Amendments; Refinancings; Legend. (a) The First Lien Documents may be amended, supplemented, or otherwise modified in accordance with their terms without notice to, or the consent of, Second Lien Creditors or any other Second Lien Claimholder, all without affecting the lien subordination or other provisions of this Agreement; provided, that any such amendment, supplement, or modification shall not, without the prior written consent of each Second Lien Creditor: (i) contravene the provisions of this Agreement; (ii) increase the total yield by more than 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); (iii) (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 Account Agreement beyond the scheduled maturity of either Second Lien Credit Agreement; (iv) modify (or have the effect of a modification of) the redemption, mandatory prepayment, or defeasance provisions of the First Lien Account Agreement or any other First Lien Document in a manner that makes them more restrictive or burdensome to the 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 Documents may be amended, supplemented, or otherwise modified in accordance with their terms without notice to, or the consent of, First Lien Creditor or the First Lien Claimholders, all without affecting the lien subordination or other provisions of this Agreement; provided, that, any such amendment, supplement, or modification shall not (except with respect to any Conforming Amendment (provided that any Conforming Amendment to any Second Lien Credit Agreement shall maintain an equivalent proportionate difference between dollar amounts or ratios, as the case may be, in the relevant provision in such Second Lien Credit Agreement and those in the corresponding covenant in the First Lien Account Agreement, to the extent that such difference exists between such Second Lien Credit Agreement and the First Lien Account Agreement on the date 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 Creditor: (i) contravene the provisions of this Agreement; (ii) increase the total yield by more than 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); (iii) 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 the Debtor thereunder (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 the Debtor); 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 (i) through (vii) to the extent such amendments are parallel to permitted amendments to the First Lien Documents 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) 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 the Second Lien Debt shall at all times include the following language (or language to similar effect approved by First Lien Creditor): “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 Third Amended and Restated Intercreditor Agreement dated as of September __, 2020 (as amended, restated, supplemented, or otherwise modified from time to time, the “Intercreditor Agreement”), by and between SALLYPORT COMMERCIAL FINANCE, LLC, as First Lien Creditor, and LXXX GLOBAL MACRO FUND, L.P. and LXXX GLOBAL ASSET MANAGEMENT, LLC, as Second Lien Creditor. 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 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 Creditors Agent or any other Second Lien ClaimholderClaimholders, 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 modification Refinancing shall not, without the prior written consent of each Second Lien Creditor: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 AgreementAgreement 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 total yield 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 2.00 2 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);
(iii) (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 (Civ) extend the scheduled final maturity of the First Lien Account Debt Agreement or any Refinancing thereof beyond the scheduled maturity of either the Second Lien Credit Agreement;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
(ivv) 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, or defeasance prepayment provisions of the First Lien Account Debt 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 the 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 offerGrantors.
(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 Creditor 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, modification, or modification Refinancing shall not (except with respect to any Conforming Amendment (provided that any Conforming Amendment to any the Second Lien Credit Debt Agreement shall maintain an equivalent proportionate difference between dollar amounts or ratios, as the case may be, in the relevant provision in such the Second Lien Credit Debt Agreement and those in the corresponding covenant in the First Lien Account Debt Agreement, to the extent that such difference exists between such the Second Lien Credit Debt Agreement and the First Lien Account Debt Agreement on the date 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 thereofhereof)), without the prior written consent of First Lien Creditor: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 AgreementAgreement 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 total yield 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 2.00 2 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);
(iiiiv) 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 thereunder unless the Debtor thereunder 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 the DebtorGrantors); providedor
(vi) change the redemption, mandatory prepayment, or defeasance provisions thereof in a manner adverse to the affirmative vote of the Grantors or First Lien Claimholders shall not be required in connection with any of the actions listed in the foregoing clauses (i) through (vii) to the extent such amendments are parallel to permitted amendments to the First Lien Documents 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 hereofClaimholders.
(c) 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 Each Grantor agrees that any promissory note evidencing or security agreement, pledge agreement or mortgage securing the Second Lien Debt Obligations shall at all times include the following language (or language to similar effect approved by First Lien CreditorAgent): “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, and certain of the rights of the holder hereof thereto are subject to the provisions of the Third Amended and Restated Intercreditor Agreement dated as of September __[ ] [ ], 2020 2012, (as amended, restated, supplemented, or otherwise modified from time to time, the “Intercreditor Agreement”), by and between SALLYPORT COMMERCIAL FINANCEPNC Bank, LLCNational Association, as First Lien CreditorAgent, and LXXX GLOBAL MACRO FUNDXxxxx Fargo Bank, L.P. and LXXX GLOBAL ASSET MANAGEMENT, LLCNational Association, as Second Lien CreditorAgent. In the event of any conflict between the terms of the Intercreditor Agreement and this promissory note[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 Documents may be amended, supplemented, or otherwise modified in accordance with their terms without notice to, or the consent of, Second Lien Creditors Creditor or any other Second Lien Claimholder, all without affecting the lien subordination or other provisions of this Agreement; provided, that any such amendment, supplement, or modification shall not, without the prior written consent of each Second Lien Creditor:
(i) contravene the provisions of this Agreement;
(ii) increase the total yield by more than 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);
(iii) (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 Account Agreement beyond the scheduled maturity of either Second Lien Credit Agreement;
(iv) modify (or have the effect of a modification of) the redemption, mandatory prepayment, or defeasance provisions of the First Lien Account Agreement or any other First Lien Document in a manner that makes them more restrictive or burdensome to the 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 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 Documents may be amended, supplemented, or otherwise modified in accordance with their terms without notice to, or the consent of, First Lien Creditor or the First Lien Claimholders, all without affecting the lien subordination or other provisions of this Agreement; provided, that, any such amendment, supplement, or modification shall not (except with respect to any Conforming Amendment (provided that any Conforming Amendment to any Second Lien Credit Agreement shall maintain an equivalent proportionate difference between dollar amounts or ratios, as the case may be, in the relevant provision in such Second Lien Credit Agreement and those in the corresponding covenant in the First Lien Account Agreement, to the extent that such difference exists between such Second Lien Credit Agreement and the First Lien Account Agreement on the date 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 Creditor:
(i) contravene the provisions of this Agreement;
(ii) increase the total yield by more than 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);
(iii) 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 the Debtor thereunder (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 the Debtor); 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 (i) through (vii) to the extent such amendments are parallel to permitted amendments to the First Lien Documents 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) 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 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 the Second Lien Debt shall at all times include the following language (or language to similar effect approved by First Lien Creditor): “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 Third Amended and Restated Intercreditor Agreement dated as of September March __, 2020 2019 (as amended, restated, supplemented, or otherwise modified from time to time, the “Intercreditor Agreement”), by and between SALLYPORT COMMERCIAL FINANCE, LLC, as First Lien Creditor, and LXXX GLOBAL MACRO FUND, L.P. and LXXX GLOBAL ASSET MANAGEMENT, LLCL.P., as Second Lien Creditor. 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
Amendments; Refinancings; Legend. (a) The First Lien Documents may be amended, supplemented, or otherwise modified in accordance with their terms without notice to, or the consent of, Second Lien Creditors Creditor or any other Second Lien Claimholder, all without affecting the lien subordination or other provisions of this Agreement; provided, that any such amendment, supplement, or modification shall not, without the prior written consent of each Second Lien Creditor:
(i) contravene the provisions of this Agreement;
(ii) increase the total yield by more than 2.00 [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);
(iii) (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 Account Agreement beyond the scheduled maturity of either Second Lien Credit Agreement;
(iv) modify (or have the effect of a modification of) the redemption, mandatory prepayment, or defeasance provisions of the First Lien Account Agreement or any other First Lien Document in a manner that makes them more restrictive or burdensome to the 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 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 Documents may be amended, supplemented, or otherwise modified in accordance with their terms without notice to, or the consent of, First Lien Creditor or the First Lien Claimholders, all without affecting the lien subordination or other provisions of this Agreement; provided, that, any such amendment, supplement, or modification shall not (except with respect to any Conforming Amendment (provided that any Conforming Amendment to any Second Lien Credit Agreement shall maintain an equivalent proportionate difference between dollar amounts or ratios, as the case may be, in the relevant provision in such Second Lien Credit Agreement and those in the corresponding covenant in the First Lien Account Agreement, to the extent that such difference exists between such Second Lien Credit Agreement and the First Lien Account Agreement on the date 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 Creditor:
(i) contravene the provisions of this Agreement;
(ii) increase the total yield by more than 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);
(iii) 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 the Debtor thereunder (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 the Debtor); 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 (i) through (vii) to the extent such amendments are parallel to permitted amendments to the First Lien Documents 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) 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 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 the Second Lien Debt shall at all times include the following language (or language to similar effect approved by First Lien Creditor): “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 Third Amended and Restated Intercreditor Agreement dated as of September March __, 2020 2019 (as amended, restated, supplemented, or otherwise modified from time to time, the “Intercreditor Agreement”), by and between SALLYPORT COMMERCIAL FINANCE, LLC, as First Lien Creditor, and LXXX GLOBAL MACRO FUND, L.P. and LXXX GLOBAL ASSET MANAGEMENT, LLCL.P., as Second Lien Creditor. 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
Amendments; Refinancings; Legend. (a) The First Lien Documents may be amended, supplemented, or otherwise modified in accordance with their terms without notice to, or the consent of, Second Lien Creditors Creditor or any other Second Lien Claimholder, all without affecting the lien subordination or other provisions of this Agreement; provided, that any such amendment, supplement, or modification shall not, without the prior written consent of each Second Lien Creditor:
(i) contravene the provisions of this Agreement;
(ii) increase the total yield by more than 2.00 [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);
(iii) (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 Account Agreement beyond the scheduled maturity of either the Second Lien Credit Agreement;
(iv) modify (or have the effect of a modification of) the redemption, mandatory prepayment, or defeasance provisions of the First Lien Account Agreement or any other First Lien Document in a manner that makes them more restrictive or burdensome to the 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 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 Documents may be amended, supplemented, or otherwise modified in accordance with their terms without notice to, or the consent of, First Lien Creditor or the First Lien Claimholders, all without affecting the lien subordination or other provisions of this Agreement; provided, that, any such amendment, supplement, or modification shall not (except with respect to any Conforming Amendment (provided that any Conforming Amendment to any the Second Lien Credit Agreement shall maintain an equivalent proportionate difference between dollar amounts or ratios, as the case may be, in the relevant provision in such the Second Lien Credit Agreement and those in the corresponding covenant in the First Lien Account Agreement, to the extent that such difference exists between such the Second Lien Credit Agreement and the First Lien Account Agreement on the date hereof or subsequent to the date hereof to the extent both the Second Lien Credit Agreements Agreement and the First Lien Account Agreement are amended in accordance with the terms thereof), without the prior written consent of First Lien Creditor:
(i) contravene the provisions of this Agreement;
(ii) increase the total yield by more than 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);
(iii) 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 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 the Debtor thereunder (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 the Debtor); 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 (i) through (vii) to the extent such amendments are parallel to permitted amendments to the First Lien Documents 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) 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 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 the Second Lien Debt shall at all times include the following language (or language to similar effect approved by First Lien Creditor): “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 Third Amended and Restated Intercreditor Agreement dated as of September March __, 2020 2019 (as amended, restated, supplemented, or otherwise modified from time to time, the “Intercreditor Agreement”), by and between SALLYPORT COMMERCIAL FINANCE, LLC, as First Lien Creditor, and LXXX GLOBAL MACRO FUND, L.P. and LXXX GLOBAL ASSET MANAGEMENT, LLCL.P., as Second Lien Creditor. 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
Amendments; Refinancings; Legend. (a) The First Lien Documents may be amended, supplemented, or otherwise modified in accordance with their terms and the First Lien Debt may be Refinanced, in each case without notice to, or the consent of, Second Lien Creditors Agent, any Permitted Additional Second Lien Obligations Representative, or any other Second Lien Claimholder, all without affecting the lien subordination or other provisions of this Agreement; provided, 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) to the terms of this Agreement; provided further, that any such amendment, supplement, modification, or modification Refinancing shall not, without the prior written consent of each Second Lien Creditor:
Agent (iwhich it shall be authorized to consent to based upon an affirmative vote of the Second Lien Claimholders holding a majority in the aggregate principal amount of the Second Lien Debt then outstanding) contravene the provisions of this Agreement;
(ii) increase the total yield by more than 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);
(iii) (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 Account Agreement beyond the scheduled maturity of either Second Lien Credit Agreement;
(iv) modify (or have the effect of a modification of) the redemption, mandatory prepayment, or defeasance provisions of the First Lien Account Agreement or any other First Lien Document in a manner that makes them more restrictive or burdensome to the 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 Documents may be amended, supplemented, or otherwise modified in accordance with their terms and the Second Lien Debt may be Refinanced, in each case without notice to, or the consent of, First Lien Creditor Agent or the First Lien Claimholders, all without affecting the lien subordination or other provisions of this Agreement; provided, 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) to the terms of this Agreement; provided further, that any such amendment, supplement, modification, or modification Refinancing shall not (except with respect to any Conforming Amendment (provided that any Conforming Amendment to any Second Lien Credit Agreement shall maintain an equivalent proportionate difference between dollar amounts or ratios, as the case may be, in the relevant provision in such Second Lien Credit Agreement and those in the corresponding covenant in the First Lien Account Agreement, to the extent that such difference exists between such Second Lien Credit Agreement and the First Lien Account Agreement on the date 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)not, without the prior written consent of First Lien Creditor:
Agent (iwhich it shall be authorized to consent to based upon an affirmative vote of the First Lien Claimholders holding a majority in the aggregate principal amount of the First Lien Debt then outstanding) contravene the provisions of this Agreement;
(ii) increase the total yield by more than 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);
(iii) 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 the Debtor thereunder (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 the Debtor); 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 (i) through (vii) to the extent such amendments are parallel to permitted amendments to the First Lien Documents 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) 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 Grantors agree that any promissory note evidencing the Second Lien Debt 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 CreditorAgent): “Anything herein to the contrary notwithstanding, the liens and security interests securing the obligations evidenced by this promissory notegranted herein, 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 Third Amended and Restated Intercreditor Agreement dated as of September __May 2, 2020 2013 (as amended, restated, supplemented, or otherwise modified from time to time, the “Intercreditor Agreement”), by and between SALLYPORT COMMERCIAL FINANCEXxxxx Fargo Bank, LLCN.A., as First Lien CreditorAgent, and LXXX GLOBAL MACRO FUNDWilmington Trust, L.P. and LXXX GLOBAL ASSET MANAGEMENT, LLCNational Association, as Second Lien CreditorAgent. In the event of any conflict between the terms of the Intercreditor Agreement and this promissory noteAgreement, 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 First Lien Documents may be amended, supplemented, supplemented or otherwise modified in accordance with their terms and the First Lien Debt may be Refinanced, in each case without notice to, or the consent of, Second Lien Creditors Agent or any other Second Lien Claimholder, 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 bind themselves (in a writing addressed to Second Lien Agent) to the terms of this Agreement and that any such amendment, supplement, or modification shall not, without the prior written consent of each Second Lien Creditor:
Agent (iwhich it shall be authorized to consent to based upon an affirmative vote of the requisite Second Lien Claimholders under the Second Lien Indenture) contravene the provisions of this Agreement;.
(iib) increase the total yield by more than 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);
(iii) (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 Account Agreement beyond the scheduled maturity of either Second Lien Credit Agreement;
(iv) modify (or have the effect of a modification of) the redemption, mandatory prepayment, or defeasance provisions of the First Lien Account Agreement or any other First Lien Document in a manner that makes them more restrictive or burdensome Subject to the 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 restrictions set forth 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 Documents may be amended, supplemented, supplemented or otherwise modified in accordance with their terms terms, in each case without notice to, or the consent of, First Lien Creditor Agent or the First Lien Claimholders, all without affecting the lien subordination or other provisions of this Agreement; provided, that, any such amendment, supplement, or modification (including any amendment, supplement or other modification that would otherwise constitute a Conforming Amendment) shall not (except with respect to any Conforming Amendment (provided that any Conforming Amendment to any Second Lien Credit Agreement shall maintain an equivalent proportionate difference between dollar amounts or ratios, as the case may be, in the relevant provision in such Second Lien Credit Agreement and those in the corresponding covenant in the First Lien Account Agreement, to the extent that such difference exists between such Second Lien Credit Agreement and the First Lien Account Agreement on the date 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)not, without the prior written consent of First Lien Creditor:Agent (which it shall be authorized to consent to based upon an affirmative vote of the requisite First Lien Claimholders under the First Lien Documents):
(i) contravene the provisions of this Agreement;
(ii) increase the total yield cash component of the interest rate on the Second Lien Notes accruing in accordance with the provisions of the Second Lien Indenture or similar component of the cash pay portion of any interest rate by more than 2.00 percentage points 4.00% 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) 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;
(iii) change to earlier dates any scheduled 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);
(Aiv) change 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 materially adverse 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 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 the Debtor any Grantor 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 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 the Debtor 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 the DebtorGrantors);
(vii) change any default or Second Lien Default thereunder in a manner adverse to the Debtor Grantors thereunder (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 the DebtorGrantors); provided, or
(viii) increase the affirmative vote non-monetary obligations of Grantors thereunder or confer any additional rights on the First Second Lien Claimholders shall not that would be required in connection with any of the actions listed in the foregoing clauses (i) through (vii) to the extent such amendments are parallel to permitted amendments adverse to the First Lien Documents 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 hereofClaimholders.
(c) Any refinancing of all or any portion of Borrower agrees that 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 Notes and the Security Agreement with respect to certain other future creditors of the Debtor.
(d) The Debtor agrees that any promissory note evidencing the Second Lien Debt issued under the Second Lien Indenture shall at all times include the following language (or language to similar effect approved by First Lien CreditorAgent): “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 Third Amended and Restated Intercreditor Agreement dated as of September __April 15, 2020 2016 (as amended, restated, supplemented, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), by and between SALLYPORT COMMERCIAL FINANCEXxxxx Fargo Bank, LLCN.A., as First Lien CreditorRevolving Credit Agreement Agent, Wilmington Savings Fund Society, FSB, as Term Loan Agent, and LXXX GLOBAL MACRO FUNDWilmington Savings Fund Society, L.P. and LXXX GLOBAL ASSET MANAGEMENT, LLCFSB, as Second Lien CreditorAgent. 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.”
(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 Creditors Agent or any other Second Lien ClaimholderClaimholders, 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 modification Refinancing shall not, without the prior written consent of each Second Lien Creditor: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 AgreementAgreement 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 total yield 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 2.00 2 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);
(iii) (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 (Civ) extend the scheduled final maturity of the First Lien Account Debt Agreement or any Refinancing thereof beyond the scheduled maturity of either the Second Lien Credit Agreement;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
(ivv) 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, or defeasance prepayment provisions of the First Lien Account Debt 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 the 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 offerGrantors.
(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 Creditor 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, modification, or modification Refinancing shall not (except with respect to any Conforming Amendment (provided that any Conforming Amendment to any the Second Lien Credit Debt Agreement shall maintain an equivalent proportionate difference between dollar amounts or ratios, as the case may be, in the relevant provision in such the Second Lien Credit Debt Agreement and those in the corresponding covenant in the First Lien Account Debt Agreement, to the extent that such difference exists between such the Second Lien Credit Debt Agreement and the First Lien Account Debt Agreement on the date 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 thereofhereof)), without the prior written consent of First Lien Creditor:
Agent (i) contravene the provisions of this Agreement;
(ii) increase the total yield by more than 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 which it shall be authorized to consent to based upon an amendment, supplement, modification or Refinancing of the applicable Second Lien Credit Agreement, or (B) the accrual of interest at the default rate);
(iii) 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 affirmative vote 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 Claimholders constituting “Required Lenders” as defined 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 the Debtor thereunder (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 the Debtor); 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 (i) through (vii) to the extent such amendments are parallel to permitted amendments to the First Lien Documents 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) 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 the Second Lien Debt shall at all times include the following language (or language to similar effect approved by First Lien Creditor): “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 Third Amended and Restated Intercreditor Agreement dated as of September __, 2020 (as amended, restated, supplemented, or otherwise modified from time to time, the “Intercreditor Agreement”), by and between SALLYPORT COMMERCIAL FINANCE, LLC, as First Lien Creditor, and LXXX GLOBAL MACRO FUND, L.P. and LXXX GLOBAL ASSET MANAGEMENT, LLC, as Second Lien Creditor. 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
Amendments; Refinancings; Legend. (a) The First Lien ABL Documents may be amended, supplemented, or otherwise modified in accordance with their terms and the ABL Debt may be Refinanced, in each case without notice to, or the consent of, Second Lien Creditors or any other Second Lien Claimholder, all without affecting the lien subordination or other provisions of this Agreement; provided, that any such amendment, supplement, or modification shall not, without the prior written consent of each Second Lien Creditor:
(i) contravene the provisions of this Agreement;
(ii) increase the total yield by more than 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);
(iii) (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 Account Agreement beyond the scheduled maturity of either Second Lien Credit Agreement;
(iv) modify (or have the effect of a modification of) the redemption, mandatory prepayment, or defeasance provisions of the First Lien Account Agreement or any other First Lien Document in a manner that makes them more restrictive or burdensome to the 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 Documents may be amended, supplemented, or otherwise modified in accordance with their terms without notice to, or the consent of, First Lien Creditor or the First Lien Term Loan 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 Term Loan Agent) to the terms of this Agreement; provided further, that any such amendment, supplement, modification, or modification Refinancing shall not (except with respect to any Conforming Amendment (provided that any Conforming Amendment to any Second Lien Credit Agreement shall maintain an equivalent proportionate difference between dollar amounts or ratios, as the case may be, in the relevant provision in such Second Lien Credit Agreement and those in the corresponding covenant in the First Lien Account Agreement, to the extent that such difference exists between such Second Lien Credit Agreement and the First Lien Account Agreement on the date 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)not, without the prior written consent of First Lien Creditor:Term Loan Agent (which it shall be authorized to consent to based upon an affirmative vote of the Required Lenders, as defined in the Term Loan Credit Agreement):
(i) contravene the provisions of this Agreement;
(ii) increase the total yield “Applicable Margin” or similar component of the interest rate by more than 2.00 3.00 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 ABL Credit Agreement, (B) the application of the pricing grid set forth in the ABL Credit Agreement, or (BC) 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);
(iii) 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);
(viv) change any covenants, defaults, or events of default under the Second Lien Term Loan Credit Agreements Agreement or any other Second Lien Term Loan Document (including the addition of covenants, defaults, or events of default not contained in the Second Lien Documents Term Loan Credit Agreement or other Second Lien Term Loan Documents as in effect on the date hereof) to restrict the Debtor any Grantor from making payments of the First Lien ABL 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 Term Loan Documents as in effect on the date hereof;; or
(viv) change any financial covenant in a manner adverse to the Debtor thereunder (it being understood that any waiver of any default redemption, mandatory prepayment, 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 the Debtor thereunder (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 the Debtor); 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 (i) through (vii) to the extent such amendments are parallel to permitted amendments to the First Lien Documents so long as the defeasance provisions that are amended remain in the same proportion to the corresponding provisions in the First Lien Documents as on the date hereofthereof.
(c) 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 Each Borrower agrees that any promissory note evidencing the Second Lien ABL Debt shall at all times include the following language (or language to similar effect approved by First Lien CreditorTerm Loan 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 Third Amended and Restated Intercreditor Agreement dated as of September __May 24, 2020 2012 (as amended, restated, supplemented, or otherwise modified from time to time, the “Intercreditor Agreement”), by and between SALLYPORT COMMERCIAL FINANCEXxxxx Fargo Bank, LLCN.A., as First Lien CreditorABL Agent, and LXXX GLOBAL MACRO FUNDWilmington Trust, L.P. and LXXX GLOBAL ASSET MANAGEMENT, LLCNational Association, as Second Lien CreditorTerm 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.”
(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 ABL Loan Documents, Senior Lien Loan Documents, First Lien Loan Documents and Junior Lien Loan Documents may be amended, supplemented, supplemented or otherwise modified in accordance with their the terms without notice to, or the consent of, Second Lien Creditors or any other Second Lien Claimholder, all without affecting the lien subordination or other provisions of this Agreement; provided, that any such amendment, supplement, or modification shall not, without thereof and hereof. Without the prior written consent of each Second of the Agents, none of the ABL Loan Documents, Senior Lien CreditorLoan 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 AgreementAgreement or prohibit the Grantors from making any payment with respect to the Obligations secured by Secondary Liens which is permitted under the terms of the applicable Loan Documents as of the date hereof;
(ii) increase the total yield by more than 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 commitments of the First Lien Account Agreement, ABL Claimholders under the ABL Loan Documents to an amount that would exceed the ABL Cap or (B) otherwise permit the accrual aggregate outstanding principal amount of interest at Advances plus the default rate)aggregate amount of outstanding undrawn Letters of Credit to exceed the ABL Cap;
(iii) increase the interest rates of the applicable Obligations by more than 2% (Aexcluding any imposition of the default rate of interest or any changes resulting from application of the Alternate Base Rate (as such term is defined in each Credit Agreement) or the application of the Applicable 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 earlier dates any scheduled dates upon which payments of principal or interest are due thereon, be more restrictive on the Grantors;
(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 (Cvi) extend the scheduled final maturity of the ABL Credit Agreement or any Refinancing thereof;
(vii) in the case of the Senior Lien Loan Documents or the First Lien Account Agreement beyond 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 either Second the Junior Lien Credit Agreement;Obligations; or
(ivviii) other than as a function of the requirement that all proceeds of Collateral be remitted to the ABL Agent for application to the ABL Obligations on a daily basis, modify (or have the effect of a modification of) the redemption, mandatory prepayment, or defeasance prepayment provisions of the First Lien Account ABL Credit Agreement or any other First Lien ABL Loan Document in a manner that makes them more restrictive to Grantors; provided, however, that any new holder of Refinancing debt shall execute and deliver an Intercreditor Joinder Agreement substantially in the form of Exhibit A attached hereto, or burdensome in such other form reasonably acceptable to the Debtor;ABL Agent and addressed to each of the Agents.
(vi) change any covenantsWithout the consent of the ABL Agent, defaults, or events of default under the First Lien Account Agreement or any other First Agent and the Junior Lien Document (including Agent, 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 principal amount of the Second Senior Lien Debt or amending Obligations shall not exceed the Second Senior Lien Documents that would otherwise be permitted under the First Lien Documents as in effect on the date hereof;Cap.
(viii) subordinate any First Without the consent of the ABL Agent, Senior Lien Debt or Agent and the Liens Junior Lien Agent, the principal amount 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 Obligations shall not exceed 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 Documents may be amended, supplemented, or otherwise modified in accordance with their terms without notice to, or the consent of, First Lien Creditor or the First Lien Claimholders, all without affecting the lien subordination or other provisions of this Agreement; provided, that, any such amendment, supplement, or modification shall not (except with respect to any Conforming Amendment (provided that any Conforming Amendment to any Second Lien Credit Agreement shall maintain an equivalent proportionate difference between dollar amounts or ratios, as the case may be, in the relevant provision in such Second Lien Credit Agreement and those in the corresponding covenant in the First Lien Account Agreement, to the extent that such difference exists between such Second Lien Credit Agreement and the First Lien Account Agreement on the date 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 Creditor:
(i) contravene the provisions of this Agreement;
(ii) increase the total yield by more than 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);
(iii) 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 the Debtor thereunder (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 the Debtor); 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 (i) through (vii) to the extent such amendments are parallel to permitted amendments to the First Lien Documents 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 hereofCap.
(c) Any refinancing 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 any portion amendments and copies 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 all other relevant documentation 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 DebtorPersons.
(d) The Debtor Each Grantor agrees that any promissory note evidencing the Second Lien Debt Obligations secured by Secondary Liens shall at all times include the following language (or language to similar effect approved by First Lien Creditoreffect): “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 Third Amended and Restated Intercreditor Agreement dated as of September __[• ], 2020 (as amended, restated, supplemented, or otherwise modified from time to time, the “Intercreditor Agreement”), by and between SALLYPORT COMMERCIAL FINANCEPNC Bank, LLCNational Association, as ABL Agent, [• ], as Senior Lien Agent, [• ], as First Lien Creditor, Agent and LXXX GLOBAL MACRO FUND, L.P. and LXXX GLOBAL ASSET MANAGEMENT, LLC[• ], as Second Junior Lien CreditorAgent. 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
