Modifications to ABL Documents and Term Documents. (a) The ABL Agent and the ABL Secured Parties may at any time and from time to time and without the consent of or notice to the Term Agent or any Term Secured Party, without incurring any liability to the Term Agent or any Term Secured Party and without impairing or releasing any rights or obligations hereunder or otherwise, amend, restate, supplement, modify, waive, substitute, renew, refinance, or replace any or all of the ABL Documents; provided, however, that without the consent of the Term Agent, the ABL Secured Parties shall not amend, restate, supplement, modify, waive, substitute, renew, refinance or replace any or all of the ABL Documents to: (1) increase the maximum principal amount of the ABL Obligations to an amount in excess of the Maximum ABL Facility Amount; (2) increase the rate of interest (whether in cash or in kind) on any of the ABL Obligations to a rate in excess of 3.50% per annum above the interest rate set forth in the ABL Credit Agreement (as in effect on the date hereof), except any increase occurring because of fluctuation in underlying rate indices or in connection with the imposition of a default rate of interest in accordance with the terms of the ABL Credit Agreement, increase the percentage of the default rate by more than 2.00% per annum, or add or increase to a rate in excess of 2.00% per annum above the fee set forth in the ABL Credit Agreement, any fee letter in connection therewith, or any other ABL Loan Document (in each case as in effect on the date hereof) any scheduled recurring fees (excluding any one-time fees, whether payable at one time or in multiple installments, payable in connection with an amendment, waiver or similar agreement), (3) other than in connection with DIP Financing, add any prohibition or restriction on payment of the Term Loan Obligations in addition to those set forth under the ABL Credit Agreement (as in effect on the date hereof) or this Agreement, or (4) change or amend any provision of the ABL Loan Documents relating to the assignment of all or any portion of the ABL Obligations to a Credit Party, Sponsor or any of their respective Affiliates. (b) The Term Agent and the Term Secured Parties may at any time and from time to time and without consent of or notice to the ABL Secured Parties, without incurring any liability to the ABL Secured Parties and without impairing or releasing any rights or obligations hereunder or otherwise, amend, restate, supplement, modify, waive, substitute, renew, refinance or replace any or all of the Term Documents; provided, however, that without the consent of the ABL Agent, the Term Agent and the Term Secured Parties shall not amend, restate, supplement, modify, waive, substitute, renew, refinance or replace any or all of the Term Documents to: (1) increase the maximum principal amount of the Term Loan Obligations to an amount in excess of the Maximum Term Loan Facility Amount, (2) increase the rate of interest (whether in respect of the interest that is payable in cash or in respect of the interest that is payable in kind) on any of the Term Obligations to a rate in excess of 3.50% per annum above the interest rate (whether in respect of the interest that is payable in cash or in respect of the interest that is payable in kind) set forth in the Term Loan Agreement (as in effect on the date hereof), except in connection with the imposition of a default rate of interest in accordance with the terms of the Term Documents (as in effect on the date hereof) increase the percentage of the default rate by more than 2.00% per annum, or add or increase to a rate in excess of 2.00% per annum above the fee set forth in the Term Loan Agreement, any fee letter in connection therewith, or any other Term Loan Document (in each case as in effect on the date hereof) any scheduled recurring fees (excluding any one-time fees, whether payable at one time or in multiple installments, payable in connection with an amendment, waiver or similar agreement), (3) add any prohibition or restriction on payment of the ABL Obligations in addition to those set forth under the ABL Credit Agreement (as in effect on the date hereof) or this Agreement, (4) amend the scheduled maturity date to be shorter than six (6) months after the then stated maturity date of the ABL Credit Agreement, (5) amend to shorten the date upon which payments of principal or interest on the Term Obligations are due or change any redemption or prepayment provisions of the Term Obligations (including related definitions), or (6) change or amend any provision of the Term Documents relating to the assignment of all or any portion of the Term Obligations to a Credit Party, Sponsor , or any of their respective affiliates. (c) Subject to Section 5.2(a) and (b) above, the ABL Obligations and the Term Obligations may be refinanced, in whole or in part, in each case, without notice to, or the consent (except to the extent a consent is required to permit the refinancing transaction under any ABL Document or any Term Document) of the ABL Agent, the ABL Secured Parties, the Term Agent or the Term Secured Parties, as the case may be, all without affecting the Lien Priorities provided for herein or the other provisions hereof, provided, however, that the holders of such refinancing Indebtedness (or an authorized agent or trustee on their behalf) bind themselves in writing to the terms of this Agreement pursuant to such documents or agreements (including amendments or supplements to this Agreement) as the ABL Agent or the Term Agent, as the case may be, shall reasonably request and in form and substance reasonably acceptable to the ABL Agent or the Term Agent, as the case may be, and any such refinancing transaction shall be in accordance with any applicable provisions of both the ABL Documents and the Term Documents (to the extent such documents survive the refinancing).
Appears in 1 contract
Samples: Intercreditor Agreement
Modifications to ABL Documents and Term Documents. (a) The ABL Agent and the ABL Secured Credit Parties may at any time and from time to time and without the consent of or notice to the Term Agent or any Term Secured Credit Party, without incurring any liability to the Term Agent or any Term Secured Credit Party and without impairing or releasing any rights or obligations hereunder or otherwise, amend, restate, supplement, modify, waive, substitute, renew, refinance, or replace any or all of the ABL Documents; provided, however, that without the consent of the Term Agent, the ABL Secured Credit Parties shall not amend, restate, supplement, modify, waive, substitute, renew, refinance or replace any or all of the ABL Documents or, solely in the case of clause (6) below, take or fail to take any action pursuant to the ABL Documents or this Agreement to:
(1) increase the maximum principal amount of the ABL Obligations to an amount in excess of the Maximum ABL Facility Amount;
(2) increase the rate rates of interest (whether in cash or in kind) on any of the ABL Obligations to a rate in excess of 3.50% per annum above the interest rate set forth in the definition of “Applicable Margin” as defined in the ABL Credit Agreement by more than 2.00% per annum at any level of the pricing grid applicable thereto (as in effect on the date hereof), except other than any increase occurring because of fluctuation fluctuations in underlying rate indices or in connection with the imposition of a default rate of interest the Default Rate (as defined in the ABL Credit Agreement) in accordance with the terms of the ABL Credit Agreement), or increase the percentage set forth in the definition of “Default Rate” set forth in the default rate ABL Credit Agreement by more than 2.00% per annum, annum above the rate applicable thereto (other than any increase occurring because of fluctuations in underlying rate indices) or add or (i) increase to a rate the percentage set forth in excess Section 2.09(a) (“Commitment Fee”) of 2.00the ABL Credit Agreement by more than 0.75% per annum above the rate applicable thereto, or (ii) increase the percentage set forth in the Fee Letter (as defined in the ABL Credit Agreement) with respect to fees payable in connection with an increase in the Tranche A Revolving Loan Commitments under the ABL Credit Agreement above the rate applicable thereto, or require the payment of any prepayment premium, termination fee or similar payment by the Loan Parties;
(2) shorten the scheduled maturity of the ABL Obligations;
(3) require any mandatory prepayments or scheduled repayments of the ABL Obligations except as provided in the ABL Documents as in effect on the date hereof, require that any payment on the ABL Obligations be made earlier than the date originally scheduled for such payment, or reduce, waive or eliminate any mandatory prepayments or scheduled repayments of the ABL Obligations except as provided in the ABL Documents as in effect on the date hereof;
(4) change any conditions, covenants, defaults or events of default thereunder that expressly restricts any Loan Party from making payments of the Term Obligations that would otherwise be permitted under the ABL Credit Agreement as in effect on the date hereof (other than as expressly provided herein);
(5) increase the sum of the then outstanding aggregate principal amount of the loans and outstanding Letters of Credit made, issued or incurred under the ABL Credit Agreement and any DIP Financing in excess of the amount of the Maximum ABL Facility Amount;
(6) change the definitions of “Accelerated Borrowing Base Delivery Event”, “Availability”, “Borrowing Base”, “Excess Availability”, “Tranche A Borrowing Base”, “Payment Conditions”, or “Prepayment Event”, contained in the ABL Credit Agreement and any component (or sub-component) definition thereof, or the definitions of “Cash Dominion Event”, “Overadvance”, “Permitted Overadvance”, “Unintentional Overadvance” or “Term Loan Reserve”, each as set forth in the ABL Credit Agreement, any fee letter in connection therewith, a manner which would effect an increase in the ABL Borrowing Base or any other ABL component thereof;
(7) fail to establish and maintain (i) any Reserve in effect on the date hereof or (ii) the Term Loan Document (Reserve as and when required under Section 3.9 hereof; provided that, in each case the amount of such Reserves may be adjusted based on changes in the facts or circumstances that gave rise thereto (as long as the methodology for the calculation thereof is not modified), and the foregoing shall not limit the discretion of the ABL Agent to establish, eliminate and adjust the amount of any other Reserves not in effect on the date hereof) ; provided further that the ABL Agent shall have the discretion to cause any scheduled recurring fees Reserves (excluding any one-time fees, whether payable at one time or in multiple installments, payable in connection with an amendment, waiver or similar agreement),
(3) other than in connection with DIP Financing, add any prohibition or restriction on payment of the Term Loan Obligations in addition Reserve) to those be maintained as Availability Reserves, Inventory Reserves, Realty Reserves or Receivables Reserves as the ABL Agent determines;
(8) unless the Term Loan Agreement has been or is contemporaneously so amended, amend any requirement set forth under in Section 7.15 of the ABL Credit Agreement (as in effect or any defined term used therein), or waive the Loan Parties’ non-compliance with the requirements of such Section of the ABL Credit Agreement;
(9) extend the dates on which Borrowing Base Certificates are required to be delivered by the date hereof) or this AgreementBorrower, provided that the foregoing shall not limit the discretion of the ABL Agent to require more frequent reporting; or
(410) change amend the ABL Documents in any manner which would have the effect of contravening the terms of this Agreement; provided, however, the provisions of this Section 5.2(a) shall not limit, restrict or amend any provision impair the discretionary rights and ability of the ABL Loan Documents relating Agent to (1) modify, reduce, increase or eliminate any and all other Reserves (as defined in the assignment ABL Credit Agreement) other than as provided in clause (6) above, or (2) determine the eligibility of all or any portion Collateral for inclusion in the calculation of the Borrowing Base, in each case, as provided in the ABL Obligations to a Credit Party, Sponsor or any of their respective AffiliatesAgreement.
(b) The Term Agent and the Term Secured Credit Parties may at any time and from time to time and without consent of or notice to the ABL Secured Credit Parties, without incurring any liability to the ABL Secured Credit Parties and without impairing or releasing any rights or obligations hereunder or otherwise, amend, restate, supplement, modify, waive, substitute, renew, refinance or replace any or all of the Term Documents; provided, however, that without the consent of the ABL Agent, the Term Agent and the Term Secured Credit Parties shall not amend, restate, supplement, modify, waive, substitute, renew, refinance or replace any or all of the Term Documents to:
(1) increase the maximum aggregate outstanding principal amount of the Term Loan Obligations to an amount in excess of the Maximum Term Loan Facility Amount,;
(2) increase the rate rates of interest (whether in respect including, without limitation, the definition of the interest that is payable in cash or in respect of the interest that is payable in kind) on any of the Term Obligations to a rate in excess of 3.50% per annum above the interest rate (whether in respect of the interest that is payable in cash or in respect of the interest that is payable in kind“Applicable Margin”) set forth in the Term Loan Agreement by more than 2.00% per annum (as other than any increase occurring because of fluctuations in effect on the date hereof), except in connection with underlying rate indices or the imposition of a default rate of interest the Default Rate (as defined in the Term Loan Agreement) in accordance with the terms of the Term Loan Agreement), or increase the percentage set forth in the definition of “Default Rate” set forth in the Term Loan Agreement by more than 2.00% per annum above the rate applicable thereto (other than any increase occurring because of fluctuations in underlying rate indices);
(3) increase the Prepayment Fee as set forth in Section 2.09(b) of the Term Loan Agreement;
(4) shorten the scheduled maturity of the Term Obligations;
(5) require any mandatory prepayments or scheduled repayments of the Term Obligations except as provided in the Term Documents (as in effect on the date hereof or require that any payment on the Term Obligations be made earlier than the date originally scheduled for such payment or reduce, waive or eliminate any mandatory prepayments or scheduled repayments of the Term Obligations except as provided in the Term Documents as in effect on the date hereof;
(6) increase unless the percentage ABL Credit Agreement has been or is contemporaneously so amended, amend any requirement set forth in Sections 7.15(a) of the default rate by more than 2.00% per annumTerm Loan Agreement (or any defined term used therein), or add waive the Loan Parties’ non-compliance with the requirements of such Sections of the Term Loan Agreement;
(7) change the definition of “Borrowing Base” or increase to a rate in excess of 2.00% per annum above the fee set forth “ABL Borrowing Base” contained in the Term Loan Agreement, or any fee letter in connection therewithcomponent definition thereof;
(8) change the definitions of “Accelerated Borrowing Base Delivery Event”, “Cash Dominion Event”, “Payment Conditions”, “Prepayment Event”, “Term Loan Reserve”, or any other component definition thereof;
(9) change any conditions, covenants, defaults or events of default thereunder that expressly restrict any Loan Party from making payments of the ABL Obligations that would otherwise be permitted under the Term Loan Document (in each case Documents as in effect on the date hereof) any scheduled recurring fees (excluding any one-time fees, whether payable at one time or in multiple installments, payable in connection with an amendment, waiver or similar agreement),; or
(3) add any prohibition or restriction on payment of the ABL Obligations in addition to those set forth under the ABL Credit Agreement (as in effect on the date hereof) or this Agreement,
(410) amend the scheduled maturity date to be shorter than six (6) months after the then stated maturity date of the ABL Credit Agreement,
(5) amend to shorten the date upon which payments of principal or interest on the Term Obligations are due or change any redemption or prepayment provisions of the Term Obligations (including related definitions), or
(6) change or amend any provision of the Term Documents relating to in any manner which would have the assignment effect of all or any portion contravening the terms of the Term Obligations to a Credit Party, Sponsor , or any of their respective affiliatesthis Agreement.
(c) Subject to Section Sections 5.2(a) and (b) above, the ABL Obligations and the Term Obligations may be refinanced, in whole or in part, in each case, without notice to, or the consent (except to the extent a consent is required to permit the refinancing transaction under any ABL Document or any Term Document) of the ABL Agent, the ABL Secured Credit Parties, the Term Agent or the Term Secured Credit Parties, as the case may be, all without affecting the Lien Priorities provided for herein or the other provisions hereof, provided, however, that the holders of such refinancing Indebtedness indebtedness (or an authorized agent or trustee on their behalf) bind themselves in writing execute and deliver to the terms of this Agreement pursuant to such documents or agreements (including amendments or supplements to this Agreement) as the ABL Agent or the Term Agent, as the case may be, shall reasonably request and an intercreditor agreement in form and substance reasonably acceptable to the ABL Agent or the Term Agent, as the case may be, and any such refinancing transaction shall be in accordance with any applicable provisions of both the ABL Documents and the Term Documents (to the extent such documents survive the refinancing).
Appears in 1 contract
Samples: Intercreditor Agreement (Destination Maternity Corp)
Modifications to ABL Documents and Term Documents. (a) The Term Agent, on behalf of itself and the other Term Credit Parties, hereby agrees that, without affecting the obligations of the Term Agent and the other Term Credit Parties hereunder, the ABL Agent and the other ABL Secured Parties may may, at any time and from time to time and time, in their sole discretion without the consent of or notice to the Term Agent or any other Term Secured Credit Party, and without incurring any liability to the Term Agent or any other Term Secured Credit Party and without or impairing or releasing any rights or obligations hereunder or otherwisethe Lien Priority provided for herein, amend, restate, supplement, modify, waive, substitute, renewreplace, refinance, extend, consolidate, restructure, or replace otherwise modify any or all of the ABL Documents; Documents in any manner whatsoever, other than in a manner which would have the effect of contravening the terms of this Agreement, provided, however, that without the consent of the Term Agent, the ABL Secured Parties Agent and the ABL Lenders shall not amend, restate, supplement, modifyreplace, waiverefinance, substituteextend, renewconsolidate, refinance restructure, or replace any or all of otherwise modify the ABL Documents to:
in a manner which would (1i) increase the maximum principal amount of the ABL Obligations to an amount in excess of the Maximum ABL Facility Amount;
Total Commitments (2) increase the rate of interest (whether in cash or in kind) on any of the ABL Obligations to a rate in excess of 3.50% per annum above the interest rate set forth as defined in the A&R ABL Credit Agreement (as in effect on the date hereof), except any increase occurring because of fluctuation in underlying rate indices or in connection with the imposition of a default rate of interest in accordance with the terms of the ABL Credit Agreement, increase the percentage of the default rate by more than 2.00% per annum, or add or increase to a rate in excess of 2.00% per annum above the fee set forth in the ABL Credit Agreement, any fee letter in connection therewith, or any other ABL Loan Document (in each case as in effect on the date hereof) to an amount in excess of the amounts set forth in clause (a) of the definition of Maximum ABL Obligations, (ii) directly increase the interest rates on the ABL Obligations to a rate greater than 2.0% per annum above rates as are in effect on the date hereof (excluding, without limitation, fluctuations in underlying rate indices, pricing grid level changes due to changes in average daily Excess Availability, and imposition of a default rate of interest not greater than 2.0% per annum), (iii) directly or indirectly prohibit or restrict the payment of principal of, interest on, the Term Obligations, in a manner more restrictive than the prohibitions and restrictions contained in the A&R ABL Credit Agreement as in effect on the date hereof, or (iv) except as a result of the Permitted Insolvency Increase Amount, change the definition of “Borrowing Base”, “Incremental Availability”, “Overadvance”, “Inadvertent Overadvance”, or “Permitted Overadvance” contained in the A&R ABL Credit Agreement or any scheduled recurring fees (excluding any one-time fees, whether payable at one time component definition thereof by increasing advance rates or changing the eligibility criteria for the assets included therein if such change would result in multiple installments, payable in connection with an amendment, waiver or similar agreement),
(3) other than in connection with DIP Financing, add any prohibition or restriction on payment increase of the amounts available to be borrowed thereunder. The ABL Agent agrees that upon the request of the Term Loan Obligations Agent, it shall make itself available for discussion with the Term Agent regarding the amount or computation of any Reserves (as defined in addition to those set forth under the A&R ABL Credit Agreement (as in effect on the date hereof) or this that are permitted to be established pursuant to the A&R ABL Credit Agreement, or
(4) change provided that, except as provided below, the foregoing agreement shall not limit or amend impair the ABL Agent’s rights to establish, increase, reduce or eliminate any provision such Reserves or require any prior notice to, or consent from, the Term Agent or the other Term Credit Parties thereto; provided further that the ABL Agent shall not eliminate any category of Reserves existing as of the date hereof or change the methodology for the calculation of such Reserves without the consent of the Term Agent. Furthermore, the ABL Loan Documents relating Agent agrees to establish a Reserve (the “Term Reserve”) against the Borrowing Base (as defined in the A&R ABL Credit Agreement), calculated by reference to the assignment of all or any portion most recent Borrowing Base Certificate (as defined in the A&R ABL Credit Agreement) delivered to the ABL Agent, in the amount by which the outstanding principal amount of the Term Obligations exceeds an amount equal to (a) the Term Loan Borrowing Base as in effect from time to time less (b) the sum of (1) the Borrowing Base (as defined in the A&R ABL Obligations to a Credit PartyAgreement), Sponsor excluding any Reserves (as defined in the A&R ABL Credit Agreement) other than the Incremental Reserve (as defined in the A&R ABL Credit Agreement) plus (2) the Aggregate FILO Commitments (as defined in the A&R ABL Credit Agreement). The Term Reserve shall be automatically adjusted upon delivery of each Borrowing Base Certificate or any otherwise only with the prior written consent of their respective Affiliatesthe Term Agent and the Term Borrowers.
(b) The ABL Agent, on behalf of itself and the other ABL Secured Parties, hereby agrees that, without affecting the obligations of the ABL Agent and the other ABL Secured Parties hereunder, the Term Agent and the other Term Secured Credit Parties may may, at any time and from time to time and time, in their sole discretion without the consent of or notice to the ABL Agent or any other ABL Secured PartiesParty, and without incurring any liability to the ABL Agent or any other ABL Secured Parties and without Party or impairing or releasing any rights or obligations hereunder or otherwisethe Lien Priority provided for herein, amend, restate, supplement, modifyreplace, waiverefinance, substituteextend, renewconsolidate, refinance restructure, or replace otherwise modify any or all of the Term Documents; Documents in any manner whatsoever other than in a manner which would have the effect of contravening the terms of this Agreement, provided, however, that without the consent of the ABL Agent, the Term Agent and the Term Secured Parties Lenders shall not amend, restate, supplement, modifyreplace, waiverefinance, substituteextend, renewconsolidate, refinance restructure, or replace any or all of otherwise modify the Term Documents to:
in a manner which would (1i) increase the maximum principal amount of the Term Loan Obligations to an amount (as defined in the A&R Term Credit Agreement as in effect on the date hereof) in excess of the Maximum Term Loan Facility Amount,
sum of $80,000,000 less any principal payments made on account thereof, (2ii) directly increase the rate of interest (whether in respect of the interest that is payable in cash or in respect of the interest that is payable in kind) rates on any of the Term Obligations to a rate in excess of 3.50greater than 2.0% per annum above rates as are in effect on the date hereof (excluding imposition of a default rate of interest rate not greater than 2.0% per annum), (whether iii) directly or indirectly prohibit or restrict the payment of principal of, interest on, the ABL Obligations, in respect a manner more restrictive than the prohibitions and restrictions contained in the A&R Term Credit Agreement as in effect on the date hereof, (iv) shorten the scheduled maturity of the interest that is payable in cash Term Obligations, (v) require any scheduled principal payments or in respect other mandatory principal payments on account of the interest that is payable in kind) set forth in Term Obligations (other than for mandatory prepayments under the A&R Term Loan Credit Agreement (as in effect on the date hereof), except in connection with the imposition of a default rate of interest in accordance with the terms of the Term Documents (as in effect on the date hereof) increase the percentage of the default rate by more than 2.00% per annum, or add or increase to a rate in excess of 2.00% per annum above the fee set forth in the Term Loan Agreement, any fee letter in connection therewith, or any other Term Loan Document (in each case as in effect on the date hereof) any scheduled recurring fees (excluding any one-time fees, whether payable at one time or in multiple installments, payable in connection with an amendment, waiver or similar agreement),
(3) add any prohibition or restriction on payment of the ABL Obligations in addition to those set forth under the ABL Credit Agreement (as in effect on the date hereof) or this Agreement,
(4) amend the scheduled maturity date to be shorter than six (6) months after the then stated maturity date of the ABL Credit Agreement,
(5) amend to shorten the date upon which payments of principal or interest require that any payment on the Term Obligations are due be made earlier than the date originally scheduled for such payment; or (vi) change any redemption or prepayment provisions of Sections 6.1(i) or (ix) of the A&R Term Obligations (including related definitions), or
(6) change or amend any provision of Credit Agreement that would be more restrictive than those in effect under the Term Documents relating to the assignment of all or any portion as of the Term Obligations to a Credit Party, Sponsor , or any of their respective affiliatesdate hereof.
(c) Subject No consent furnished by the ABL Agent or the Term Agent pursuant to Section Sections 5.2(a) or 5.2(b) hereof shall be deemed to constitute the modification or waiver of any provisions of the ABL Documents or the Term Documents, each of which remain in full force and (b) aboveeffect. Without limiting the foregoing, the ABL Agent and the ABL Lenders may continue to make loans and advances and issue letters of credit for the account of the ABL Borrowers notwithstanding that an Event of Default exists or may arise therefrom under the Term Documents and neither the ABL Agent nor the ABL Secured Parties shall have any liability to the Term Agent or the other Term Credit Parties on account thereof.
(d) The ABL Obligations and the Term Obligations may be refinanced, in whole or in part, in each case, without notice to, or the consent (except to the extent a consent is required pursuant to Section 5.2(a) or (b) above or to permit the refinancing transaction under any ABL Document or any Term Document) of the ABL Agent, the other ABL Secured Parties, the Term Agent or the other Term Secured Credit Parties, as the case may be, all without affecting the Lien Priorities Priority provided for herein or the other provisions hereof, provided, however, that the holders of such refinancing Indebtedness (or an authorized agent or trustee on their behalf) bind themselves in writing to the terms of this Agreement pursuant to such documents or agreements (including amendments or supplements to this Agreement) as the ABL Agent or the Term Agent, as the case may be, shall reasonably request and in form and substance reasonably acceptable to the ABL Agent or the Term Agent, as the case may be, and any such refinancing transaction shall be in accordance with any applicable provisions of both the ABL Documents and the Term Documents (to the extent such documents survive the refinancing).
Appears in 1 contract
Samples: Intercreditor Agreement (Zale Corp)
Modifications to ABL Documents and Term Documents. (a) The ABL Agent and the ABL Secured Credit Parties may at any time and from time to time and without the consent of or notice to the Term Agent or any Term Secured Credit Party, without incurring any liability to the Term Agent or any Term Secured Credit Party and without impairing or releasing any rights or obligations hereunder or otherwise, amend, restate, supplement, modify, waive, substitute, renew, refinance, or replace any or all of the ABL Documents; provided, however, that without the consent of the Term AgentLoan Agent (or, solely in the case of clauses (7)(y) or (7)(z) below, the Required Lenders (as defined in the Term Loan Agreement)), the ABL Secured Credit Parties shall not amend, restate, supplement, modify, waive, substitute, renew, refinance or replace any or all of the ABL Documents or, solely in the case of clause (7) below, take or fail to take any action pursuant to the ABL Documents or this Agreement, to:
(1) increase the maximum principal amount of the ABL Obligations to an amount in excess of the Maximum ABL Facility Amount;
(2) increase the rate rates of interest (whether in cash or in kind) on any of the ABL Obligations to a rate in excess of 3.50% per annum above the interest rate set forth in the definition of “Applicable Margin” as defined in the ABL Credit Agreement by more than 2.00% per annum at any level of the pricing grid applicable thereto (as in effect on the date hereof), except other than any increase occurring because of fluctuation fluctuations in underlying rate indices or in connection with the imposition of a default rate of interest the Default Rate (as defined in the ABL Credit Agreement) in accordance with the terms of the ABL Credit Agreement), or increase the percentage set forth in the definition of “Default Rate” set forth in the default rate ABL Credit Agreement by more than 2.00% per annum, or add annum above the rate applicable thereto (other than any increase occurring because of fluctuations in underlying rate indices) or increase to a rate the percentage set forth in excess Section 2.09(a) (“Commitment Fee”) of 2.00the ABL Credit Agreement by more than 0.75% per annum above the fee rate applicable thereto;
(2) shorten the scheduled maturity of the ABL Obligations;
(3) require any mandatory prepayments or scheduled repayments of the ABL Obligations except as provided in the ABL Documents as in effect on the date hereof, require that any payment on the ABL Obligations be made earlier than the date originally scheduled for such payment, or reduce, waive or eliminate any mandatory prepayments or scheduled repayments of the ABL Obligations except as provided in the ABL Documents as in effect on the date hereof;
(4) change any conditions, covenants, defaults or events of default thereunder that expressly restricts any Loan Party from making payments of the Term Obligations that would otherwise be permitted under the ABL Credit Agreement as in effect on the date hereof (other than as expressly provided herein);
(5) increase the sum of the then outstanding aggregate principal amount of the loans and outstanding Letters of Credit made, issued or incurred under the ABL Credit Agreement and any DIP Financing in excess of the amount of the Maximum ABL Facility Amount;
(6) change the definitions of “Accelerated Borrowing Base Delivery Event”, “Availability”, “Borrowing Base”, “Excess Availability”, “Payment Conditions”, or “Prepayment Event”, contained in the ABL Credit Agreement and any component (or sub-component) definition thereof, or the definitions of “Cash Dominion Event”, “Overadvance”, “Permitted Overadvance”, “Unintentional Overadvance” or “Term Loan Reserve”, each as set forth in the ABL Credit Agreement, any fee letter in connection therewith, a manner which would effect an increase in the ABL Borrowing Base or any other ABL Loan Document component thereof;
(in each case as 7) fail to establish and maintain (i) any Reserve in effect on the date hereof) any scheduled recurring fees ; provided, that the amount of such Reserves may be adjusted based on changes in the facts or circumstances that gave rise thereto (excluding any one-time feesas long as the methodology for the calculation thereof is not modified), whether payable at one time or in multiple installments, payable in connection with an amendment, waiver or similar agreement),
(3) other than in connection with DIP Financing, add any prohibition or restriction on payment and the foregoing shall not limit the discretion of the Term Loan Obligations in addition ABL Agent to those set forth under establish, eliminate and adjust the ABL Credit Agreement (as amount of any other Reserves not in effect on the date hereof; provided further, that the ABL Agent shall have the discretion to cause any Reserves (other than the Term Loan Reserve) to be maintained as Availability Reserves, Inventory Reserves, Realty Reserves, or this Receivables Reserves as the ABL Agent determines, or (ii) the Term Loan Reserve as and when required under Section 3.9 hereof;
(8) unless the Term Loan Agreement has been or is contemporaneously so amended, amend any requirement set forth in Section 7.15 of the ABL Credit Agreement (or any defined term used therein), or waive the Loan Parties’ non-compliance with the requirements of such Section of the ABL Credit Agreement;
(9) extend the dates on which Borrowing Base Certificates are required to be delivered by the Borrower, provided that the foregoing shall not limit the discretion of the ABL Agent to require more frequent reporting; or
(410) change amend the ABL Documents in any manner which would have the effect of contravening the terms of this Agreement; provided, however, the provisions of this Section 5.2(a) shall not limit, restrict or amend any provision impair the discretionary rights and ability of the ABL Loan Documents relating Agent to (1) modify, reduce, increase or eliminate any and all other Reserves (as defined in the assignment ABL Credit Agreement) other than as provided in clause (7) above, or (2) determine the eligibility of all or any portion Collateral for inclusion in the calculation of the Borrowing Base, in each case, as provided in the ABL Obligations Credit Agreement; provided, that the ABL Agent agrees to impose a Credit Party, Sponsor or any methodology no less restrictive than that used as of their respective Affiliatesthe date hereof in determining eligibility.
(b) The Term Agent and the Term Secured Credit Parties may at any time and from time to time and without consent of or notice to the ABL Secured Credit Parties, without incurring any liability to the ABL Secured Credit Parties and without impairing or releasing any rights or obligations hereunder or otherwise, amend, restate, supplement, modify, waive, substitute, renew, refinance or replace any or all of the Term Documents; provided, however, that without the consent of the ABL Agent, the Term Agent and the Term Secured Credit Parties shall not amend, restate, supplement, modify, waive, substitute, renew, refinance or replace any or all of the Term Documents to:
(1) increase the maximum aggregate outstanding principal amount of the Term Loan Obligations to an amount in excess of the Maximum Term Loan Facility Amount,;
(2) increase the rate rates of interest (whether in respect including, without limitation, the definition of the interest that is payable in cash or in respect of the interest that is payable in kind) on any of the Term Obligations to a rate in excess of 3.50% per annum above the interest rate (whether in respect of the interest that is payable in cash or in respect of the interest that is payable in kind“Applicable Margin”) set forth in the Term Loan Agreement by more than 2.00% per annum (as other than any increase occurring because of fluctuations in effect on the date hereof), except in connection with underlying rate indices or the imposition of a default rate of interest the Default Rate (as defined in the Term Loan Agreement) in accordance with the terms of the Term Loan Agreement), or increase the percentage set forth in the definition of “Default Rate” set forth in the Term Loan Agreement by more than 2.00% per annum above the rate applicable thereto (other than any increase occurring because of fluctuations in underlying rate indices);
(3) increase the Prepayment Fee as set forth in Section 2.09(b) of the Term Loan Agreement;
(4) shorten the scheduled maturity of the Term Obligations;
(5) require any mandatory prepayments or scheduled repayments of the Term Obligations except as provided in the Term Documents (as in effect on the date hereof or require that any payment on the Term Obligations be made earlier than the date originally scheduled for such payment or reduce, waive or eliminate any mandatory prepayments or scheduled repayments of the Term Obligations except as provided in the Term Documents as in effect on the date hereof;
(6) increase unless the percentage ABL Credit Agreement has been or is contemporaneously so amended, amend any requirement set forth in Sections 7.15(a) of the default rate by more than 2.00% per annumTerm Loan Agreement (or any defined term used therein), or add waive the Loan Parties’ non-compliance with the requirements of such Sections of the Term Loan Agreement;
(7) change the definition of “Borrowing Base” or increase to a rate in excess of 2.00% per annum above the fee set forth “ABL Borrowing Base” contained in the Term Loan Agreement, or any fee letter in connection therewithcomponent definition thereof;
(8) change the definitions of “Accelerated Borrowing Base Delivery Event”, “Cash Dominion Event”, “Payment Conditions”, “Prepayment Event”, “Term Loan Reserve”, or any other component definition thereof;
(9) change any conditions, covenants, defaults or events of default thereunder that expressly restrict any Loan Party from making payments of the ABL Obligations that would otherwise be permitted under the Term Loan Document (in each case Documents as in effect on the date hereof) any scheduled recurring fees (excluding any one-time fees, whether payable at one time or in multiple installments, payable in connection with an amendment, waiver or similar agreement),; or
(3) add any prohibition or restriction on payment of the ABL Obligations in addition to those set forth under the ABL Credit Agreement (as in effect on the date hereof) or this Agreement,
(410) amend the scheduled maturity date to be shorter than six (6Term Documents in any manner which would have the effect of contravening the terms of this Agreement; provided, however, the provisions of this Section 5.2(b) months after shall not limit, restrict or impair the then stated maturity date of the ABL Credit Agreement,
(5) amend to shorten the date upon which payments of principal or interest on the Term Obligations are due or change any redemption or prepayment provisions discretionary rights and ability of the Term Obligations Agent to (including related definitions1) modify, reduce, increase or eliminate any and all other Reserves (as defined in the Term Loan Agreement), or
or (62) change or amend any provision determine the eligibility of Collateral for inclusion in the calculation of the Term Documents relating to the assignment of all or any portion of Borrowing Base, in each case, as provided in the Term Obligations Loan Agreement. Further, nothing herein shall be deemed to a Credit Party, Sponsor derogate from any rights the Term Agent may have under the Term Loan Agreement to (i) determine whether any Intellectual Property (as defined in the Term Loan Agreement) constitutes Eligible Intellectual Property (as defined in the Term Loan Agreement), or (ii) establish and maintain, modify, reduce, increase or eliminate any of their respective affiliatesIntellectual Property Reserve.
(c) Subject to Section Sections 5.2(a) and (b) above, the ABL Obligations and the Term Obligations may be refinanced, in whole or in part, in each case, without notice to, or the consent (except to the extent a consent is required to permit the refinancing transaction under any ABL Document or any Term Document) of the ABL Agent, the ABL Secured Credit Parties, the Term Agent or the Term Secured Credit Parties, as the case may be, all without affecting the Lien Priorities provided for herein or the other provisions hereof, provided, however, that the holders of such refinancing Indebtedness indebtedness (or an authorized agent or trustee on their behalf) bind themselves in writing execute and deliver to the terms of this Agreement pursuant to such documents or agreements (including amendments or supplements to this Agreement) as the ABL Agent or the Term Agent, as the case may be, shall reasonably request and an intercreditor agreement in form and substance reasonably acceptable to the ABL Agent or the Term Agent, as the case may be, and any such refinancing transaction shall be in accordance with any applicable provisions of both the ABL Documents and the Term Documents (to the extent such documents survive the refinancing).
Appears in 1 contract
Samples: Intercreditor Agreement (Destination Maternity Corp)
Modifications to ABL Documents and Term Documents. (a) The Term Agent, on behalf of itself and the Term Secured Parties, hereby agrees that, without affecting the obligations of the Term Agent and the Term Secured Parties hereunder, the ABL Agent and the ABL Secured Parties may may, at any time and from time to time and time, in their sole discretion without the consent of or notice to the Term Agent or any Term Secured Party, and without incurring any liability to the Term Agent or any Term Secured Party and without or impairing or releasing any rights or obligations hereunder or otherwisethe Lien Priority provided for herein, amend, restate, supplement, modify, waive, substitute, renewreplace, refinance, extend, consolidate, restructure, or replace otherwise modify any or all of the ABL Documents; Documents in any manner whatsoever, other than in a manner which would have the effect of contravening the terms of this Agreement, provided, however, that without the consent of the Term Agent, the ABL Secured Parties Agent and the ABL Lenders shall not amend, restate, supplement, modify, waive, substitute, renew, refinance agree to any amendment or replace any or all modification of the ABL Documents to:
Credit Agreement which would (1i) increase the maximum principal amount of the ABL Obligations to an amount in excess of the Maximum ABL Facility Amount;
Total Commitments (2) increase the rate of interest (whether in cash or in kind) on any of the ABL Obligations to a rate in excess of 3.50% per annum above the interest rate set forth as defined in the ABL Credit Agreement (as in effect on the date hereof), except any increase occurring because of fluctuation in underlying rate indices or in connection with the imposition of a default rate of interest in accordance with the terms of the ABL Credit Agreement, increase the percentage of the default rate by more than 2.00% per annum, or add or increase to a rate in excess of 2.00% per annum above the fee set forth in the ABL Credit Agreement, any fee letter in connection therewith, or any other ABL Loan Document (in each case as in effect on the date hereof) any scheduled recurring fees to an amount in excess of the amounts set forth in clause (excluding any one-time feesa) of the definition of Maximum ABL Obligations, whether payable at one time (ii) directly increase the interest rates on the ABL Obligations to a rate greater than 2.0% per annum above rates as are in effect on the date hereof (excluding, without limitation, fluctuations in underlying rate indices, pricing grid level changes due to changes in average daily Excess Availability, and imposition of a default rate of interest not greater than 2.0% per annum), (iii) directly or in multiple installments, payable in connection with an amendment, waiver indirectly prohibit or similar agreement),
(3) other than in connection with DIP Financing, add any prohibition or restriction on restrict the payment of principal of, interest on, the Term Loan Obligations Obligations, in addition to those set forth under a manner more restrictive than the prohibitions and restrictions contained in the ABL Credit Agreement as in effect on the date hereof, (iv) except as a result of the Permitted Insolvency Increase Amount, change the definition of “Borrowing Base”, “Overadvance”, “Inadvertent Overadvance”, or “Permitted Overadvance” contained in the ABL Credit Agreement or any component definition thereof by increasing advance rates or changing the eligibility criteria for the assets included therein if such change would result in an increase of the amounts available to be borrowed thereunder, or (v) reduce the amount of Excess Availability (as defined in the ABL Credit Agreement as in effect on the date hereof) or this Agreement, or
(4that is required to be maintained in Section 6.8(b) change or amend any provision of the ABL Loan Documents relating Credit Agreement as in effect on the date hereof. The ABL Agent agrees that upon the request of the Term Agent, it shall make itself available for discussion with the Term Agent regarding the amount or computation of any Reserves (as defined in the ABL Credit Agreement as in effect on the date hereof) that are permitted to be established pursuant to the assignment ABL Credit Agreement, provided that, except as provided below, the foregoing agreement shall not limit or impair the ABL Agent’s rights to establish, increase, reduce or eliminate any such Reserves or require any prior notice to, or consent from, the Term Agent or the Term Secured Parties thereto; provided further that the ABL Agent shall not eliminate any category of all or any portion Reserves existing as of the date hereof or change the methodology for the calculation of such Reserves without the consent of the Term Agent. Furthermore, the ABL Obligations Agent agrees that, if and to the extent that Excess Availability (as defined in the ABL Credit Agreement as of the date hereof) is less than $75,000,000 at any time, upon the request of the Term Agent, the ABL Agent shall establish a Reserve (the “Term Reserve”) in an amount equal to two and one-half percent (2.5%) of the Borrowing Base as calculated as of the time of the Term Agent’s request (it being understood that the Term Agent may make additional requests due to increases in the Borrowing Base so that the Term Reserve is at all times equal to two and one-half percent (2.5%) of the Borrowing Base if Excess Availability is less than $75,000,000). Once established, except as otherwise permitted in the Term Credit PartyAgreement, Sponsor the Term Reserve shall not be eliminated or any reduced by the ABL Agent without the prior written consent of their respective Affiliatesthe Term Agent.
(b) The ABL Agent, on behalf of itself and the ABL Secured Parties, hereby agrees that, without affecting the obligations of the ABL Agent and the ABL Secured Parties hereunder, the Term Agent and the Term Secured Parties may may, at any time and from time to time and time, in their sole discretion without the consent of or notice to the ABL Agent or any ABL Secured PartiesParty, and without incurring any liability to the ABL Agent or any ABL Secured Parties and without Party or impairing or releasing any rights or obligations hereunder or otherwisethe Lien Priority provided for herein, amend, restate, supplement, modifyreplace, waiverefinance, substituteextend, renewconsolidate, refinance restructure, or replace otherwise modify any or all of the Term Documents; Documents in any manner whatsoever other than in a manner which would have the effect of contravening the terms of this Agreement, provided, however, that without the consent of the ABL Agent, the Term Agent and the Term Secured Parties Lenders shall not amend, restate, supplement, modify, waive, substitute, renew, refinance agree to any amendment or replace any or all modification of the Term Documents to:
Credit Agreement which would (1i) increase the maximum principal amount of the Term Loan Obligations to an amount (other than through the capitalization of PIK Amounts (as defined in the Term Credit Agreement as amended, restated, supplemented or otherwise modified in accordance with the terms hereof)) in excess of the Maximum Term Loan Facility Amount,
sum of $150,000,000 less any principal payments made on account thereof, (2ii) directly increase the rate of interest (whether in respect of the interest that is payable in cash or in respect of the interest that is payable in kind) rates on any of the Term Obligations to a rate in excess of 3.50greater than 2.0% per annum above rates as are in effect on the date hereof (excluding imposition of a default rate of interest rate not greater than 2.0% per annum), (whether in respect of iii) terminate the interest that is payable in cash or in respect of Term Borrower’s right to the interest that is payable in kind) set forth PIK Election (as defined in the Term Loan Credit Agreement as in effect on the date hereof); provided that the foregoing shall not be deemed to limit any amendments which increase the accrued interest which may become a PIK Amount, (iv) directly or indirectly prohibit or restrict the payment of principal of, interest on, the ABL Obligations, in a manner more restrictive than the prohibitions and restrictions contained in the Term Credit Agreement as in effect on the date hereof, (v) shorten the scheduled maturity of the Term Obligations, (vi) require any scheduled principal payments or other mandatory principal payments on account of the Term Obligations (other than for mandatory prepayments under the Term Credit Agreement (as in effect on the date hereof), except in connection with the imposition of a default rate of interest in accordance with the terms of the Term Documents (as in effect on the date hereof) increase the percentage of the default rate by more than 2.00% per annum, or add or increase to a rate in excess of 2.00% per annum above the fee set forth in the Term Loan Agreement, any fee letter in connection therewith, or any other Term Loan Document (in each case as in effect on the date hereof) any scheduled recurring fees (excluding any one-time fees, whether payable at one time or in multiple installments, payable in connection with an amendment, waiver or similar agreement),
(3) add any prohibition or restriction on payment of the ABL Obligations in addition to those set forth under the ABL Credit Agreement (as in effect on the date hereof) or this Agreement,
(4) amend the scheduled maturity date to be shorter than six (6) months after the then stated maturity date of the ABL Credit Agreement,
(5) amend to shorten the date upon which payments of principal or interest require that any payment on the Term Obligations are due be made earlier than the date originally scheduled for such payment, or (vii) change any redemption provisions of Sections 7.05 or prepayment provisions 7.08(d) of the Term Obligations (including related definitions), or
(6) change or amend any provision of Credit Agreement that would be more restrictive than those in effect under the Term Documents relating to the assignment of all or any portion as of the Term Obligations to a Credit Party, Sponsor , or any of their respective affiliatesdate hereof.
(c) Subject No consent furnished by the ABL Agent or the Term Agent pursuant to Section Sections 5.2(a) or 5.2(b) hereof shall be deemed to constitute the modification or waiver of any provisions of the ABL Documents or the Term Documents, each of which remain in full force and (b) aboveeffect. Without limiting the foregoing, the ABL Agent and the ABL Lenders may continue to make loans and advances and issue letters of credit for the account of the ABL Borrowers notwithstanding that an Event of Default exists or may arise therefrom under the Term Documents and neither the ABL Agent nor the ABL Secured Parties shall have any liability to the Term Agent or the Term Secured Parties on account thereof.
(d) The ABL Obligations and the Term Obligations may be refinanced, in whole or in part, in each case, without notice to, or the consent (except to the extent a consent is required pursuant to Section 5.2(a) or (b) above or to permit the refinancing transaction under any ABL Document or any Term Document) of the ABL Agent, the ABL Secured Parties, the Term Agent or the Term Secured Parties, as the case may be, all without affecting the Lien Priorities Priority provided for herein or the other provisions hereof, provided, however, that the holders of such refinancing Indebtedness (or an authorized agent or trustee on their behalf) bind themselves in writing to the terms of this Agreement pursuant to such documents or agreements (including amendments or supplements to this Agreement) as the ABL Agent or the Term Agent, as the case may be, shall reasonably request and in form and substance reasonably acceptable to the ABL Agent or the Term Agent, as the case may be, and any such refinancing transaction shall be in accordance with any applicable provisions of both the ABL Documents and the Term Documents (to the extent such documents survive the refinancing).
Appears in 1 contract
Samples: Intercreditor Agreement (Zale Corp)
Modifications to ABL Documents and Term Documents. (a) The ABL Agent and the ABL Secured Credit Parties may at any time and from time to time and without the consent of or notice to the Term Agent or any Term Secured Credit Party, without incurring any liability to the Term Agent or any Term Secured Credit Party and without impairing or releasing any rights or obligations hereunder or otherwise, amend, restate, supplement, modify, waive, substitute, renew, refinance, or replace any or all of the ABL Documents; provided, however, that without the consent of the Term Agent, the ABL Secured Credit Parties shall not amend, restate, supplement, modify, waive, substitute, renew, refinance or replace any or all of the ABL Documents or, solely in the case of clause (6) below, take or fail to take any action pursuant to the ABL Documents or this Agreement to:
(1) increase the maximum principal amount of the ABL Obligations to an amount in excess of the Maximum ABL Facility Amount;
(2) increase the rate rates of interest (whether in cash or in kind) on any of the ABL Obligations to a rate in excess of 3.50% per annum above the interest rate set forth in the definition of “Applicable Margin” as defined in the ABL Credit Agreement by more than 2.00% per annum at any level of the pricing grid applicable thereto (as in effect on the date hereof), except other than any increase occurring because of fluctuation fluctuations in underlying rate indices or in connection with the imposition of a default rate of interest the Default Rate (as defined in the ABL Credit Agreement) in accordance with the terms of the ABL Credit Agreement), or increase the percentage set forth in the definition of “Default Rate” set forth in the default rate ABL Credit Agreement by more than 2.00% per annum, annum above the rate applicable thereto (other than any increase occurring because of fluctuations in underlying rate indices) or add or (i) increase to a rate the percentage set forth in excess Section 2.09(a) (“Commitment Fee”) of 2.00the ABL Credit Agreement by more than 0.75% per annum above the fee rate applicable thereto, or (ii) increase the percentage set forth in the Fee Letter (as defined in the ABL Credit Agreement, any fee letter in connection therewith, or any other ABL Loan Document (in each case as in effect on the date hereof) any scheduled recurring with respect to fees (excluding any one-time fees, whether payable at one time or in multiple installments, payable in connection with an amendment, waiver or similar agreement),
(3) other than increase in connection with DIP Financing, add any prohibition or restriction on payment of the Term Tranche A Revolving Loan Obligations in addition to those set forth Commitments under the ABL Credit Agreement (as in effect on the date hereof) or this Agreement, or
(4) change or amend any provision of the ABL Loan Documents relating to the assignment of all or any portion of the ABL Obligations to a Credit Party, Sponsor or any of their respective Affiliates.
(b) The Term Agent and the Term Secured Parties may at any time and from time to time and without consent of or notice to the ABL Secured Parties, without incurring any liability to the ABL Secured Parties and without impairing or releasing any rights or obligations hereunder or otherwise, amend, restate, supplement, modify, waive, substitute, renew, refinance or replace any or all of the Term Documents; provided, however, that without the consent of the ABL Agent, the Term Agent and the Term Secured Parties shall not amend, restate, supplement, modify, waive, substitute, renew, refinance or replace any or all of the Term Documents to:
(1) increase the maximum principal amount of the Term Loan Obligations to an amount in excess of the Maximum Term Loan Facility Amount,
(2) increase above the rate of interest (whether in respect of the interest that is payable in cash or in respect of the interest that is payable in kind) on any of the Term Obligations to a rate in excess of 3.50% per annum above the interest rate (whether in respect of the interest that is payable in cash or in respect of the interest that is payable in kind) set forth in the Term Loan Agreement (as in effect on the date hereof), except in connection with the imposition of a default rate of interest in accordance with the terms of the Term Documents (as in effect on the date hereof) increase the percentage of the default rate by more than 2.00% per annumapplicable thereto, or add or increase to a rate in excess require the payment of 2.00% per annum above the any prepayment premium, termination fee set forth in the Term Loan Agreement, any fee letter in connection therewith, or any other Term Loan Document (in each case as in effect on the date hereof) any scheduled recurring fees (excluding any one-time fees, whether payable at one time or in multiple installments, payable in connection with an amendment, waiver or similar agreement),
(3) add any prohibition or restriction on payment of by the ABL Obligations in addition to those set forth under the ABL Credit Agreement (as in effect on the date hereof) or this Agreement,
(4) amend the scheduled maturity date to be shorter than six (6) months after the then stated maturity date of the ABL Credit Agreement,
(5) amend to shorten the date upon which payments of principal or interest on the Term Obligations are due or change any redemption or prepayment provisions of the Term Obligations (including related definitions), or
(6) change or amend any provision of the Term Documents relating to the assignment of all or any portion of the Term Obligations to a Credit Party, Sponsor , or any of their respective affiliates.
(c) Subject to Section 5.2(a) and (b) above, the ABL Obligations and the Term Obligations may be refinanced, in whole or in part, in each case, without notice to, or the consent (except to the extent a consent is required to permit the refinancing transaction under any ABL Document or any Term Document) of the ABL Agent, the ABL Secured Loan Parties, the Term Agent or the Term Secured Parties, as the case may be, all without affecting the Lien Priorities provided for herein or the other provisions hereof, provided, however, that the holders of such refinancing Indebtedness (or an authorized agent or trustee on their behalf) bind themselves in writing to the terms of this Agreement pursuant to such documents or agreements (including amendments or supplements to this Agreement) as the ABL Agent or the Term Agent, as the case may be, shall reasonably request and in form and substance reasonably acceptable to the ABL Agent or the Term Agent, as the case may be, and any such refinancing transaction shall be in accordance with any applicable provisions of both the ABL Documents and the Term Documents (to the extent such documents survive the refinancing).;
Appears in 1 contract
Samples: Intercreditor Agreement
