Amendments; Refinancings; Legend. (a) The First Lien Debt Documents may be amended, supplemented, or otherwise modified in accordance with their terms and the First Lien Obligations may be Refinanced, in each case without notice to, or the consent of, Second Lien Agent or Second Lien Claimholders, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that, in the case of a Refinancing, the holders of such Refinancing debt bind themselves (in a writing addressed to Second Lien Agent for the benefit of itself and the Second Lien Claimholders) to the terms of this Agreement; provided further, however, that any such amendment, supplement, modification, or Refinancing shall not, without the prior written consent of Second Lien Agent (which it shall be authorized to consent to based upon an affirmative vote of Second Lien Claimholders holding at least a majority in aggregate principal amount of the Second Lien Notes then outstanding): (i) contravene the provisions of this Agreement or prohibit the Grantors from making any payment with respect to the Second Lien Obligations which is permitted under the terms of the First Lien Debt Documents as of the date hereof; (ii) increase the commitments of the First Lien Claimholders under the First Lien Debt Documents to an amount that would exceed the First Lien Cap or otherwise permit the aggregate outstanding principal amount of Advances plus the aggregate amount of outstanding undrawn Letters of Credit to exceed the First Lien Cap; (iii) increase the “applicable margin” or similar component of the interest rate by more than 2 percentage points per annum (excluding increases resulting from the accrual of interest at the default rate); (iv) extend the scheduled final maturity of the First Lien Debt Agreement or any Refinancing thereof beyond the scheduled maturity of the Second Lien Debt Agreement unless the First Lien Debt Agreement (as so amended or Refinanced) permits the repayment in full of the Second Lien Obligations at their scheduled maturity; or (v) other than as a function of the requirement that all proceeds of Collateral be remitted to First Lien Agent for application to the First Lien Obligations on a daily basis, modify (or have the effect of a modification of) the mandatory prepayment provisions of the First Lien Debt Agreement or any First Lien Debt Document within 180 days of the date hereof in a manner that makes them more restrictive to Grantors. (b) The Second Lien Debt Documents may be amended, supplemented, or otherwise modified in accordance with their terms and the Second Lien Obligations may be Refinanced, in each case without notice to, or the consent of, First Lien Agent or First Lien Claimholders, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that, in the case of a Refinancing, the holders of such Refinancing debt bind themselves (in a writing addressed to First Lien Agent for the benefit of itself and the First Lien Claimholders) to the terms of this Agreement; provided further, however, that any such amendment, supplement, modification, or Refinancing shall not (except with respect to any Conforming Amendment (provided that any Conforming Amendment to the Second Lien Debt Agreement shall maintain an equivalent proportionate difference between dollar amounts or ratios, as the case may be, in the relevant provision in the Second Lien Debt Agreement and those in the corresponding covenant in the First Lien Debt Agreement, to the extent that such difference exists between the Second Lien Debt Agreement and the First Lien Debt Agreement on the date hereof)), without the prior written consent of First Lien Agent (which it shall be authorized to consent to based upon an affirmative vote of First Lien Claimholders constituting “Required Lenders” as defined in the First Lien Debt Agreement): (i) contravene the provisions of this Agreement or prohibit the Grantors from making any payment with respect to the First Lien Obligations which is permitted under the terms of the Second Lien Debt Documents as of the date hereof; (ii) increase the aggregate principal amount of the outstanding Second Lien Notes to an amount that would exceed the Second Lien Cap; (iii) increase the contract rate of interest by more than 2 percentage points per annum (excluding increases resulting from the accrual of interest at the default rate); (iv) change to earlier dates any dates upon which payments of principal or interest are due thereon; (v) change any default or Second Lien Default thereunder in a manner adverse to Grantors thereunder unless the First Lien Lenders are offered the opportunity to similarly modify the First Lien Debt Documents (it being understood that any waiver of any such default or Second Lien Default, in and of itself, shall not be deemed to be adverse to Grantors); or (vi) change the redemption, mandatory prepayment, or defeasance provisions thereof in a manner adverse to the Grantors or First Lien Claimholders. (c) Each Grantor agrees that any promissory note evidencing or security agreement, pledge agreement or mortgage securing the Second Lien Obligations shall at all times include the following language (or language to similar effect approved by First Lien Agent): “Anything herein to the contrary notwithstanding, the liens and security interests [securing the obligations evidenced by this note] [granted hereunder] and the exercise of any right or remedy with respect thereto are subject to the provisions of the Intercreditor Agreement dated as of [ ] [ ], 2012, (as amended, restated, supplemented, or otherwise modified from time to time, the “Intercreditor Agreement”), by and between PNC Bank, National Association, as First Lien Agent, and Xxxxx Fargo Bank, National Association, as Second Lien Agent. In the event of any conflict between the terms of the Intercreditor Agreement and this [note][security agreement][pledge agreement][mortgage], the terms of the Intercreditor Agreement shall govern and control.”
Appears in 2 contracts
Samples: Intercreditor Agreement (Hutchinson Technology Inc), Intercreditor Agreement (Hutchinson Technology Inc)
Amendments; Refinancings; Legend. (a) The First Lien Debt Documents may be amended, supplemented, or otherwise modified in accordance with their terms and the First Lien Obligations may be Refinanced, in each case without notice to, or the consent of, Second Lien Agent Creditors or any other Second Lien ClaimholdersClaimholder, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that, in the case of a Refinancing, the holders of such Refinancing debt bind themselves (in a writing addressed to Second Lien Agent for the benefit of itself and the Second Lien Claimholders) to the terms of this Agreement; provided further, however, that any such amendment, supplement, modification, or Refinancing modification shall not, without the prior written consent of each Second Lien Agent (which it shall be authorized to consent to based upon an affirmative vote of Second Lien Claimholders holding at least a majority in aggregate principal amount of the Second Lien Notes then outstanding):Creditor:
(i) contravene the provisions of this Agreement or prohibit the Grantors from making any payment with respect to the Second Lien Obligations which is permitted under the terms of the First Lien Debt Documents as of the date hereofAgreement;
(ii) increase the commitments of the First Lien Claimholders under the First Lien Debt Documents to an amount that would exceed the First Lien Cap or otherwise permit the aggregate outstanding principal amount of Advances plus the aggregate amount of outstanding undrawn Letters of Credit to exceed the First Lien Cap;
(iii) increase the “applicable margin” or similar component of the interest rate total yield by more than 2 2.00 percentage points per annum (including by adding or increasing any interest rate floor but excluding increases resulting from (A) increases in the underlying reference rate not caused by an amendment, supplement, modification of the First Lien Account Agreement, or (B) the accrual of interest at the default rate);
(iviii) (A) change to earlier dates any scheduled dates upon which payments of principal or interest are due thereon, (B) extend in any four-quarter period the date of payment of more than two (2) scheduled principal payments or extend prior to Payment in Full of the First Lien Priority Debt the date of payment of more than four (4) scheduled principal payments, or (C) extend the scheduled final maturity of the First Lien Debt Account Agreement or any Refinancing thereof beyond the scheduled maturity of the either Second Lien Debt Agreement unless the First Lien Debt Agreement (as so amended or Refinanced) permits the repayment in full of the Second Lien Obligations at their scheduled maturity; orCredit Agreement;
(viv) other than as a function of the requirement that all proceeds of Collateral be remitted to First Lien Agent for application to the First Lien Obligations on a daily basis, modify (or have the effect of a modification of) the redemption, mandatory prepayment prepayment, or defeasance provisions of the First Lien Debt Account Agreement or any other First Lien Debt Document within 180 days of the date hereof in a manner that makes them more restrictive or burdensome to Grantorsthe Debtor;
(v) change any covenants, defaults, or events of default under the First Lien Account Agreement or any other First Lien Document (including the addition of covenants, defaults, or events of default not contained in the First Lien Account Agreement or other First Lien Documents as in effect on the date hereof) to restrict the Debtor from making payments of the Second Lien Debt or amending the Second Lien Documents that would otherwise be permitted under the First Lien Documents as in effect on the date hereof;
(vi) subordinate any First Lien Debt or the Liens of the First Lien Claimholders on the Collateral, except in the case of a DIP Financing and with respect to Liens of the type permitted to be prior to the Liens of the First Lien Claimholders in accordance with the definition of Permitted Liens under the First Lien Account Agreement (as in effect on the date hereof) or in connection with any administrative priority claim or a professional fee “carve-out”; or
(vii) add or make more restrictive any First Lien Default or any covenant with respect to the First Lien Debt or make any change to any First Lien Default or any covenant which would have the effect of making such First Lien Default or covenant more restrictive, unless a corresponding amendment is also offered to each Second Lien Creditor by the Debtor preserving any cushions that may exist, regardless of whether or not the Second Lien Creditor accept such offer.
(b) The Second Lien Debt Documents may be amended, supplemented, or otherwise modified in accordance with their terms and the Second Lien Obligations may be Refinanced, in each case without notice to, or the consent of, First Lien Agent Creditor or the First Lien Claimholders, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that, in the case of a Refinancing, the holders of such Refinancing debt bind themselves (in a writing addressed to First Lien Agent for the benefit of itself and the First Lien Claimholders) to the terms of this Agreement; provided further, however, that any such amendment, supplement, modification, or Refinancing modification shall not (except with respect to any Conforming Amendment (provided that any Conforming Amendment to the any Second Lien Debt Credit Agreement shall maintain an equivalent proportionate difference between dollar amounts or ratios, as the case may be, in the relevant provision in the such Second Lien Debt Credit Agreement and those in the corresponding covenant in the First Lien Debt Account Agreement, to the extent that such difference exists between the such Second Lien Debt Credit Agreement and the First Lien Debt Account Agreement on the date hereof)hereof or subsequent to the date hereof to the extent both the Second Lien Credit Agreements and the First Lien Account Agreement are amended in accordance with the terms thereof), without the prior written consent of First Lien Agent (which it shall be authorized to consent to based upon an affirmative vote of First Lien Claimholders constituting “Required Lenders” as defined in the First Lien Debt Agreement):Creditor:
(i) contravene the provisions of this Agreement or prohibit the Grantors from making any payment with respect to the First Lien Obligations which is permitted under the terms of the Second Lien Debt Documents as of the date hereofAgreement;
(ii) increase the aggregate principal amount of the outstanding Second Lien Notes to an amount that would exceed the Second Lien Cap;
(iii) increase the contract rate of interest total yield by more than 2 2.00 percentage points per annum (including by adding or increasing any interest rate floor but excluding increases resulting from (A) increases in the underlying reference rate not caused by an amendment, supplement, modification or Refinancing of the applicable Second Lien Credit Agreement, or (B) the accrual of interest at the default rate);
(iviii) change to earlier dates any scheduled dates upon which payments of principal or interest are due thereon;
(A) the redemption, mandatory prepayment, or defeasance provisions thereof in a manner that makes them more restrictive or burdensome to the Debtor, or (B) change the redemption, mandatory prepayment, or defeasance provisions to require any redemption, mandatory prepayment, or defeasance to any Second Lien Claimholder or any other Person (other than to the First Lien Claimholders) prior to the Payment in Full of First Lien Priority Debt (unless any such payment would be permitted pursuant to Section 4.5 of this Agreement);
(v) change any covenants, defaults, or events of default under the Second Lien Credit Agreements or any other Second Lien Document (including the addition of covenants, defaults, or events of default not contained in the Second Lien Documents or other Second Lien Documents as in effect on the date hereof) to restrict the Debtor from making payments of the First Lien Debt or amending the First Lien Documents that would otherwise be permitted under the Second Lien Documents as in effect on the date hereof or to restrict the Debtor from the Disposition of any assets that would otherwise be permitted under the Second Lien Documents as in effect on the date hereof;
(vi) change any financial covenant in a manner adverse to the Debtor thereunder (it being understood that any waiver of any default or Second Lien Default arising from the failure to comply with any financial covenant, in and of itself, shall not be deemed to be adverse to the Debtor);
(vii) change any default or Second Lien Default thereunder in a manner adverse to Grantors the Debtor thereunder unless the First Lien Lenders are offered the opportunity to similarly modify the First Lien Debt Documents (it being understood that any waiver of any such default or Second Lien Default, in and of itself, shall not be deemed to be adverse to Grantorsthe Debtor); or
provided, the affirmative vote of the First Lien Claimholders shall not be required in connection with any of the actions listed in the foregoing clauses (vii) change the redemption, mandatory prepayment, or defeasance provisions thereof in a manner adverse through (vii) to the Grantors or extent such amendments are parallel to permitted amendments to the First Lien ClaimholdersDocuments so long as the provisions that are amended remain in the same proportion to the corresponding provisions in the First Lien Documents as on the date hereof.
(c) Each Grantor Any refinancing of all or any portion of the First Lien Debt shall constitute a repayment of such First Lien Debt and a release of the Lien on the Collateral in favor of the First Lien Creditor. Notwithstanding anything to the contrary herein contained, the amending and restating of the First Lien Documents from a factoring facility to an asset based lending facility at or about the time of this Agreement shall not be considered a repayment of such First Lien Debt in favor of the First Lien Creditor for the purpose of this provision, but instead shall be considered an amendment of the First Lien Documents. Nothing contained in this Section 5.3(c) shall in any manner relieve any Second Lien Creditor from its obligations under Section 1.8 of the Note and the Security Agreement with respect to certain other future creditors of the Debtor.
(d) The Debtor agrees that any promissory note evidencing or security agreement, pledge agreement or mortgage securing the Second Lien Obligations Debt shall at all times include the following language (or language to similar effect approved by First Lien AgentCreditor): “Anything herein to the contrary notwithstanding, the liens and security interests [securing the obligations evidenced by this promissory note] [granted hereunder] and , the exercise of any right or remedy with respect thereto thereto, and certain of the rights of the holder hereof are subject to the provisions of the Third Amended and Restated Intercreditor Agreement dated as of [ ] [ ]September __, 2012, 2020 (as amended, restated, supplemented, or otherwise modified from time to time, the “Intercreditor Agreement”), by and between PNC BankSALLYPORT COMMERCIAL FINANCE, National AssociationLLC, as First Lien AgentCreditor, and Xxxxx Fargo BankLXXX GLOBAL MACRO FUND, National AssociationL.P. and LXXX GLOBAL ASSET MANAGEMENT, LLC, as Second Lien AgentCreditor. In the event of any conflict between the terms of the Intercreditor Agreement and this [note][security agreement][pledge agreement][mortgage]promissory note, the terms of the Intercreditor Agreement shall govern and control.”
Appears in 2 contracts
Samples: Intercreditor Agreement (Boxlight Corp), Intercreditor Agreement (Boxlight Corp)
Amendments; Refinancings; Legend. (a) The First Lien Debt Documents may be amended, supplemented, or otherwise modified in accordance with their terms and the First Lien Obligations may be Refinanced, in each case without notice to, or the consent of, Second Lien Agent Creditor or any other Second Lien ClaimholdersClaimholder, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that, in the case of a Refinancing, the holders of such Refinancing debt bind themselves (in a writing addressed to Second Lien Agent for the benefit of itself and the Second Lien Claimholders) to the terms of this Agreement; provided further, however, that any such amendment, supplement, modification, or Refinancing modification shall not, without the prior written consent of Second Lien Agent (which it shall be authorized to consent to based upon an affirmative vote of Second Lien Claimholders holding at least a majority in aggregate principal amount of the Second Lien Notes then outstanding):Creditor:
(i) contravene the provisions of this Agreement or prohibit the Grantors from making any payment with respect to the Second Lien Obligations which is permitted under the terms of the First Lien Debt Documents as of the date hereofAgreement;
(ii) increase the commitments of the First Lien Claimholders under the First Lien Debt Documents to an amount that would exceed the First Lien Cap or otherwise permit the aggregate outstanding principal amount of Advances plus the aggregate amount of outstanding undrawn Letters of Credit to exceed the First Lien Cap;
(iii) increase the “applicable margin” or similar component of the interest rate total yield by more than 2 [2.00] percentage points per annum (including by adding or increasing any interest rate floor but excluding increases resulting from (A) increases in the underlying reference rate not caused by an amendment, supplement, modification of the First Lien Account Agreement, or (B) the accrual of interest at the default rate);
(iviii) (A) change to earlier dates any scheduled dates upon which payments of principal or interest are due thereon, (B) extend in any four-quarter period the date of payment of more than two (2) scheduled principal payments or extend prior to Payment in Full of the First Lien Priority Debt the date of payment of more than four (4) scheduled principal payments, or (C) extend the scheduled final maturity of the First Lien Debt Account Agreement or any Refinancing thereof beyond the scheduled maturity of the Second Lien Debt Agreement unless the First Lien Debt Agreement (as so amended or Refinanced) permits the repayment in full of the Second Lien Obligations at their scheduled maturity; orCredit Agreement;
(viv) other than as a function of the requirement that all proceeds of Collateral be remitted to First Lien Agent for application to the First Lien Obligations on a daily basis, modify (or have the effect of a modification of) the redemption, mandatory prepayment prepayment, or defeasance provisions of the First Lien Debt Account Agreement or any other First Lien Debt Document within 180 days of the date hereof in a manner that makes them more restrictive or burdensome to Grantorsthe Debtor;
(v) change any covenants, defaults, or events of default under the First Lien Account Agreement or any other First Lien Document (including the addition of covenants, defaults, or events of default not contained in the First Lien Account Agreement or other First Lien Documents as in effect on the date hereof) to restrict the Debtor from making payments of the Second Lien Debt or amending the Second Lien Documents that would otherwise be permitted under the First Lien Documents as in effect on the date hereof;
(vi) subordinate any First Lien Debt or the Liens of the First Lien Claimholders on the Collateral, except in the case of a DIP Financing and with respect to Liens of the type permitted to be prior to the Liens of the First Lien Claimholders in accordance with the definition of Permitted Liens under the First Lien Account Agreement (as in effect on the date hereof) or in connection with any administrative priority claim or a professional fee “carve-out”; or
(vii) add or make more restrictive any First Lien Default or any covenant with respect to the First Lien Debt or make any change to any First Lien Default or any covenant which would have the effect of making such First Lien Default or covenant more restrictive, unless a corresponding amendment is also offered to the Second Lien Creditor by the Debtor preserving any cushions that may exist, regardless of whether or not the Second Lien Creditor accept such offer.
(b) The Second Lien Debt Documents may be amended, supplemented, or otherwise modified in accordance with their terms and the Second Lien Obligations may be Refinanced, in each case without notice to, or the consent of, First Lien Agent Creditor or the First Lien Claimholders, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that, in the case of a Refinancing, the holders of such Refinancing debt bind themselves (in a writing addressed to First Lien Agent for the benefit of itself and the First Lien Claimholders) to the terms of this Agreement; provided further, however, that any such amendment, supplement, modification, or Refinancing modification shall not (except with respect to any Conforming Amendment (provided that any Conforming Amendment to the Second Lien Debt Credit Agreement shall maintain an equivalent proportionate difference between dollar amounts or ratios, as the case may be, in the relevant provision in the Second Lien Debt Credit Agreement and those in the corresponding covenant in the First Lien Debt Account Agreement, to the extent that such difference exists between the Second Lien Debt Credit Agreement and the First Lien Debt Account Agreement on the date hereof)hereof or subsequent to the date hereof to the extent both the Second Lien Credit Agreement and the First Lien Account Agreement are amended in accordance with the terms thereof), without the prior written consent of First Lien Agent (which it shall be authorized to consent to based upon an affirmative vote of First Lien Claimholders constituting “Required Lenders” as defined in the First Lien Debt Agreement):Creditor:
(i) contravene the provisions of this Agreement or prohibit the Grantors from making any payment with respect to the First Lien Obligations which is permitted under the terms of the Second Lien Debt Documents as of the date hereofAgreement;
(ii) increase the aggregate principal amount of the outstanding Second Lien Notes to an amount that would exceed the Second Lien Cap;
(iii) increase the contract rate of interest total yield by more than 2 2.00 percentage points per annum (including by adding or increasing any interest rate floor but excluding increases resulting from (A) increases in the underlying reference rate not caused by an amendment, supplement, modification or Refinancing of the Second Lien Credit Agreement, or (B) the accrual of interest at the default rate);
(iviii) change to earlier dates any scheduled dates upon which payments of principal or interest are due thereon;
(A) the redemption, mandatory prepayment, or defeasance provisions thereof in a manner that makes them more restrictive or burdensome to the Debtor, or (B) change the redemption, mandatory prepayment, or defeasance provisions to require any redemption, mandatory prepayment, or defeasance to any Second Lien Claimholder or any other Person (other than to the First Lien Claimholders) prior to the Payment in Full of First Lien Priority Debt (unless any such payment would be permitted pursuant to Section 4.5 of this Agreement);
(v) change any covenants, defaults, or events of default under the Second Lien Credit Agreement or any other Second Lien Document (including the addition of covenants, defaults, or events of default not contained in the Second Lien Documents or other Second Lien Documents as in effect on the date hereof) to restrict the Debtor from making payments of the First Lien Debt or amending the First Lien Documents that would otherwise be permitted under the Second Lien Documents as in effect on the date hereof or to restrict the Debtor from the Disposition of any assets that would otherwise be permitted under the Second Lien Documents as in effect on the date hereof;
(vi) change any financial covenant in a manner adverse to the Debtor thereunder (it being understood that any waiver of any default or Second Lien Default arising from the failure to comply with any financial covenant, in and of itself, shall not be deemed to be adverse to the Debtor);
(vii) change any default or Second Lien Default thereunder in a manner adverse to Grantors the Debtor thereunder unless the First Lien Lenders are offered the opportunity to similarly modify the First Lien Debt Documents (it being understood that any waiver of any such default or Second Lien Default, in and of itself, shall not be deemed to be adverse to Grantorsthe Debtor); or
provided, the affirmative vote of the First Lien Claimholders shall not be required in connection with any of the actions listed in the foregoing clauses (vii) change the redemption, mandatory prepayment, or defeasance provisions thereof in a manner adverse through (vii) to the Grantors or extent such amendments are parallel to permitted amendments to the First Lien ClaimholdersDocuments so long as the provisions that are amended remain in the same proportion to the corresponding provisions in the First Lien Documents as on the date hereof.
(c) Each Grantor Any refinancing of all or any portion of the First Lien Debt shall constitute a repayment of such First Lien Debt and a release of the Lien on the Collateral in favor of the First Lien Creditor. Nothing contained in this Section 5.3(c) shall in any manner relieve the Second Lien Creditor from its obligations under Section 1.8 of the Note and the Security Agreement with respect to certain other future creditors of the Debtor.
(d) The Debtor agrees that any promissory note evidencing or security agreement, pledge agreement or mortgage securing the Second Lien Obligations Debt shall at all times include the following language (or language to similar effect approved by First Lien AgentCreditor): “Anything herein to the contrary notwithstanding, the liens and security interests [securing the obligations evidenced by this promissory note] [granted hereunder] and , the exercise of any right or remedy with respect thereto thereto, and certain of the rights of the holder hereof are subject to the provisions of the Intercreditor Agreement dated as of [ ] [ ]March __, 2012, 2019 (as amended, restated, supplemented, or otherwise modified from time to time, the “Intercreditor Agreement”), by and between PNC BankSALLYPORT COMMERCIAL FINANCE, National AssociationLLC, as First Lien AgentCreditor, and Xxxxx Fargo BankLXXX GLOBAL MACRO FUND, National AssociationL.P., as Second Lien AgentCreditor. In the event of any conflict between the terms of the Intercreditor Agreement and this [note][security agreement][pledge agreement][mortgage]promissory note, the terms of the Intercreditor Agreement shall govern and control.”
Appears in 1 contract
Amendments; Refinancings; Legend. (a) The First Lien Debt Documents may be amended, supplemented, or otherwise modified in accordance with their terms and the First Lien Obligations may be Refinanced, in each case without notice to, or the consent of, Second Lien Agent Creditor or any other Second Lien ClaimholdersClaimholder, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that, in the case of a Refinancing, the holders of such Refinancing debt bind themselves (in a writing addressed to Second Lien Agent for the benefit of itself and the Second Lien Claimholders) to the terms of this Agreement; provided further, however, that any such amendment, supplement, modification, or Refinancing modification shall not, without the prior written consent of Second Lien Agent (which it shall be authorized to consent to based upon an affirmative vote of Second Lien Claimholders holding at least a majority in aggregate principal amount of the Second Lien Notes then outstanding):Creditor:
(i) contravene the provisions of this Agreement or prohibit the Grantors from making any payment with respect to the Second Lien Obligations which is permitted under the terms of the First Lien Debt Documents as of the date hereofAgreement;
(ii) increase the commitments of the First Lien Claimholders under the First Lien Debt Documents to an amount that would exceed the First Lien Cap or otherwise permit the aggregate outstanding principal amount of Advances plus the aggregate amount of outstanding undrawn Letters of Credit to exceed the First Lien Cap;
(iii) increase the “applicable margin” or similar component of the interest rate total yield by more than 2 [2.00] percentage points per annum (including by adding or increasing any interest rate floor but excluding increases resulting from (A) increases in the underlying reference rate not caused by an amendment, supplement, modification of the First Lien Account Agreement, or (B) the accrual of interest at the default rate);
(iviii) (A) change to earlier dates any scheduled dates upon which payments of principal or interest are due thereon, (B) extend in any four-quarter period the date of payment of more than two (2) scheduled principal payments or extend prior to Payment in Full of the First Lien Priority Debt the date of payment of more than four (4) scheduled principal payments, or (C) extend the scheduled final maturity of the First Lien Debt Account Agreement or any Refinancing thereof beyond the scheduled maturity of the either Second Lien Debt Agreement unless the First Lien Debt Agreement (as so amended or Refinanced) permits the repayment in full of the Second Lien Obligations at their scheduled maturity; orCredit Agreement;
(viv) other than as a function of the requirement that all proceeds of Collateral be remitted to First Lien Agent for application to the First Lien Obligations on a daily basis, modify (or have the effect of a modification of) the redemption, mandatory prepayment prepayment, or defeasance provisions of the First Lien Debt Account Agreement or any other First Lien Debt Document within 180 days of the date hereof in a manner that makes them more restrictive or burdensome to Grantorsthe Debtor;
(v) change any covenants, defaults, or events of default under the First Lien Account Agreement or any other First Lien Document (including the addition of covenants, defaults, or events of default not contained in the First Lien Account Agreement or other First Lien Documents as in effect on the date hereof) to restrict the Debtor from making payments of the Second Lien Debt or amending the Second Lien Documents that would otherwise be permitted under the First Lien Documents as in effect on the date hereof;
(vi) subordinate any First Lien Debt or the Liens of the First Lien Claimholders on the Collateral, except in the case of a DIP Financing and with respect to Liens of the type permitted to be prior to the Liens of the First Lien Claimholders in accordance with the definition of Permitted Liens under the First Lien Account Agreement (as in effect on the date hereof) or in connection with any administrative priority claim or a professional fee “carve-out”; or
(vii) add or make more restrictive any First Lien Default or any covenant with respect to the First Lien Debt or make any change to any First Lien Default or any covenant which would have the effect of making such First Lien Default or covenant more restrictive, unless a corresponding amendment is also offered to the Second Lien Creditor by the Debtor preserving any cushions that may exist, regardless of whether or not the Second Lien Creditor accept such offer.
(b) The Second Lien Debt Documents may be amended, supplemented, or otherwise modified in accordance with their terms and the Second Lien Obligations may be Refinanced, in each case without notice to, or the consent of, First Lien Agent Creditor or the First Lien Claimholders, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that, in the case of a Refinancing, the holders of such Refinancing debt bind themselves (in a writing addressed to First Lien Agent for the benefit of itself and the First Lien Claimholders) to the terms of this Agreement; provided further, however, that any such amendment, supplement, modification, or Refinancing modification shall not (except with respect to any Conforming Amendment (provided that any Conforming Amendment to the any Second Lien Debt Credit Agreement shall maintain an equivalent proportionate difference between dollar amounts or ratios, as the case may be, in the relevant provision in the such Second Lien Debt Credit Agreement and those in the corresponding covenant in the First Lien Debt Account Agreement, to the extent that such difference exists between the such Second Lien Debt Credit Agreement and the First Lien Debt Account Agreement on the date hereof)hereof or subsequent to the date hereof to the extent both the Second Lien Credit Agreements and the First Lien Account Agreement are amended in accordance with the terms thereof), without the prior written consent of First Lien Agent (which it shall be authorized to consent to based upon an affirmative vote of First Lien Claimholders constituting “Required Lenders” as defined in the First Lien Debt Agreement):Creditor:
(i) contravene the provisions of this Agreement or prohibit the Grantors from making any payment with respect to the First Lien Obligations which is permitted under the terms of the Second Lien Debt Documents as of the date hereofAgreement;
(ii) increase the aggregate principal amount of the outstanding Second Lien Notes to an amount that would exceed the Second Lien Cap;
(iii) increase the contract rate of interest total yield by more than 2 2.00 percentage points per annum (including by adding or increasing any interest rate floor but excluding increases resulting from (A) increases in the underlying reference rate not caused by an amendment, supplement, modification or Refinancing of the applicable Second Lien Credit Agreement, or (B) the accrual of interest at the default rate);
(iviii) change to earlier dates any scheduled dates upon which payments of principal or interest are due thereon;
(iv) (A) the redemption, mandatory prepayment, or defeasance provisions thereof in a manner that makes them more restrictive or burdensome to the Debtor, or (B) change the redemption, mandatory prepayment, or defeasance provisions to require any redemption, mandatory prepayment, or defeasance to any Second Lien Claimholder or any other Person (other than to the First Lien Claimholders) prior to the Payment in Full of First Lien Priority Debt (unless any such payment would be permitted pursuant to Section 4.5 of this Agreement);
(v) change any covenants, defaults, or events of default under the Second Lien Credit Agreements or any other Second Lien Document (including the addition of covenants, defaults, or events of default not contained in the Second Lien Documents or other Second Lien Documents as in effect on the date hereof) to restrict the Debtor from making payments of the First Lien Debt or amending the First Lien Documents that would otherwise be permitted under the Second Lien Documents as in effect on the date hereof or to restrict the Debtor from the Disposition of any assets that would otherwise be permitted under the Second Lien Documents as in effect on the date hereof;
(vi) change any financial covenant in a manner adverse to the Debtor thereunder (it being understood that any waiver of any default or Second Lien Default arising from the failure to comply with any financial covenant, in and of itself, shall not be deemed to be adverse to the Debtor);
(vii) change any default or Second Lien Default thereunder in a manner adverse to Grantors the Debtor thereunder unless the First Lien Lenders are offered the opportunity to similarly modify the First Lien Debt Documents (it being understood that any waiver of any such default or Second Lien Default, in and of itself, shall not be deemed to be adverse to Grantorsthe Debtor); or
provided, the affirmative vote of the First Lien Claimholders shall not be required in connection with any of the actions listed in the foregoing clauses (vii) change the redemption, mandatory prepayment, or defeasance provisions thereof in a manner adverse through (vii) to the Grantors or extent such amendments are parallel to permitted amendments to the First Lien ClaimholdersDocuments so long as the provisions that are amended remain in the same proportion to the corresponding provisions in the First Lien Documents as on the date hereof.
(c) Each Grantor Any refinancing of all or any portion of the First Lien Debt shall constitute a repayment of such First Lien Debt and a release of the Lien on the Collateral in favor of the First Lien Creditor. Nothing contained in this Section 5.3(c) shall in any manner relieve the Second Lien Creditor from its obligations under Section 1.8 of the Note and the Security Agreement with respect to certain other future creditors of the Debtor.
(d) The Debtor agrees that any promissory note evidencing or security agreement, pledge agreement or mortgage securing the Second Lien Obligations Debt shall at all times include the following language (or language to similar effect approved by First Lien AgentCreditor): “Anything herein to the contrary notwithstanding, the liens and security interests [securing the obligations evidenced by this promissory note] [granted hereunder] and , the exercise of any right or remedy with respect thereto thereto, and certain of the rights of the holder hereof are subject to the provisions of the Intercreditor Agreement dated as of [ ] [ ]March __, 2012, 2019 (as amended, restated, supplemented, or otherwise modified from time to time, the “Intercreditor Agreement”), by and between PNC BankSALLYPORT COMMERCIAL FINANCE, National AssociationLLC, as First Lien AgentCreditor, and Xxxxx Fargo BankLXXX GLOBAL MACRO FUND, National AssociationL.P., as Second Lien AgentCreditor. In the event of any conflict between the terms of the Intercreditor Agreement and this [note][security agreement][pledge agreement][mortgage]promissory note, the terms of the Intercreditor Agreement shall govern and control.”
Appears in 1 contract
Amendments; Refinancings; Legend. (a) The First Lien Debt Documents may be amended, supplemented, or otherwise modified in accordance with their terms and the First Lien Obligations Debt may be Refinanced, in each case without notice to, or the consent of, Second Lien Agent or Agent, any Permitted Additional Second Lien ClaimholdersObligations Representative, or any other Second Lien Claimholder, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that, (i) such amendment, supplement, modification or Refinancing is permitted under the terms of the Second Lien Documents as in effect on the date hereof (or, if less restrictive, on the date of such amendment, supplement, modification or Refinancing) and (ii) in the case of a Refinancing, the holders of such Refinancing debt bind themselves (in a writing addressed to Second Lien Agent for the benefit of itself and the Second Lien ClaimholdersAgent) to the terms of this Agreement; provided further, however, that any such amendment, supplement, modification, or Refinancing shall not, without the prior written consent of Second Lien Agent (which it shall be authorized to consent to based upon an affirmative vote of the Second Lien Claimholders holding at least a majority in the aggregate principal amount of the Second Lien Notes Debt then outstanding):
(i) contravene the provisions of this Agreement or prohibit the Grantors from making any payment with respect to the Second Lien Obligations which is permitted under the terms of the First Lien Debt Documents as of the date hereof;
(ii) increase the commitments of the First Lien Claimholders under the First Lien Debt Documents to an amount that would exceed the First Lien Cap or otherwise permit the aggregate outstanding principal amount of Advances plus the aggregate amount of outstanding undrawn Letters of Credit to exceed the First Lien Cap;
(iii) increase the “applicable margin” or similar component of the interest rate by more than 2 percentage points per annum (excluding increases resulting from the accrual of interest at the default rate);
(iv) extend the scheduled final maturity of the First Lien Debt Agreement or any Refinancing thereof beyond the scheduled maturity of the Second Lien Debt Agreement unless the First Lien Debt Agreement (as so amended or Refinanced) permits the repayment in full of the Second Lien Obligations at their scheduled maturity; or
(v) other than as a function of the requirement that all proceeds of Collateral be remitted to First Lien Agent for application to the First Lien Obligations on a daily basis, modify (or have the effect of a modification of) the mandatory prepayment provisions of the First Lien Debt Agreement or any First Lien Debt Document within 180 days of the date hereof in a manner that makes them more restrictive to GrantorsAgreement.
(b) The Second Lien Debt Documents may be amended, supplemented, or otherwise modified in accordance with their terms and the Second Lien Obligations Debt may be Refinanced, in each case without notice to, or the consent of, First Lien Agent or the First Lien Claimholders, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that, (i) such amendment, supplement, modification or Refinancing is permitted under the terms of the First Lien Documents as in effect on the date hereof (or, if less restrictive, on the date of such amendment, supplement, modification or Refinancing) and (ii) in the case of a Refinancing, the holders of such Refinancing debt bind themselves (in a writing addressed to First Lien Agent for the benefit of itself and the First Lien ClaimholdersAgent) to the terms of this Agreement; provided further, however, that any such amendment, supplement, modification, or Refinancing shall not (except with respect to any Conforming Amendment (provided that any Conforming Amendment to the Second Lien Debt Agreement shall maintain an equivalent proportionate difference between dollar amounts or ratios, as the case may be, in the relevant provision in the Second Lien Debt Agreement and those in the corresponding covenant in the First Lien Debt Agreement, to the extent that such difference exists between the Second Lien Debt Agreement and the First Lien Debt Agreement on the date hereof))not, without the prior written consent of First Lien Agent (which it shall be authorized to consent to based upon an affirmative vote of the First Lien Claimholders constituting “Required Lenders” as defined holding a majority in the aggregate principal amount of the First Lien Debt Agreement):
(ithen outstanding) contravene the provisions of this Agreement or prohibit the Grantors from making any payment with respect to the First Lien Obligations which is permitted under the terms of the Second Lien Debt Documents as of the date hereof;
(ii) increase the aggregate principal amount of the outstanding Second Lien Notes to an amount that would exceed the Second Lien Cap;
(iii) increase the contract rate of interest by more than 2 percentage points per annum (excluding increases resulting from the accrual of interest at the default rate);
(iv) change to earlier dates any dates upon which payments of principal or interest are due thereon;
(v) change any default or Second Lien Default thereunder in a manner adverse to Grantors thereunder unless the First Lien Lenders are offered the opportunity to similarly modify the First Lien Debt Documents (it being understood that any waiver of any such default or Second Lien Default, in and of itself, shall not be deemed to be adverse to Grantors); or
(vi) change the redemption, mandatory prepayment, or defeasance provisions thereof in a manner adverse to the Grantors or First Lien ClaimholdersAgreement.
(c) Each Grantor agrees Grantors agree that any promissory note evidencing or security agreement, pledge agreement or mortgage securing the Second Lien Obligations Notes Indenture and the Second Lien Collateral Documents shall at all times include the following language (or language to similar effect approved by First Lien Agent): “Anything herein to the contrary notwithstanding, the liens and security interests [securing the obligations evidenced by this note] [granted hereunder] and herein, the exercise of any right or remedy with respect thereto thereto, and certain of the rights of the holder hereof are subject to the provisions of the Intercreditor Agreement dated as of [ ] [ ]May 2, 2012, 2013 (as amended, restated, supplemented, or otherwise modified from time to time, the “Intercreditor Agreement”), by and between PNC Xxxxx Fargo Bank, National AssociationN.A., as First Lien Agent, and Xxxxx Fargo BankWilmington Trust, National Association, as Second Lien Agent. In the event of any conflict between the terms of the Intercreditor Agreement and this [note][security agreement][pledge agreement][mortgage]Agreement, the terms of the Intercreditor Agreement shall govern and control.”
(d) In the event First Lien Agent or First Lien Claimholders or Second Lien Agent, or Second Lien Claimholders, and the relevant Grantor enter into any amendment which constitutes a Deemed Amendment, then such Deemed Amendment shall apply automatically to any comparable provision of the First Lien Collateral Documents or the Second Lien Collateral Documents (as the case may be) without the requirement of consent of any Grantor or any Claimholder and without any action by any Grantor or any Claimholder. Grantors and the Claimholders (and, in the case of Second Lien Agent, after delivery of any documents required by the Second Lien Notes Indenture) promptly shall execute and deliver such amendment as any party hereto may request in writing to effectively confirm such amendment.
(e) First Lien Agent and Second Lien Agent each (i) will use its commercially reasonable efforts to notify the other parties of any written amendment or modification to any First Lien Document or any Second Lien Document, as applicable, but the failure to do so will not create a cause of action against the party failing to give such notice or create any claim or right on behalf of any third party or impact the effectiveness of any such amendment or modification, and (ii) will, upon request of the other party, provide copies of all such modifications or amendments and copies of all other relevant documentation to the other Persons.
Appears in 1 contract
Amendments; Refinancings; Legend. (a) The ABL Loan Documents, Senior Lien Loan Documents, First Lien Debt Loan Documents and Junior Lien Loan Documents may be amended, supplemented, supplemented or otherwise modified in accordance with their terms and the First Lien Obligations may be Refinanced, in each case without notice to, or the consent of, Second Lien Agent or Second Lien Claimholders, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that, in the case of a Refinancing, the holders of such Refinancing debt bind themselves (in a writing addressed to Second Lien Agent for the benefit of itself and the Second Lien Claimholders) to the terms of this Agreement; provided further, however, that any such amendment, supplement, modification, or Refinancing shall not, without thereof and hereof. Without the prior written consent of Second Lien Agent (which it shall be authorized to consent to based upon an affirmative vote of Second Lien Claimholders holding at least a majority in aggregate principal amount each of the Second Agents, none of the ABL Loan Documents, Senior Lien Notes then outstanding):Loan Documents, First Lien Loan Documents and Junior Lien Loan Documents shall, at any time, be amended, Refinanced or otherwise modified if such amendment of modification would:
(i) contravene the provisions of this Agreement or prohibit the Grantors from making any payment with respect to the Second Lien Obligations secured by Secondary Liens which is permitted under the terms of the First Lien Debt applicable Loan Documents as of the date hereof;
(ii) increase the commitments of the First Lien ABL Claimholders under the First Lien Debt ABL Loan Documents to an amount that would exceed the First Lien ABL Cap or otherwise permit the aggregate outstanding principal amount of Advances plus the aggregate amount of outstanding undrawn Letters of Credit to exceed the First Lien ABL Cap;
(iii) increase the “applicable margin” or similar component interest rates of the interest rate applicable Obligations by more than 2 percentage points per annum 2% (excluding increases any imposition of the default rate of interest or any changes resulting from application of the accrual Alternate Base Rate (as such term is defined in each Credit Agreement) or the application of interest at the default rateApplicable Margin (as such term is defined in each Credit Agreement) as in effect on the Closing Date or in connection with Borrower Revolver Increases (as such term is defined in the ABL Credit Agreement));
(iv) other than in connection with any Exercise of Secured Creditor Remedies, accelerate the dates that principal of the applicable Obligations are due;
(v) change any financial covenants to be more restrictive on the Grantors;
(vi) extend the scheduled final maturity of the First Lien Debt ABL Credit Agreement or any Refinancing thereof beyond thereof;
(vii) in the case of the Senior Lien Loan Documents or the First Lien Loan Documents only, extend the scheduled maturity date thereof (including with respect to any permitted refinancing thereof) to a date that is later than six months prior to the scheduled final maturity date of the Second Junior Lien Debt Agreement unless the First Lien Debt Agreement (as so amended or Refinanced) permits the repayment in full of the Second Lien Obligations at their scheduled maturityObligations; or
(vviii) other than as a function of the requirement that all proceeds of Collateral be remitted to First Lien the ABL Agent for application to the First Lien ABL Obligations on a daily basis, modify (or have the effect of a modification of) the mandatory prepayment provisions of the First Lien Debt ABL Credit Agreement or any First Lien Debt ABL Loan Document within 180 days of the date hereof in a manner that makes them more restrictive to Grantors.
(b) The Second Lien Debt Documents may be amended, supplemented, or otherwise modified in accordance with their terms and the Second Lien Obligations may be Refinanced, in each case without notice to, or the consent of, First Lien Agent or First Lien Claimholders, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that, that any new holder of Refinancing debt shall execute and deliver an Intercreditor Joinder Agreement substantially in the case form of a RefinancingExhibit A attached hereto, or in such other form reasonably acceptable to the holders of such Refinancing debt bind themselves (in a writing ABL Agent and addressed to First Lien Agent for each of the benefit of itself and the First Lien Claimholders) to the terms of this Agreement; provided further, however, that any such amendment, supplement, modification, or Refinancing shall not (except with respect to any Conforming Amendment (provided that any Conforming Amendment to the Second Lien Debt Agreement shall maintain an equivalent proportionate difference between dollar amounts or ratios, as the case may be, in the relevant provision in the Second Lien Debt Agreement and those in the corresponding covenant in the First Lien Debt Agreement, to the extent that such difference exists between the Second Lien Debt Agreement and the First Lien Debt Agreement on the date hereof)), without the prior written consent of First Lien Agent (which it shall be authorized to consent to based upon an affirmative vote of First Lien Claimholders constituting “Required Lenders” as defined in the First Lien Debt Agreement):Agents.
(i) contravene Without the provisions consent of this Agreement or prohibit the Grantors from making any payment with respect to ABL Agent, the First Lien Agent and the Junior Lien Agent, the principal amount of the Senior Lien Obligations shall not exceed the Senior Lien Cap.
(ii) Without the consent of the ABL Agent, Senior Lien Agent and the Junior Lien Agent, the principal amount of the First Lien Obligations which is permitted under the terms of the Second Lien Debt Documents as of the date hereof;
(ii) increase the aggregate principal amount of the outstanding Second Lien Notes to an amount that would shall not exceed the Second Lien Cap;
(iii) increase the contract rate of interest by more than 2 percentage points per annum (excluding increases resulting from the accrual of interest at the default rate);
(iv) change to earlier dates any dates upon which payments of principal or interest are due thereon;
(v) change any default or Second Lien Default thereunder in a manner adverse to Grantors thereunder unless the First Lien Lenders are offered the opportunity to similarly modify the First Lien Debt Documents (it being understood that any waiver of any such default or Second Lien Default, in and of itself, shall not be deemed to be adverse to Grantors); or
(vi) change the redemption, mandatory prepayment, or defeasance provisions thereof in a manner adverse to the Grantors or First Lien ClaimholdersCap.
(c) Each Agent shall use its best efforts to notify the other parties of any written amendment or modification to any ABL Loan Document, Senior Lien Loan Document, First Lien Loan Document or Junior Lien Loan Document, as applicable, but the failure to do so shall not create a cause of action against the party failing to give such notice or create any claim or right on behalf of any third party. In connection with amendments or modifications permitted by this Section 5.3, each Agent shall, upon request of the other parties, provide copies of all such modifications or amendments and copies of all other relevant documentation to the other Persons.
(d) Each Grantor agrees that any promissory note evidencing or security agreement, pledge agreement or mortgage securing the Second Lien Obligations secured by Secondary Liens shall at all times include the following language (or language to similar effect approved by First Lien Agenteffect): “Anything herein to the contrary notwithstanding, the liens and security interests [securing the obligations evidenced by this promissory note] [granted hereunder] and , the exercise of any right or remedy with respect thereto thereto, and certain of the rights of the holder hereof are subject to the provisions of the Intercreditor Agreement dated as of [ ] [ [• ], 2012, (as amended, restated, supplemented, or otherwise modified from time to time, the “Intercreditor Agreement”), by and between PNC Bank, National Association, as First ABL Agent, [• ], as Senior Lien Agent, and Xxxxx Fargo Bank, National Association[• ], as Second First Lien Agent and [• ], as Junior Lien Agent. In the event of any conflict between the terms of the Intercreditor Agreement and this [note][security agreement][pledge agreement][mortgage]promissory note, the terms of the Intercreditor Agreement shall govern and control.”
Appears in 1 contract
Samples: Intercreditor Agreement
Amendments; Refinancings; Legend. (a) The First Lien Debt Documents may be amended, supplemented, or otherwise modified in accordance with their terms and the First Lien Obligations may be Refinanced, in each case without notice to, or the consent of, Second Lien Agent Creditor or any other Second Lien ClaimholdersClaimholder, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that, in the case of a Refinancing, the holders of such Refinancing debt bind themselves (in a writing addressed to Second Lien Agent for the benefit of itself and the Second Lien Claimholders) to the terms of this Agreement; provided further, however, that any such amendment, supplement, modification, or Refinancing modification shall not, without the prior written consent of Second Lien Agent (which it shall be authorized to consent to based upon an affirmative vote of Second Lien Claimholders holding at least a majority in aggregate principal amount of the Second Lien Notes then outstanding):Creditor:
(i) contravene the provisions of this Agreement or prohibit the Grantors from making any payment with respect to the Second Lien Obligations which is permitted under the terms of the First Lien Debt Documents as of the date hereofAgreement;
(ii) increase the commitments of the First Lien Claimholders under the First Lien Debt Documents to an amount that would exceed the First Lien Cap or otherwise permit the aggregate outstanding principal amount of Advances plus the aggregate amount of outstanding undrawn Letters of Credit to exceed the First Lien Cap;
(iii) increase the “applicable margin” or similar component of the interest rate total yield by more than 2 2.00 percentage points per annum (including by adding or increasing any interest rate floor but excluding increases resulting from (A) increases in the underlying reference rate not caused by an amendment, supplement, modification of the First Lien Account Agreement, or (B) the accrual of interest at the default rate);
(iviii) (A) change to earlier dates any scheduled dates upon which payments of principal or interest are due thereon, (B) extend in any four-quarter period the date of payment of more than two (2) scheduled principal payments or extend prior to Payment in Full of the First Lien Priority Debt the date of payment of more than four (4) scheduled principal payments, or (C) extend the scheduled final maturity of the First Lien Debt Account Agreement or any Refinancing thereof beyond the scheduled maturity of the either Second Lien Debt Agreement unless the First Lien Debt Agreement (as so amended or Refinanced) permits the repayment in full of the Second Lien Obligations at their scheduled maturity; orCredit Agreement;
(viv) other than as a function of the requirement that all proceeds of Collateral be remitted to First Lien Agent for application to the First Lien Obligations on a daily basis, modify (or have the effect of a modification of) the redemption, mandatory prepayment prepayment, or defeasance provisions of the First Lien Debt Account Agreement or any other First Lien Debt Document within 180 days of the date hereof in a manner that makes them more restrictive or burdensome to Grantorsthe Debtor;
(v) change any covenants, defaults, or events of default under the First Lien Account Agreement or any other First Lien Document (including the addition of covenants, defaults, or events of default not contained in the First Lien Account Agreement or other First Lien Documents as in effect on the date hereof) to restrict the Debtor from making payments of the Second Lien Debt or amending the Second Lien Documents that would otherwise be permitted under the First Lien Documents as in effect on the date hereof;
(vi) subordinate any First Lien Debt or the Liens of the First Lien Claimholders on the Collateral, except in the case of a DIP Financing and with respect to Liens of the type permitted to be prior to the Liens of the First Lien Claimholders in accordance with the definition of Permitted Liens under the First Lien Account Agreement (as in effect on the date hereof) or in connection with any administrative priority claim or a professional fee “carve-out”; or
(vii) add or make more restrictive any First Lien Default or any covenant with respect to the First Lien Debt or make any change to any First Lien Default or any covenant which would have the effect of making such First Lien Default or covenant more restrictive, unless a corresponding amendment is also offered to the Second Lien Creditor by the Debtor preserving any cushions that may exist, regardless of whether or not the Second Lien Creditor accept such offer.
(b) The Second Lien Debt Documents may be amended, supplemented, or otherwise modified in accordance with their terms and the Second Lien Obligations may be Refinanced, in each case without notice to, or the consent of, First Lien Agent Creditor or the First Lien Claimholders, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that, in the case of a Refinancing, the holders of such Refinancing debt bind themselves (in a writing addressed to First Lien Agent for the benefit of itself and the First Lien Claimholders) to the terms of this Agreement; provided further, however, that any such amendment, supplement, modification, or Refinancing modification shall not (except with respect to any Conforming Amendment (provided that any Conforming Amendment to the any Second Lien Debt Credit Agreement shall maintain an equivalent proportionate difference between dollar amounts or ratios, as the case may be, in the relevant provision in the such Second Lien Debt Credit Agreement and those in the corresponding covenant in the First Lien Debt Account Agreement, to the extent that such difference exists between the such Second Lien Debt Credit Agreement and the First Lien Debt Account Agreement on the date hereof)hereof or subsequent to the date hereof to the extent both the Second Lien Credit Agreements and the First Lien Account Agreement are amended in accordance with the terms thereof), without the prior written consent of First Lien Agent (which it shall be authorized to consent to based upon an affirmative vote of First Lien Claimholders constituting “Required Lenders” as defined in the First Lien Debt Agreement):Creditor:
(i) contravene the provisions of this Agreement or prohibit the Grantors from making any payment with respect to the First Lien Obligations which is permitted under the terms of the Second Lien Debt Documents as of the date hereofAgreement;
(ii) increase the aggregate principal amount of the outstanding Second Lien Notes to an amount that would exceed the Second Lien Cap;
(iii) increase the contract rate of interest total yield by more than 2 2.00 percentage points per annum (including by adding or increasing any interest rate floor but excluding increases resulting from (A) increases in the underlying reference rate not caused by an amendment, supplement, modification or Refinancing of the applicable Second Lien Credit Agreement, or (B) the accrual of interest at the default rate);
(iviii) change to earlier dates any scheduled dates upon which payments of principal or interest are due thereon;
(A) the redemption, mandatory prepayment, or defeasance provisions thereof in a manner that makes them more restrictive or burdensome to the Debtor, or (B) change the redemption, mandatory prepayment, or defeasance provisions to require any redemption, mandatory prepayment, or defeasance to any Second Lien Claimholder or any other Person (other than to the First Lien Claimholders) prior to the Payment in Full of First Lien Priority Debt (unless any such payment would be permitted pursuant to Section 4.5 of this Agreement);
(v) change any covenants, defaults, or events of default under the Second Lien Credit Agreements or any other Second Lien Document (including the addition of covenants, defaults, or events of default not contained in the Second Lien Documents or other Second Lien Documents as in effect on the date hereof) to restrict the Debtor from making payments of the First Lien Debt or amending the First Lien Documents that would otherwise be permitted under the Second Lien Documents as in effect on the date hereof or to restrict the Debtor from the Disposition of any assets that would otherwise be permitted under the Second Lien Documents as in effect on the date hereof;
(vi) change any financial covenant in a manner adverse to the Debtor thereunder (it being understood that any waiver of any default or Second Lien Default arising from the failure to comply with any financial covenant, in and of itself, shall not be deemed to be adverse to the Debtor);
(vii) change any default or Second Lien Default thereunder in a manner adverse to Grantors the Debtor thereunder unless the First Lien Lenders are offered the opportunity to similarly modify the First Lien Debt Documents (it being understood that any waiver of any such default or Second Lien Default, in and of itself, shall not be deemed to be adverse to Grantorsthe Debtor); or
provided, the affirmative vote of the First Lien Claimholders shall not be required in connection with any of the actions listed in the foregoing clauses (vii) change the redemption, mandatory prepayment, or defeasance provisions thereof in a manner adverse through (vii) to the Grantors or extent such amendments are parallel to permitted amendments to the First Lien ClaimholdersDocuments so long as the provisions that are amended remain in the same proportion to the corresponding provisions in the First Lien Documents as on the date hereof.
(c) Each Grantor Any refinancing of all or any portion of the First Lien Debt shall constitute a repayment of such First Lien Debt and a release of the Lien on the Collateral in favor of the First Lien Creditor. Nothing contained in this Section 5.3(c) shall in any manner relieve the Second Lien Creditor from its obligations under Section 1.8 of the Note and the Security Agreement with respect to certain other future creditors of the Debtor.
(d) The Debtor agrees that any promissory note evidencing or security agreement, pledge agreement or mortgage securing the Second Lien Obligations Debt shall at all times include the following language (or language to similar effect approved by First Lien AgentCreditor): “Anything herein to the contrary notwithstanding, the liens and security interests [securing the obligations evidenced by this promissory note] [granted hereunder] and , the exercise of any right or remedy with respect thereto thereto, and certain of the rights of the holder hereof are subject to the provisions of the Intercreditor Agreement dated as of [ ] [ ]March __, 2012, 2019 (as amended, restated, supplemented, or otherwise modified from time to time, the “Intercreditor Agreement”), by and between PNC BankSALLYPORT COMMERCIAL FINANCE, National AssociationLLC, as First Lien AgentCreditor, and Xxxxx Fargo BankLXXX GLOBAL MACRO FUND, National AssociationL.P., as Second Lien AgentCreditor. In the event of any conflict between the terms of the Intercreditor Agreement and this [note][security agreement][pledge agreement][mortgage]promissory note, the terms of the Intercreditor Agreement shall govern and control.”
Appears in 1 contract
Amendments; Refinancings; Legend. (a) The First Lien Debt ABL Documents may be amended, supplemented, or otherwise modified in accordance with their terms and the First Lien Obligations ABL Debt may be Refinanced, in each case without notice to, or the consent of, Second Lien Agent or Second Lien the Term Loan Claimholders, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that, in the case of a Refinancing, the holders of such Refinancing debt bind shall have bound themselves (in a writing addressed to Second Lien Agent for the benefit of itself and the Second Lien ClaimholdersTerm Loan Agent) to the terms of this Agreement; provided further, however, that any such amendment, supplement, modification, or Refinancing shall not, without the prior written consent of Second Lien Term Loan Agent (which it shall be authorized to consent to based upon an affirmative vote of Second Lien Claimholders holding at least a majority the Required Lenders, as defined in aggregate principal amount of the Second Lien Notes then outstandingTerm Loan Credit Agreement):
(i) contravene the provisions of this Agreement or prohibit the Grantors from making any payment with respect to the Second Lien Obligations which is permitted under the terms of the First Lien Debt Documents as of the date hereofAgreement;
(ii) increase the commitments of the First Lien Claimholders under the First Lien Debt Documents to an amount that would exceed the First Lien Cap or otherwise permit the aggregate outstanding principal amount of Advances plus the aggregate amount of outstanding undrawn Letters of Credit to exceed the First Lien Cap;
(iii) increase the “applicable marginApplicable Margin” or similar component of the interest rate by more than 2 3.00 percentage points per annum (excluding increases resulting from (A) increases in the underlying reference rate not caused by an amendment, supplement, modification or Refinancing of the ABL Credit Agreement, (B) the application of the pricing grid set forth in the ABL Credit Agreement, or (C) the accrual of interest at the default rate);
(iii) modify (or have the effect of a modification of) the mandatory prepayment provisions of the ABL Credit Agreement or any ABL Document in a manner that makes them more restrictive to Grantors; or
(iv) change any covenants, defaults, or events of default under the ABL Credit Agreement or any other ABL Document (including the addition of covenants, defaults, or events of default not contained in the ABL Credit Agreement or other ABL Documents as in effect on the date hereof) to restrict any Grantor from making payments of the Term Loan Debt that would otherwise be permitted under the ABL Documents as in effect on the date hereof.
(b) The Term Loan Documents may be amended, supplemented, or otherwise modified in accordance with their terms and the Term Loan Debt may be Refinanced, in each case without notice to, or the consent of, any of the ABL Claimholders, all without affecting the lien subordination or other provisions of this Agreement; provided, that, in the case of a Refinancing, the holders of such Refinancing debt shall have bound themselves (in a writing addressed to ABL Agent) to the terms of this Agreement; provided further, that any such amendment, supplement, modification, or Refinancing shall not, without the prior written consent of ABL Agent (which it shall be authorized to consent to based upon an affirmative vote of the Required Lenders, as defined in the ABL Credit Agreement):
(i) contravene the provisions of this Agreement;
(ii) increase the “Applicable Margin” or similar component of the cash pay portion of any interest rate by more than 3.00 percentage points per annum (excluding increases resulting from the accrual of interest at the default rate);
(iv) extend the scheduled final maturity of the First Lien Debt Agreement or any Refinancing thereof beyond the scheduled maturity of the Second Lien Debt Agreement unless the First Lien Debt Agreement (as so amended or Refinanced) permits the repayment in full of the Second Lien Obligations at their scheduled maturity; or
(v) other than as a function of the requirement that all proceeds of Collateral be remitted to First Lien Agent for application to the First Lien Obligations on a daily basis, modify (or have the effect of a modification of) the mandatory prepayment provisions of the First Lien Debt Agreement or any First Lien Debt Document within 180 days of the date hereof in a manner that makes them more restrictive to Grantors.
(b) The Second Lien Debt Documents may be amended, supplemented, or otherwise modified in accordance with their terms and the Second Lien Obligations may be Refinanced, in each case without notice to, or the consent of, First Lien Agent or First Lien Claimholders, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that, in the case of a Refinancing, the holders of such Refinancing debt bind themselves (in a writing addressed to First Lien Agent for the benefit of itself and the First Lien Claimholders) to the terms of this Agreement; provided further, however, that any such amendment, supplement, modification, or Refinancing shall not (except with respect to any Conforming Amendment (provided that any Conforming Amendment to the Second Lien Debt Agreement shall maintain an equivalent proportionate difference between dollar amounts or ratios, as the case may be, in the relevant provision in the Second Lien Debt Agreement and those in the corresponding covenant in the First Lien Debt Agreement, to the extent that such difference exists between the Second Lien Debt Agreement and the First Lien Debt Agreement on the date hereof)), without the prior written consent of First Lien Agent (which it shall be authorized to consent to based upon an affirmative vote of First Lien Claimholders constituting “Required Lenders” as defined in the First Lien Debt Agreement):
(i) contravene the provisions of this Agreement or prohibit the Grantors from making any payment with respect to the First Lien Obligations which is permitted under the terms of the Second Lien Debt Documents as of the date hereof;
(ii) increase the aggregate principal amount of the outstanding Second Lien Notes to an amount that would exceed the Second Lien Cap;
(iii) increase the contract rate of interest by more than 2 percentage points per annum (excluding increases resulting from the accrual of interest at the default rate);
(iv) change to earlier dates any dates upon which payments of principal or interest are due thereon;
(viv) change any covenants, defaults, or events of default under the Term Loan Credit Agreement or Second Lien Default thereunder any other Term Loan Document (including the addition of covenants, defaults, or events of default not contained in a manner adverse the Term Loan Credit Agreement or other Term Loan Documents as in effect on the date hereof) to Grantors thereunder unless restrict any Grantor from making payments of the First Lien Lenders are offered ABL Debt that would otherwise be permitted under the opportunity to similarly modify Term Loan Documents as in effect on the First Lien Debt Documents (it being understood that any waiver of any such default or Second Lien Default, in and of itself, shall not be deemed to be adverse to Grantors)date hereof; or
(viv) change the redemption, mandatory prepayment, or defeasance provisions thereof in a manner adverse to the Grantors or First Lien Claimholdersthereof.
(c) Each Grantor Borrower agrees that any promissory note evidencing or security agreement, pledge agreement or mortgage securing the Second Lien Obligations ABL Debt shall at all times include the following language (or language to similar effect approved by First Lien Term Loan Agent): “Anything herein to the contrary notwithstanding, the liens and security interests [securing the obligations evidenced by this promissory note] [granted hereunder] and , the exercise of any right or remedy with respect thereto thereto, and certain of the rights of the holder hereof are subject to the provisions of the Intercreditor Agreement dated as of [ ] [ ]May 24, 2012, 2012 (as amended, restated, supplemented, or otherwise modified from time to time, the “Intercreditor Agreement”), by and between PNC Xxxxx Fargo Bank, N.A., as ABL Agent, and Wilmington Trust, National Association, as First Lien Agent, and Xxxxx Fargo Bank, National Association, as Second Lien Term Loan Agent. In the event of any conflict between the terms of the Intercreditor Agreement and this [note][security agreement][pledge agreement][mortgage]promissory note, the terms of the Intercreditor Agreement shall govern and control.”
(d) Each Borrower agrees that any promissory note evidencing the Term Loan Debt shall at all times include the following language (or language to similar effect approved by ABL Agent): “Anything herein to the contrary notwithstanding, the liens and security interests securing the obligations evidenced by this promissory note, the exercise of any right or remedy with respect thereto, and certain of the rights of the holder hereof are subject to the provisions of the Intercreditor Agreement dated as of May 24, 2012 (as amended, restated, supplemented, or otherwise modified from time to time, the “Intercreditor Agreement”), by and between Xxxxx Fargo Bank, N.A., as ABL Agent, and Wilmington Trust, National Association, as Term Loan Agent. In the event of any conflict between the terms of the Intercreditor Agreement and this promissory note, the terms of the Intercreditor Agreement shall govern and control.”
Appears in 1 contract
Samples: Intercreditor Agreement (Unifi Inc)
Amendments; Refinancings; Legend. (a) The First Lien Debt Documents may be amended, supplemented, supplemented or otherwise modified in accordance with their terms and the First Lien Obligations Debt may be Refinanced, in each case without notice to, or the consent of, Second Lien Agent or any other Second Lien ClaimholdersClaimholder, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that, in the case of a Refinancing, the holders of such Refinancing debt bind themselves (in a writing addressed to Second Lien Agent for the benefit of itself and the Second Lien ClaimholdersAgent) to the terms of this Agreement; provided further, however, Agreement and that any such amendment, supplement, modification, or Refinancing modification shall not, without the prior written consent of Second Lien Agent (which it shall be authorized to consent to based upon an affirmative vote of the requisite Second Lien Claimholders holding at least a majority in aggregate principal amount of under the Second Lien Notes then outstanding):
(iIndenture) contravene the provisions of this Agreement or prohibit the Grantors from making any payment with respect to the Second Lien Obligations which is permitted under the terms of the First Lien Debt Documents as of the date hereof;
(ii) increase the commitments of the First Lien Claimholders under the First Lien Debt Documents to an amount that would exceed the First Lien Cap or otherwise permit the aggregate outstanding principal amount of Advances plus the aggregate amount of outstanding undrawn Letters of Credit to exceed the First Lien Cap;
(iii) increase the “applicable margin” or similar component of the interest rate by more than 2 percentage points per annum (excluding increases resulting from the accrual of interest at the default rate);
(iv) extend the scheduled final maturity of the First Lien Debt Agreement or any Refinancing thereof beyond the scheduled maturity of the Second Lien Debt Agreement unless the First Lien Debt Agreement (as so amended or Refinanced) permits the repayment in full of the Second Lien Obligations at their scheduled maturity; or
(v) other than as a function of the requirement that all proceeds of Collateral be remitted to First Lien Agent for application to the First Lien Obligations on a daily basis, modify (or have the effect of a modification of) the mandatory prepayment provisions of the First Lien Debt Agreement or any First Lien Debt Document within 180 days of the date hereof in a manner that makes them more restrictive to GrantorsAgreement.
(b) The Subject to the restrictions set forth in the First Lien Documents as in effect on the date hereof, the Second Lien Debt Documents may be amended, supplemented, supplemented or otherwise modified in accordance with their terms and the Second Lien Obligations may be Refinancedterms, in each case without notice to, or the consent of, First Lien Agent or the First Lien Claimholders, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that, in the case of a Refinancing, the holders of such Refinancing debt bind themselves (in a writing addressed to First Lien Agent for the benefit of itself and the First Lien Claimholders) to the terms of this Agreement; provided further, however, that any such amendment, supplement, modificationor modification (including any amendment, supplement or Refinancing other modification that would otherwise constitute a Conforming Amendment) shall not (except with respect to any Conforming Amendment (provided that any Conforming Amendment to the Second Lien Debt Agreement shall maintain an equivalent proportionate difference between dollar amounts or ratios, as the case may be, in the relevant provision in the Second Lien Debt Agreement and those in the corresponding covenant in the First Lien Debt Agreement, to the extent that such difference exists between the Second Lien Debt Agreement and the First Lien Debt Agreement on the date hereof))not, without the prior written consent of First Lien Agent (which it shall be authorized to consent to based upon an affirmative vote of the requisite First Lien Claimholders constituting “Required Lenders” as defined in under the First Lien Debt AgreementDocuments):
(i) contravene the provisions of this Agreement or prohibit the Grantors from making any payment with respect to the First Lien Obligations which is permitted under the terms of the Second Lien Debt Documents as of the date hereofAgreement;
(ii) increase the aggregate principal amount cash component of the outstanding interest rate on the Second Lien Notes to an amount that would exceed accruing in accordance with the provisions of the Second Lien Cap;
(iii) increase Indenture or similar component of the contract cash pay portion of any interest rate of interest by more than 2 percentage points 4.00% per annum (excluding (A) increases resulting from the accrual of interest at the default rate), or (B) resulting from fees, including from any amendment, waiver or consent related fees payable in the event of an amendment or add any new recurring fees;
(iviii) change to earlier dates any dates upon which payments of principal or interest are due thereonthereon (other than as the result of the addition, modification or occurrence of an event of default under the Second Lien Document);
(iv) change the redemption, mandatory prepayment, or defeasance provisions thereof in a manner materially adverse to the First Lien Claimholders;
(v) change any covenants, defaults, or events of default under the Second Lien Indenture or any other Second Lien Document (including the addition of covenants, defaults, or events of default not contained in the Second Lien Documents or other Second Lien Documents as in effect on the date hereof) to restrict any Grantor from making payments of the First Lien Debt that would otherwise be permitted under the Second Lien Documents as in effect on the date hereof or to restrict any Grantor from the Disposition of any assets that would otherwise be permitted under the Second Lien Documents as in effect on the date hereof; or
(vi) change any financial covenant in a manner adverse to Grantors thereunder (it being understood that any waiver of any default or Second Lien Default arising from the failure to comply with any financial covenant, in and of itself, shall not be deemed to be adverse to Grantors);
(vii) change any default or Second Lien Default thereunder in a manner adverse to Grantors thereunder unless the First Lien Lenders are offered the opportunity to similarly modify the First Lien Debt Documents (it being understood that any waiver of any such default or Second Lien Default, in and of itself, shall not be deemed to be adverse to Grantors); or
(viviii) change increase the redemption, mandatory prepayment, non-monetary obligations of Grantors thereunder or defeasance provisions thereof in a manner confer any additional rights on the Second Lien Claimholders that would be adverse to the Grantors or First Lien Claimholders.
(c) Each Grantor Borrower agrees that the Second Lien Notes and any promissory note evidencing or security agreement, pledge agreement or mortgage securing the Second Lien Obligations Debt issued under the Second Lien Indenture shall at all times include the following language (or language to similar effect approved by First Lien Agent): “Anything herein to the contrary notwithstanding, the liens and security interests [securing the obligations evidenced by this promissory note] [granted hereunder] and , the exercise of any right or remedy with respect thereto thereto, and certain of the rights of the holder hereof are subject to the provisions of the Intercreditor Agreement dated as of [ ] [ ]April 15, 2012, 2016 (as amended, restated, supplemented, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), by and between PNC Bank, National Association, as First Lien Agent, and Xxxxx Fargo Bank, National AssociationN.A., as Revolving Credit Agreement Agent, Wilmington Savings Fund Society, FSB, as Term Loan Agent, and Wilmington Savings Fund Society, FSB, as Second Lien Agent. In the event of any conflict between the terms of the Intercreditor Agreement and this [note][security agreement][pledge agreement][mortgage]promissory note, the terms of the Intercreditor Agreement shall govern and control.”
(d) In the event First Lien Agent or the First Lien Claimholders and the relevant Grantor enter into any amendment, waiver, or consent which constitutes a Deemed Second Lien Amendment, then such Deemed Second Lien Amendment shall apply automatically to any comparable provision of the Second Lien Collateral Documents without the requirement of consent of Second Lien Agent or the Second Lien Claimholders and without any action by Second Lien Agent, or any Grantor. Second Lien Agent promptly shall execute and deliver to First Lien Agent such amendment, waiver, or consent as First Lien Agent may request to effectively confirm such amendment.
Appears in 1 contract
Samples: Intercreditor Agreement (Nuverra Environmental Solutions, Inc.)
Amendments; Refinancings; Legend. (a) The First Lien Debt Documents may be amended, supplemented, or otherwise modified in accordance with their terms and the First Lien Obligations may be Refinanced, in each case without notice to, or the consent of, Second Lien Agent or Second Lien Claimholders, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that, in the case of a Refinancing, the holders of such Refinancing debt bind themselves (in a writing addressed to Second Lien Agent for the benefit of itself and the Second Lien Claimholders) to the terms of this Agreement; provided further, however, that any such amendment, supplement, modification, or Refinancing shall not, without the prior written consent of Second Lien Agent (which it shall be authorized to consent to based upon an affirmative vote of Second Lien Claimholders holding at least a majority in aggregate principal amount of the Second Lien Notes then outstanding):
(i) contravene the provisions of this Agreement or prohibit the Grantors from making any payment with respect to the Second Lien Obligations which is permitted under the terms of the First Lien Debt Documents as of the date hereof;
(ii) increase the commitments of the First Lien Claimholders under the First Lien Debt Documents to an amount that would exceed the First Lien Cap or otherwise permit the aggregate outstanding principal amount of Advances plus the aggregate amount of outstanding undrawn Letters of Credit to exceed the First Lien Cap;
(iii) increase the “applicable margin” or similar component of the interest rate by more than 2 percentage points per annum (excluding increases resulting from the accrual of interest at the default rate);
(iv) extend the scheduled final maturity of the First Lien Debt Agreement or any Refinancing thereof beyond the scheduled maturity of the Second Lien Debt Agreement unless the First Lien Debt Agreement (as so amended or Refinanced) permits the repayment in full of the Second Lien Obligations at their scheduled maturity; or
(v) other than as a function of the requirement that all proceeds of Collateral be remitted to First Lien Agent for application to the First Lien Obligations on a daily basis, modify (or have the effect of a modification of) the mandatory prepayment provisions of the First Lien Debt Agreement or any First Lien Debt Document within 180 days of the date hereof in a manner that makes them more restrictive to Grantors.
(b) The Second Lien Debt Documents may be amended, supplemented, or otherwise modified in accordance with their terms and the Second Lien Obligations may be Refinanced, in each case without notice to, or the consent of, First Lien Agent or First Lien Claimholders, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that, in the case of a Refinancing, the holders of such Refinancing debt bind themselves (in a writing addressed to First Lien Agent for the benefit of itself and the First Lien Claimholders) to the terms of this Agreement; provided further, however, that any such amendment, supplement, modification, or Refinancing shall not (except with respect to any Conforming Amendment (provided that any Conforming Amendment to the Second Lien Debt Agreement shall maintain an equivalent proportionate difference between dollar amounts or ratios, as the case may be, in the relevant provision in the Second Lien Debt Agreement and those in the corresponding covenant in the First Lien Debt Agreement, to the extent that such difference exists between the Second Lien Debt Agreement and the First Lien Debt Agreement on the date hereof)), without the prior written consent of First Lien Agent (which it shall be authorized to consent to based upon an affirmative vote of First Lien Claimholders constituting “Required Lenders” as defined in the First Lien Debt Agreement):
(i) contravene the provisions of this Agreement or prohibit the Grantors from making any payment with respect to the First Lien Obligations which is permitted under the terms of the Second Lien Debt Documents as of the date hereof;
(ii) increase the aggregate principal amount of the outstanding Second Lien Notes to an amount that would exceed the Second Lien Cap;
(iii) increase the contract rate of interest by more than 2 percentage points per annum (excluding increases resulting from the accrual of interest at the default rate);
(iv) change to earlier dates any dates upon which payments of principal or interest are due thereon;
(v) change any default or Second Lien Default thereunder in a manner adverse to Grantors thereunder unless the First Lien Lenders are offered the opportunity to similarly modify the First Lien Debt Documents (it being understood that any waiver of any such default or Second Lien Default, in and of itself, shall not be deemed to be adverse to Grantors); or
(vi) change the redemption, mandatory prepayment, or defeasance provisions thereof in a manner adverse to the Grantors or First Lien Claimholders.
(c) Each Grantor agrees that any promissory note evidencing or security agreement, pledge agreement or mortgage securing the Second Lien Obligations shall at all times include the following language (or language to similar effect approved by First Lien Agent): “Anything herein to the contrary notwithstanding, the liens and security interests [securing the obligations evidenced by this note] [granted hereunder] and the exercise of any right or remedy with respect thereto are subject to the provisions of the Intercreditor Agreement dated as of [ ] [ ], 2012, (as amended, restated, supplemented, or otherwise modified from time to time, the “Intercreditor Agreement”), by and between PNC Bank, National Association, as First Lien Agent, and Xxxxx Fargo Bank, National Association, as Second Lien Agent. In the event of any conflict between the terms of the Intercreditor Agreement and this [note][security agreement][pledge agreement][mortgage], the terms of the Intercreditor Agreement shall govern and control.”
Appears in 1 contract
Samples: Intercreditor Agreement
