Common use of Intercreditor Votes Clause in Contracts

Intercreditor Votes. ‌ To the extent that the Intercreditor Agreement remains in effect, it is understood and agreed that certain decisions specified in the Intercreditor Agreement shall be determined through an “Intercreditor Vote” as described (and defined) therein, including decisions described in the Intercreditor Agreement relating to the amendment or modification of this Indenture and other Financing Documents and the exercise of certain rights or remedies thereunder. In furtherance of the foregoing, in connection with any “Remedies Direction” (as defined in the Intercreditor Agreement), any vote in respect of a “Modification” (as defined in the Intercreditor Agreement) or other vote or decision required to be made under the Intercreditor Agreement and/or the Dutch Security Agreement, the Indenture Trustee is authorized and directed to (i) provide to the Intercreditor Agent any information in the possession of the Indenture Trustee in respect of the amounts of principal and interest owing on the Notes and (ii) provide votes and directions (including “Voting Certificates” (as defined in the Intercreditor Agreement)) to the Intercreditor Agent in response to notices of Intercreditor Votes or proposed Decision from the Intercreditor Agent at the direction of, and on behalf of, each Holder. Notwithstanding anything herein to the contrary, in connection with any decision or vote under this Section 11.08, with respect to any Global Note held through DTC or other clearing system (or a nominee thereof), each Person holding a beneficial interest in such Global Note may be considered to be a “Holder” of its portion of Notes for purposes of voting on the matter relating thereto (for example, such Person holding a beneficial interest in such Global Note may consent to any waiver or amendment directly without requiring the participation of such clearing system or its nominee); it being understood that if such Person holding a beneficial interest in such Global Notes is authorized pursuant to an official DTC proxy, or if the Indenture Trustee receives evidence satisfactory to the Indenture Trustee (in its sole discretion) that such Person holds the beneficial interests in such Global Note that it purports to vote, and such evidence of ownership may include a securities position or participant list or other information obtained from DTC or the applicable clearing system and that such Person holding a beneficial interest in such Global Notes shall remain so owned for purposes of such vote or consent that the Trustee may recognize such Person for purposes of voting. Voting of any Global Notes held through DTC or other clearing system in connection with any decision or vote under this Section 11.08 may be conducted in accordance with the normal procedures and rules for DTC or the applicable clearing system and those set forth in the voting request or consent solicitation document. In addition to the foregoing, in connection with any Intercreditor Vote under the Intercreditor Agreement, in all cases in which the Indenture Trustee is required to notify Holders of any such Intercreditor Vote (including any solicitation to such Holders to provide their approval or disapproval of the relevant Intercreditor Vote) the Indenture Trustee may structure the required notice to Holders so that such notice or solicitation is eligible in accordance with the applicable procedures of DTC that the Indenture Trustee determines to facilitate such vote, including causing such notice to be processed through DTC’s Automated Tender Offer Program (“ATOP”) system. Any solicitation of the consent or a vote of the Holders pursuant to this Section 11.08 may, at the option of the Indenture Trustee, be conducted through DTC’s ATOP system (or any successor thereto). If the ATOP system does not permit the transmittal of any vote other than an affirmative vote on behalf of any Holder, the Indenture Trustee shall disclose to the Holders in the Vote Notice (as such term is defined below) that with respect to an Intercreditor Vote, failure to vote with respect to the solicited vote will be deemed to be a vote against the vote or votes in question and the Indenture Trustee and the Intercreditor Agent (if other than the Indenture Trustee) shall deem any such failure to vote with respect to the solicited vote to be a vote against the vote or votes in question. For any solicitation to Holders in connection with an Intercreditor Vote, the Indenture Trustee shall upon receipt from the Intercreditor Agent of an Intercreditor Vote Notice (as such term is defined in the Intercreditor Agreement), provide written notice substantially in the form attached hereto as Exhibit G (each such notice, a “Vote Notice”), together with a copy of the applicable Intercreditor Vote Notice and the applicable Request for Decision and Voting Certificate (as such term is defined in the Intercreditor Agreement), to Holders. Such Vote Notice shall specify in reasonable detail the subject of the Intercreditor Vote, the vote or consent being solicited from Holders, the time period for the vote and any related expiration or other relevant dates and how Holders may participate in the applicable Intercreditor Vote. For the avoidance of doubt, Holders may not vote on Release Notices. Upon completion of the procedures specified in the Vote Notice, the Indenture Trustee shall tally the votes cast, and/or deemed cast, in respect of the solicitation of Holders with respect to the Intercreditor Vote and shall vote on behalf of Holders in respect of the Intercreditor Vote in accordance with the votes cast, and/or deemed cast, by the Holders in favor of and against the matter or matters in question in such Intercreditor Vote, by providing to the Intercreditor Agent the total votes cast by Holders in favor of the relevant Decision (as defined in the Intercreditor Agreement) solicited in such Intercreditor Vote and the total votes entitled to be cast by Holders with respect to such matter or matters. The Indenture Trustee will have no responsibility or liability for the terms or requirements of any such systems or procedures offered by DTC, or any unavailability thereof.

Intercreditor Votes. ‌ To the extent that the Intercreditor Agreement remains Each Party's Entitlement to Vote. (a) Except as otherwise provided in effectthis Section 3.03, it is understood and agreed that certain decisions specified in the Intercreditor Agreement each Voting Party shall be determined through an “entitled to vote in each Intercreditor Vote” as described Vote under this Agreement. (b) Unless and defined) therein, including decisions described in the Intercreditor Agreement relating until any Interest Rate Hedge Bank shall have delivered to the amendment or modification of this Indenture Collateral Agent and other Financing Documents and the exercise of certain rights or remedies thereunder. In furtherance of the foregoingeach Secured Party a Hedge Termination Certificate, in connection with any “Remedies Direction” (as defined in the Intercreditor Agreement), any vote in respect of a “Modification” (as defined in the Intercreditor Agreement) or other vote or decision required to be made under the Intercreditor Agreement and/or the Dutch Security Agreement, the Indenture Trustee is authorized and directed to such Interest Rate Hedge Bank shall not have (i) provide any voting rights with respect to the Secured Obligations arising under any Interest Rate Hedging Agreement to which it is a party or (ii) any voting rights with respect to any Intercreditor Agent Vote; provided that any information in the possession such Interest Rate Hedge Bank shall at all times (subject to Section 3.03(c) and 3.03(d)) be a Voting Party for purposes of the Indenture Trustee definition of “Unanimous Voting Parties” in respect Section 1.01 hereof and for purposes of the amounts of principal and interest owing on the Notes clauses (i) and (ii) provide votes of the proviso contained in Section 9.03. If, after the date of this Agreement, any Person becomes an Interest Rate Hedge Bank and directions (including “Voting Certificates” (as defined in the Intercreditor Agreement)) to the Intercreditor Agent in response to notices such Person has not previously executed a counterpart of Intercreditor Votes or proposed Decision from the Intercreditor Agent at the direction of, and on behalf of, each Holder. Notwithstanding anything herein to the contrary, in connection with any decision or vote under this Section 11.08, with respect to any Global Note held through DTC or other clearing system (Agreement or a nominee thereof), each Person holding a beneficial interest Joinder Agreement in such Global Note may be considered to be a “Holder” of its portion of Notes for purposes of voting on the matter relating thereto (for examplecapacity as an Interest Rate Hedge Bank, such Person holding a beneficial interest in such Global Note may consent to any waiver or amendment directly without requiring the participation of such clearing system or its nominee); it being understood that if such Person holding a beneficial interest in such Global Notes is authorized pursuant to an official DTC proxy, or if the Indenture Trustee receives evidence satisfactory shall execute and deliver to the Indenture Trustee Collateral Agent (in its sole discretionx) that a Joinder Agreement and (y) such Person holds other documentation as the beneficial interests in Collateral Agent may reasonably request to evidence the due authorization, execution and delivery of this Agreement by such Global Note that it purports Person. By entering into or joining this Agreement, each Interest Rate Hedge Bank shall be deemed to vote, and such evidence of ownership may include a securities position or participant list or other information obtained from DTC or have agreed to be bound by the applicable clearing system and that such Person holding a beneficial interest in such Global Notes shall remain so owned for purposes of such vote or consent that the Trustee may recognize such Person for purposes of voting. Voting of any Global Notes held through DTC or other clearing system in connection with any decision or vote under this Section 11.08 may be conducted in accordance with the normal procedures and rules for DTC or the applicable clearing system and those provisions set forth in the voting request other Financing Documents to which the Interest Rate Hedge Banks or consent solicitation document. In addition the Collateral Agent, on behalf of the Secured Parties, is a party. (c) None of (i) any Affiliate of the Borrower or any Member that from time to time holds any Commitment, any Loan or any other interest in a Secured Obligation (other than, subject to Section 10.01 of the Credit Agreement and Section 9.03 hereunder, Macquarie Affiliates in their respective capacity as a Lender and Macquarie Bank Limited in its capacity as an Interest Rate Hedge Bank) or (ii) any Lender that has agreed, directly or indirectly, to vote or otherwise act at the direction or subject to the foregoing, in connection with any Intercreditor Vote under the Intercreditor Agreement, in all cases in which the Indenture Trustee is required to notify Holders of any such Intercreditor Vote (including any solicitation to such Holders to provide their approval or disapproval of the relevant Intercreditor Voteany Person identified in clause (i) the Indenture Trustee may structure the required notice to Holders so that such notice or solicitation is eligible in accordance with the applicable procedures of DTC that the Indenture Trustee determines to facilitate such vote, including causing such notice to be processed through DTC’s Automated Tender Offer Program (each a “ATOPNon-Voting Lender”) system. Any solicitation of the consent or a vote of the Holders pursuant shall be entitled to this Section 11.08 may, at the option of the Indenture Trustee, be conducted through DTC’s ATOP system (or participate in any successor thereto). If the ATOP system does not permit the transmittal of any vote other than an affirmative vote on behalf of any Holder, the Indenture Trustee shall disclose to the Holders in the Vote Notice (as such term is defined below) that with respect to an Intercreditor Vote, failure to vote with respect to the solicited vote will be deemed to be a vote against the vote or votes in question and the Indenture Trustee and Collateral Agent in determining the Intercreditor Agent (if other than the Indenture Trustee) percentage of votes cast shall deem any such failure each Non-Voting Lender to vote with respect to the solicited vote to be a vote against the vote or votes in question. For any solicitation to Holders in connection with an Intercreditor Vote, the Indenture Trustee shall upon receipt from the Intercreditor Agent of an Intercreditor Vote Notice (as such term is defined in the Intercreditor Agreement), provide written notice substantially in the form attached hereto as Exhibit G (each such notice, a “Vote Notice”), together with a copy of the applicable Intercreditor Vote Notice and the applicable Request for Decision and Voting Certificate (as such term is defined in the Intercreditor Agreement), to Holders. Such Vote Notice shall specify in reasonable detail the subject of the Intercreditor Vote, the vote or consent being solicited from Holders, the time period for the vote and any related expiration or other relevant dates and how Holders may participate in the applicable Intercreditor Vote. For the avoidance of doubt, Holders may not vote on Release Notices. Upon completion of the procedures specified in the Vote Notice, the Indenture Trustee shall tally the votes cast, and/or deemed cast, in respect of the solicitation of Holders with respect to the Intercreditor Vote and shall vote on behalf of Holders in respect of the Intercreditor Vote have voted proportionately in accordance with the votes cast, and/or deemed cast, by of the Holders in favor Lenders thereunder entitled to vote. (d) Notwithstanding any provision of and against the matter or matters in question in such Intercreditor Vote, by providing this Agreement to the Intercreditor Agent contrary, Macquarie Bank Limited, solely in its capacity as an Interest Rate Hedge Bank, shall not be entitled to vote on any matter that is subject to the total votes cast by Holders in favor vote of the relevant Decision (as defined in the Intercreditor Agreement) solicited in such Intercreditor Vote and the total votes Unanimous Voting Parties or be entitled to be cast by Holders with respect to such matter or matters. The Indenture Trustee will have no responsibility or liability for the terms or requirements of any such systems or procedures offered by DTC, or “tie-breaker” vote on any unavailability thereofmatter.

Intercreditor Votes. ‌ (a) To the extent that the Intercreditor Agreement remains in effect, it is understood and agreed that certain decisions specified in the Intercreditor Agreement shall be determined through an “Intercreditor Vote” as described (and defined) therein, including decisions described in the Intercreditor Agreement relating to the amendment or modification of this Indenture and other Financing Documents and the exercise of certain rights or remedies thereunder. In furtherance of the foregoing, in connection with any “Remedies Direction” (as defined in the Intercreditor Agreement), any vote in respect of a “Modification” (as defined in the Intercreditor Agreement) or other vote or decision required to be made under requiring the approval or other direction or instruction of the “Indenture Secured Parties” (as defined in the Intercreditor Agreement) in accordance with the Intercreditor Agreement and/or or any other “Secured Financing Document” (as defined in the Dutch Security Intercreditor Agreement), including, without limitation, in connection with the delivery of any Remedies Notice (as such term is defined in the Intercreditor Agreement), the Indenture Trustee is authorized and directed to (i) provide to the Intercreditor Agent any information in the possession of the Indenture Trustee in respect of the amounts of principal and interest owing on the Notes and (ii) provide votes and directions (including “Voting Certificates” (as defined in the Intercreditor Agreement)) to the Intercreditor Agent in response to notices of Intercreditor Votes or proposed Decision from the Intercreditor Agent at the direction of, and on behalf of, each Holder. Notwithstanding anything herein to the contrary, in connection with any decision or vote under this Section 11.0811.1, with respect to any Global Note held through DTC or other clearing system (or a nominee thereof), each Person holding a beneficial interest in such Global Note may be considered to be a “Holder” of its portion of Notes for purposes of voting on the matter relating thereto (for example, such Person holding a beneficial interest in such Global Note may consent to any waiver or amendment directly without requiring the participation of such clearing system or its nominee); it being understood that if such Person holding a beneficial interest in such Global Notes is authorized pursuant to an official DTC proxy, or if the Indenture Trustee receives evidence satisfactory to the Indenture Trustee (in its sole discretion) that such Person holds the beneficial interests in such Global Note that it purports to vote, and such evidence of ownership may include a securities position or participant list or other information obtained from DTC or the applicable clearing system and that such Person holding a beneficial interest in such Global Notes shall remain so owned for purposes of such vote or consent that the Trustee may recognize such Person for purposes of voting. Voting of any Global Notes held through a DTC or other clearing system in connection with any decision or vote under this Section 11.08 11.1 may be conducted in accordance with the normal procedures and rules for DTC or the applicable clearing system and those set forth in the voting request or consent solicitation document. . (b) In addition to the foregoing, in connection with any Intercreditor Vote under the Intercreditor Agreement, in all cases in which the Indenture Trustee is required to notify Holders of any such Intercreditor Vote (including any solicitation to such Holders to provide their approval or disapproval of the relevant Intercreditor Vote) the Indenture Trustee may structure the required notice to Holders so that such notice or solicitation is eligible in accordance with the applicable procedures of DTC that the Indenture Trustee determines to facilitate such vote, including causing such notice to be processed through DTC’s Automated Tender Offer Program (“ATOP”) system. . (c) Any solicitation of the consent or a vote of the Holders pursuant to this Section 11.08 11.1 may, at the option of the Indenture Trustee, be conducted through DTC’s ATOP system (or any successor thereto). If the ATOP system does not permit the transmittal of any vote other than an affirmative vote on behalf of any Holder, the Indenture Trustee shall disclose to the Holders in the Vote Notice (as such term is defined below) that with respect to an Intercreditor Vote, any non-vote or failure to vote with respect to the solicited vote will not be disregarded and will be deemed to be a negative vote against with respect to the vote or votes in question and the Indenture Trustee and the Intercreditor Agent (if other than the Indenture Trustee) shall deem any such non-vote or failure to vote with respect to the solicited vote to be a negative vote against with respect to the vote or votes in question. question for all intents and purposes. (d) For any solicitation to Holders in connection with an any Intercreditor Vote, the Indenture Trustee shall upon receipt from the Intercreditor Agent of an Intercreditor Vote Notice (as such term is defined in the Intercreditor Agreement), provide written notice substantially in the form attached hereto as Exhibit G D (each such notice, notice a “Vote Notice”), together with a copy of the applicable Intercreditor Vote Notice and the applicable Decision Request for Decision and Voting Certificate (as such term is defined in the Intercreditor Agreement), to Holders. Such Vote Notice shall specify in reasonable detail the subject of the Intercreditor Vote, the vote or consent being solicited from Holders, the time period for the vote and any related expiration or other relevant dates and how Holders may participate in the applicable Intercreditor Vote. For the avoidance of doubt, Holders may not vote on Release Notices. . (e) Upon completion of the procedures specified in the Vote Notice, the Indenture Trustee shall tally the votes cast, and/or deemed cast, in respect of the solicitation of Holders with respect to the Intercreditor Vote and shall vote on behalf of Holders in respect of the Intercreditor Vote in accordance with the votes cast, and/or deemed cast, by the Holders in favor of and against the matter or matters in question in such Intercreditor Vote, by providing to the Intercreditor Agent the total votes cast by Holders in favor of the relevant Decision (as defined in the Intercreditor Agreement) solicited in such Intercreditor Vote and the total votes entitled to be cast by Holders with respect to such matter or matters. . (f) The Indenture Trustee will have no responsibility or liability for the terms or requirements of any such systems or procedures offered by DTC, or any unavailability thereof.