Loan Party acknowledged and consented to such Intercreditor Agreement; and
WHEREAS, the ABL Agent, the Term Agent, and the Convertible Noteholder Trustee have agreed to amend the Intercreditor Agreement as provided herein, each at the direction of the Required Lenders or Required Holders, as applicable, under and as defined in the respective Loan Documents;
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto agree as follows:
Section 1. Amendment to Intercreditor Agreement. The definition of ABL Obligations Cap in Section 1.2 of the Intercreditor Agreement is hereby amended by deleting the number $30,000,000 therefrom and inserting in lieu thereof the number $40,000,000.
Section 2. Miscellaneous.
2.1 Continuing Effect. Expect as specifically provided herein, the Intercreditor Agreement shall remain in full force and effect in accordance with its terms and is hereby ratified and confirmed in all respects. This Amendment shall form a part of the Intercreditor Agreement for all purposes.
2.2 No Waiver. This Amendment is limited as specified and the execution, delivery and effectiveness of this Amendment shall not operate as a modification, acceptance or waiver of any provision of the Intercreditor Agreement, except as specifically set forth herein.
2.3 Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, EXCEPT AS OTHERWISE REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT THAT REMEDIES PROVIDED BY THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK ARE GOVERNED BY THE LAWS OF SUCH JURISDICTION.
2.4 Captions. Captions and section headings appearing herein are included solely for convenience of reference and are not intended to affect the interpretation of any provision of this Amendment.