Amendments to First Lien Loan Documents and Second Lien Loan Documents. (a) The First-Lien Documents may be amended, restated, supplemented or otherwise modified in accordance with their terms and the First-Lien Credit Agreement may be Refinanced, in each case, without notice to, or the consent of, the Second-Lien Agent or the other Second-Lien Secured Parties, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that any such amendment, restatement, supplement, modification or Refinancing of the First-Lien Credit Agreement shall not, without the consent of the Second-Lien Agent: (i) increase the “Applicable Margin” or similar component of the interest rate by more than 2.5% per annum (excluding increases resulting from the accrual of interest at the default rate set forth in the First-Lien Credit Agreement as in effect on the date hereof); or (ii) provide for the aggregate outstanding principal amount of the Indebtedness under the First-Lien Credit Agreement to exceed the Cap Amount (excluding, however, as a result of capitalization of interest and/or fees thereunder and excluding for the avoidance of doubt, amounts owing on account of Secured Rate Contracts). (b) Without the prior written consent of the First-Lien Agent (acting at the direction of the Required First-Lien Secured Parties), no Second-Lien Loan Document may be amended, restated, supplemented or otherwise modified or entered into to the extent such amendment, restatement, supplement or modification, or the terms of any new Second-Lien Loan Document would contravene the provisions of this Agreement, the First-Lien Credit Agreement or any other First-Lien Loan Document; provided, however, without notice to, or the consent of, the First-Lien Agent or the other First-Lien Secured Parties, the Second-Lien Credit Agreement may be amended to increase the “Applicable Margin” or similar component of the interest rate by up to 2.5% per annum (excluding increases resulting from the accrual of interest at the default rate as set forth in the Second-Lien Credit Agreement as in effect on the date hereof). Each of the Borrower, each other Grantor and the Second-Lien Agent agrees that each Second-Lien Collateral Document shall include the following language (or language to similar effect approved by the First-Lien Agent): “Notwithstanding anything herein to the contrary, the lien and security interest granted to the Second-Lien Agent pursuant to this Agreement and the exercise of any right or remedy by the Second-Lien Agent hereunder are subject to the provisions of the Intercreditor Agreement, dated as of May 27, 2011 (as amended, restated, supplemented and/or otherwise modified from time to time in accordance with the terms thereof, the “Intercreditor Agreement”), among Gundle SLT/Environmental, Inc., the other Grantors from time to time party thereto, General Electric Capital Corporation, in its capacity as First-Lien Agent thereunder, and Jefferies Finance LLC, in its capacity as Second-Lien Agent thereunder. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control.” In addition, each of the Borrower, each other Grantor and the Second-Lien Agent agree that each Second-Lien Collateral Document covering any Collateral constituting real property shall contain such other language as the First-Lien Agent may reasonably request to reflect the subordination of such Second-Lien Collateral Document to the First-Lien Collateral Document covering such Collateral. (c) In the event the First-Lien Agent or the other First-Lien Secured Parties and the relevant Grantor(s) enter into any amendment, waiver or consent in respect of any of the First-Lien Collateral Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First-Lien Collateral Document or changing in any manner the rights of the First-Lien Agent, the other First-Lien Secured Parties, the Borrower or any other Grantor thereunder, then such amendment, waiver or consent shall apply automatically to any comparable provision of the Second-Lien Credit Agreement and the Comparable Second-Lien Collateral Document without the consent of the Second-Lien Agent or the other Second-Lien Secured Parties and without any action by the Second-Lien Agent, the Borrower or any other Grantor, provided, that (A) no such amendment, waiver or consent shall have the effect of (i) removing assets subject to the Lien of the Second-Lien Collateral Documents, except to the extent that a release of such Lien is permitted by Section 5.1 of this Agreement, (ii) imposing additional duties on the Second-Lien Agent without its consent, or (iii) permitting other liens on the Collateral not permitted under the terms of the Second-Lien Loan Documents or Section 6 hereof and (B) notice of such amendment, waiver or consent shall have been given to the Second-Lien Agent (although the failure to give any such notice shall in no way affect the effectiveness of any such amendment, waiver or consent).
Appears in 3 contracts
Samples: Second Lien Credit Agreement (GSE Holding, Inc.), First Lien Credit Agreement (GSE Holding, Inc.), Intercreditor Agreement (GSE Holding, Inc.)
Amendments to First Lien Loan Documents and Second Lien Loan Documents. (a) The First-First Lien Loan Documents may be amended, restated, supplemented or otherwise modified in accordance with their terms and the First-First Lien Credit Agreement may be Refinanced, Refinanced in each case, without notice to, or the consent of, of the Second-Second Lien Collateral Agent or the other Second-Second Lien Secured Parties, all without affecting the lien subordination or other provisions of this AgreementLenders; provided, however, that any such amendment, restatement, supplement, modification or Refinancing shall not result in the sum of (A) the aggregate principal amount of Indebtedness outstanding under the First Lien Loan Documents (as so amended, supplemented, modified or Refinanced) plus (B) the undrawn portion of the First-revolving commitments under the First Lien Loan Documents (as so amended, supplemented, modified or Refinanced) exceeding the Maximum First Lien Credit Agreement shall not, without the consent of the Second-Lien Agent:
(i) increase the “Applicable Margin” or similar component of the interest rate by more than 2.5% per annum (excluding increases resulting from the accrual of interest at the default rate set forth in the First-Lien Credit Agreement as in effect on the date hereof); or
(ii) provide for the aggregate outstanding principal amount of the Indebtedness under the First-Lien Credit Agreement to exceed the Cap Amount (excluding, however, as a result of capitalization of interest and/or fees thereunder and excluding for the avoidance of doubt, amounts owing on account of Secured Rate Contracts)Amount.
(b) Without Prior to the prior written consent Discharge of the First-First Lien Agent (acting at the direction of the Required First-Lien Secured Parties)Obligations, no Second-Second Lien Loan Document may be amended, restatedsupplemented or otherwise modified or entered into or any payment made consistent with an amendment thereof or change thereto without the prior written consent of the First Lien Collateral Agent (except pursuant to Section 5.3(d) or (e)) if the effect of such amendment or change is to (i) shorten the weighted average life to maturity thereunder, (ii) change any event of default or condition to an event of default with respect thereto (other than to eliminate any such event of default or increase any grace period related thereto) or add any event of default, (iii) change any financial maintenance covenant therein in a manner that would not preserve or improve, on equivalent economic terms, the absolute or percentage difference (whichever is greater) that exists on the date hereof between such numerical threshold or limitation in the First Lien Credit Agreement and the corresponding threshold or limitation in the Second Lien Credit Agreement or add any new financial maintenance covenant, (iv) change the prepayment provisions of the Second Lien Credit Agreement in a manner materially adverse to the Loan Parties (other than changes that do not shorten the maturity of Second Lien Loans to a date earlier than the maturity of the First Lien Loans) or add any mandatory prepayments thereto, or (v) make any other amendment thereof or change thereto, if the effect of such amendment or change with all other amendments or changes made, is to increase materially the obligations of the Loan Parties thereunder or to confer any additional rights on the Second Lien Lenders (or a representative on their behalf) that would be materially adverse to the Loan Parties under the First Lien Credit Agreement or any First Lien Lender. Without prejudice to any rights of the First Lien Lenders under the First Lien Credit Agreement, Indebtedness under the Second Lien Loan Documents may be Refinanced if the terms and conditions of such Refinancing Indebtedness (A) comply with the terms of the First Lien Credit Agreement (including the definition of “Refinancing Indebtedness” thereunder and Section 6.01(a) thereof) and (B) would be permitted as amendments to the Second Lien Loan Documents pursuant to the first sentence of this Section 5.3(b).
(c) Without limiting the foregoing clauses (a) and (b) of this Section 5.3, until the date upon which the Discharge of First Lien Obligations shall have occurred, without the prior written consent of the First Lien Collateral Agent, no Second Lien Collateral Document may be amended, supplemented or otherwise modified or entered into to the extent such amendment, restatement, supplement or modification, or the terms of any new Second-Lien Loan Document would contravene the provisions of this Agreement, the First-Second Lien Credit Agreement or Second Lien Collateral Document, would contravene any other First-of the terms of this Agreement.
(d) The Second Lien Loan Document; providedCollateral Agent, however, without notice to, or on behalf of the consent of, the First-Lien Agent or the other First-Second Lien Secured Parties, the Second-Lien Credit Agreement may be amended to increase the “Applicable Margin” or similar component of the interest rate by up to 2.5% per annum (excluding increases resulting from the accrual of interest at the default rate as set forth in the Second-Lien Credit Agreement as in effect on the date hereof). Each of the Borrower, each other Grantor and the Second-Lien Agent agrees that each Second-Second Lien Collateral Security Document shall include the following language (or language to similar effect approved by the First-Lien Agenteffect): “Notwithstanding anything herein to the contrary, the lien and security interest granted to the Second-Second Lien Collateral Agent pursuant to this Agreement and the exercise of any right or remedy by the Second-Second Lien Collateral Agent hereunder are subject to the provisions of the Intercreditor Agreement, dated as of May 27[ ], 2011 2006 (as amended, restated, supplemented and/or or otherwise modified modified, replaced or refinanced from time to time in accordance with the terms thereoftime, the “Intercreditor Agreement”), initially among Gundle SLT/EnvironmentalCitibank, Inc.N.A., the as First Lien Collateral Agent, Citibank, N.A., as Second Lien Collateral Agent, and certain other Grantors persons party or that may become party thereto from time to time party thereto, General Electric Capital Corporation, in its capacity as First-Lien Agent thereunder, and Jefferies Finance LLC, in its capacity as Second-Lien Agent thereundertime. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control.” In addition, each the Second Lien Collateral Agent, on behalf of the BorrowerSecond Lien Secured Parties, each other Grantor and the Second-Lien Agent agree agrees that each Second-Second Lien Collateral Document Mortgage, if any, covering any Collateral constituting real property shall contain such other language as the First-Lien Agent may reasonably request appropriate to reflect the subordination of such Second-Second Lien Collateral Document Mortgage to the First-First Lien Collateral Security Document covering such Collateral.
(ce) In the event the First-First Lien Collateral Agent or the other First-any First Lien Secured Parties Party and the relevant Grantor(s) Loan Party enter into any amendment, waiver or consent in respect of any of the First-First Lien Collateral Security Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First-First Lien Collateral Security Document or changing in any manner the rights of the First-First Lien Collateral Agent, the other First-such First Lien Secured PartiesParty, the Borrower Borrowers or any other Grantor Loan Party thereunder, then such amendment, waiver or consent shall apply automatically to any comparable provision of the Second-Second Lien Credit Agreement and the Comparable Second-Second Lien Collateral Document Security Documents without the consent of the Second-Second Lien Collateral Agent or the other Second-Second Lien Secured Parties and without any action by the Second-Second Lien Collateral Agent, the Borrower Borrowers or any other GrantorLoan Party with such amendments, waivers and modifications subject to the terms hereof, provided, that (A) no such amendment, waiver or consent shall have the effect of (i) removing assets subject to the Lien of the Second-Second Lien Collateral Security Documents, except to the extent that a release of such Lien is permitted by Section 5.1 of this AgreementAgreement and provided that there is a corresponding release of the Lien securing the First Lien Obligations, (ii) imposing additional duties on the Second-Second Lien Collateral Agent without its consent, consent or (iii) permitting other liens Liens on the Collateral not permitted under the terms of the Second-Second Lien Loan Documents or Section 6 hereof and (B) notice hereof. Notice of such amendment, waiver or consent shall have been be given to the Second-Second Lien Collateral Agent within ten (although 10) Business Days after the failure to give any such notice shall in no way affect the effectiveness effective date of any such amendment, waiver or consent), but the failure to provide such notice shall not affect the validity of such amendment, waiver or consent.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Emdeon Inc.), First Lien Credit Agreement (Emdeon Inc.)
Amendments to First Lien Loan Documents and Second Lien Loan Documents. (a) The First-First Lien Loan Documents may be amended, restated, supplemented or otherwise modified in accordance with their terms and the First-First Lien Credit Agreement may be Refinanced, Refinanced in each case, without notice to, or the consent of, the Second-Lien Agent or the other Second-Lien Secured Parties, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that any such amendment, restatement, supplement, modification or Refinancing of the First-Lien Credit Agreement shall not, without the consent of the Second-Second Lien Agent:
Agent or the Second Lien Lenders; provided, that (i) the holders of any such Refinancing debt (or their agent on their behalf) shall bind themselves in writing to the terms of this Agreement and (ii) that any such amendment, supplement or modification (or definitive document pursuant to which the First Lien Credit Agreement is Refinanced) shall not (A) increase the “Applicable Margin” aggregate principal or face amount of First Lien Loans (or commitments therefore) in excess of the Maximum First Lien Indebtedness Amount, (B) increase the "applicable margin" or similar component of the interest rate or any scheduled recurring fee by more than 2.53.00% per annum (excluding increases resulting from the accrual of interest at the default rate set forth in effect as of the First-date hereof); (C) change (to earlier dates) any dates upon which payments of principal or interest are due; (D) directly prohibit or restrict the payment of principal of, interest on, or other amounts payable with respect to the Second Lien Obligations to a greater extent than the same is prohibited or restricted by the First Lien Credit Agreement as in effect on the date hereof); or
(iiE) provide for extend the aggregate outstanding principal amount final scheduled maturity date of the Indebtedness under First Lien Obligations to a date later than June 26, 2014, (F) increase the First-default rate above 2.00%, or (G) subordinate in right of payment any of the First Lien Credit Agreement to exceed Obligations, or subordinate the Cap Amount (excluding, however, as lien on any of the Collateral securing the First Lien Obligations other than in connection with a result of capitalization of interest and/or fees thereunder and excluding for the avoidance of doubt, amounts owing on account of Secured Rate Contracts)DIP Financing entered into in compliance with Section 6.1.
(b) Without the prior written consent of the First-Lien Agent (acting at the direction of the Required First-Lien Secured Parties), no Second-The Second Lien Loan Document Documents may be amended, restated, supplemented or otherwise modified or entered into to in accordance with their terms, and the extent such amendment, restatement, supplement or modification, or the terms of any new Second-Lien Loan Document would contravene the provisions of this Agreement, the First-Lien Credit Agreement or any other First-Lien Loan Document; provided, however, without notice to, or the consent of, the First-Lien Agent or the other First-Lien Secured Parties, the Second-Second Lien Credit Agreement may be amended to Refinanced, in each case, without the consent of the First Lien Agent or the First Lien Lenders, but only in accordance with the provisions of the First Lien Credit Agreement as in effect on the date hereof; provided that any such amendment, supplement or modification shall not (A) increase the “Applicable Margin” aggregate principal or similar component face amount of Second Lien Loans (or commitments therefore) in excess of the Maximum Second Lien Indebtedness Amount, (B) increase the interest rate by up to 2.5% per annum applicable thereto (excluding increases resulting from the accrual of interest at the default rate as set forth in the Second-Lien Credit Agreement as in effect on as of the date hereof). Each , (C) change (to earlier dates) any dates upon which payments of principal or interest are due thereon, (D) change any event of default or condition to an event of default with respect thereto (other than to eliminate any such event of default or increase any grace period related thereto) or add any event of default, (E) change any financial maintenance covenant therein in a manner that would not preserve, on equivalent economic terms, the absolute or percentage difference (whichever is greater) that exists on the date hereof between such numerical threshold or limitation in the First Lien Credit Agreement and the corresponding threshold or limitation in the Second Lien Credit Agreement or add any new financial maintenance covenant, (F) change the prepayment provisions of the BorrowerSecond Lien Credit Agreement or add any mandatory prepayments thereto, each (G) change the lien subordination provisions thereof (or of any guaranty thereof), (H) change or release any collateral therefor or subordinate the lien on any of the Collateral securing the Second Lien Obligations to any other Grantor and Indebtedness, or (I) make any other amendment thereof or change thereto, if the Second-effect of such amendment or change with all other amendments or changes made, is to increase materially the obligations of the obligors thereunder or to confer any additional rights on the lenders under the Second Lien Agent Credit Agreement (or a representative on their behalf) that would be adverse to the Loan Parties under the First Lien Credit Agreement or any First Lien Lender.
(c) The Second Lien Agent, on behalf of the Second Lien Secured Parties, agrees that each Second-Second Lien Collateral Security Document shall include the following language (or language to similar effect approved by the First-First Lien Agent): “"Notwithstanding anything herein to the contrary, the lien and security interest granted to the Second-Second Lien Agent pursuant to this Agreement and the exercise of any right or remedy by the Second-Second Lien Agent hereunder are subject to the provisions of the Intercreditor Agreement, dated as of May 27June 26, 2011 2007 (as amended, restated, supplemented and/or or otherwise modified from time to time in accordance with the terms thereoftime, the “Intercreditor Agreement”"INTERCREDITOR AGREEMENT"), among Gundle SLT/EnvironmentalIM US Holdings, LLC, Inverness Medical Innovations, Inc., the other Grantors from time to time party thereto, General Electric Capital Corporation, in its capacity as First-First Lien Agent, General Electric Capital Corporation, as Second Lien Agent thereunder, and Jefferies Finance LLC, in its capacity as Second-Lien Agent thereundercertain other persons party or that may become party thereto from time to time. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control.” " In addition, each the Second Lien Agent, on behalf of the BorrowerSecond Lien Secured Parties, each other Grantor and the Second-Lien Agent agree agrees that each Second-Second Lien Collateral Document Mortgage covering any Collateral constituting real property shall contain such other language as the First-First Lien Agent may reasonably request to reflect the subordination of such Second-Second Lien Collateral Document Mortgage to the First-First Lien Collateral Security Document covering such Collateral.
(cd) In Notwithstanding anything herein to the event contrary, the First-First Lien Agent or the other First-agrees that, and shall execute any definitive documentation to give effect thereto, (i) if any First Lien Secured Parties and the relevant Grantor(s) enter into Loan Document is amended to change any amendment, waiver or consent in respect of any of the First-Lien Collateral Documents for the purpose of adding toexisting financial covenants, or deleting from, any such section or waiving or consenting other provision of such First Lien Loan Document is amended to include any departures from any provisions of, any First-Lien Collateral Document or changing in any manner the rights of the First-Lien Agentadditional financial covenants, the other First-Second Lien Secured PartiesLenders may amend the Second Lien Loan Documents to reflect such changes, provided that with respect to existing financial covenants, the Borrower absolute or percentage difference (whichever is greater) that exists on the date hereof between any other Grantor thereunder, then such amendment, waiver numerical threshold or consent shall apply automatically to any comparable provision of limitation in the Second-First Lien Credit Agreement and the Comparable Second-corresponding threshold or limitation in the Second Lien Collateral Document without the consent Credit Agreement as of the Second-Lien Agent or the other Second-Lien Secured Parties and without date hereof shall be maintained and, with respect to any action by the Second-Lien Agentnew financial covenants, the Borrower Second Lien Credit Agreement will have thresholds or any other Grantor, provided, limitations that (A) no such amendment, waiver or consent shall have the effect of (i) removing assets subject are less restrictive to the Borrower than the thresholds or limitations in the First Lien Credit Agreement by approximately the amount by which such thresholds or limitations are set back in from those in the First Lien Credit Agreement as of the Second-Lien Collateral Documents, except to the extent that a release of such Lien is permitted by Section 5.1 of this Agreement, date hereof and (ii) imposing additional duties on if any provision of any First Lien Loan Document for which there exists a correlated provision in any Second Lien Loan Document is amended to add or change any covenant or event of default, the Second-Second Lien Agent without its consent, or (iii) permitting other liens on Lenders may amend the Collateral not permitted under the terms of the Second-Second Lien Loan Documents to reflect such addition of or Section 6 hereof and (B) notice change to a covenant or event of default in such amendment, waiver or consent shall have been given to the Second-Second Lien Agent (although the failure to give any such notice shall in no way affect the effectiveness of any such amendment, waiver or consent)Loan Document.
Appears in 2 contracts
Samples: First Lien Credit Agreement (Inverness Medical Innovations Inc), Second Lien Credit Agreement (Inverness Medical Innovations Inc)
Amendments to First Lien Loan Documents and Second Lien Loan Documents. (a) The First-Lien Loan Documents may be amended, restated, supplemented or otherwise modified in accordance with their terms and the First-Lien Credit Agreement may be Refinanced, in each case, without notice to, or the consent of, the Second-Lien Collateral Agent or the other Second-Lien Secured PartiesCreditors, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that any such amendment, restatement, supplement, modification or Refinancing of the First-Lien Credit Agreement shall not, without the consent of the Second-Lien Agent:
(i) Collateral Agent increase the “Applicable Margin” or similar component maximum aggregate principal of Loans and stated amount of Letters of Credit thereunder to an amount in excess of the interest rate by more than 2.5% per annum (excluding increases resulting from the accrual of interest at the default rate set forth in the First-Lien Credit Agreement as in effect on the date hereof); or
(ii) provide for the aggregate outstanding principal amount of the Indebtedness under the First-Lien Credit Agreement to exceed the Cap Amount (excluding, however, as a result of capitalization of interest and/or fees thereunder and excluding for the avoidance of doubt, amounts owing on account of Secured Rate Contracts)Amount.
(b) Without the prior written consent of the U.S. First-Lien Collateral Agent (acting at the direction of the Required First-Lien Secured PartiesCreditors), no Second-Lien Loan Document may be amended, restated, supplemented or otherwise modified or entered into to the extent such amendment, restatement, supplement or modification, or the terms of any new Second-Lien Loan Document Document, would contravene the provisions of this Agreement, the First-Lien Credit Agreement or any other First-Lien Loan Document; provided, however, without notice to, or the consent of, the First-Lien Agent or the other First-Lien Secured Parties, the Second-Lien Credit Agreement may be amended to increase the “Applicable Margin” or similar component of the interest rate by up to 2.5% per annum (excluding increases resulting from the accrual of interest at the default rate as set forth in the Second-Lien Credit Agreement as in effect on the date hereof). Each of Holdings, the Borrower, Parent Borrower and each other Grantor and the Second-Lien Agent Guarantor agrees that each Second-Lien Collateral Security Document shall include the following language (or language to similar effect approved by the U.S. First-Lien Collateral Agent): “Notwithstanding anything herein to the contrary, the lien and security interest granted to the Second-Lien Collateral Agent pursuant to this Agreement and the exercise of any right or remedy by the Second-Lien Collateral Agent hereunder are subject to the provisions of the Intercreditor Agreement, dated as of May November 27, 2011 2006 (as amended, restated, supplemented and/or or otherwise modified from time to time in accordance with the terms thereof, the “Intercreditor Agreement”), among Gundle SLT/EnvironmentalRSC Holdings II, Inc.LLC, the RSC Holdings III, LLC, Rental Service Corporation, each other Grantors Grantor party thereto from time to time party theretotime, General Electric Capital CorporationDeutsche Bank AG, in its capacity New York Branch (“DBNY”), as U.S. First-Lien Collateral Agent thereunderand DBNY, and Jefferies Finance LLC, in its capacity as Second-Lien Collateral Agent thereunderand certain other persons party or that may become party thereto from time to time. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control.” In addition, each of Holdings, the Borrower, Parent Borrower and each other Grantor and the Second-Lien Agent agree agrees that each Second-Lien Collateral Security Document covering any Collateral constituting real property shall contain such other language as the U.S. First-Lien Collateral Agent may reasonably request to reflect the subordination of such Second-Lien Collateral Security Document to the First-Lien Collateral Security Document covering such Collateral.
(c) In the event the U.S. First-Lien Collateral Agent or the other First-Lien Secured Parties Creditors and the relevant Grantor(s) enter into any amendment, waiver or consent in respect of any of the First-Lien Collateral Security Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First-Lien Collateral Security Document or changing in any manner the rights of the U.S. First-Lien Collateral Agent, the other First-Lien Secured PartiesCreditors, the Parent Borrower or any other Grantor thereunder, then such amendment, waiver or consent shall apply automatically to any comparable provision of the Second-Lien Credit Agreement and the Comparable Second-Lien Collateral Security Document without the consent of the Second-Lien Collateral Agent or the other Second-Lien Secured Parties Creditors and without any action by the Second-Lien Collateral Agent, the Parent Borrower or any other Grantor, provided, that (A) no such amendment, waiver or consent shall have the effect of (i) removing assets subject to the Lien of the Second-Lien Collateral Security Documents, except to the extent that a release of such Lien is permitted by Section 5.1 of this Agreement, (ii) imposing additional duties on the Second-Lien Collateral Agent without its consent, or (iii) permitting other liens on the Collateral not permitted under the terms of the Second-Lien Loan Documents or Section 6 hereof and (B) notice of such amendment, waiver or consent shall have been given to the Second-Lien Collateral Agent (although the failure to give any such notice shall in no way affect the effectiveness of any such amendment, waiver or consent).
Appears in 2 contracts
Samples: Credit Agreement (RSC Holdings Inc.), Second Lien Term Loan Credit Agreement (RSC Holdings Inc.)
Amendments to First Lien Loan Documents and Second Lien Loan Documents. (a) The First-First Lien Loan Documents of any Series may be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with their terms and the First-First Lien Credit Agreement Debt of any Series may be Refinanced, in each case, Refinanced subject to Section 8.7 without notice to, or the consent of, the Second-any Second Lien Representative, any Second Lien Collateral Agent or the any other Second-Second Lien Secured PartiesClaimholder, all without affecting the lien subordination or other provisions of this Agreement; provided, however, provided that any such amendment, restatement, supplement, modification or Refinancing is not inconsistent with the terms of the First-Lien Credit this Agreement shall notand, without the consent of the Second-Lien Agent:
(i) increase the “Applicable Margin” or similar component of the interest rate by more than 2.5% per annum (excluding increases resulting from the accrual of interest at the default rate set forth in the First-case of a Refinancing, the holders of such Refinancing debt (directly or through their agent) bind themselves in a writing addressed to each Second Lien Credit Agreement as in effect on Collateral Agent to the date hereof); or
(ii) provide for the aggregate outstanding principal amount terms of the Indebtedness under the First-Lien Credit Agreement to exceed the Cap Amount (excluding, however, as a result of capitalization of interest and/or fees thereunder and excluding for the avoidance of doubt, amounts owing on account of Secured Rate Contracts).this Agreement;
(b) Without the prior written consent of the First-Lien Agent (acting at the direction of the Required First-Lien Secured Parties), no Second-The Second Lien Loan Document Documents may be amended, restated, amended and restated, supplemented or otherwise modified or entered into from time to time in accordance with their terms and the extent such amendment, restatement, supplement or modification, or the terms Second Lien Debt of any new Second-Lien Loan Document would contravene the provisions of this Agreement, the First-Lien Credit Agreement or any other First-Lien Loan Document; provided, however, Series may be Refinanced subject to Section 8.7 without notice to, or the consent of, the First-any First Lien Representative, any First Lien Collateral Agent or any other First Lien Claimholder, all without affecting the lien subordination or other First-Lien Secured Partiesprovisions of this Agreement, to the Second-Lien Credit Agreement may be amended to increase extent the “Applicable Margin” terms and conditions of such amendment, restatement, supplement, modification or similar component of the interest rate by up to 2.5% per annum (excluding increases resulting from the accrual of interest at the default rate as Refinancing meet any applicable requirements set forth in the Second-First Lien Credit Agreement as in effect on the date hereof). Each of the Borrower, each other Grantor and the Second-Lien Agent agrees that each Second-Lien Collateral Document shall include the following language (or language to similar effect approved by the First-Lien Agent): “Notwithstanding anything herein to the contrary, the lien and security interest granted to the Second-Lien Agent pursuant to this Agreement and the exercise of any right or remedy by the Second-Lien Agent hereunder are subject to the provisions of the Intercreditor Agreement, dated as of May 27, 2011 (as amended, restated, supplemented and/or otherwise modified from time to time in accordance with the terms thereof, the “Intercreditor Agreement”), among Gundle SLT/Environmental, Inc., the other Grantors from time to time party thereto, General Electric Capital Corporation, in its capacity as First-Lien Agent thereunder, and Jefferies Finance LLC, in its capacity as Second-Lien Agent thereunder. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control.” In addition, each of the Borrower, each other Grantor and the Second-Lien Agent agree that each Second-Lien Collateral Document covering any Collateral constituting real property shall contain such other language as the First-Lien Agent may reasonably request to reflect the subordination of such Second-Lien Collateral Document to the First-Lien Collateral Document covering such Collateral.Loan Documents;
(c) In the event the First-any First Lien Collateral Agent or the other First-applicable First Lien Secured Parties Claimholders and the relevant Grantor(s) Grantor enter into any amendment, waiver or consent in respect of any of the First-First Lien Collateral Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First-First Lien Collateral Document or changing in any manner the rights of the First-applicable First Lien Collateral Agent, the other First-such First Lien Secured PartiesClaimholders, the Borrower Company or any other Grantor thereunder, then such amendment, waiver or consent shall apply automatically to any comparable provision of the Second-Lien Credit Agreement and the Comparable Second-a Second Lien Collateral Document without the consent of the Second-any Second Lien Representative, Second Lien Collateral Agent or the other Second-Second Lien Secured Parties Claimholder and without any action by the Second-any Second Lien Representative, any Second Lien Collateral Agent, any other Second Lien Claimholder, the Borrower Company or any other Grantor, provided, that (A) no such amendment, waiver or consent shall have the effect of (i) removing assets subject to the Lien of the Second-Lien Collateral Documents, except to the extent that a release of such Lien is permitted by Section 5.1 of this Agreement, (ii) imposing additional duties on the Second-Lien Agent without its consent, or (iii) permitting other liens on the Collateral not permitted under the terms of the Second-Lien Loan Documents or Section 6 hereof and (B) notice of such amendment, waiver or consent shall have been given to the Second-Lien Agent (although the failure to give any such notice shall in no way affect the effectiveness of any such amendment, waiver or consent).provided that:
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Amendments to First Lien Loan Documents and Second Lien Loan Documents. (a) The First-First Lien Loan Documents of any Series may be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with their terms and the First-First Lien Credit Agreement Debt of any Series may be Refinanced, in each case, Refinanced subject to Section 8.7 without notice to, or the consent of, the Second-any Second Lien Representative, any Second Lien Collateral Agent or the any other Second-Second Lien Secured PartiesClaimholder, all without affecting the lien subordination or other provisions of this Agreement; provided, however, provided that any such amendment, restatement, supplement, supplement or modification or Refinancing is not inconsistent with the terms of the First-Lien Credit this Agreement shall notand, without the consent of the Second-Lien Agent:
(i) increase the “Applicable Margin” or similar component of the interest rate by more than 2.5% per annum (excluding increases resulting from the accrual of interest at the default rate set forth in the First-case of a Refinancing, the holders of such Refinancing debt (directly or through their agent) bind themselves in a writing addressed to each Second Lien Credit Agreement as in effect on Collateral Agent to the date hereof); or
(ii) provide for the aggregate outstanding principal amount terms of the Indebtedness under the First-Lien Credit Agreement to exceed the Cap Amount (excluding, however, as a result of capitalization of interest and/or fees thereunder and excluding for the avoidance of doubt, amounts owing on account of Secured Rate Contracts)this Agreement.
(b) Without the prior written consent of the First-Lien Agent (acting at the direction of the Required First-Lien Secured Parties), no Second-The Second Lien Loan Document Documents may be amended, restated, amended and restated, supplemented or otherwise modified or entered into from time to time in accordance with their terms and the extent such amendment, restatement, supplement or modification, or the terms Second Lien Debt of any new Second-Lien Loan Document would contravene the provisions of this Agreement, the First-Lien Credit Agreement or any other First-Lien Loan Document; provided, however, Series may be Refinanced subject to Section 8.7 without notice to, or the consent of, the First-any First Lien Representative, any First Lien Collateral Agent or any other First Lien Claimholder, all without affecting the lien subordination or other First-Lien Secured Partiesprovisions of this Agreement, to the Second-Lien Credit Agreement may be amended to increase extent the “Applicable Margin” or similar component terms and conditions of the interest rate by up to 2.5% per annum (excluding increases resulting from the accrual of interest at the default rate as such amendment, restatement, supplement, modification meet any applicable requirements set forth in the Second-First Lien Credit Agreement as in effect on the date hereof). Each of the BorrowerLoan Documents; provided that any such amendment, each other Grantor and the Second-Lien Agent agrees that each Second-Lien Collateral Document shall include the following language (supplement or language to similar effect approved by the First-Lien Agent): “Notwithstanding anything herein to the contrary, the lien and security interest granted to the Second-Lien Agent pursuant to this Agreement and the exercise of any right modification or remedy by the Second-Lien Agent hereunder are subject to the provisions of the Intercreditor Agreement, dated as of May 27, 2011 (as amended, restated, supplemented and/or otherwise modified from time to time in accordance Refinancing is not inconsistent with the terms thereofof this Agreement and, in the case of any Refinancing, the “Intercreditor Agreement”), among Gundle SLT/Environmental, Inc., the other Grantors from time holders of such Refinancing debt (directly or through their agent) bind themselves in a writing addressed to time party thereto, General Electric Capital Corporation, in its capacity as First-each First Lien Collateral Agent thereunder, and Jefferies Finance LLC, in its capacity as Second-Lien Agent thereunder. In the event of any conflict between to the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control.” In addition, each of the Borrower, each other Grantor and the Second-Lien Agent agree that each Second-Lien Collateral Document covering any Collateral constituting real property shall contain such other language as the First-Lien Agent may reasonably request to reflect the subordination of such Second-Lien Collateral Document to the First-Lien Collateral Document covering such Collateral.
(c) In the event the First-any First Lien Collateral Agent or the other First-applicable First Lien Secured Parties Claimholders and the relevant Grantor(s) Grantor enter into any amendment, waiver or consent in respect of any of the First-First Lien Collateral Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First-First Lien Collateral Document or changing in any manner the rights of the First-applicable First Lien Collateral Agent, the other First-such First Lien Secured PartiesClaimholders, the Borrower Company or any other Grantor thereunder, then such amendment, waiver or consent shall apply automatically to any comparable provision of the Second-Lien Credit Agreement and the Comparable Second-a Second Lien Collateral Document without the consent of the Second-any Second Lien Representative, Second Lien Collateral Agent or the other Second-Second Lien Secured Parties Claimholder and without any action by the Second-any Second Lien Representative, any Second Lien Collateral Agent, any other Second Lien Claimholder, the Borrower Company or any other Grantor, provided, that provided that:
(A1) no such amendment, waiver or consent shall have the effect of of:
(iA) removing assets subject to the Lien of the Second-Second Lien Collateral Documents, except to the extent that a release of such Lien is permitted or required by Section 5.1 and provided that there is a corresponding release of this Agreement, the Liens securing the First Lien Obligations;
(iiB) imposing additional duties on the Second-any Second Lien Collateral Agent or any Second Lien Representative without its consent, or ; and
(iii) permitting other liens on the Collateral not permitted under the terms of the Second-Lien Loan Documents or Section 6 hereof and (B2) notice of such amendment, waiver or consent shall have been given to each Second Lien Collateral Agent within ten Business Days after the Second-Lien Agent (although the failure to give any such notice shall in no way affect the effectiveness effective date of any such amendment, waiver or consent); provided that the failure to give such notice shall not affect the effectiveness and validity thereof.
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Samples: Second Lien Intercreditor Agreement (Engility Holdings, Inc.)
Amendments to First Lien Loan Documents and Second Lien Loan Documents. (a) The First-First Lien Loan Documents may be amended, restated, supplemented or otherwise modified in accordance with their terms and the First-First Lien Credit Agreement may be Refinanced, in each case, without notice to, or the consent of, of the Second-Second Lien Administrative Agent or the other Second-Second Lien Secured PartiesClaimholders, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that the holders of such Refinancing debt bind themselves in a writing addressed to the Second Lien Administrative Agent and the Second Lien Claimholders to the terms of this Agreement and any such amendment, restatement, supplement, modification or Refinancing of the First-Lien Credit Agreement shall not, without the consent of the Second-Second Lien Administrative Agent:
(i1) increase the sum of the aggregate principal amount of the First Lien Obligations in excess of the Cap Amount;
(2) increase the “Applicable Margin” or similar component of the interest rate by more than 2.5% per annum or yield provisions applicable to the First Lien Obligations (excluding increases (A) resulting from application of the pricing grid set forth in the First Lien Credit Agreement as in effect on the date hereof or (B) resulting from the accrual of interest at the default rate set forth in rate) by more than 200 basis points;
(3) extend the First-scheduled maturity of the First Lien Credit Agreement as in effect on or any Refinancing thereof beyond the date hereof)scheduled maturity of the Second Lien Credit Agreement or any Refinancing thereof; or
(ii4) provide for modify (or have the aggregate outstanding principal amount effect of a modification of) the mandatory prepayment provisions of the Indebtedness under the First-First Lien Credit Agreement in a manner adverse to exceed the Cap Amount (excluding, however, as a result of capitalization of interest and/or fees thereunder and excluding for lenders under the avoidance of doubt, amounts owing on account of Secured Rate Contracts)Second Lien Credit Agreement.
(b) Without the prior written consent of the First-First Lien Agent (acting at the direction of the Required First-Lien Secured Parties)Administrative Agent, no Second-Second Lien Loan Document may be Refinanced, amended, restated, supplemented or otherwise modified or entered into to the extent such Refinancing, amendment, restatement, supplement or modification, or the terms of any new Second-Lien Loan Document would contravene the provisions of this Agreement, the First-Lien Credit Agreement or any other First-Second Lien Loan Document; provided, however, without notice to, or the consent of, the First-Lien Agent or the other First-Lien Secured Parties, the Second-Lien Credit Agreement may be amended to would:
(1) increase the “Applicable Margin” or similar component of the interest rate by up to 2.5% per annum (excluding increases resulting from the accrual of interest at the default rate as set forth rate);
(2) change any default or Event of Default thereunder in a manner adverse to the Second-loan parties thereunder;
(3) change (to earlier dates) any dates upon which payments of principal or interest are due thereon;
(4) change the prepayment provisions thereof; or
(5) increase materially the obligations of the obligor thereunder or to confer any additional material rights of the Second Lien Lenders (or a representative on their behalf) which would be adverse to any loan parties, any First Lien Lenders, the First Lien Administrative Agent or the holders of any other First Lien Obligations. The Second Lien Credit Agreement as in effect on may be Refinanced to the date hereofextent the terms and conditions of such Refinancing debt meet the requirements of this Section 5.3(b). Each , the average life to maturity thereof is greater than or equal to that of the Borrower, each other Grantor Second Lien Credit Agreement and the Second-holders of such Refinancing debt bind themselves in a writing addressed to the First Lien Administrative Agent and the First Lien Claimholders to the terms of this Agreement.
(c) The Company agrees that each Second-Second Lien Collateral Document shall include the following language (or language to similar effect approved by the First-First Lien Administrative Agent): “Notwithstanding anything herein to the contrary, the lien and security interest granted to the Second-Second Lien Administrative Agent pursuant to this Agreement and the exercise of any right or remedy by the Second-Second Lien Administrative Agent hereunder are subject to the provisions of the Intercreditor Agreement, dated as of May September 27, 2011 2007 (as amended, restated, supplemented and/or or otherwise modified from time to time in accordance with the terms thereoftime, the “Intercreditor Agreement”), among Gundle SLT/EnvironmentalXxxxxxxx Air-Xxxxx Incorporated, Inc.KeyBank National Association, the as First Lien Administrative Agent and X.X. Xxxxx Special Opportunities Fund, L.P., as Second Lien Administrative Agent and certain other Grantors persons party or that may become party thereto from time to time party thereto, General Electric Capital Corporation, in its capacity as First-Lien Agent thereunder, and Jefferies Finance LLC, in its capacity as Second-Lien Agent thereundertime. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control.” In addition, each of the Borrower, each other Grantor and the Second-Lien Agent agree Company agrees that each Second-Second Lien Collateral Document Mortgage covering any Collateral constituting real property shall contain such other language as the First-First Lien Administrative Agent may reasonably request to reflect the subordination of such Second-Second Lien Collateral Document Mortgage to the First-First Lien Collateral Document covering such Collateral.
(cd) In the event the First-any First Lien Administrative Agent or the other First-First Lien Secured Parties Claimholders and the relevant Grantor(s) Grantor enter into any amendment, waiver or consent in respect of any of the First-First Lien Collateral Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First-First Lien Collateral Document or changing in any manner the rights of the First-First Lien Administrative Agent, the other First-such First Lien Secured PartiesClaimholders, the Borrower Company or any other Grantor thereunder, then such amendment, waiver or consent shall apply automatically to any comparable provision of the Second-Lien Credit Agreement and the Comparable Second-Second Lien Collateral Document without the consent of the Second-Second Lien Administrative Agent or the other Second-Second Lien Secured Parties Claimholders and without any action by the Second-Second Lien Administrative Agent, the Borrower Company or any other Grantor, provided, that provided that:
(A1) no such amendment, waiver or consent shall have the effect of of:
(iA) removing assets subject to the Lien of the Second-Second Lien Collateral Documents, except to the extent that a release of such Lien is permitted or required by Section 5.1 and provided that there is a corresponding release of this Agreement, the Liens securing the First Lien Obligations;
(iiB) imposing additional duties on the Second-Second Lien Administrative Agent without its consent, or ;
(iiiC) permitting other liens Liens on the Collateral not permitted under the terms of the Second-Second Lien Loan Documents or Section 6 hereof and 6; or
(BD) being prejudicial to the interests of the Second Lien Claimholders to a greater extent than the First Lien Claimholders; and
(2) notice of such amendment, waiver or consent shall have been given to the Second-Second Lien Administrative Agent (although within ten Business Days after the failure to give any such notice shall in no way affect the effectiveness effective date of any such amendment, waiver or consent).
Appears in 1 contract
Amendments to First Lien Loan Documents and Second Lien Loan Documents. (a) The First-First Lien Loan Documents may be amended, restated, supplemented or otherwise modified in accordance with their terms and the First-First Lien Credit Agreement may be Refinanced, in each case, without notice to, or the consent of, of the Second-Second Lien Collateral Agent or the other Second-Second Lien Secured PartiesClaimholders, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that the holders of such Refinancing debt (acting directly or by an administrative agent, collateral agent or authorized representative) bind themselves in a writing addressed to the Second Lien Collateral Agent and the Second Lien Claimholders to the terms of this Agreement and any such amendment, restatement, supplement, modification or Refinancing of the First-Lien Credit Agreement shall not, without the consent of the Second-Second Lien Collateral Agent:
(i) increase the “sum of (without duplication) (A) the then outstanding aggregate principal amount of the First Lien Credit Agreement and (B) the aggregate amount of revolving commitment under the First Lien Credit Agreement and (C) the aggregate face amount of any letters of credit issued under the First Lien Credit Agreement and not reimbursed in excess of the Cap Amount;
(ii) increase the "Applicable Margin” " or similar component of the interest rate or yield provisions applicable to the First Lien Obligations by more than 2.52.00% per annum (excluding increases (A) resulting from application of the pricing grid set forth in the First Lien Credit Agreement as in effect on the date hereof or (B) resulting from the accrual of interest at the default rate set forth in rate);
(iii) extend the First-scheduled maturity of the First Lien Credit Agreement as in effect on or any Refinancing thereof beyond the date hereof)scheduled maturity of the Second Lien Credit Agreement or any Refinancing thereof; or
(iiiv) provide for contravene the aggregate outstanding principal amount express provisions of the Indebtedness under the First-Lien Credit Agreement to exceed the Cap Amount (excluding, however, as a result of capitalization of interest and/or fees thereunder and excluding for the avoidance of doubt, amounts owing on account of Secured Rate Contracts)this Agreement.
(b) Without the prior written consent of the First-First Lien Agent (acting at the direction of the Required First-Lien Secured Parties)Collateral Agent, no Second-Second Lien Loan Document may be Refinanced, amended, restated, supplemented or otherwise modified or entered into to the extent such Refinancing, amendment, restatement, supplement or modification, or the terms of any new Second-Second Lien Loan Document would contravene Document, would:
(i) increase the provisions principal amount of this Agreement, the First-Second Lien Credit Agreement or any other First-Lien Loan Document; provided, however, without notice to, or the consent of, the First-Lien Agent or the other First-Lien Secured Parties, the Second-Lien Credit Agreement may be amended to increase the “Applicable Margin” or similar component in excess of the interest rate by up to 2.5% per annum (excluding increases resulting from the accrual of interest at the default rate as set forth in the Second-Lien Credit Agreement as in effect on the date hereof). Each of the Borrower, each other Grantor and the Second-Lien Agent agrees that each Second-Lien Collateral Document shall include the following language (or language to similar effect approved by the First-Lien Agent): “Notwithstanding anything herein to the contrary, the lien and security interest granted to the Second-Lien Agent pursuant to this Agreement and the exercise of any right or remedy by the Second-Lien Agent hereunder are subject to the provisions of the Intercreditor Agreement, dated as of May 27, 2011 (as amended, restated, supplemented and/or otherwise modified from time to time in accordance with the terms thereof, the “Intercreditor Agreement”), among Gundle SLT/Environmental, Inc., the other Grantors from time to time party thereto, General Electric Capital Corporation, in its capacity as First-Lien Agent thereunder, and Jefferies Finance LLC, in its capacity as Second-Lien Agent thereunder. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control.” In addition, each of the Borrower, each other Grantor and the Second-Lien Agent agree that each Second-Lien Collateral Document covering any Collateral constituting real property shall contain such other language as the First-Lien Agent may reasonably request to reflect the subordination of such Second-Lien Collateral Document to the First-Lien Collateral Document covering such Collateral.
(c) In the event the First-Lien Agent or the other First-Lien Secured Parties and the relevant Grantor(s) enter into any amendment, waiver or consent in respect of any of the First-Lien Collateral Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First-Lien Collateral Document or changing in any manner the rights of the First-Lien Agent, the other First-Lien Secured Parties, the Borrower or any other Grantor thereunder, then such amendment, waiver or consent shall apply automatically to any comparable provision of the Second-Lien Credit Agreement and the Comparable Second-Lien Collateral Document without the consent of the Second-Lien Agent or the other Second-Lien Secured Parties and without any action by the Second-Lien Agent, the Borrower or any other Grantor, provided, that (A) no such amendment, waiver or consent shall have the effect of (i) removing assets subject to the Lien of the Second-Lien Collateral Documents, except to the extent that a release of such Lien is permitted by Section 5.1 of this Agreement, (ii) imposing additional duties on the Second-Lien Agent without its consent, or (iii) permitting other liens on the Collateral not amount permitted under the terms of the Second-First Lien Loan Documents or Section 6 hereof and (B) notice of such amendment, waiver or consent shall have been given to the Second-Lien Agent (although the failure to give any such notice shall in no way affect the effectiveness of any such amendment, waiver or consent).Credit Agreement;
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Amendments to First Lien Loan Documents and Second Lien Loan Documents. (a) The First-First Lien Loan Documents may be amended, restated, supplemented or otherwise modified in accordance with their terms and the First-First Lien Credit Agreement may be Refinanced, in each case, without notice to, or the consent of, of the Second-Second Lien Collateral Agent or the other Second-Second Lien Secured Parties, all without affecting the lien subordination or other provisions of this AgreementLenders; provided, however, that (A) any such amendment, restatement, supplement, modification or Refinancing of the First-Lien Credit Agreement shall not, without the consent of the Second-Lien Agent:
not (i) increase the outstanding aggregate principal amount of Indebtedness under the new First Lien Loan Documents to an amount in excess of $150,000,000 the “Maximum Priority Lien Amount”) or (ii) increase the “Applicable Margin” or similar component of the interest rate thereunder, in a manner which would increase the total yield thereon by more than 2.54.0% per annum (excluding increases resulting from the accrual of interest at the default rate set forth rate), and (B) the holders of such Refinancing debt (or an agent on their behalf) bind themselves in writing to the First-Lien Credit Agreement as in effect on the date hereof); or
(ii) provide for the aggregate outstanding principal amount terms of the Indebtedness under the First-Lien Credit Agreement to exceed the Cap Amount (excluding, however, as a result of capitalization of interest and/or fees thereunder and excluding for the avoidance of doubt, amounts owing on account of Secured Rate Contracts)this Agreement.
(b) Without the prior written consent of the First-First Lien Agent (acting at the direction of the Required First-Lien Secured Parties)Collateral Agent, no Second-Second Lien Loan Document may be amended, restated, supplemented or otherwise modified or entered into to the extent such amendment, restatement, supplement or modification, or the terms of any new Second-Second Lien Loan Document Document, would (i) contravene the provisions of this Agreement, the First-Lien Credit Agreement or any other First-Lien Loan Document; provided, however, without notice to, or the consent of, the First-Lien Agent or the other First-Lien Secured Parties, the Second-Lien Credit Agreement may be amended to (ii) increase the “Applicable Margin” or similar component of the interest rate thereunder, in a manner which would increase the total yield thereon by up to 2.5more than 1.0% per annum (excluding increases resulting from the accrual of interest at the default rate as set forth rate); (iii) change (to earlier dates) any dates upon which payments of principal or interest are due thereon; (iv) change any default or Event of Default thereunder in a manner adverse to the Second-loan parties thereunder; (v) change the redemption, prepayment or repayment provisions thereof in a manner adverse to the loan parties thereunder; (vi) change any collateral therefor (other than to release such collateral), or (vii) increase the obligations of the loan parties thereunder or confer any additional rights on the Second Lien Lenders which would be adverse to the loan parties or the lenders under the First Lien Credit Agreement as in effect on or the date hereof)other First Lien Obligations. Each As an intercreditor agreement only and without prejudice to any rights of the BorrowerFirst Lien Lenders under the First Lien Credit Agreement, each the Second Lien Credit Agreement may be Refinanced to the extent the terms and conditions of the Refinancing debt are no less favorable in the aggregate to the loan parties and to the lenders under the First Lien Facility or the other Grantor First Lien Obligations than the Second Lien Loan Documents, the average life to maturity thereof is greater than or equal to that of the Second Lien Credit Agreement and all other terms and provisions of such Refinancing debt are reasonably acceptable to the First Lien Collateral Agent and the Second-Lien Agent holders of such Refinancing debt (or an agent on their behalf) bind themselves in writing to the terms of this Agreement.
(c) The Borrower agrees that each Second-Second Lien Collateral Document shall include the following language (or language to similar effect approved by the First-First Lien Collateral Agent): “Notwithstanding anything herein to the contrary, the lien and security interest granted to the Second-Second Lien Collateral Agent pursuant to this Agreement and the exercise of any right or remedy by the Second-Second Lien Collateral Agent and the other Second Lien Secured Parties hereunder are subject to the provisions of the Intercreditor Agreement, Agreement dated as of May 27March 29, 2011 2004 (as amended, restated, supplemented and/or or otherwise modified from time to time in accordance with the terms thereoftime, the “Intercreditor Agreement”), among Gundle SLT/Environmental, Inc.the Borrower, the other Grantors subsidiaries of the Borrower from time to time party thereto, General Electric Capital CorporationCredit Suisse First Boston (“CSFB”), in its capacity as First-First Lien Agent thereunderCollateral Agent, and Jefferies Finance LLCCSFB, in its capacity as Second-Second Lien Agent thereunderCollateral Agent. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control.” In addition, each of the Borrower, each other Grantor and the Second-Lien Agent agree Borrower agrees that each Second-Second Lien Collateral Document Mortgage covering any Collateral constituting real property shall contain such other language as the First-First Lien Collateral Agent may reasonably request to reflect the subordination of such Second-Second Lien Collateral Document Mortgage to the First-First Lien Collateral Document covering such Collateral.
(cd) In the event the First-First Lien Collateral Agent or the other First-First Lien Secured Parties and the relevant Grantor(s) Grantor enter into any amendment, waiver or consent in respect of any of the First-First Lien Collateral Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First-First Lien Collateral Document or changing in any manner the rights of the First-First Lien Collateral Agent, the other First-such First Lien Secured Parties, the Borrower or any other Grantor thereunder, then such amendment, waiver or consent shall apply automatically to the comparable provisions set forth therein that relate to the Second Lien Collateral Agent or the other Second Lien Secured Parties (or, if applicable, to any comparable provision of the Second-Lien Credit Agreement and the applicable Comparable Second-Second Lien Collateral Document Document), in each case without the consent of the Second-Second Lien Collateral Agent or the other Second-Second Lien Secured Parties and without any action by the Second-Second Lien Collateral Agent, the Borrower or any other Grantor, provided, that (A) no such amendment, waiver or consent shall have the effect of (i) removing assets subject to a Lien created under the Lien of the Second-Second Lien Collateral Documents, except to the extent that a release of such Lien is permitted or required by Section 5.1 5.01 and provided that there is a corresponding release of this Agreementsuch Lien securing the First Lien Obligations, (ii) imposing additional duties on altering the Second-duties, obligations or indemnification or exculpation of the Second Lien Collateral Agent without its consent, consent or (iii) permitting other liens Liens on the Collateral not permitted under the terms of the Second-Second Lien Loan Documents or Section 6 hereof Article VI and (B) notice of such amendment, waiver or consent shall have been given to the Second-Second Lien Collateral Agent (although within 10 Business Days after the failure to give any such notice shall in no way affect the effectiveness effective date of any such amendment, waiver or consent).
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Amendments to First Lien Loan Documents and Second Lien Loan Documents. (a) The First-Lien Loan Documents may be amended, restated, supplemented or otherwise modified in accordance with their terms and the First-Lien Credit Agreement may be Refinanced, in each case, without notice to, or the consent of, the Second-Lien Collateral Agent or the other Second-Lien Secured PartiesCreditors, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that any such amendment, restatement, supplement, modification or Refinancing of the First-Lien Credit Agreement shall not, without the consent of the Second-Lien Agent:
(i) Collateral Agent increase the “Applicable Margin” or similar component maximum aggregate principal of Loans and stated amount of Letters of Credit thereunder to an amount in excess of the interest rate by more than 2.5% per annum (excluding increases resulting from the accrual of interest at the default rate set forth in the First-Lien Credit Agreement as in effect on the date hereof); or
(ii) provide for the aggregate outstanding principal amount of the Indebtedness under the First-Lien Credit Agreement to exceed the Cap Amount (excluding, however, as a result of capitalization of interest and/or fees thereunder and excluding for the avoidance of doubt, amounts owing on account of Secured Rate Contracts)Amount.
(b) Without the prior written consent of the U.S. First-Lien Collateral Agent (acting at the direction of the Required First-Lien Secured PartiesCreditors), no Second-Lien Loan Document may be amended, restated, supplemented or otherwise modified or entered into to the extent such amendment, restatement, supplement or modification, or the terms of any new Second-Lien Loan Document Document, would contravene the provisions of this Agreement, the First-Lien Credit Agreement or any other First-Lien Loan Document; provided, however, without notice to, or the consent of, the First-Lien Agent or the other First-Lien Secured Parties, the Second-Lien Credit Agreement may be amended to increase the “Applicable Margin” or similar component of the interest rate by up to 2.5% per annum (excluding increases resulting from the accrual of interest at the default rate as set forth in the Second-Lien Credit Agreement as in effect on the date hereof). Each of Holdings, the Borrower, Parent Borrower and each other Grantor and the Second-Lien Agent Guarantor agrees that each Second-Lien Collateral Security Document shall include the following language (or language to similar effect approved by the U.S. First-Lien Collateral Agent): “"Notwithstanding anything herein to the contrary, the lien and security interest granted to the Second-Lien Collateral Agent pursuant to this Agreement and the exercise of any right or remedy by the Second-Lien Collateral Agent hereunder are subject to the provisions of the Intercreditor Agreement, dated as of May November 27, 2011 2006 (as amended, restated, supplemented and/or or otherwise modified from time to time in accordance with the terms thereof, the “"Intercreditor Agreement”"), among Gundle SLT/EnvironmentalRSC Holdings II, Inc.LLC, the RSC Holdings III, LLC, Rental Service Corporation, each other Grantors Grantor party thereto from time to time party theretotime, General Electric Capital CorporationDeutsche Bank AG, in its capacity New York Branch ("DBNY"), as U.S. First-Lien Collateral Agent thereunderand DBNY, and Jefferies Finance LLC, in its capacity as Second-Lien Collateral Agent thereunderand certain other persons party or that may become party thereto from time to time. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control.” " In addition, each of Holdings, the Borrower, Parent Borrower and each other Grantor and the Second-Lien Agent agree agrees that each Second-Lien Collateral Security Document covering any Collateral constituting real property shall contain such other language as the U.S. First-Lien Collateral Agent may reasonably request to reflect the subordination of such Second-Lien Collateral Security Document to the First-Lien Collateral Security Document covering such Collateral.
(c) In the event the U.S. First-Lien Collateral Agent or the other First-Lien Secured Parties Creditors and the relevant Grantor(s) enter into any amendment, waiver or consent in respect of any of the First-Lien Collateral Security Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First-Lien Collateral Security Document or changing in any manner the rights of the U.S. First-Lien Collateral Agent, the other First-Lien Secured PartiesCreditors, the Parent Borrower or any other Grantor thereunder, then such amendment, waiver or consent shall apply automatically to any comparable provision of the Second-Lien Credit Agreement and the Comparable Second-Lien Collateral Document without the consent of the Second-Lien Agent or the other Second-Lien Secured Parties and without any action by the Second-Lien Agent, the Borrower or any other Grantor, provided, that (A) no such amendment, waiver or consent shall have the effect of (i) removing assets subject to the Lien of the Second-Lien Collateral Documents, except to the extent that a release of such Lien is permitted by Section 5.1 of this Agreement, (ii) imposing additional duties on the Second-Lien Agent without its consent, or (iii) permitting other liens on the Collateral not permitted under the terms of the Second-Lien Loan Documents or Section 6 hereof and (B) notice of such amendment, waiver or consent shall have been given to the Second-Lien Agent (although the failure to give any such notice shall in no way affect the effectiveness of any such amendment, waiver or consent).the
Appears in 1 contract
Amendments to First Lien Loan Documents and Second Lien Loan Documents. (a) The First-First Lien Loan Documents may be amended, restated, supplemented or otherwise modified in accordance with their terms and the First-First Lien Credit Agreement may be Refinanced, in each case, without notice to, or the consent of, of the Second-Second Lien Collateral Agent or the other Second-Second Lien Secured PartiesClaimholders, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that without the prior written consent of the Second Lien Collateral Agent, no amendment, waiver or other modification of the terms of the First Lien Loan Documents shall increase the then-outstanding principal amount of the loans under the First Lien Loan Documents so that such amount is greater than $100,000,000.00 plus, in the case of a refinancing of the First Lien Credit Agreement, capitalized unpaid interest and fees not in excess of $10,000,000, and provided further, however, that the holders of such Refinancing debt bind themselves or an agent acting on their behalf binds them in a writing addressed to the Second Lien Collateral Agent and the Second Lien Claimholders to the terms of this Agreement and any such amendment, restatement, supplement, modification or Refinancing of the First-Lien Credit Agreement shall not, without the consent of the Second-Second Lien Collateral Agent:
(i) increase , contravene the “Applicable Margin” or similar component provisions of the interest rate by more than 2.5% per annum (excluding increases resulting from the accrual of interest at the default rate set forth in the First-Lien Credit Agreement as in effect on the date hereof); or
(ii) provide for the aggregate outstanding principal amount of the Indebtedness under the First-Lien Credit Agreement to exceed the Cap Amount (excluding, however, as a result of capitalization of interest and/or fees thereunder and excluding for the avoidance of doubt, amounts owing on account of Secured Rate Contracts)this Agreement.
(b) Without the prior written consent of the First-First Lien Agent (acting at the direction of the Required First-Lien Secured Parties)Claimholders, no Second-Second Lien Loan Note Document may be amended, restated, supplemented or otherwise modified or entered into to the extent such amendment, restatement, supplement or modification, or the terms of any new Second-Second Lien Loan Document Note Document, would (i) increase the principal amount of the Senior Secured Notes in excess of the amount permitted under the First Lien Credit Agreement; (ii) increase the interest rate or yield provisions applicable to the Second Lien Obligations; (iii) change any default or Event of Default hereunder in a manner adverse to the loan parties thereunder (other than to eliminate any such Event of Default or increase any grace period related thereto or otherwise make such Event of Default or condition less restrictive or burdensome on the Grantors; (iv) change (to earlier dates) any dates upon which payments of principal or interest are due thereon; (v) change the mandatory prepayment provisions thereof (other than to waive or reduce any payment otherwise required thereunder); or (vi) contravene the provision of this Agreement. Subject to the provisions of this Agreementsubsection (b), the First-Senior Secured Note Indenture may be Refinanced to the extent the terms and conditions of such Refinancing debt are no less favorable in the aggregate to the Grantors or to the First Lien Credit Agreement or any other First-Lien Loan Document; provided, however, without notice to, or the consent of, the First-Lien Agent Lenders or the other First-First Lien Secured PartiesObligations than the terms and conditions of the Second Lien Note Documents (as determined in the reasonable opinion of the First Lien Collateral Agent), the Second-Lien Credit Agreement may be amended to increase the “Applicable Margin” or similar component outstanding aggregate principal amount of the interest rate by up Second Lien Obligations are not increased to 2.5% per annum an amount in excess of $200,000,000.00, the average life to maturity thereof is greater than or equal to that of the Senior Secured Note Indenture and the holders of such Refinancing debt bind themselves or an agent acting on their behalf binds them in a writing addressed to the First Lien Collateral Agent and the First Lien Claimholders to the terms of this Agreement.
(excluding increases resulting from the accrual of interest at the default rate as set forth in the Second-Lien Credit Agreement as in effect on the date hereof). c) Each of Parent, the Borrower, each other Grantor Company and the Second-Lien Agent Notes Issuer agrees that each Second-Second Lien Collateral Document shall include the following language (or language to similar effect approved by the First-First Lien Collateral Agent): “Notwithstanding anything herein to the contrary, the lien and security interest granted to the Second-Second Lien Collateral Agent pursuant to this Agreement and the exercise of any right or remedy by the Second-Second Lien Collateral Agent hereunder are subject to the provisions of the Intercreditor Agreement, dated as of May 27February , 2011 2007 (as amended, restated, supplemented and/or or otherwise modified from time to time in accordance with the terms thereoftime, the “Intercreditor Agreement”), among Gundle SLT/Environmental, Inc.Parent, the Company, Xxxxxx Commercial Paper Inc. (“LCPI”), as First Lien Collateral Agent, and U.S. Bank National Association, as Second Lien Collateral Agent, and certain other Grantors persons party or that may become party thereto from time to time party thereto, General Electric Capital Corporation, in its capacity as First-Lien Agent thereunder, and Jefferies Finance LLC, in its capacity as Second-Lien Agent thereundertime. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control.” In addition, each of Parent, the BorrowerCompany, each other Grantor the Second Lien Collateral Agent and the Second-Second Lien Agent Creditors agree that each Second-Second Lien Collateral Document Mortgage covering any Collateral constituting real property shall contain such other language as the First-First Lien Collateral Agent may reasonably request to reflect the subordination of such Second-Second Lien Collateral Document Mortgage to the First-First Lien Collateral Document covering such Collateral.
(c) In the event the First-Lien Agent or the other First-Lien Secured Parties and the relevant Grantor(s) enter into any amendment, waiver or consent in respect of any of the First-Lien Collateral Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First-Lien Collateral Document or changing in any manner the rights of the First-Lien Agent, the other First-Lien Secured Parties, the Borrower or any other Grantor thereunder, then such amendment, waiver or consent shall apply automatically to any comparable provision of the Second-Lien Credit Agreement and the Comparable Second-Lien Collateral Document without the consent of the Second-Lien Agent or the other Second-Lien Secured Parties and without any action by the Second-Lien Agent, the Borrower or any other Grantor, provided, that (A) no such amendment, waiver or consent shall have the effect of (i) removing assets subject to the Lien of the Second-Lien Collateral Documents, except to the extent that a release of such Lien is permitted by Section 5.1 of this Agreement, (ii) imposing additional duties on the Second-Lien Agent without its consent, or (iii) permitting other liens on the Collateral not permitted under the terms of the Second-Lien Loan Documents or Section 6 hereof and (B) notice of such amendment, waiver or consent shall have been given to the Second-Lien Agent (although the failure to give any such notice shall in no way affect the effectiveness of any such amendment, waiver or consent).
Appears in 1 contract
Samples: Intercreditor Agreement (Primus Telecommunications Group Inc)
Amendments to First Lien Loan Documents and Second Lien Loan Documents. (a) The First-Subject to the terms of this Agreement, each of the Second Lien Claimholders and the Second Lien Collateral Agent agrees the First Lien Loan Documents and any and all collateral therefor and guarantees thereof, may be amended, supplemented, restated, supplemented extended, renewed, replaced or otherwise modified in accordance with their terms and the First-First Lien Credit Agreement and other First Lien Loan Documents may be Refinanced, and the First Lien Claimholders and the First Lien Collateral Agent may grant waivers or extensions of time or performance to and make compromises, including releases of collateral or guarantees, and settlements with any of the Grantors and all other persons, in each case, without notice to, or the consent of, of the Second-Second Lien Collateral Agent or any of the other Second-Second Lien Secured PartiesClaimholders, but otherwise subject to the terms of this Agreement all without affecting the lien subordination or other provisions of this Agreement; provided, however, that any such amendment, restatement, supplement, modification or Refinancing of the First-Lien Credit Agreement shall not, without the consent of the Second-Lien Agent:
(i) increase the “Applicable Margin” or similar component of the interest rate by more than 2.5% per annum (excluding increases resulting from the accrual of interest at the default rate set forth in the First-Lien Credit Agreement as in effect on the date hereof); or
(ii) provide for the aggregate outstanding principal amount of the Indebtedness under the First-Lien Credit Agreement to exceed the Cap Amount (excluding, however, as a result of capitalization of interest and/or fees thereunder and excluding for the avoidance of doubt, amounts owing on account of Secured Rate Contracts).
(b) Without the prior written consent of the First-First Lien Agent (acting at the direction of the Required First-Lien Secured Parties)Collateral Agent, no Second-Second Lien Loan Document may be amended, supplemented, restated, supplemented extended, renewed, replaced or otherwise modified or entered into to the extent such amendment, supplement, restatement, supplement extension, renewal, replacement or modification, or the terms of any new Second-Lien Loan Document would contravene the provisions of this Agreement, the First-Lien Credit Agreement or any other First-Second Lien Loan Document; provided, however, without notice to, or the consent of, the First-Lien Agent or the other First-Lien Secured Parties, the Second-Lien Credit Agreement may be amended to would:
(1) increase the “Applicable Margin” principal or similar component of the interest rate by up or yield provisions or otherwise change or add fees or premiums applicable to 2.5% per annum the Second Lien Obligations (excluding increases resulting from the accrual of interest at the default rate as set forth provided in the Second-Second Lien Credit Agreement as in effect Loan Documents on the date hereof). Each ;
(2) (x) add any representations, warranties, covenants (financial or otherwise), default or Event of Default thereunder or (y) change any representation, warranty, covenant, default or Event of Default thereunder (other than eliminate any such representation, covenant, warranty, default or Event of Default or decrease any grace period related thereto or otherwise make such representation, warranty, covenant, default or Event of Default or condition less restrictive or burdensome on the Grantors; it being understood that in no event shall any such change reduce the amount of permitted First Lien Obligations or priority liens thereon);
(3) change (to earlier dates) any dates upon which payments of principal or interest are due thereon or change amounts due on any date or change the maturity date (other than to extend the maturity date or reduce amounts due on any date);
(4) change the prepayment provisions thereof, or change any collateral therefor (other than to release such collateral);
(5) increase the obligations of the Borrower, each other Grantor and obligor thereunder or to confer any additional rights on the Second-lenders under the Second Lien Agent agrees that each Second-Lien Collateral Document shall include the following language Credit Agreement (or language a representative on their behalf) which would be adverse to similar effect approved by the First-any Grantor or First Lien Agent): “Notwithstanding anything herein to the contrary, the lien and security interest granted to the Second-Lien Agent pursuant to this Agreement and the exercise of any right or remedy by the Second-Lien Agent hereunder are subject to Lenders; or
(6) contravene the provisions of the Intercreditor Agreement, dated as of May 27, 2011 (as amended, restated, supplemented and/or otherwise modified from time to time in accordance with the terms thereof, the “Intercreditor Agreement”), among Gundle SLT/Environmental, Inc., the other Grantors from time to time party thereto, General Electric Capital Corporation, in its capacity as First-Lien Agent thereunder, and Jefferies Finance LLC, in its capacity as Second-Lien Agent thereunder. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control.” In addition, each of the Borrower, each other Grantor and the Second-Lien Agent agree that each Second-Lien Collateral Document covering any Collateral constituting real property shall contain such other language as the First-Lien Agent may reasonably request to reflect the subordination of such Second-Lien Collateral Document to the First-Lien Collateral Document covering such Collateral.
(c) In The Second Lien Credit Agreement may be Refinanced in whole but not in part (but not with cash proceeds from any equity issuance or capital contribution) to the event extent the First-terms and conditions of such Refinancing debt are not less favorable to the Grantors and to the First Lien Agent Lenders or the other First-First Lien Secured Parties and Obligations than the relevant Grantor(s) enter into any amendmentSecond Lien Loan Documents (as permitted to be amended, waiver supplemented or consent otherwise modified pursuant to Section 5.3(b)), as determined in respect of any the reasonable opinion of the First-First Lien Collateral Documents for the purpose of adding toAgent, or deleting from, or waiving or consenting to any departures from any provisions of, any First-Lien Collateral Document or changing in any manner the rights acting on behalf of the First-First Lien AgentLenders, the other First-then outstanding aggregate principal amount of the Second Lien Secured PartiesObligations is not increased, the Borrower average life to maturity thereof is greater than or any other Grantor thereunder, then such amendment, waiver or consent shall apply automatically equal to any comparable provision that of a the Second-Second Lien Credit Agreement and all other terms and provisions of such refinancing debt are acceptable to the Comparable Second-First Lien Collateral Document without Agent and the consent holders of the Second-Lien Agent or the other Second-Lien Secured Parties and without any action by the Second-Lien Agent, the Borrower or any other Grantor, provided, that (A) no such amendment, waiver or consent shall have the effect of (i) removing assets subject Refinancing debt bind themselves in writing to the Lien of the Second-Lien Collateral Documents, except to the extent that a release of such Lien is permitted by Section 5.1 terms of this Agreement, (ii) imposing additional duties on the Second-Lien Agent without its consent, or (iii) permitting other liens on the Collateral not permitted under the terms of the Second-Lien Loan Documents or Section 6 hereof and (B) notice of such amendment, waiver or consent shall have been given to the Second-Lien Agent (although the failure to give any such notice shall in no way affect the effectiveness of any such amendment, waiver or consent).
Appears in 1 contract
Amendments to First Lien Loan Documents and Second Lien Loan Documents. (a) The First-First Lien Loan Documents may be amended, restated, supplemented or otherwise modified in accordance with their terms and the First-First Lien Credit Agreement may be Refinanced, in each case, without notice to, or the consent of, of the Second-Second Lien Collateral Agent or the other Second-Second Lien Secured PartiesClaimholders, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that the holders of such Refinancing debt bind themselves in a writing addressed to the Second Lien Collateral Agent and the Second Lien Claimholders to the terms of this Agreement and any such amendment, restatement, supplement, modification or Refinancing of the First-Lien Credit Agreement shall not, without the consent of the Second-Second Lien Collateral Agent:
(i1) increase result in the “Applicable Margin” aggregate principal amount of loans and commitments of First Lien Lenders to make loans or similar component issue letters of credit under the First Lien Credit Agreement, in each case, other than loans constituting or commitments to make loans or issue letters of credit that would constitute Excluded Incremental Indebtedness, to exceed the Cap Amount;
(2) make any amendment to or other modification of Section 2.14(a)(iii)(B) of the interest rate by more than 2.5% per annum (excluding increases resulting from the accrual of interest at the default rate set forth in the First-First Lien Credit Agreement as in or the related definitions, the direct or indirect effect on of which would be to increase the date hereof)possible amount of Excluded Incremental Indebtedness that could be incurred thereunder; or
(ii3) provide for contravene the aggregate outstanding principal amount provisions of the Indebtedness under the First-Lien Credit Agreement to exceed the Cap Amount (excluding, however, as a result of capitalization of interest and/or fees thereunder and excluding for the avoidance of doubt, amounts owing on account of Secured Rate Contracts)this Agreement.
(b) Without the prior written consent of the First-First Lien Agent (acting at the direction of the Required First-Lien Secured Parties)Collateral Agent, no Second-Second Lien Loan Document may be Refinanced, amended, restated, supplemented or otherwise modified or entered into to the extent such Refinancing, amendment, restatement, supplement or modification, or the terms of any new Second-Second Lien Loan Document would Document, would:
(1) contravene the provisions of this Agreement, or
(2) make any amendment to or other modification of Section 2.14(a)(iii) of the First-Second Lien Credit Agreement or any other First-Lien Loan Document; provided, however, without notice to, or the consent ofrelated definitions, the First-Lien Agent direct or the other First-Lien Secured Parties, the Second-Lien Credit Agreement may indirect effect of which would be amended to increase the “Applicable Margin” or similar component possible amount of Second Lien Incremental Indebtedness that could be incurred thereunder.
(c) The Borrowers and the Second Lien Collateral Agent, on behalf of the interest rate by up to 2.5% per annum (excluding increases resulting from the accrual of interest at the default rate as set forth in the Second-Second Lien Credit Agreement as in effect on the date hereof). Each of the BorrowerClaimholders, each other Grantor and the Second-Lien Agent agrees agree that each Second-Second Lien Collateral Document shall include the following language (or language to similar effect approved by the First-First Lien Collateral Agent): “Notwithstanding anything herein to the contrary, the lien and security interest granted to the Second-Second Lien Collateral Agent pursuant to this Agreement and the exercise of any right or remedy by the Second-Second Lien Collateral Agent hereunder are subject to the provisions of the Intercreditor Agreement, dated as of May 2731, 2011 2007 (as amended, restated, supplemented and/or or otherwise modified from time to time in accordance with the terms thereoftime, the “Intercreditor Agreement”), among Gundle SLT/EnvironmentalIPC Systems, Inc., the TSW Netherlands Holdings C.V., Trader Acquisition Corp, JPMorgan Chase Bank, N.A., as First Lien Collateral Agent, and Gxxxxxx Sxxxx Credit Partners L.P., as Second Lien Collateral Agent and certain other Grantors persons party or that may become party thereto from time to time party thereto, General Electric Capital Corporation, in its capacity as First-Lien Agent thereunder, and Jefferies Finance LLC, in its capacity as Second-Lien Agent thereundertime. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control.” In addition, each the Borrowers and the Second Lien Collateral Agent, on behalf of the BorrowerSecond Lien Claimholders, each other Grantor and the Second-Lien Agent agree that each Second-Second Lien Collateral Document Mortgage covering any Collateral constituting real property shall contain such other language as the First-First Lien Collateral Agent may reasonably request to reflect the lien subordination of such Second-Second Lien Collateral Document Mortgage to the First-First Lien Collateral Document covering such Collateral.
(cd) In the event the First-First Lien Collateral Agent or the other First-First Lien Secured Parties Claimholders and the relevant Grantor(s) Grantor enter into any amendment, waiver or consent in respect of any of the First-First Lien Collateral Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First-First Lien Collateral Document or changing in any manner the rights of the First-First Lien Collateral Agent, the other First-such First Lien Secured PartiesClaimholders, the Borrower Borrowers or any other Grantor thereunder, then such amendment, waiver or consent shall apply automatically to any comparable provision of the Second-Lien Credit Agreement and the Comparable Second-Second Lien Collateral Document without the consent of the Second-Second Lien Collateral Agent or the other Second-Second Lien Secured Parties Claimholders and without any action by the Second-Second Lien Collateral Agent, the Borrower Borrowers or any other Grantor, provided, that that:
(A1) no such amendment, waiver or consent shall have the effect of of:
(iA) removing or releasing assets subject to the Lien of the Second-Second Lien Collateral Documents, except to the extent that a release of such Lien is i s permitted or required by Section 5.1 of this Agreement, Agreement and provided that there is a corresponding release of the Liens securing the First Lien Obligations;
(iiB) imposing additional duties on the Second-Second Lien Collateral Agent without its consent, or ;
(iiiC) permitting other liens Liens on the Collateral not permitted under the terms of the Second-Second Lien Loan Documents or Section 6 hereof and 6; or
(BD) being prejudicial to the interests of the Second Lien Claimholders to a greater extent than the First Lien Claimholders; and
(2) notice of such amendment, waiver or consent shall have been given to the Second-Second Lien Collateral Agent within ten (although 10) Business Days after the failure to give any such notice shall in no way affect the effectiveness effective date of any such amendment, waiver or consent).
Appears in 1 contract
Samples: Intercreditor Agreement (IPC Systems Holdings Corp.)
Amendments to First Lien Loan Documents and Second Lien Loan Documents. (a) The First-First Lien Loan Documents may be amended, restated, supplemented or otherwise modified in accordance with their terms and the First-First Lien Credit Agreement may be Refinanced, Refinanced in each case, without notice to, or the consent of, of the Second-Second Lien Collateral Agent or the other Second-Second Lien Secured Parties, all without affecting the lien subordination or other provisions of this AgreementLenders; provided, however, that (i) the holders of any such Refinancing debt (or their agent on their behalf) shall bind themselves in writing to the terms of this Agreement and (ii) any such amendment, restatement, supplement, modification or Refinancing shall not
(1) contravene the provisions of this Agreement;
(2) increase the sum of (x) the outstanding aggregate principal amount of the First-First Lien Loans plus (y) the undrawn portion of any revolving commitments under any First Lien Credit Agreement shall notplus (z) the aggregate face amount of any letters of credit issued under any First Lien Credit Agreement and not reimbursed, without in each case, pursuant to the consent First Lien Credit Agreement, to an amount in excess of the Second-First Lien Agent:Cap Amount;
(i3) increase the “Applicable Margin” Margin or similar component of the interest rate on the First Lien Loans by more than 2.5% per annum 200 basis points from the Applicable Margin in effect on the Closing Date (excluding increases resulting from the accrual of interest at the default rate set forth in provided under the First-First Lien Credit Agreement as in effect on the date hereofof this Agreement); or
(ii4) provide for grant to the aggregate outstanding principal amount First Lien Collateral Agent a Lien upon additional assets of the Indebtedness under Loan Parties unless the First-Second Lien Credit Agreement Collateral Agent is simultaneously given the opportunity to exceed the Cap Amount (excluding, however, as obtain a result of capitalization of interest and/or fees thereunder and excluding for the avoidance of doubt, amounts owing Lien on account of Secured Rate Contracts)such assets.
(b) Without Except as permitted by Section 5.3(d), without the prior written consent of the First-First Lien Collateral Agent (acting at or the direction of the Required First-First Lien Secured Parties)Lenders, no Second-Second Lien Loan Document Documents may be amended, restated, supplemented or otherwise modified modified, Refinanced or entered into to the extent that such amendment, restatement, supplement or modification, or the terms of any such new Second-or Refinanced Second Lien Loan Document would Document, would, in each case:
(1) contravene the provisions of this Agreement, ;
(2) increase the First-outstanding aggregate principal amount of the Second Lien Loans pursuant to the Second Lien Credit Agreement or any other First-Agreement, to an amount in excess of the Second Lien Loan Document; provided, however, without notice to, or the consent of, the First-Lien Agent or the other First-Lien Secured Parties, the Second-Lien Credit Agreement may be amended to Cap Amount,
(3) increase the “Applicable Margin” Margin or similar component of the interest rate applicable on the Second Lien Loans by up to 2.5% per annum more than 200 basis points from the Applicable Margin in effect on the Closing Date (excluding increases resulting from the accrual of interest at the default rate as set forth in provided under the Second-Second Lien Credit Agreement as in effect on the date hereofof this Agreement). Each ,
(4) change (to earlier dates) any dates upon which payments of principal or interest are due thereon,
(5) change any event of default or condition to an event of default with respect thereto (other than to eliminate any such event of default or increase any grace period related thereto) or add any event of default in each case in a manner adverse to the Borrower or the other Loan Parties thereunder,
(6) grant to the Second Lien Collateral Agent a Lien upon additional assets of the BorrowerLoan Parties unless the First Lien Collateral Agent is simultaneously given the opportunity to obtain a Lien on such assets; or
(7) make any other amendment thereof or change thereto, each if the effect of such amendment or change, together with all other Grantor and amendments or changes made under this clause (7), is to increase materially the Second-obligations of the obligors thereunder or to confer any additional rights on the lenders under the First Lien Agent Credit Agreement (or a representative on their behalf) that would be adverse to the Loan Parties under the First Lien Credit Agreement or any First Lien Secured Party.
(c) The Company agrees that each Second-Second Lien Collateral Document shall include the following language (or language to similar effect approved by the First-First Lien Collateral Agent): “Notwithstanding anything herein to the contrary, the lien and security interest granted to the Second-Second Lien Collateral Agent pursuant to this Agreement and the exercise of any right or remedy by the Second-Second Lien Collateral Agent hereunder are subject to the provisions of the Intercreditor Agreement, dated as of May 27June 1, 2011 2007 (as amended, restated, supplemented and/or or otherwise modified from time to time in accordance with the terms thereoftime, the “Intercreditor Agreement”), among Gundle SLT/EnvironmentalWORLDSPACE, Inc.INC., a Delaware corporation, the other Grantors from time to time party theretoGuarantor Subsidiaries, General Electric Capital CorporationTHE BANK OF NEW YORK, in its capacity as First-collateral agent for the First Lien Agent thereunderObligations (as defined below), including its successors and assigns from time to time (the “First Lien Collateral Agent”), and Jefferies Finance LLCTHE BANK OF NEW YORK, in its capacity as Second-collateral agent for the Second Lien Agent thereunderObligations (as defined below), including its successors and assigns from time to time (the “Second Lien Collateral Agent”), and certain other persons party or that may become party thereto from time to time. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control.” In addition, each of the Borrower, each other Grantor and the Second-Lien Agent agree Company agrees that each Second-Second Lien Collateral Document mortgage (if any) covering any Collateral constituting real property shall contain such other language as the First-First Lien Collateral Agent may reasonably request to reflect the subordination of such Second-Second Lien Collateral Document mortgage to the First-First Lien Collateral Document covering such Collateral.
(cd) In Notwithstanding anything herein to the event contrary, the First-First Lien Collateral Agent agrees that, and shall execute any definitive documentation to give effect thereto, (i) if any First Lien Loan Document is amended to change any existing financial covenants or negative covenants governed by a dollar cap or threshold, or any such section or other provision of such First Lien Loan Document is amended to include any additional financial covenants or negative covenants governed by a dollar cap or threshold, (x) the First Lien Collateral Agent shall promptly so notify the Second Lien Collateral Agent, and (y) if so requested by the Requisite Lenders (as defined in the Second Lien Credit Agreement) or the other First-Lien Secured Parties and the relevant Grantor(s) enter into any amendment, waiver or consent in respect of any of the First-Second Lien Collateral Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First-Lien Collateral Document or changing in any manner the rights of the First-Lien Agent, the other First-Borrower shall immediately, amend the Second Lien Secured PartiesCredit Agreement to reflect such changes, provided that with respect to existing financial covenants or negative covenants governed by a dollar cap or threshold, the Borrower absolute or percentage difference (whichever is greater) that exists on the date hereof between any other Grantor thereunder, then such amendment, waiver numerical threshold or consent shall apply automatically to any comparable provision of limitation in the Second-First Lien Credit Agreement and the Comparable Second-corresponding threshold or limitation in the Second Lien Credit Agreement as of the date hereof shall be maintained, and with respect to any new financial covenants or negative covenants governed by a dollar cap or threshold, the Second Lien Credit Agreement will have thresholds or limitations that are less restrictive to the Borrower than the thresholds or limitations in the First Lien Credit Agreement by approximately 10% and (ii) if any provision of any First Lien Loan Document for which there exists a correlated provision in any Second Lien Loan Document is amended to add or change any covenant or event of default, (x) the First Lien Collateral Document without Agent shall promptly so notify the consent of Second Lien Collateral Agent, and (y) if so requested by the Second-Requisite Lenders (as defined in the Second Lien Agent Credit Agreement), or the other Second-Second Lien Secured Parties and without any action by the Second-Lien Collateral Agent, the Borrower or any other Grantorshall, provided, that (A) no such amendment, waiver or consent shall have amend the effect of (i) removing assets subject to the Lien of the Second-Lien Collateral Documents, except to the extent that a release of such Lien is permitted by Section 5.1 of this Agreement, (ii) imposing additional duties on the Second-Lien Agent without its consent, or (iii) permitting other liens on the Collateral not permitted under the terms of the Second-Second Lien Loan Documents to reflect such addition of or Section 6 hereof and (B) notice change to a covenant or event of default in such amendment, waiver or consent shall have been given to the Second-Second Lien Agent (although the failure to give any such notice shall in no way affect the effectiveness of any such amendment, waiver or consent)Loan Document.
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Amendments to First Lien Loan Documents and Second Lien Loan Documents. (a) The First-Subject to the terms of this Agreement, each of the Second Lien Claimholders and the Second Lien Collateral Agent agrees the First Lien Loan Documents and any and all collateral therefor and guarantees thereof, may be amended, supplemented, restated, supplemented extended, renewed, replaced or otherwise modified in accordance with their terms and the First-First Lien Credit Agreement and other First Lien Loan Documents may be Refinanced, and the First Lien Claimholders and the First Lien Collateral Agent may grant waivers or extensions of time or performance to and make compromises, including releases of collateral or guarantees, and settlements with any of the Grantors and all other persons, in each case, without notice to, or the consent of, of the Second-Second Lien Collateral Agent or any of the other Second-Second Lien Secured PartiesClaimholders, but otherwise subject to the terms of this Agreement all without affecting the lien subordination or other provisions of this Agreement; provided, however, that any such amendment, restatement, supplement, modification or Refinancing of the First-Lien Credit Agreement shall not, without the consent of the Second-Lien Agent:
(i) increase the “Applicable Margin” or similar component of the interest rate by more than 2.5% per annum (excluding increases resulting from the accrual of interest at the default rate set forth in the First-Lien Credit Agreement as in effect on the date hereof); or
(ii) provide for the aggregate outstanding principal amount of the Indebtedness under the First-Lien Credit Agreement to exceed the Cap Amount (excluding, however, as a result of capitalization of interest and/or fees thereunder and excluding for the avoidance of doubt, amounts owing on account of Secured Rate Contracts).
(b) Without the prior written consent of the First-First Lien Agent (acting at the direction of the Required First-Lien Secured Parties)Collateral Agent, no Second-Second Lien Loan Document may be amended, supplemented, restated, supplemented extended, renewed, replaced or otherwise modified or entered into to the extent such amendment, supplement, restatement, supplement extension, renewal, replacement or modification, or the terms of any new Second-Lien Loan Document would contravene the provisions of this Agreement, the First-Lien Credit Agreement or any other First-Second Lien Loan Document; provided, however, without notice to, or the consent of, the First-Lien Agent or the other First-Lien Secured Parties, the Second-Lien Credit Agreement may be amended to would:
(1) increase the “Applicable Margin” principal or similar component of the interest rate by up or yield provisions or otherwise change or add fees or premiums applicable to 2.5% per annum the Second Lien Obligations (excluding increases resulting from the accrual of interest at the default rate as set forth provided in the Second-Second Lien Credit Agreement as in effect Loan Documents on the date hereof);
(2) (x) add any representations, warranties, covenants (financial or otherwise), default or Event of Default thereunder (other than additional reporting or information requirements) or (y) change any representation, warranty, covenant, default or Event of Default thereunder (other than to eliminate any such representation, covenant, warranty, default or Event of Default or to increase any grace period related thereto or otherwise to make such representation, warranty, covenant, default or Event of Default or condition less restrictive or burdensome on the Grantors; it being understood that in no event shall any such change reduce the amount of permitted First Lien Obligations or priority liens thereon);
(3) change (to earlier dates) any dates upon which payments of principal or interest are due thereon or change amounts due on any date or change the maturity date (other than to extend the maturity date or reduce amounts due on any date);
(4) change the prepayment provisions thereof (other than to reduce any required amount thereof or to extend time for payment thereof), or change any collateral therefor (other than to release such collateral);
(5) increase the obligations of the obligor thereunder or confer any additional rights on the lenders under the Second Lien Credit Agreement (or a representative on their behalf) which would be adverse to any Grantor or First Lien Lenders; or
(6) contravene the provisions of this Agreement.
(c) The Second Lien Credit Agreement may be Refinanced in whole but not in part (but not with cash proceeds from any equity issuance or capital contribution) to the extent the terms and conditions of such Refinancing debt are not less favorable to the Grantors and to the First Lien Lenders or the other First Lien Obligations than the Second Lien Loan Documents (as permitted to be amended, supplemented or otherwise modified pursuant to Section 5.3(b)), as determined in the reasonable opinion of the First Lien Collateral Agent, acting on behalf of the First Lien Lenders, the then outstanding aggregate principal amount of the Second Lien Obligations is not increased, the average life to maturity thereof is greater than or equal to that of the Second Lien Credit Agreement and all other terms and provisions of such refinancing debt are acceptable to the First Lien Collateral Agent and the holders of such Refinancing debt bind themselves in writing to the terms of this Agreement.
(d) No Second Lien Lender or Second Lien Collateral Agent shall sell, assign, dispose of or otherwise transfer all or any portion of its Second Lien Obligations or resign as agent unless the transferee thereof shall have executed and delivered an Acknowledgement and Consent, in a form acceptable to the First Lien Collateral Agent, providing for the agreement of such transferee to be bound by the provisions of this Agreement as a “Second Lien Lender” or “Second Lien Collateral Agent” hereunder. Notwithstanding any failure of any such transferee to execute and deliver such an Acknowledgement and Consent, this Agreement shall survive any sale, assignment, disposal or other transfer of all or any portion of the Second Lien Obligations to such transferee or replacement of the Second Lien Collateral Agent and the terms of this Agreement shall be binding upon the successors and assigns of the Second Lien Lenders and Second Lien Collateral Agent, as provided herein.
(e) Each of the Borrower, each other Grantor Company and the Second-Second Lien Collateral Agent agrees that each Second-Second Lien Collateral Document shall include the following language (or language to similar effect approved by the First-First Lien Collateral Agent): “Notwithstanding anything herein to the contrary, the lien and security interest granted to the Second-Second Lien Collateral Agent pursuant to this Agreement and the exercise of any right or remedy by the Second-Second Lien Collateral Agent hereunder are subject to the provisions of the Intercreditor Agreement, dated as of May 27March __, 2011 2006 (as amended, restated, supplemented and/or or otherwise modified from time to time in accordance with the terms thereoftime, the “Intercreditor Agreement”), among Gundle SLT/EnvironmentalModtech Holdings, Inc., the Bank of America, N.A., as First Lien Collateral Agent and Amphora Limited, as Second Lien Collateral Agent and certain other Grantors persons party or that may become party thereto from time to time party thereto, General Electric Capital Corporation, in its capacity as First-Lien Agent thereunder, and Jefferies Finance LLC, in its capacity as Second-Lien Agent thereundertime. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control.” In addition, each of the Borrower, each other Grantor and the Second-Lien Agent agree Company agrees that each Second-Second Lien Collateral Document Mortgage covering any Collateral constituting real property shall contain such other language as the First-First Lien Collateral Agent may reasonably request to reflect the subordination of such Second-Second Lien Collateral Document Mortgage to the First-First Lien Collateral Document covering such Collateral.
(cf) In the event the First-any First Lien Collateral Agent or the other First-First Lien Secured Parties Claimholders and the relevant Grantor(s) Grantor enter into any amendment, waiver or consent in respect of any of the First-First Lien Collateral Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First-First Lien Collateral Document or changing in any manner the rights of the First-First Lien Collateral Agent, the other First-such First Lien Secured PartiesClaimholders, the Borrower Company or any other Grantor thereunder, then such amendment, waiver or consent shall apply automatically to any comparable provision of the Second-Lien Credit Agreement and the Comparable Second-Second Lien Collateral Document without the consent of the Second-Second Lien Collateral Agent or the other Second-Second Lien Secured Parties Claimholders and without any action by the Second-Second Lien Collateral Agent, the Borrower Company or any other Grantor, provided, that (A) no such amendment, waiver or consent shall have the effect of of: (i1) removing assets subject to the Lien of the Second-Second Lien Collateral Documents, except to the extent that a release of such Lien is permitted or required by Section 5.1 of this Agreement, ; or (ii2) imposing additional duties on the Second-Second Lien Collateral Agent without its consent, or (iii) permitting other liens on the Collateral not permitted under the terms of the Second-Lien Loan Documents or Section 6 hereof and (B) notice of such amendment, waiver or consent shall have been given to the Second-Lien Agent (although the failure to give any such notice shall in no way affect the effectiveness of any such amendment, waiver or consent).
Appears in 1 contract
Amendments to First Lien Loan Documents and Second Lien Loan Documents. (a) The First-First Lien Loan Documents may be amended, restated, supplemented or otherwise modified in accordance with their terms and the First-Lien Credit Agreement may be Refinanced, in each case, without notice to, to or the consent of, of the Second-Second Lien Agent or the other Second-Lien Secured PartiesClaimholders, all without affecting the lien subordination or other provisions of this Agreement; provided, however, however that the holders of such Refinancing debt bind themselves in a writing addressed to the Second Lien Agent and the Second Lien Claimholders to the terms of this Agreement and any such amendment, restatement, supplement, modification or Refinancing of the First-Lien Credit Agreement shall not, without the consent of the Second-Second Lien Agent:
: (i) increase the “Applicable Margin” or similar component then outstanding principal amount of the “Loans” under the Credit Agreement to an aggregate amount that is greater than Forty-Four Million Dollars ($44,000,000), excluding the capitalization of accrued interest rate by more than 2.5% per annum and Protective Advances (excluding increases resulting from the accrual of interest at maximum principal amount described herein is referred to herein as the default rate “First Lien Cap Amount”); (ii) extend the Tranche One Maturity Date or the Tranche Two Maturity Date beyond the dates set forth in the First-Lien Credit Agreement as in effect on the date hereof); or
or (iiiii) provide for the aggregate outstanding principal amount of the Indebtedness under the First-Lien Credit Agreement to exceed the Cap Amount (excluding, however, as a result of capitalization of interest and/or fees thereunder and excluding for the avoidance of doubt, amounts owing on account of Secured Rate Contracts).
(b) Without the prior written consent of the First-Lien Agent (acting at the direction of the Required First-Lien Secured Parties), no Second-Lien Loan Document may be amended, restated, supplemented or otherwise modified or entered into to the extent such amendment, restatement, supplement or modification, or the terms of any new Second-Lien Loan Document would contravene the provisions of this Agreement, the First-Lien Credit Agreement or any other First-Lien Loan Document; provided, however, without notice to, or the consent of, the First-Lien Agent or the other First-Lien Secured Parties, the Second-Lien Credit Agreement may be amended to increase the “Applicable Margin” or similar component of the interest rate applicable to the First Lien Obligations by up to 2.5% per annum more than two percent (excluding increases resulting from 2%) over the accrual of interest at the default rate as set forth in the Second-Lien Credit Agreement as in effect on the date hereof). Each , excluding increases as a result of the Borrowerimposition of the “Default Rate” as defined in Section 2.3.1(c) of the Credit Agreement as in effect on the date hereof.
(b) No Second Lien Loan Document may be Refinanced, each amended, supplemented or otherwise modified without the prior written consent of PDL, except as required by Section 5.3(c) below and except with respect to the following changes (which do not require the prior written consent of PDL):
(1) amendments or modifications (including waivers) of representations, warranties, conditions precedent, covenants, prepayment obligations, defaults, or events of default to make them less restrictive as to any Grantor;
(2) amendments or modifications (including waivers) extending any date upon which a scheduled or required payment of principal, interest or other amount is due in respect of the Second Lien Obligations; and
(3) amendments or modifications reducing the interest rate, fees and other amounts payable by any Grantor under the Second Lien Loan Documents; provided that no such Refinancing, amendment, supplement or modification may alter or otherwise adversely affect or diminish in any way the rights, remedies and priorities afforded the Second-First Lien Agent Claimholders under this Agreement.
(c) The Borrower agrees that each Second-Lien Collateral Document the Subordinated Notes shall be amended to include the following language (or language to similar effect approved by the First-Lien AgentPDL): “Notwithstanding anything herein to the contrary, the rights and remedies granted to the Holder pursuant to this Note, the lien and security interest granted to the Second-Lien Agent pursuant to securing this Agreement Note and the exercise of any right or remedy by the Second-Lien Holder or Agent hereunder relating to this Note are subject to the provisions of the Subordination and Intercreditor Agreement, Agreement dated as of May 27June 26, 2011 2015 (as amended, amended and restated, supplemented and/or or otherwise modified from time to time in accordance with the terms thereof, the “Intercreditor Agreement”), among Gundle SLT/EnvironmentalPDL BIOPHARMA, Inc.INC. and EACH OF THE NOTE INVESTORS PARTY TO THAT CERTAIN NOTE AND WARRANT PURCHASE AGREEMENT DATED AS OF APRIL 21, the 2011, and certain other Grantors persons party or that may become party thereto from time to time party thereto, General Electric Capital Corporation, in its capacity as First-Lien Agent thereunder, and Jefferies Finance LLC, in its capacity as Second-Lien Agent thereundertime. In the event of any conflict between the terms of the Intercreditor Agreement and this Note, the Purchase Agreement and the other Transaction Documents (as defined in the Purchase Agreement), the terms of the Intercreditor Agreement shall govern and control.” In addition, each of the Borrower, each other Grantor and the Second-Lien Agent agree that each Second-Lien Collateral Document covering any Collateral constituting real property shall contain such other language as the First-Lien Agent may reasonably request to reflect the subordination of such Second-Lien Collateral Document to the First-Lien Collateral Document covering such Collateral.”
(cd) In the event the First-Lien Agent PDL or the other First-First Lien Secured Parties Claimholders and the relevant Grantor(sBorrower (or the Borrower and the applicable Grantor) enter into any amendment, waiver or consent in respect of any of the First-First Lien Collateral Loan Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First-First Lien Collateral Loan Document or changing in any manner the rights of the First-PDL, such First Lien Agent, the other First-Lien Secured PartiesClaimholders, the Borrower or any other Grantor thereundersuch Grantor, then such amendment, waiver or consent shall apply automatically to any comparable provision of the Second-any Second Lien Credit Agreement and the Comparable Second-Lien Collateral Loan Document without the consent of the Second-Second Lien Agent or the other Second-Lien Secured Parties Claimholders and without any action by the Second-Lien Agent, the Borrower or any other Grantor, provided, that ; provided that:
(A1) no such amendment, waiver or consent shall have the effect of of:
(iA) removing or releasing assets subject to the Lien of the Second-Second Lien Collateral Documents, except to the extent that a release of such Lien is permitted or required by Section 5.1 of this Agreement, Agreement and provided that there is a corresponding release of the Liens securing the First Lien Obligations;
(iiB) imposing additional duties on the Second-any Second Lien Agent Claimholder without its consent, or ; or
(iiiC) permitting other liens Liens on the Second Lien Collateral not permitted under the terms of the Second-Second Lien Loan Documents or Section 6 hereof and 6; and
(B2) notice of such amendment, waiver or consent shall have been given to the Second-Second Lien Agent within ten (although 10) Business Days after the failure to give any such notice shall in no way affect the effectiveness effective date of any such amendment, waiver or consent).
Appears in 1 contract
Samples: Subordination and Intercreditor Agreement (CareView Communications Inc)
Amendments to First Lien Loan Documents and Second Lien Loan Documents. (a) The First-First Lien Loan Documents may be amended, restated, supplemented or otherwise modified in accordance with their terms and the First-First Lien Credit Agreement may be Refinanced, in each case, without notice to, or the consent of, of the Second-Second Lien Security Agent or the other Second-Second Lien Secured PartiesClaimholders, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that the holders of such Refinancing debt bind themselves in a writing addressed to the Second Lien Security Agent and the Second Lien Claimholders to the terms of this Agreement and any such amendment, restatement, supplement, modification or Refinancing of the First-Lien Credit Agreement shall not, without the consent of the Second-Second Lien Security Agent:
(i1) increase the sum of (A) the then outstanding aggregate principal amount of the First Lien Credit Agreement (including, if any, any undrawn portion of any commitment under the First Lien Credit Agreement) and (B) the aggregate face amount of any letters of credit issued under the First Lien Credit Agreement and not reimbursed in excess of the Cap Amount;
(2) increase the “Applicable Margin” or similar component of the interest rate by more than 2.52% per annum (excluding increases (A) resulting from application of the pricing grid set forth in the First Lien Credit Agreement as in effect on the date hereof or (B) resulting from the accrual of interest at the default rate set forth in rate);
(3) (A) shorten the First-scheduled maturity of the First Lien Credit Agreement as in effect on or any Refinancing thereof or (B) extend the date hereof)scheduled maturity of the First Lien Credit Agreement or any Refinancing thereof beyond the scheduled maturity of the Second Lien Credit Agreement or any Refinancing thereof; or
(ii4) provide for modify (or have the aggregate outstanding principal amount effect of a modification of) the mandatory prepayment provisions of the Indebtedness under the First-First Lien Credit Agreement in a manner adverse to exceed the Cap Amount (excluding, however, as a result of capitalization of interest and/or fees thereunder and excluding for lenders under the avoidance of doubt, amounts owing on account of Secured Rate Contracts)Second Lien Credit Agreement.
(b) Without the prior written consent of the First-First Lien Agent (acting at the direction of the Required First-Lien Secured Parties)Security Agent, no Second-Second Lien Loan Document may be Refinanced, amended, restated, supplemented or otherwise modified or entered into to the extent such Refinancing, amendment, restatement, supplement or modification, or the terms of any new Second-Lien Loan Document would contravene the provisions of this Agreement, the First-Lien Credit Agreement or any other First-Second Lien Loan Document; provided, however, without notice to, or would:
(1) increase the consent of, then outstanding principal amount of the First-Lien Agent or the other First-Lien Secured Parties, the Second-Second Lien Credit Agreement may be amended to Agreement;
(2) increase the “Applicable Margin” or similar component of the interest rate by up to 2.5more than 2% per annum (excluding increases (A) resulting from application of the pricing grid set forth in the Second Lien Credit Agreement as in effect on the date hereof or (B) resulting from the accrual of interest at the default rate as set forth rate);
(3) change any default or Event of Default thereunder in a manner adverse to the Second-loan parties thereunder;
(4) change (to earlier dates) any dates upon which payments of principal or interest are due thereon;
(5) change the prepayment provisions thereof; or
(6) increase materially the obligations of the obligors thereunder or confer any additional material rights on the Second Lien Lenders (or a representative on their behalf) which would be materially adverse to any loan parties, any First Lien Lenders, the First Lien Security Agent or the holders of any other First Lien Obligations. The Second Lien Credit Agreement as in effect on may be Refinanced to the date hereofextent the terms and conditions of such Refinancing debt meet the requirements of this Section 5.3(b). Each , the average life to maturity thereof is greater than or equal to that of the Borrower, each other Grantor Second Lien Credit Agreement and the Second-holders of such Refinancing debt bind themselves in a writing addressed to the First Lien Security Agent and the First Lien Claimholders to the terms of this Agreement.
(c) The US Company agrees that each Second-Second Lien Collateral Document shall include the following language (or language to similar effect approved by the First-First Lien Security Agent): ):
(i) “Notwithstanding anything herein to the contrary, the lien and security interest granted to the Second-Second Lien Security Agent pursuant to this Agreement and the exercise of any right or remedy by the Second-Second Lien Security Agent hereunder are subject to the provisions of the Intercreditor Agreement, dated as of May 2711, 2011 2007 (as amended, restated, supplemented and/or or otherwise modified from time to time in accordance with the terms thereoftime, the “Term Intercreditor Agreement”), among Gundle SLT/Environmental(1) EDGEN MERGER CO., Inc.a Nevada corporation (the “US Company”), (2) EDGEN XXXXXX CAYMAN CORPORATION, a Cayman Islands exempted company (the “Cayman Company”, together with the US Company, collectively, the other Grantors from time “Companies”), (3) EDGEN XXXXXX XX, L.P., a Delaware limited partnership (“Holdings”), (4) certain subsidiaries of Holdings as guarantors pursuant to time party theretothe First Lien Credit Agreement and the Second Lien Credit Agreement, General Electric Capital Corporation(5) XXXXXX COMMERCIAL PAPER INC., in its capacity as First-Lien Agent thereunder, and Jefferies Finance LLCsecurity agent (including, in its capacity as Second-UK security trustee and agent) for the First Lien Agent thereunder. In the event of any conflict between the terms of the Intercreditor Agreement Term Credit Obligations (including its successors and this Agreementassigns from time to time, the terms of the Intercreditor Agreement shall govern and control.” In addition, each of the Borrower, each other Grantor and the Second-“First Lien Agent agree that each Second-Lien Collateral Document covering any Collateral constituting real property shall contain such other language as the First-Lien Agent may reasonably request to reflect the subordination of such Second-Lien Collateral Document to the First-Lien Collateral Document covering such Collateral.
(c) In the event the First-Lien Agent or the other First-Lien Secured Parties and the relevant Grantor(s) enter into any amendment, waiver or consent in respect of any of the First-Lien Collateral Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First-Lien Collateral Document or changing in any manner the rights of the First-Lien Security Agent, the other First-Lien Secured Parties, the Borrower or any other Grantor thereunder, then such amendment, waiver or consent shall apply automatically to any comparable provision of the Second-Lien Credit Agreement and the Comparable Second-Lien Collateral Document without the consent of the Second-Lien Agent or the other Second-Lien Secured Parties and without any action by the Second-Lien Agent, the Borrower or any other Grantor, provided, that (A) no such amendment, waiver or consent shall have the effect of (i) removing assets subject to the Lien of the Second-Lien Collateral Documents, except to the extent that a release of such Lien is permitted by Section 5.1 of this Agreement”), (ii) imposing additional duties on the Second-Lien Agent without its consent, or (iii) permitting other liens on the Collateral not permitted under the terms of the Second-Lien Loan Documents or Section 6 hereof and (B) notice of such amendment, waiver or consent shall have been given to the Second-Lien Agent (although the failure to give any such notice shall in no way affect the effectiveness of any such amendment, waiver or consent6).
Appears in 1 contract
Amendments to First Lien Loan Documents and Second Lien Loan Documents. (a) The First-First Lien Loan Documents may be amended, restated, supplemented or otherwise modified in accordance with their terms and the First-First Lien Credit Agreement may be Refinanced, Refinanced in each case, without notice to, or the consent of, of the Second-Second Lien Collateral Agent or the other Second-Second Lien Secured Parties, all without affecting the lien subordination or other provisions of this AgreementLenders; provided, however, that any such amendment, restatement, supplement, modification or Refinancing shall not result in the sum of (A) the aggregate principal amount of Indebtedness outstanding under the First Lien Loan Documents (as so amended, supplemented, modified or Refinanced) plus (B) the undrawn portion of the First-revolving commitments under the First Lien Loan Documents (as so amended, supplemented, modified or Refinanced) exceeding the Maximum First Lien Credit Agreement shall not, without the consent of the Second-Lien Agent:
(i) increase the “Applicable Margin” or similar component of the interest rate by more than 2.5% per annum (excluding increases resulting from the accrual of interest at the default rate set forth in the First-Lien Credit Agreement as in effect on the date hereof); or
(ii) provide for the aggregate outstanding principal amount of the Indebtedness under the First-Lien Credit Agreement to exceed the Cap Amount (excluding, however, as a result of capitalization of interest and/or fees thereunder and excluding for the avoidance of doubt, amounts owing on account of Secured Rate Contracts)Amount.
(b) Without Prior to the prior written consent Discharge of the First-First Lien Agent (acting at the direction of the Required First-Lien Secured Parties)Obligations, no Second-Second Lien Loan Document may be amended, restated, supplemented or otherwise modified or entered into or any payment made consistent with an amendment thereof or change thereto without the prior written consent of the First Lien Collateral Agent (except pursuant to Section 5.3(d) or (e)) if the effect of such amendment or change is to (i) shorten the weighted average life to maturity thereunder, (ii) change any event of default or condition to an event of default with respect thereto (other than to eliminate any such event of default or increase any grace period related thereto) or add any event of default, (iii) change any financial maintenance covenant therein in a manner that would not preserve or improve, on equivalent economic terms, the absolute or percentage difference (whichever is greater) that exists on the date hereof between such numerical threshold or limitation in the First Lien Credit Agreement and the corresponding threshold or limitation in the Second Lien Credit Agreement or add any new financial maintenance covenant, (iv) change the prepayment provisions of the Second Lien Credit Agreement in a manner materially adverse to the extent such amendment, restatement, supplement Loan Parties (other than changes that do not shorten the maturity of Second Lien Loans to a date earlier than the maturity of the First Lien Loans) or modificationadd any mandatory prepayments thereto, or (v) make any other amendment thereof or change thereto, if the terms effect of such amendment or change with all other amendments or changes made, is to increase materially the obligations of the Loan Parties thereunder or to confer any new Second-additional rights on the Second Lien Lenders (or a representative on their behalf) that would be materially adverse to the Loan Document would contravene Parties under the provisions of this Agreement, the First-First Lien Credit Agreement or any other First-First Lien Lender. Without prejudice to any rights of the First Lien Lenders under the First Lien Credit Agreement, Indebtedness under the Second Lien Loan Document; provided, however, without notice to, or the consent of, the First-Lien Agent or the other First-Lien Secured Parties, the Second-Lien Credit Agreement Documents may be amended to increase the “Applicable Margin” or similar component of the interest rate by up to 2.5% per annum (excluding increases resulting from the accrual of interest at the default rate as set forth in the Second-Lien Credit Agreement as in effect on the date hereof). Each of the Borrower, each other Grantor and the Second-Lien Agent agrees that each Second-Lien Collateral Document shall include the following language (or language to similar effect approved by the First-Lien Agent): “Notwithstanding anything herein to the contrary, the lien and security interest granted to the Second-Lien Agent pursuant to this Agreement and the exercise of any right or remedy by the Second-Lien Agent hereunder are subject to the provisions of the Intercreditor Agreement, dated as of May 27, 2011 (as amended, restated, supplemented and/or otherwise modified from time to time in accordance with Refinanced if the terms thereof, the “Intercreditor Agreement”), among Gundle SLT/Environmental, Inc., the other Grantors from time to time party thereto, General Electric Capital Corporation, in its capacity as First-Lien Agent thereunder, and Jefferies Finance LLC, in its capacity as Second-Lien Agent thereunder. In the event conditions of any conflict between such Refinancing Indebtedness (A) comply with the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control.” In addition, each of the Borrower, each other Grantor and the Second-Lien Agent agree that each Second-Lien Collateral Document covering any Collateral constituting real property shall contain such other language as the First-Lien Agent may reasonably request to reflect the subordination of such Second-Lien Collateral Document to the First-Lien Collateral Document covering such Collateral.
(c) In the event the First-Lien Agent or the other First-Lien Secured Parties and the relevant Grantor(s) enter into any amendment, waiver or consent in respect of any of the First-Lien Collateral Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First-Lien Collateral Document or changing in any manner the rights of the First-Lien Agent, the other First-Lien Secured Parties, the Borrower or any other Grantor thereunder, then such amendment, waiver or consent shall apply automatically to any comparable provision of the Second-First Lien Credit Agreement (including the definition of “Refinancing Indebtedness” thereunder and the Comparable Second-Lien Collateral Document without the consent of the Second-Lien Agent or the other Second-Lien Secured Parties and without any action by the Second-Lien Agent, the Borrower or any other Grantor, provided, that (ASection 6.01(a) no such amendment, waiver or consent shall have the effect of (ithereof) removing assets subject to the Lien of the Second-Lien Collateral Documents, except to the extent that a release of such Lien is permitted by Section 5.1 of this Agreement, (ii) imposing additional duties on the Second-Lien Agent without its consent, or (iii) permitting other liens on the Collateral not permitted under the terms of the Second-Lien Loan Documents or Section 6 hereof and (B) notice of such amendment, waiver or consent shall have been given would be permitted as amendments to the Second-Second Lien Agent (although Loan Documents pursuant to the failure to give any such notice shall in no way affect the effectiveness first sentence of any such amendment, waiver or consentthis Section 5.3(b).
Appears in 1 contract
Amendments to First Lien Loan Documents and Second Lien Loan Documents. (a) The First-First Lien Loan Documents may be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with their terms and the First-Lien Credit Agreement may be Refinanced, in each case, without notice to, or the consent of, the Second-Lien Agent or the other Second-Lien Secured Parties, all without affecting the lien subordination or other provisions of this Agreementterms; provided, however, provided that any such amendment, restatement, supplement, supplement or modification or Refinancing of the First-Lien Credit Agreement shall not, without the consent of the Second-Second Lien Agent:Collateral Agent (acting at the direction of a majority in interest of the Second Lien Claimholders):
(i1) increase the then-outstanding principal amount of the First Lien Obligations in excess of the First Lien Cap Amount;
(2) prohibit payments of principal and interest on the Second Lien Obligations or any exercise of the Equity Rights in connection therewith;
(3) increase the interest rate or yield, including by increasing the “Applicable Marginapplicable margin” or similar component of the interest rate (other than any increase occurring because of fluctuations in underlying rate indices, pricing grids, the imposition of the default rate of interest in accordance with the terms of the First Lien Credit Agreement, or changes in interest rates resulting from the replacement of any rate index/indices with an alternative rate index/indices), by imposing fees or premiums, or by modifying the method of computing interest, or modify or implement any letter of credit, commitment, facility, utilization, make-whole or similar fee so that the combined interest rate and fees are increased by more than 2.52.0% per annum in excess of the total yield on Indebtedness outstanding thereunder as in effect on the date hereof (excluding any (x) customary amendment or consent fees or (y) increases resulting from the accrual of interest at the default rate set forth rate);
(4) shorten the scheduled maturity of the First Lien Obligations or provide for any scheduled principal amortization other than those provided for in the First-First Lien Credit Agreement as in effect on the date hereof), other than with respect to the exercise of any Equity Rights; or
(ii5) provide for amend the aggregate outstanding principal amount First Lien Loan Documents in any manner which would have the effect of contravening the Indebtedness under the First-Lien Credit Agreement to exceed the Cap Amount (excluding, however, as a result terms of capitalization of interest and/or fees thereunder and excluding for the avoidance of doubt, amounts owing on account of Secured Rate Contracts)this Agreement.
(b) Without the prior written consent of the First-Lien Agent (acting at the direction a majority in interest of the Required First-First Lien Secured Parties)Lenders, no Second-Second Lien Loan Document may be amended, restated, supplemented amended and restated, supplemented, replaced or otherwise modified from time to time or entered into (1) unless such amendment, supplement, waiver or modification relates to the Second Lien Equity Rights and (2) to the extent such amendment, restatement, supplement or modification, or the terms of any new Second-Lien Loan Document would contravene the provisions of this Agreement, the First-Lien Credit Agreement or any other First-Second Lien Loan Document; provided, however, without notice to, or the consent of, the First-Lien Agent or the other First-Lien Secured Parties, the Second-Lien Credit Agreement may be amended to would:
(1) increase the then-outstanding principal amount of the Second Lien Obligations in excess of (x) $45,000,000 plus (y) any accrued pay-in-kind interest on such principal amount;
(2) prohibit payments of principal and interest on the First Lien Obligations (other than payment of principal thereof in excess of the First Lien Cap Amount) or any exercise of the Equity Rights in connection therewith;
(3) increase the interest rate or yield, including by increasing the “Applicable Marginapplicable margin” or similar component of the interest rate (other than any increase occurring because of fluctuations in underlying rate indices, pricing grids, the imposition of the default rate of interest in accordance with the terms of the First Lien Credit Agreement, or changes in interest rates resulting from the replacement of any rate index/indices with an alternative rate index/indices), by up to 2.5imposing fees or premiums, or by modifying the method of computing interest, or modify or implement any letter of credit, commitment, facility, utilization, make-whole or similar fee so that the combined interest rate and fees are increased by a rate that would result in such interest rate or yield being in excess of 2.0% per annum less than such interest rate or yield accruing with respect to the First Lien Obligations (excluding any (a) customary amendment or consent fees or (b) increases resulting from the accrual of interest at the default rate as set forth rate), other than with respect to the exercise of any Equity Rights;
(1) shorten the scheduled maturity of the Second Lien Obligations or provide for any scheduled principal amortization other than those provided for in the Second-Second Lien Credit Agreement as in effect on the date hereof). Each of the Borrower, each other Grantor and the Second-Lien Agent agrees that each Second-Lien Collateral Document shall include the following language (or language than with respect to similar effect approved by the First-Lien Agent): “Notwithstanding anything herein to the contrary, the lien and security interest granted to the Second-Lien Agent pursuant to this Agreement and the exercise of any right or remedy by the Second-Lien Agent hereunder are subject to the provisions of the Intercreditor Agreement, dated as of May 27, 2011 (as amended, restated, supplemented and/or otherwise modified from time to time in accordance with the terms thereof, the “Intercreditor Agreement”), among Gundle SLT/Environmental, Inc., the other Grantors from time to time party thereto, General Electric Capital Corporation, in its capacity as First-Lien Agent thereunder, and Jefferies Finance LLC, in its capacity as Second-Lien Agent thereunder. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control.” In addition, each of the Borrower, each other Grantor and the Second-Lien Agent agree that each Second-Lien Collateral Document covering any Collateral constituting real property shall contain such other language as the First-Lien Agent may reasonably request to reflect the subordination of such Second-Lien Collateral Document to the First-Lien Collateral Document covering such Collateral.Equity Rights;
(c2) In amend the event the First-Second Lien Agent or the other First-Lien Secured Parties and the relevant Grantor(s) enter into any amendment, waiver or consent in respect of any of the First-Lien Collateral Loan Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First-Lien Collateral Document or changing in any manner the rights of the First-Lien Agent, the other First-Lien Secured Parties, the Borrower or any other Grantor thereunder, then such amendment, waiver or consent shall apply automatically to any comparable provision of the Second-Lien Credit Agreement and the Comparable Second-Lien Collateral Document without the consent of the Second-Lien Agent or the other Second-Lien Secured Parties and without any action by the Second-Lien Agent, the Borrower or any other Grantor, provided, that (A) no such amendment, waiver or consent shall which would have the effect of (i) removing assets subject to contravening the Lien of the Second-Lien Collateral Documents, except to the extent that a release of such Lien is permitted by Section 5.1 terms of this Agreement, (ii) imposing additional duties on the Second-Lien Agent without its consent, or (iii) permitting other liens on the Collateral not permitted under the terms of the Second-Lien Loan Documents or Section 6 hereof and (B) notice of such amendment, waiver or consent shall have been given to the Second-Lien Agent (although the failure to give any such notice shall in no way affect the effectiveness of any such amendment, waiver or consent).
Appears in 1 contract
Amendments to First Lien Loan Documents and Second Lien Loan Documents. (a) The First-First Lien Loan Documents may be amended, restated, supplemented or otherwise modified in accordance with their terms and the First-First Lien Credit Agreement may be Refinanced, in each case, case without notice to, or the consent of, of the Second-Second Lien Collateral Agent or the other Second-Second Lien Secured Parties, all without affecting the lien subordination or other provisions of this AgreementClaimholders; provided, however, that the holders of such Refinancing debt shall bind themselves in writing to the terms of this Agreement and any such amendment, restatement, supplement, modification or Refinancing shall not (i) provide for a principal amount of, without duplication, term loans, revolving loan commitments and letter of credit facilities (but excluding hedging and cash management obligations) in excess of the First-Maximum First Lien Credit Agreement shall notIndebtedness, without the consent of the Second-Lien Agent:
(iii) increase the “Applicable MarginRate” or similar component of the interest rate or yield provisions applicable to the First Lien Obligations by more than 2.52.0% per annum (excluding increases (A) resulting from application of the pricing grid set forth in the First Lien Credit Agreement as in effect on the date hereof or (B) resulting from the accrual of interest at the default rate set forth Default Rate (as such term is defined in the First-First Lien Credit Agreement as in effect on the date hereof); or
), (iiiii) provide for extend the aggregate outstanding principal amount scheduled maturity date of the Indebtedness under First Lien Obligations or any Refinancing thereof beyond the First-scheduled maturity date of the Second Lien Credit Agreement or any Refinancing thereof or (iv) contravene the provisions of this Agreement; provided, however that the extension by the First Lien Collateral Agent and/or or the First Lien Claimholders of any DIP Financing pursuant to exceed Section 6.01 shall not be deemed to contravene this Agreement in any way which would require the Cap Amount (excluding, however, as a result consent of capitalization of interest and/or fees thereunder and excluding for the avoidance of doubt, amounts owing on account of Secured Rate Contracts)Second Lien Collateral Agent or any Second Lien Claimholder.
(b) Without the prior written consent of the First-First Lien Agent (acting at the direction of the Required First-Lien Secured Parties)Collateral Agent, no Second-Second Lien Loan Document may be amended, restatedsupplemented or otherwise modified or entered into; provided that the Second Lien Loan Documents may be amended in a manner that (i) extends the date or reduces the amount of any required repayment, prepayment or redemption of the principal of such Indebtedness under the Second Lien Credit Agreement, (ii) reduces the rate or extends the date for payment of the interest, premium (if any) or fees payable on the Second Lien Obligations, (iii) makes the covenants, events of default or remedies relating to Second Lien Obligations less restrictive on any Grantor, or (iv) increase the “Applicable Rate” or similar component of the interest rate or yield provisions applicable to the Second Lien Obligations by not more than 2.0% (excluding increases resulting from the accrual of interest at the Default Rate (as such term is defined in the Second Lien Credit Agreement as in effect on the date hereof)).
(c) Notwithstanding the foregoing clause (a) and (b) of this Section 5.03, until the date upon which the Discharge of First Lien Obligations shall have occurred, without the prior written consent of the First Lien Collateral Agent, no Second Lien Collateral Document may be amended, supplemented or otherwise modified or entered into to the extent such amendment, restatement, supplement or modification, or the terms of any new Second-Lien Loan Document would contravene the provisions of this Agreement, the First-Second Lien Credit Agreement or Second Lien Collateral Document, would contravene any other First-Lien Loan Document; provided, however, without notice to, or the consent of, the First-Lien Agent or the other First-Lien Secured Parties, the Second-Lien Credit Agreement may be amended to increase the “Applicable Margin” or similar component of the interest rate by up to 2.5% per annum (excluding increases resulting from the accrual terms of interest at the default rate as set forth in the Second-this Agreement. The Second Lien Credit Agreement as in effect on the date hereof). Each of the Borrower, each other Grantor and the Second-Lien Collateral Agent agrees that each Second-Second Lien Collateral Document shall include the following language (or language to similar effect approved by the First-Lien Agent): substantially similar: “Notwithstanding anything contained herein to the contrary, the lien and security interest granted to the Second-Lien Agent Administrative Agent, for the benefit of the Lenders, pursuant to this Agreement Agreement, and the exercise of any right or remedy by the Second-Lien Agent hereunder Administrative Agent, for the benefit of the Lenders, under this Agreement, are subject to the provisions of the Intercreditor Agreement, dated as of May 27August 8, 2011 (2007 as the same may be amended, restated, supplemented and/or otherwise supplemented, modified or replaced from time to time in accordance with the terms thereof, (the “Intercreditor Agreement”)) by and among Bank of America, among Gundle SLT/EnvironmentalN.A., Inc.as First Lien Administrative Agent, Bank of America, N.A., as Second Lien Administrative Agent, Bank of America, N.A., as Control Agent and the other Grantors (as defined therein) from time to time a party thereto, General Electric Capital Corporation, in its capacity as First-Lien Agent thereunder, and Jefferies Finance LLC, in its capacity as Second-Lien Agent thereunder. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control.” In addition, each of the Borrower, each other Grantor and the Second-Second Lien Collateral Agent agree agrees that each Second-Second Lien Collateral Document under which any Lien on real property owned by any Grantor is granted to secure the Second Lien Obligations covering any Collateral constituting real property shall contain such other language as the First-First Lien Collateral Agent may reasonably request to reflect the subordination priority of such Second-Lien Collateral Document to the First-First Lien Collateral Document covering such CollateralCollateral over such Second Lien Collateral Document.
(cd) In Notwithstanding the foregoing clauses (a) and (b) of this Section 5.03, until the date upon which the Discharge of First Lien Obligations shall have occurred, in the event the First-First Lien Collateral Agent or the other First-First Lien Secured Parties and the relevant Grantor(s) Claimholders enter into any amendment, waiver or consent in respect of any of the First-First Lien Collateral Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, of any First-First Lien Collateral Document or changing in any manner the rights of the First-First Lien Collateral Agent, the other First-First Lien Secured PartiesClaimholders, or the Borrower or any other Grantor Grantors thereunder, then such amendment, waiver or consent shall automatically apply automatically in a comparable manner to any comparable provision of the Second-Lien Credit Agreement and the Comparable Second-Second Lien Collateral Document Documents without the consent of the Second-Second Lien Collateral Agent or the other Second-Second Lien Secured Parties Claimholders and without any action by the Second-Second Lien Agent, the Borrower Collateral Agent or any other Grantor, ; provided, however, (i) that (A) no such amendment, waiver or consent shall have be effective to (A) release any Lien of the effect of Second Lien Collateral Documents, (iB) removing remove assets subject to the Lien of the Second-Second Lien Collateral Documents, except (C) adversely affect the perfection or priority of any such Lien, except, in each case, to the extent that a release of of, or adverse effect on the perfection or priority of, such Lien is permitted by Section 5.1 of this Agreement5.01 or Article VI, (iiD) imposing additional duties on reduce the Second-Lien Agent without its consentprincipal of, or interest or other amounts payable on, any amount payable under the Second Lien Credit Agreement or any Second Lien Loan Document, (iiiE) permitting postpone any date fixed for any payment of principal of, or interest or other liens amounts payable on, any amounts payable under the Second Lien Credit Agreement or any Second Lien Loan Document, (F) permit any Liens on the Collateral not permitted under the terms of the Second-Second Lien Loan Documents or Section 6 hereof Article VI, or (G) impose duties on the Second Lien Collateral Agent, in each case without the consent of the Second Lien Collateral Agent and (Bii) notice of such amendment, waiver or consent shall have been given to the Second-Second Lien Collateral Agent no later than 10 days after its effectiveness (although provided that the failure to give any such notice shall in no way not affect the effectiveness of or validity thereof) provided further that this paragraph is intended solely to set forth provisions by which the Second Lien Collateral Documents shall be automatically affected by amendments, waivers and consents given by the First Lien Collateral Agent and First Lien Claimholders under the First Lien Credit Agreement and the First Lien Collateral Documents and is not intended to impose any such amendment, waiver liability on the First Lien Collateral Agent or consent)First Lien Claimholders.
Appears in 1 contract
Samples: Intercreditor Agreement (Prospect Medical Holdings Inc)
Amendments to First Lien Loan Documents and Second Lien Loan Documents. (a) The First-First Lien Loan Documents of any Series may be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with their terms and the First-First Lien Credit Agreement Debt of any Series (other than BDK First Lien Debt) may be Refinanced, in each case, Refinanced subject to Section 8.7 without notice to, or the consent of, the Second-any Second Lien Representative, any Second Lien Collateral Agent or the any other Second-Second Lien Secured PartiesClaimholder, all without affecting the lien subordination or other provisions of this Agreement; provided, however, provided that any such amendment, restatement, supplement, modification or Refinancing is not inconsistent with the terms of this Agreement and, in the First-case of a Refinancing, the holders of such Refinancing debt (directly or through their agent) bind themselves in a writing addressed to each Second Lien Credit Agreement Collateral Agent to the terms of this Agreement; and provided further that any such amendment, supplement, modification or Refinancing shall not, without the consent of the Second-each Second Lien AgentRepresentative:
(1) (i) increase the sum of the then-outstanding aggregate principal amount of the Indebtedness outstanding under all First Lien Loan Documents (including, if any, any undrawn portion of any commitment under the First Lien Loan Documents but excluding any BDK First Lien Loan Documents) to an amount in excess of the First Lien Cap Amount or (ii) increase the sum of the then-outstanding aggregate principal amount of the Indebtedness outstanding under all BDK First Lien Loan Documents (including, if any, any undrawn portion of any commitment under the BDK First Lien Loan Documents) to an amount in excess of the BDK First Lien Cap Amount;
(2) increase the “Applicable Margin” or similar component of the interest rate or yield provisions applicable to the Indebtedness outstanding under the First Lien Loan Documents of that Series in a manner that would result in the total yield thereon exceeding by more than 2.53% per annum the total yield on Indebtedness thereunder as in effect on the date such Indebtedness became First Lien Debt (excluding increases (A) resulting from application of any pricing grid set forth in the applicable First Lien Loan Document as in effect on the date such Indebtedness became First Lien Debt, (B) resulting from the accrual of interest at the default rate set forth or (C) resulting from any fluctuations in any “floor” rate component or other underlying reference rate of such interest rate not caused by an amendment, supplement, or refinancing of the First Lien Loan Documents of that Series);
(3) (i) extend the scheduled final maturity date of the First Lien Debt of that Series or a Refinancing beyond the scheduled final maturity date of the Series of Second Lien Debt with the earliest final maturity date or Refinancing thereof, (ii) extend the date for payment of more than two (2) scheduled principal payments during any calendar year or (iii) solely in the First-case of the BDK First Lien Credit Agreement Debt, extend the scheduled final maturity of such BDK First Lien Debt;
(4) modify (or undertake an action with the effect of a modification of) the mandatory prepayment provisions of the First Lien Loan Documents (including accelerating or increasing the amortization of principal) in a manner that makes them more restrictive to any Grantor;
(5) amend or otherwise modify any covenant, “Default” or “Event of Default” (as each such term is defined (or similar term) in the First Lien Loan Document for that Series) under any First Lien Loan Document to restrict any Grantor from making payments of the Second Lien Debt of any Series that would otherwise be permitted under such First Lien Loan Documents as in effect on the date hereof)the Indebtedness of such Series became First Lien Debt; or
(ii6) provide for modify (or undertake an action with the aggregate outstanding principal amount effect of a modification of), add or waive any of the Indebtedness under provisions of the First-First Lien Credit Agreement Loan Documents governing assignments or other sales of First Lien Obligations by any First Lien Claimholders to exceed the Cap Amount (excluding, however, as a result an Affiliate of capitalization of interest and/or fees thereunder and excluding for the avoidance of doubt, amounts owing on account of Secured Rate Contracts)any Grantor.
(b) Without the prior written consent of the First-Lien Agent (acting at the direction of the Required First-Lien Secured Parties), no Second-The Second Lien Loan Document Documents may be amended, restated, amended and restated, supplemented or otherwise modified or entered into from time to time in accordance with their terms and the extent such amendment, restatement, supplement or modification, or the terms Second Lien Debt of any new Second-Series may be Refinanced (other than BDK Second Lien Loan Document would contravene the provisions of this Agreement, the First-Lien Credit Agreement or any other First-Lien Loan Document; provided, however, Debt) subject to Section 8.7 without notice to, or the consent of, the First-any First Lien Representative, any First Lien Collateral Agent or any other First Lien Claimholder, all without affecting the lien subordination or other First-provisions of this Agreement, to the extent the terms and conditions of such amendment, restatement, supplement, modification or Refinancing meet any applicable requirements set forth in the First Lien Secured PartiesLoan Documents; provided that any such amendment, restatement, supplement, modification or Refinancing is not inconsistent with the terms of this Agreement and, in the case of any Refinancing, the Secondholders of such Refinancing debt (directly or through their agent) bind themselves in a writing addressed to each First Lien Collateral Agent to the terms of this Agreement; and provided further that any such amendment, supplement, modification or Refinancing shall not, without the consent of each First Lien Representative:
(1) increase the sum of the then-outstanding aggregate principal amount of the Indebtedness outstanding under all BDK Second Lien Credit Agreement may be amended Loan Documents (including, if any, any undrawn portion of any commitment under the BDK Second Lien Loan Documents) to an amount in excess of the BDK Second Lien Cap Amount;
(2) increase the “Applicable Margin” or similar component of the interest rate or yield provisions applicable to the Indebtedness outstanding under the Second Lien Loan Documents of that Series in a manner that would result in the total yield thereon exceeding by up to 2.5more than 3% per annum the total yield on Indebtedness thereunder as in effect on the date such Indebtedness became Second Lien Debt (excluding increases (A) resulting from application of any pricing grid set forth in the applicable Second Lien Loan Document as in effect on the date such Indebtedness became Second Lien Debt, (B) resulting from the accrual of interest at the default rate as set forth or (C) resulting from any fluctuations in any “floor” rate component or other underlying reference rate of such interest rate not caused by an amendment, supplement, or refinancing of the Second Lien Loan Documents of that Series);
(3) solely in the Second-case of the BDK Second Lien Credit Agreement Debt, extend the scheduled final maturity of such BDK Second Lien Debt;
(4) accelerate any date or dates upon which scheduled payments of principal are due, or change the redemption, mandatory prepayment or defeasance provisions thereof in a manner that is adverse to any Grantor; or
(5) amend or otherwise modify any covenant, “Default” or “Event of Default” (as each such term is defined (or similar term) in the Second Lien Loan Document for that Series) under any Second Lien Loan Document to restrict any Grantor from making payments of the First Lien Debt of any Series that would otherwise be permitted under such Second Lien Loan Documents as in effect on the date hereof). Each of the Borrower, each other Grantor and the Second-Lien Agent agrees that each Second-Lien Collateral Document shall include the following language (or language to similar effect approved by the First-Lien Agent): “Notwithstanding anything herein to the contrary, the lien and security interest granted to the Second-Lien Agent pursuant to this Agreement and the exercise of any right or remedy by the Second-Lien Agent hereunder are subject to the provisions of the Intercreditor Agreement, dated as of May 27, 2011 (as amended, restated, supplemented and/or otherwise modified from time to time in accordance with the terms thereof, the “Intercreditor Agreement”), among Gundle SLT/Environmental, Inc., the other Grantors from time to time party thereto, General Electric Capital Corporation, in its capacity as First-Lien Agent thereunder, and Jefferies Finance LLC, in its capacity as Second-Lien Agent thereunder. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control.” In addition, each of the Borrower, each other Grantor and the Second-Lien Agent agree that each Second-Lien Collateral Document covering any Collateral constituting real property shall contain such other language as the First-Lien Agent may reasonably request to reflect the subordination Indebtedness of such Second-Series became Second Lien Collateral Document to the First-Lien Collateral Document covering such CollateralDebt.
(c) In the event the First-any First Lien Collateral Agent or the other First-applicable First Lien Secured Parties Claimholders and the relevant Grantor(s) Grantor enter into any amendment, waiver or consent in respect of any of the First-First Lien Collateral Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First-First Lien Collateral Document or changing in any manner the rights of the First-applicable First Lien Collateral Agent, the other First-such First Lien Secured Parties, the Borrower Claimholders or any other Grantor thereunder, then such amendment, waiver or consent shall apply automatically to any comparable provision of the Second-Lien Credit Agreement and the Comparable Second-a Second Lien Collateral Document without the consent of the Second-any Second Lien Agent Representative, Second Lien Collateral Agent, any other Second Lien Claimholder or the other Second-Lien Secured Parties any Grantor and without any action by the Second-any Second Lien Representative, any Second Lien Collateral Agent, the Borrower any other Second Lien Claimholder or any other Grantor, provided, that provided that:
(A1) no such amendment, waiver or consent shall have the effect of of:
(iA) removing assets subject to the Lien of the Second-Second Lien Collateral Documents, except to the extent that a release of such Lien is permitted or required by Section 5.1 and provided that there is a corresponding release of this Agreement, the Liens securing the First Lien Obligations on such removed assets;
(iiB) modifying the covenants requiring that the Grantors take actions to perfect or protect the Liens of the Second Lien Collateral Agent in the Collateral to the extent adverse in any material respect to any Second Lien Claimholders;
(C) imposing additional duties on the Second-any Second Lien Collateral Agent or any Second Lien Representative without its consent, or ;
(iiiD) permitting other liens Liens on the Collateral not permitted under the terms of the Second-Second Lien Loan Documents or Section 6 hereof 6; or
(E) being prejudicial to the interests of the Second Lien Claimholders to a greater extent than the First Lien Claimholders (other than by virtue of their relative priority and the rights and obligations hereunder); and
(B2) notice of such amendment, waiver or consent shall have been given by the Company to each Second Lien Collateral Agent within ten Business Days after the Second-Lien Agent (although the failure to give any such notice shall in no way affect the effectiveness effective date of any such amendment, waiver or consent).
Appears in 1 contract
Samples: First Lien/Second Lien Intercreditor Agreement (Franchise Group, Inc.)
Amendments to First Lien Loan Documents and Second Lien Loan Documents. (a) The First-First Lien Loan Documents may be amended, restated, supplemented or otherwise modified in accordance with their terms and the First-First Lien Credit Facility Agreement may be Refinancedrefinanced, in each case, without notice to, or the consent of, of the Second-Second Lien Agent Creditor or the other Second-Second Lien Secured Parties, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that any that, without the consent of the Second Lien Creditor, no such amendment, restatement, supplement, modification or Refinancing shall contravene any provision of the First-Lien Credit Agreement shall not, without the consent of the Second-Lien Agent:
(i) increase the “Applicable Margin” or similar component of the interest rate by more than 2.5% per annum (excluding increases resulting from the accrual of interest at the default rate set forth in the First-Lien Credit Agreement as in effect on the date hereof); or
(ii) provide for the aggregate outstanding principal amount of the Indebtedness under the First-Lien Credit Agreement to exceed the Cap Amount (excluding, however, as a result of capitalization of interest and/or fees thereunder and excluding for the avoidance of doubt, amounts owing on account of Secured Rate Contracts)this Agreement.
(b) Without the prior written consent of the First-First Lien Agent (acting at the direction of the Required First-Lien Secured Parties)Collateral Agent, no Second-Second Lien Loan Document may be amended, restated, supplemented or otherwise modified or entered into to the extent such amendment, restatement, supplement or modification, or the terms of any new Second-Second Lien Loan Document Document, would contravene the provisions any provision of this Agreement, the First-Lien Credit Agreement or any other First-Lien Loan Document; provided, however, without notice to, or the consent of, the First-Lien Agent or the other First-Lien Secured Parties, the Second-Lien Credit Agreement may be amended to (ii) increase the “Applicable Margin” or similar component of the interest rate by up to 2.5% per annum Funding Commitment (excluding increases resulting from the accrual of interest at the default rate as set forth defined in the Second-Second Lien Credit Term Loan Agreement as in effect on the date hereof). Each ; (iii) change to earlier dates any scheduled dates for payment of principal or interest in respect of Indebtedness outstanding under the Second Lien Term Loan Agreement; (iv) amend, supplement or otherwise modify the term “default” or “event of default” (or words of similar import) contained in any Second Lien Loan Document in a manner adverse to any First Lien Secured Party; (v) change the redemption, prepayment or defeasance provisions set forth in the Second Lien Loan Documents in a manner adverse to the First Lien Secured Parties; (vi) except as otherwise provided for in this Agreement, add any Liens securing the Collateral granted under the Second Lien Collateral Documents; or (vii) otherwise materially increase the obligations of the Borrowerobligors under the Second Lien Loan Documents or confer any additional rights on the Second Lien Creditor or the Second Lien Secured Parties in a manner adverse to the First Lien Secured Parties. Subject to the provisions of this subsection (b), each the Second Lien Term Loan Agreement may be refinanced to the extent the terms and conditions of such Refinancing debt are no less favorable in the aggregate to the Grantors and to the First Lien Lenders or the other Grantor First Lien Obligations than the terms and conditions of the Second Lien Loan Documents, and the Second-holders of such Refinancing debt bind themselves in a writing addressed to the First Lien Collateral Agent and the First Lien Secured Parties to the terms of this Agreement. No such amendment, restatement, supplement, modification or Refinancing shall affect the lien subordination or other provisions of this Agreement.
(c) The Borrower agrees that each Second-Second Lien Collateral Document shall include the following language (or language to similar effect approved by the First-First Lien Collateral Agent): “Notwithstanding anything herein to the contrary, the lien and security interest granted to the Second-Second Lien Agent Creditor pursuant to this Agreement and the exercise of any right or remedy by the Second-Second Lien Agent Creditor hereunder are subject to the provisions of the Intercreditor Agreement, dated as of May 27March 1, 2011 2012 (as amended, restated, supplemented and/or or otherwise modified from time to time in accordance with the terms thereoftime, the “Intercreditor Agreement”), among Gundle SLT/EnvironmentalRMB Australia Holdings, Ltd., RMB Resources, Inc., the as First Lien Collateral Agent, and Uranium Resources, Inc., as Second Lien Creditor, and certain other Grantors persons party or that may become party thereto from time to time party thereto, General Electric Capital Corporation, in its capacity as First-Lien Agent thereunder, and Jefferies Finance LLC, in its capacity as Second-Lien Agent thereundertime. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control.” In addition, each of the Borrower, each other Grantor and the Second-Lien Agent agree Borrower agrees that each Second-Second Lien Collateral Document Mortgage covering any Collateral constituting real property shall contain such other language as the First-First Lien Collateral Agent may reasonably request to reflect the subordination of such Second-Second Lien Collateral Document Mortgage to the First-corresponding First Lien Collateral Document covering such Collateral.
(cd) In the event the First-any First Lien Collateral Agent or the other First-First Lien Secured Parties and the relevant Grantor(s) Grantor enter into any amendment, waiver or consent in respect of any of the First-First Lien Collateral Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First-First Lien Collateral Document or changing in any manner the rights of the First-First Lien Collateral Agent, the other First-such First Lien Secured Parties, the Borrower or any other Grantor thereunder, then such amendment, waiver or consent shall apply automatically to any comparable provision of the Second-Lien Credit Agreement and the Comparable Second-Second Lien Collateral Document without the consent of the Second-Second Lien Agent Creditor or the other Second-Second Lien Secured Parties and without any action by the Second-Second Lien AgentCreditor, the Borrower or any other Grantor, provided, that however, that:
(A1) no such amendment, waiver or consent shall have the effect of of:
(iA) removing or releasing assets subject to the Lien of the Second-Second Lien Collateral Documents, except to the extent that a release of such Lien is permitted or required by Section 5.1 and provided that there is a corresponding release of this Agreement, the Liens securing the applicable First Lien Obligations;
(iiB) imposing additional duties on the Second-Second Lien Agent Creditor without its consent, or ;
(iiiC) permitting other liens Liens on the Collateral not permitted under the terms of the Second-Second Lien Loan Documents or Section 6 hereof and this Agreement; or
(BD) being prejudicial to the interests of the Second Lien Secured Parties to a greater extent than the First Lien Secured Parties; and
(2) notice of such amendment, waiver or consent shall have been given to the Second-Second Lien Agent Creditor within ten (although 10) Business Days after the failure to give any such notice shall in no way affect the effectiveness effective date of any such amendment, waiver or consent).
Appears in 1 contract
Samples: Intercreditor Agreement (Uranium Resources Inc /De/)
Amendments to First Lien Loan Documents and Second Lien Loan Documents. (a) The First-First Lien Loan Documents may be amended, restated, supplemented or otherwise modified in accordance with their terms and the First-First Lien Credit Agreement may be Refinanced, in each case, without notice to, or the consent of, the Second-Second Lien Collateral Agent or the other Second-Second Lien Secured Parties, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that the holders of such Refinancing debt bind themselves in a writing addressed to the Second Lien Collateral Agent and the Second Lien Secured Parties to the terms of this Agreement and any such amendment, restatement, supplement, modification or Refinancing of the First-Lien Credit Agreement shall not, without the consent of the Second-Lien Agent:
(i) contravene the provisions of this Agreement;
(ii) increase the then outstanding aggregate principal amount of the loans under the First Lien Loan Documents in excess of the Cap Amount;
(iii) increase the “Applicable MarginRate” or similar component of the interest rate by more than 2.53.00% per annum (excluding increases resulting from the accrual of interest at the default rate set forth in rate);
(iv) extend the First-scheduled maturity of the First Lien Credit Agreement as in effect on or any Refinancing thereof beyond the date hereof)scheduled maturity of the Second Lien Credit Agreement or any Refinancing thereof;
(v) reduce the principal amount of Second Lien Obligations permitted to be incurred under the First Lien Loan Documents; or
(iivi) provide for modify (or have the aggregate outstanding principal amount effect of a modification of) the mandatory prepayment provisions of the Indebtedness under the First-First Lien Credit Agreement in a manner adverse to exceed the Cap Amount (excluding, however, as a result of capitalization of interest and/or fees thereunder and excluding for lenders under the avoidance of doubt, amounts owing on account of Secured Rate Contracts)Second Lien Credit Agreement.
(b) Without the prior written consent of the First-First Lien Agent (acting at the direction of the Required First-Lien Secured Parties)Collateral Agent, no Second-Second Lien Loan Document may be amended, restated, supplemented or otherwise modified or entered into to the extent such amendment, restatement, supplement or modification, or the terms of any new Second-Second Lien Loan Document would Document, would:
(i) contravene the provisions of this Agreement, the First-Lien Credit Agreement or any other First-Lien Loan Document; provided, however, without notice to, or the consent of, the First-Lien Agent or the other First-Lien Secured Parties, the Second-Lien Credit Agreement may be amended to ;
(ii) increase the “Applicable MarginRate” or similar component of the interest rate by up to 2.5more than 3.00% per annum (excluding increases resulting from the accrual of interest at the default rate);
(iii) change (to earlier dates) any dates upon which payments of principal or interest are due thereon;
(iv) change any default or Event of Default thereunder in a manner adverse to the loan parties thereunder;
(v) change the redemption, prepayment or defeasance provisions thereof;
(vi) change any collateral therefor (other than to release such collateral and other than to add Collateral that is also provided to the First Lien Collateral Agent), or
(vii) increase the obligations of the loan parties thereunder or confer any additional rights on the Second Lien Lenders which would be adverse to the First Lien Lenders. The Second Lien Credit Agreement may only be Refinanced with Permitted Refinancing Indebtedness (as defined in the First Lien Credit Agreement); provided that the “Applicable Rate” or similar component of the interest rate as for such Permitted Refinancing Indebtedness does not exceed the “Applicable Rate” or similar component of the interest rate set forth in the Second-Second Lien Credit Agreement as in effect on of the date hereof). Each hereof by more than 3.00% per annum.
(c) The Second Lien Collateral Agent, on behalf of the BorrowerSecond Lien Secured Parties, each other Grantor and the Second-Lien Agent agrees that each Second-Second Lien Collateral Document shall include the following language (or language to similar effect approved by the First-First Lien Collateral Agent): “Notwithstanding anything herein to the contrary, the lien and security interest granted to the Second-Lien Collateral Agent pursuant to this Agreement and the exercise of any right or remedy by the Second-Lien Collateral Agent hereunder are subject to the provisions of the Intercreditor Agreement, dated as of May 27July 31, 2011 2007 (as amended, restated, supplemented and/or or otherwise modified from time to time in accordance with the terms thereoftime, the “Intercreditor Agreement”), among Gundle SLT/EnvironmentalTerremark Woldwide, Inc., the a Delaware corporation, Credit Suisse, Cayman Islands Branch (“Credit Suisse”), as First Lien Collateral Agent, and Credit Suisse, as Second Lien Collateral Agent, and certain other Grantors persons party or that may become party thereto from time to time party thereto, General Electric Capital Corporation, in its capacity as First-Lien Agent thereunder, and Jefferies Finance LLC, in its capacity as Second-Lien Agent thereundertime. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control.” In addition, each of the Borrower, each other Grantor Company and the Second-Second Lien Collateral Agent agree that each Second-Second Lien Collateral Document Mortgage covering any Collateral constituting real property shall contain such other language as the First-First Lien Collateral Agent may reasonably request to reflect the subordination of such Second-Second Lien Collateral Document Mortgage to the First-First Lien Collateral Document covering such Collateral.
(cd) In the event the First-any First Lien Collateral Agent or the other First-First Lien Secured Parties and the relevant Grantor(s) Grantor enter into any amendment, waiver or consent in respect of any of the First-First Lien Collateral Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First-First Lien Collateral Document or changing in any manner the rights of the First-First Lien Collateral Agent, the other First-such First Lien Secured Parties, the Borrower Company or any other Grantor thereunder, then such amendment, waiver or consent shall apply automatically to any comparable provision of the Second-Lien Credit Agreement and the Comparable Second-Second Lien Collateral Document without the consent of the Second-Second Lien Collateral Agent or the other Second-Second Lien Secured Parties and without any action by the Second-Second Lien Collateral Agent, the Borrower Second Lien Administrative Agent the Company or any other Grantor, provided, that provided that:
(Ai) no such amendment, waiver or consent shall have the effect of of: (iA) removing assets subject to the Lien of the Second-Second Lien Collateral Documents, except to the extent that a release of such Lien is permitted or required by Section 5.1 and provided that there is a corresponding release of this Agreement, such Lien securing the First Lien Obligations; (iiB) imposing additional duties on the Second-Second Lien Collateral Agent without its consent, or ; (iiiC) permitting other liens Liens on the Collateral not permitted under the terms of the Second-Second Lien Loan Documents or Section 6 hereof and 6; or (BD) being prejudicial to the interests of the Second Lien Secured Parties to a greater extent than the First Lien Secured Parties; and
(ii) notice of such amendment, waiver or consent shall have been given to the Second-Second Lien Collateral Agent (although within ten Business Days after the failure to give any such notice shall in no way affect the effectiveness effective date of any such amendment, waiver or consent).
Appears in 1 contract
