Modifications to First Lien Documents and Second Lien Documents. (a) Each Second Lien Agent, on behalf of itself and the other applicable Second Lien Secured Parties, hereby agrees that, without affecting the obligations of any Second Lien Agent and the other Second Lien Secured Parties hereunder, any First Lien Agent and the other First Lien Secured Parties may, at any time and from time to time, in their sole discretion without the consent of or notice to any Second Lien Agent or any other Second Lien Secured Party (except to the extent such notice or consent is required pursuant to the express provisions of this Section 5.2), and without incurring any liability to any Second Lien Agent or any other Second Lien Secured Party or impairing or releasing the subordination provided for herein, (i) Replace any First Lien Debt Facility with a First Lien Substitute Facility in accordance with Section 7.5 hereof, (ii) add an Additional First Lien Debt Facility in accordance with Section 7.6 hereof or (iii) amend, restate, supplement, refinance, extend, consolidate, restructure or otherwise modify any of the applicable First Lien Documents in any manner whatsoever (each of such actions described in clauses (i), (ii) and (iii), a “First Lien Modification”); provided that, without the written consent of each Second Lien Agent (each acting with the consent of the applicable requisite Second Lien Secured Parties), no First Lien Modification shall (A) breach any of the express terms of this Agreement or (B) implement any covenant, agreement or event of default under any First Lien Document that directly restricts by its terms any Credit Party from making any payment under any of the Second Lien Documents that would otherwise be permitted under the First Lien Documents as in effect on the date hereof. (b) Each First Lien Agent, on behalf of itself and the other applicable First Lien Secured Parties, hereby agrees that, without affecting the obligations of any First Lien Agent and the other First Lien Secured Parties hereunder, each Second Lien Agent and the other Second Lien Secured Parties may, at any time and from time to time, in their sole discretion without the consent of or notice to any First Lien Agent or any other First Lien Secured Party (except to the extent such consent is required pursuant to the express provisions of this Section 5.2), and without incurring any liability to any First Lien Agent or any other First Lien Secured Party or impairing or releasing the subordination provided for herein (i) Replace any Second Lien Debt Facility with a Second Lien Substitute Facility in accordance with Section 7.5 hereof, (ii) add an Additional Second Lien Debt Facility in accordance with Section 7.6 hereof or (iii) amend, restate, supplement, refinance, extend, consolidate, restructure or otherwise modify any of the Second Lien Documents in any manner whatsoever (each of such actions described in clauses (i), (ii) and (iii), a “Second Lien Modification”); provided that, so long as the Discharge of First Lien Obligations has not occurred, without the prior written consent of the each First Lien Agent (each acting with the consent of the applicable requisite First Lien Secured Parties), no such Second Lien Modification shall (A) breach the express terms of this Agreement, (B) result in a scheduled amortization payment under, or the scheduled final maturity date of, any Second Lien Debt Facility, occurring earlier than [●]1 (for the avoidance of doubt, any acceleration of the obligations under any Second Lien Document or Second Lien Modification that implements acceleration provisions in any Second Lien Document that, when taken as a whole, are not, at the time such Second Lien Modification becomes effective, materially more restrictive on the Borrower and its Subsidiaries than the corresponding acceleration provisions of the First Lien Documents when taken as a whole shall not implicate this clause (B) (it being understood and agreed that the acceleration provisions of the Second Lien Indenture Documents as in effect on the date hereof, when taken as a whole, are not materially more restrictive on the Borrower and its Subsidiaries than the corresponding acceleration provisions of the First Lien Documents when taken as a whole)), (C) implement mandatory prepayment, redemption or repurchase provisions in any Second Lien Debt Facility that would require such Second Lien Debt Facility to be mandatorily prepaid, redeemed or repurchased prior to [●]2; provided that this clause (C) shall not apply to (1) any provision in the Second Lien Indenture Documents as in effect on the date hereof or (2) any acceleration, event of default or mandatory offer to purchase/repurchase provisions of any Second Lien Document (including any Second Lien Indenture Document) that, when taken as a whole, are not materially more restrictive on the Borrower and its Subsidiaries than the corresponding provisions of the Second Lien Indenture Documents as in effect on the date hereof when taken as a whole (provided that a certificate of a Responsible Officer delivered to each First Lien Agent and each Second Lien Agent at least five (5) Business Days prior to the effectiveness of the applicable Second Lien Modification with (x) a reasonably detailed description of the material terms and conditions of such amendment and (y) drafts of the documentation relating thereto attached, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (2) shall be conclusive evidence that such terms and conditions satisfy such requirement unless any First Lien Agent notifies the Borrower within such five (5) Business Day period that it disagrees with such determination (including a description of the basis upon which it disagrees)) or (D) implement covenants or events of defaults in any Second Lien Debt Facility that, when taken as a whole, are, at the time such Second Lien Modification becomes effective, materially more restrictive on the Borrower and its Subsidiaries than the corresponding provisions of the First Lien Documents when taken as a whole (it being understood and agreed that neither the covenants in the Second Lien Indenture Documents as in effect on the date hereof, when taken as a whole, nor the events of default in the Second Lien Indenture Documents as in effect on the date hereof, when taken as a whole, are materially more restrictive on the Borrower and its Subsidiaries than the corresponding provisions of the First Lien Documents when taken as a whole); provided that a certificate of a Responsible Officer delivered to each First Lien Agent and each Second Lien Agent at least five (5) Business Days prior to the effectiveness of the applicable Second Lien Modification with (x) a reasonably detailed description of the material terms and conditions of such amendment and (y) drafts of the documentation relating thereto attached, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (D) shall be conclusive evidence that such terms and conditions satisfy such requirement unless any First Lien Agent notifies the Borrower within such five (5) Business Day period that it disagrees with such determination (including a description of the basis upon which it disagrees). 1 To be the date that is the 91st day after the maturity date of the first lien term loan facility. 2 To be the date that is the 91st day after the maturity date of the first lien term loan facility. (c) In the event that each First Lien Agent or the First Lien Secured Parties and the relevant Credit Party enter into any amendment, modification, waiver or consent in respect of any of the First Lien Collateral Documents (other than this Agreement) that is not prohibited under this Agreement, then such amendment, modification, waiver or consent shall apply automatically to any comparable provisions of the Second Lien Collateral Documents, in each case, without the consent of any Second Lien Secured Party and without any action by any Second Lien Agent, the Borrower or any other Credit Party; provided that (i) no such amendment, modification, waiver or consent shall (A) remove assets subject to the Liens securing the Second Lien Obligations or release any such Liens, except to the extent that such release is permitted or required by Section 2.4(b) hereof and provided that there is a concurrent release of the corresponding Liens securing the First Lien Obligations, (B) amend, modify or otherwise affect the rights or duties of any Second Lien Agent without its prior written consent or (C) permit Liens on the Collateral that are not permitted under the terms of the Second Lien Documents and (ii) notice of such amendment, modification waiver or consent shall have been given to each Second Lien Agent no later than the fifth Business Day following the effective date of such amendment, modification, waiver or consent. (d) The Borrower agrees that each applicable Second Lien Debt Facility and each applicable Second Lien Collateral Document shall contain the applicable provisions set forth on Annex I hereto, or similar provisions approved by each First Lien Agent, which approval shall not be unreasonably withheld or delayed. Each of the Borrower and each Second Lien Agent further agrees that each Second Lien Collateral Document covering any Collateral that is comprised of Real Property shall contain such other language as each 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 pursuant to this Agreement.
Appears in 2 contracts
Samples: Indenture (Arconic Inc.), Indenture (Arconic Rolled Products Corp)
Modifications to First Lien Documents and Second Lien Documents. (a) Each The Second Lien Agent, on behalf of itself and the other applicable Second Lien Secured Parties, hereby agrees that, without affecting the obligations of any the Second Lien Agent and the other Second Lien Secured Parties hereunder, any the First Lien Agent and the other First Lien Secured Parties may, at any time and from time to timetime but subject to Section 5.2(c) hereof, in their sole discretion without the consent of or notice to any the Second Lien Agent or any other Second Lien Secured Party (except to the extent such notice or consent is required pursuant to the express provisions of this Section 5.2), and without incurring any liability to any the Second Lien Agent or any other Second Lien Secured Party or impairing or releasing the subordination provided for herein, (i) Replace any First Lien Debt Facility with a First Lien Substitute Facility in accordance with Section 7.5 hereof, (ii) add an Additional First Lien Debt Facility in accordance with Section 7.6 hereof or (iii) amend, restate, supplement, refinance, extend, consolidate, restructure or otherwise modify any of the applicable First Lien Documents in any manner whatsoever (each of such actions described in clauses (i), (ii) and (iii), a “First Lien Modification”)whatsoever; provided that, without the written consent of each Second Lien Agent (each acting with the consent of the applicable requisite Required Lenders (or other required percentage of lenders defined by reference to any similar term) (as defined in any Second Lien Secured PartiesCredit Agreement), no First Lien Modification such amendment, restatement, supplement, refinancing, extension, consolidation, restructuring or other modification (or successive amendments, restatements, supplements, refinancings, extensions, consolidations, restructurings or other modifications) shall (A) breach contravene any of the express terms provision of this Agreement or (B) implement any covenant, agreement or event of default under any First Lien Document that directly restricts by its terms any Credit Party from making any payment under any of the Second Lien Documents that would otherwise be permitted under the First Lien Documents as in effect on the date hereofAgreement.
(b) Each The First Lien Agent, on behalf of itself and the other applicable First Lien Secured Parties, hereby agrees that, without affecting the obligations of any the First Lien Agent and the other First Lien Secured Parties hereunder, each the Second Lien Agent and the other Second Lien Secured Parties may, at any time and from time to timetime but subject to Section 5.2(c) hereof, in their sole discretion without the consent of or notice to any the First Lien Agent or any other First Lien Secured Party (except to the extent such consent is required pursuant to the express provisions of this Section 5.2), and without incurring any liability to any the First Lien Agent or any other First Lien Secured Party or impairing or releasing the subordination provided for herein (i) Replace any Second Lien Debt Facility with a Second Lien Substitute Facility in accordance with Section 7.5 hereofherein, (ii) add an Additional Second Lien Debt Facility in accordance with Section 7.6 hereof or (iii) amend, restate, supplement, refinance, extend, consolidate, restructure or otherwise modify any of the Second Lien Documents in any manner whatsoever (each of such actions described in clauses (i), (ii) and (iii), a “Second Lien Modification”)whatsoever; provided that, so long as the Discharge of First Lien Obligations has not occurred, without the prior written consent of the each Required Lenders (or other required percentage of lenders defined by reference to any similar term) (as defined in any First Lien Agent (each acting with the consent of the applicable requisite First Lien Secured PartiesCredit Agreement), no such Second Lien Modification amendment, restatement, supplement, refinancing, extension, consolidation, restructuring or other modification (or successive amendments, restatements, supplements, refinancings, extensions, consolidations, restructurings or other modifications) shall (Ai) breach contravene the express terms provisions of this Agreement, (Bii) result change to earlier dates any scheduled dates for payment of principal, (iii) change the mandatory redemption or prepayment provisions set forth in the Second Lien Documents in a scheduled amortization payment undermanner that would require the applicable Second Lien Obligations to be mandatorily redeemed or prepaid prior to the date(s), or if any, set forth in the scheduled applicable Second Lien Document as in effect as of the date hereof (and, if there are no such dates, prior to the final maturity date of, any Second Lien Debt Facility, occurring earlier than [●]1 (for the avoidance of doubt, any acceleration of the obligations under any Second Lien Document or Second Lien Modification that implements acceleration provisions in any Second Lien Document that, when taken as a whole, are not, at the time such Second Lien Modification becomes effective, materially more restrictive on the Borrower and its Subsidiaries than the corresponding acceleration provisions of the First Lien Documents when taken as a whole shall not implicate this clause (B) (it being understood and agreed that the acceleration provisions of with respect to the Second Lien Indenture Documents as in effect on the date hereof, when taken as a whole, are not materially more restrictive on the Borrower and its Subsidiaries than the corresponding acceleration provisions of the First Lien Documents when taken as a whole)Obligations set forth therein), other than (Cw) implement mandatory prepayment, redemption upon the occurrence of an asset sale or repurchase provisions in any Second Lien Debt Facility that would require such Second Lien Debt Facility to be mandatorily prepaid, redeemed other disposition or repurchased prior to [●]2; provided that this clause casualty event (C) shall not apply subject to (1) any provision reinvestment rights that are in the aggregate no less favorable to the Borrower than those under the Second Lien Indenture Documents as in effect on the date hereof or and (2) the application of the net cash proceeds thereof to the prior prepayment of, or offer to prepay, any accelerationapplicable First Lien Obligations then outstanding), (x) upon the occurrence of a change of control event, (y) customary acceleration rights following an event of default (subject to the limitations in clause (iii) of this paragraph) and (z) upon the incurrence of Indebtedness that is not permitted thereunder (subject to the application of the net cash proceeds thereof to the prior prepayment of, or mandatory offer to purchase/repurchase provisions of prepay, any Second Lien Document (including any Second Lien Indenture Document) that, when taken as a whole, are not materially more restrictive on the Borrower and its Subsidiaries than the corresponding provisions of the Second Lien Indenture Documents as in effect on the date hereof when taken as a whole (provided that a certificate of a Responsible Officer delivered to each applicable First Lien Agent and each Second Lien Agent at least five (5) Business Days prior to the effectiveness of the applicable Second Lien Modification with (x) a reasonably detailed description of the material terms and conditions of such amendment and (y) drafts of the documentation relating thereto attached, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (2) shall be conclusive evidence that such terms and conditions satisfy such requirement unless any First Lien Agent notifies the Borrower within such five (5) Business Day period that it disagrees with such determination (including a description of the basis upon which it disagrees)Obligations then outstanding) or (Div) implement covenants add to the Collateral (or events of defaults in any Second Lien Debt Facility that, when taken similar term as a whole, are, at the time such Second Lien Modification becomes effective, materially more restrictive on the Borrower and its Subsidiaries than the corresponding provisions of the First Lien Documents when taken as a whole (it being understood and agreed that neither the covenants defined in the Second Lien Indenture Documents Documents) other than as in effect on the date hereof, when taken as a whole, nor the events of default in the Second Lien Indenture Documents as in effect on the date hereof, when taken as a whole, are materially more restrictive on the Borrower and its Subsidiaries than the corresponding provisions of the First Lien Documents when taken as a whole); specifically provided that a certificate of a Responsible Officer delivered to each First Lien Agent and each Second Lien Agent at least five (5) Business Days prior to the effectiveness of the applicable Second Lien Modification with (x) a reasonably detailed description of the material terms and conditions of such amendment and (y) drafts of the documentation relating thereto attached, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of by this clause (D) shall be conclusive evidence that such terms and conditions satisfy such requirement unless any First Lien Agent notifies the Borrower within such five (5) Business Day period that it disagrees with such determination (including a description of the basis upon which it disagrees). 1 To be the date that is the 91st day after the maturity date of the first lien term loan facility. 2 To be the date that is the 91st day after the maturity date of the first lien term loan facilityAgreement.
(c) In Subject to the event express limitations set forth in Sections 5.2(a) and 5.2(b), the First Lien Obligations and the Second Lien Obligations may be refinanced, in whole or in part, from time to time, in each case, without notice to, or the consent (except to the extent a consent is required to permit such refinancing transaction under any First Lien Document or any Second Lien Document) of the First Lien Agent, the First Lien Secured Parties, the Second Lien Agent or the other Second Lien Secured Parties, as the case may be, all without affecting the Lien Priority provided for herein or the other provisions hereof; provided, however, that each the holders of any class or series 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 First Lien Agent or the Second Lien Agent, as the case may be, shall reasonably request and in form and substance reasonably acceptable to the First Lien Agent or the Second Lien Agent, as the case may be, and any such refinancing transaction shall be in accordance with any applicable provisions of both the First Lien Documents and the Second Lien Documents (to the extent such documents survive the refinancing).
(d) In the event that the First Lien Agent or the other First Lien Secured Parties and the relevant Credit Party enter into any amendment, modification, waiver or consent in respect of any of the First Lien Collateral Documents (other than this Agreement) that is not prohibited under this Agreement), then such amendment, modification, waiver or consent shall apply automatically to any comparable provisions of the applicable Comparable Second Lien Collateral DocumentsDocument, in each case, without the consent of any Second Lien Secured Party and without any action by any the Second Lien Agent, the Borrower or any other Credit Party; provided that (i) no such amendment, modification, waiver or consent shall (A) remove assets subject to the Liens securing the Second Lien Obligations or release any such Liens, except to the extent that such release is permitted or required by Section 2.4(b) hereof and provided that there is a concurrent release of the corresponding Liens securing the First Lien Obligations, Obligations or (B) amend, modify or otherwise affect the rights or duties of any the Second Lien Agent without its prior written consent or (C) permit Liens on the Collateral that are not permitted under the terms of the Second Lien Documents and (ii) notice of such amendment, modification modification, waiver or consent shall have been given to each the Second Lien Agent no later than the fifth tenth Business Day following the effective date of such amendment, modification, waiver or consent.
(de) The Each of the Borrower and the Second Lien Agent agrees that each applicable any Second Lien Debt Facility Credit Agreement and each applicable Second Lien Collateral Document shall contain the applicable provisions set forth on Annex I hereto, or similar provisions approved by each the First Lien Agent, which approval shall not be unreasonably withheld or delayed. Each of the Borrower and each the Second Lien Agent further agrees that each Second Lien Collateral Document covering any Collateral that is comprised of Real Property shall contain such other language as each 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 pursuant to this Agreement.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Foundation Building Materials, Inc.)
Modifications to First Lien Documents and Second Lien Documents. (a) Each Second Lien Agent, on behalf of itself and the other applicable Second Lien Secured Parties, hereby agrees that, without affecting the obligations of any Second Lien Agent and the other Second Lien Secured Parties hereunder, any The First Lien Agent and the other First Lien Secured Parties may, may at any time and from time to time, in their sole discretion time and without the consent of or notice to any the Second Lien Agent or any other Second Lien Secured Party (except to the extent such notice or consent is required pursuant to the express provisions of this Section 5.2)Party, and without incurring any liability to any the Second Lien Agent or any other Second Lien Secured Party or and without impairing or releasing the subordination provided for hereinany rights or obligations hereunder or otherwise, (i) Replace any First Lien Debt Facility with a First Lien Substitute Facility in accordance with Section 7.5 hereof, (ii) add an Additional First Lien Debt Facility in accordance with Section 7.6 hereof or (iii) amend, restate, supplement, modify, waive, substitute, renew, refinance, extend, consolidate, restructure or otherwise modify replace any or all of the applicable First Lien Documents in any manner whatsoever (each of such actions described in clauses (i)Loan Documents; provided, (ii) and (iii)however, a “First Lien Modification”); provided that, that without the written consent of each Second Lien Agent (each acting with the consent of the applicable requisite Second Lien Agent, the First Lien Secured PartiesParties shall not amend, restate, supplement, modify, waive, substitute, renew, refinance or replace any or all of the First Lien Loan Documents to:
(1) increase the sum of the then outstanding aggregate principal amount of the loans made under the First Lien Credit Agreement in excess of the amount of the Maximum First Lien Facility Amount;
(2) increase the rates of interest set forth in the definition of “Applicable Margin” as defined in the First Lien Credit Agreement by more than 2.00% per annum at any level of the pricing grid applicable thereto (other than any increase occurring because of fluctuations in underlying rate indices or the imposition of the Default Rate), no or increase the Default Rate 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) shorten the scheduled maturity of the First Lien Modification shall Obligations;
(A4) breach require any mandatory prepayments or scheduled repayments of the express terms First Lien Obligations except as provided in the First Lien Loan Documents as in effect on the date hereof or, other than a result of this Agreement the occurrence of an Event of Default under the First Lien Loan Documents, require that any payment on the First Lien Obligations be made earlier than the date originally scheduled for such payment;
(5) change any conditions, covenants, defaults or (B) implement any covenant, agreement or event events of default under thereunder that expressly restricts any First Lien Document that directly restricts by its terms any Credit Loan Party from making any payment under any payments of the Second Lien Documents Obligations that would otherwise be permitted under the First Lien Documents Credit Agreement as in effect on the date hereof.; or
(6) make any other amendment or modification in contravention of this Agreement
(b) Each First Lien Agent, on behalf of itself and the other applicable First Lien Secured Parties, hereby agrees that, without affecting the obligations of any First Lien Agent and the other First Lien Secured Parties hereunder, each The Second Lien Agent and the other Second Lien Secured Parties may, may at any time and from time to time, in their sole discretion time and without the consent of or notice to any First Lien Agent or any other the First Lien Secured Party (except to the extent such consent is required pursuant to the express provisions of this Section 5.2)Parties, and without incurring any liability to any First Lien Agent or any other the First Lien Secured Party or Parties and without impairing or releasing the subordination provided for herein (i) Replace any Second Lien Debt Facility with a Second Lien Substitute Facility in accordance with Section 7.5 hereofrights or obligations hereunder or otherwise, (ii) add an Additional Second Lien Debt Facility in accordance with Section 7.6 hereof or (iii) amend, restate, supplement, refinancemodify, extendwaive, consolidatesubstitute, restructure renew, refinance or otherwise modify replace any or all of the Second Lien Documents in any manner whatsoever (each of such actions described in clauses (i)Loan Documents; provided, (ii) and (iii)however, a “Second Lien Modification”); provided that, so long as the Discharge of First Lien Obligations has not occurred, that without the prior written consent of the each First Lien Agent (each acting with the consent of the applicable requisite First Lien Secured Parties)Agent, no such the Second Lien Modification shall (A) breach Agent and the express terms of this Agreement, (B) result in a scheduled amortization payment under, or the scheduled final maturity date of, any Second Lien Debt Facility, occurring earlier than [●]1 (for the avoidance of doubt, any acceleration of the obligations under any Second Lien Document or Second Lien Modification that implements acceleration provisions in any Second Lien Document that, when taken as a whole, are not, at the time such Second Lien Modification becomes effective, materially more restrictive on the Borrower and its Subsidiaries than the corresponding acceleration provisions of the First Lien Documents when taken as a whole Secured Parties shall not implicate this clause (B) (it being understood and agreed that the acceleration provisions amend, restate, supplement, modify, waive, substitute, renew, refinance or replace any or all of the Second Lien Indenture Loan Documents as to:
(1) increase the aggregate outstanding principal amount of the Second Lien Obligations in effect excess of the amount of the Maximum Second Lien Facility Amount;
(2) increase the rate of interest set forth in Section 2.05 of the Second Lien Credit Agreement by more than 2.00% per annum (other than any increase occurring because of fluctuations in underlying rate indices or the imposition of the Default Rate) or increase the percentage with respect to the Default Rate by more than 2.00% per annum above the rate applicable thereto on the date hereof, when taken as a whole, are not materially more restrictive on ;
(3) shorten the Borrower and its Subsidiaries than the corresponding acceleration provisions scheduled maturity of the First Lien Documents when taken as a whole)), (C) implement mandatory prepayment, redemption or repurchase provisions in any Second Lien Debt Facility that would Obligations;
(4) require such any mandatory prepayments or scheduled repayments of the Second Lien Debt Facility to be mandatorily prepaid, redeemed or repurchased prior to [●]2; Obligations except as provided that this clause (C) shall not apply to (1) any provision in the Second Lien Indenture Loan Documents as in effect on the date hereof or (2) require that any acceleration, event of default or mandatory offer to purchase/repurchase provisions of any Second Lien Document (including any Second Lien Indenture Document) that, when taken as a whole, are not materially more restrictive payment on the Borrower and its Subsidiaries than the corresponding provisions of the Second Lien Indenture Documents as in effect on Obligations be made earlier than the date hereof when taken as a whole (provided that a certificate of a Responsible Officer delivered to each First Lien Agent and each Second Lien Agent at least five originally scheduled for such payment;
(5) Business Days prior to the effectiveness of the applicable Second Lien Modification with (x) a reasonably detailed description of the material terms and conditions of such amendment and (y) drafts of the documentation relating thereto attachedchange any conditions, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (2) shall be conclusive evidence that such terms and conditions satisfy such requirement unless any First Lien Agent notifies the Borrower within such five (5) Business Day period that it disagrees with such determination (including a description of the basis upon which it disagrees)) or (D) implement covenants covenants, defaults or events of defaults in default thereunder that expressly restricts any Second Lien Debt Facility that, when taken as a whole, are, at the time such Second Lien Modification becomes effective, materially more restrictive on the Borrower and its Subsidiaries than the corresponding provisions Loan Party from making payments of the First Lien Documents when taken as a whole (it being understood and agreed Obligations that neither the covenants in would otherwise be permitted under the Second Lien Indenture Loan Documents as in effect on the date hereof, when taken as a whole, nor the events of default ; or
(6) make any other amendment or modification in the Second Lien Indenture Documents as in effect on the date hereof, when taken as a whole, are materially more restrictive on the Borrower and its Subsidiaries than the corresponding provisions of the First Lien Documents when taken as a whole); provided that a certificate of a Responsible Officer delivered to each First Lien Agent and each Second Lien Agent at least five (5) Business Days prior to the effectiveness of the applicable Second Lien Modification with (x) a reasonably detailed description of the material terms and conditions of such amendment and (y) drafts of the documentation relating thereto attached, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement contravention of this clause (D) shall be conclusive evidence that such terms and conditions satisfy such requirement unless any First Lien Agent notifies the Borrower within such five (5) Business Day period that it disagrees with such determination (including a description of the basis upon which it disagrees). 1 To be the date that is the 91st day after the maturity date of the first lien term loan facility. 2 To be the date that is the 91st day after the maturity date of the first lien term loan facilityAgreement.
(c) In the event that each First Lien Agent or Subject to Sections 5.2(a) and (b) above, the First Lien Secured Parties Obligations and the relevant Credit Party enter into any amendment, modification, waiver or consent in respect of any of the First Lien Collateral Documents (other than this Agreement) that is not prohibited under this Agreement, then such amendment, modification, waiver or consent shall apply automatically to any comparable provisions of the Second Lien Collateral DocumentsObligations may be refinanced, in whole or in part, in each case, without notice to, or the consent of (except to the extent a consent is required to permit the refinancing transaction under any First Lien Loan Document or any Second Lien Loan Document) of the First Lien Agent, the First Lien Secured Party and Parties, the Second Lien Agent or the Second Lien Secured Parties, as the case may be, all without any action by any affecting the Lien 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 First Lien Agent or the Second Lien Agent, as the Borrower or any other Credit Party; provided that (i) no such amendmentcase may be, modification, waiver or consent shall (A) remove assets subject to the Liens securing the Second Lien Obligations or release any such Liens, except to the extent that such release is permitted or required by Section 2.4(b) hereof and provided that there is a concurrent release of the corresponding Liens securing the First Lien Obligations, (B) amend, modify or otherwise affect the rights or duties of any Second Lien Agent without its prior written consent or (C) permit Liens on the Collateral that are not permitted under the terms of the Second Lien Documents and (ii) notice of such amendment, modification waiver or consent shall have been given to each Second Lien Agent no later than the fifth Business Day following the effective date of such amendment, modification, waiver or consent.
(d) The Borrower agrees that each applicable Second Lien Debt Facility and each applicable Second Lien Collateral Document shall contain the applicable provisions set forth on Annex I hereto, or similar provisions approved by each First Lien Agent, which approval shall not be unreasonably withheld or delayed. Each of the Borrower and each Second Lien Agent further agrees that each Second Lien Collateral Document covering any Collateral that is comprised of Real Property shall contain such other language as each First Lien Agent may reasonably request to reflect the subordination of such Second Lien Collateral Document and in form and substance reasonably acceptable to the First Lien Collateral Document covering Agent or the Second Lien Agent, as the case may be, and any such Collateral pursuant refinancing transaction shall be in accordance with any applicable provisions of both the First Lien Loan Documents and the Second Lien Loan Documents (to this Agreementthe extent such documents survive the refinancing).
Appears in 1 contract
Samples: Intercreditor Agreement (Sequential Brands Group, Inc.)
Modifications to First Lien Documents and Second Lien Documents. (a) Each Second Lien Agent, on behalf of itself and the other applicable Second Lien Secured Parties, hereby agrees that, without affecting the obligations of any Second Lien Agent and the other Second Lien Secured Parties hereunder, any The First Lien Agent and the other First Lien Secured Parties may, may at any time and from time to time, in their sole discretion time and without the consent of or notice to any the Second Lien Agent or any other Second Lien Secured Party (except to the extent such notice or consent is required pursuant to the express provisions of this Section 5.2)Party, and without incurring any liability to any the Second Lien Agent or any other Second Lien Secured Party or and without impairing or releasing the subordination provided for hereinany rights or obligations hereunder or otherwise, (i) Replace any First Lien Debt Facility with a First Lien Substitute Facility in accordance with Section 7.5 hereof, (ii) add an Additional First Lien Debt Facility in accordance with Section 7.6 hereof or (iii) amend, restate, supplement, modify, waive, substitute, renew, refinance, extend, consolidate, restructure or otherwise modify replace any or all of the applicable First Lien Loan Documents; provided, however, that without the consent of the Second Lien Agent, the First Lien Secured Parties shall not amend, restate, supplement, modify, waive, substitute, renew, refinance or replace any or all of the First Lien Loan Documents to:
(1) increase the sum of the then outstanding aggregate principal amount of the loans made, plus the aggregate face amount of all letters of credit issued or deemed issued and outstanding, under the First Lien Credit Agreement, or the aggregate commitments under the First Lien Credit Agreement, in excess of the amount of the Maximum First Lien Facility Amount;
(2) increase the effective yield on Indebtedness under the First Lien Credit Agreement by more than 300 basis points, including (i) by increasing floors or the aggregate amount of the rates of interest set forth in the definition of “Applicable Margin” as defined in the First Lien Credit Agreement as in effect on the date hereof, and (ii) any manner whatsoever (each fees that are similar to interest and/or that are recurring through the term of such actions described the First Lien Credit Agreement, that, together with any increase in clauses clause (i), by an amount that corresponds to 300 or more basis points in yield per annum at any level of the pricing grid applicable thereto (other than any increase occurring because of fluctuations in underlying rate indices or the imposition of the Default Rate at the percentage in effect on the date hereof);
(3) subordinate all of the Liens securing the First Lien Obligations to any other Lien, or the right to payment of all of the First Lien Obligations to any other indebtedness (other than in connection with the Carve Out in an Insolvency Proceeding as permitted in Section 6.1(c) below); provided that the holder(s) of the First Lien Obligations shall be permitted to subordinate their Liens or rights to payment with respect to each other;
(4) modify any provision in the First Lien Credit Agreement as in effect on the date hereof that restricts purchases of First Lien Obligations, or voting rights related thereto, by any Loan Party or any Affiliate of any Loan Party;
(5) shorten the scheduled payments or maturity or change the average weighted life of any First Lien Obligations or modify or supplement the prepayment provisions that require mandatory prepayments of any First Lien Obligations;
(6) eliminates any advance rates with respect to any category of Collateral included in the Borrowing Base or amends or modifies any advance rate with respect to any category of Collateral included in the Borrowing Base (in each case, other than in connection with a DIP Financing) to exceed by more than fifteen percent (15%) the advance rate with respect to such category in effect as of the date hereof (it being understood that none of the following shall be deemed an increase in any advance rate: (i) the establishment, modification or elimination of Reserves or (ii) and (iii)the establishment, a “First Lien Modification”); modification or elimination of Eligible Accounts or Eligible Inventory, or the component parts thereof, in each case as provided that, without for in the written consent of each Second Lien Agent (each acting with the consent Revolving Loan Agreement as of the applicable requisite Second Lien Secured Parties), no First Lien Modification shall date hereof) or modifies any loan subject to an asset-based borrowing base into a loan not subject to an asset-based borrowing base;
(A7) breach modify any of the express terms of this Agreement provision thereunder (or (Badd any such provision) implement that restricts any covenant, agreement or event of default under any First Lien Document that directly restricts by its terms any Credit Loan Party from making any payment under any payments of the Second Lien Documents Obligations that would otherwise be permitted under the First Lien Documents Credit Agreement as in effect on the date hereof; or
(8) make any other amendment or modification in contravention of this Agreement.
(b) Each First Lien Agent, on behalf of itself and the other applicable First Lien Secured Parties, hereby agrees that, without affecting the obligations of any First Lien Agent and the other First Lien Secured Parties hereunder, each The Second Lien Agent and the other Second Lien Secured Parties may, may at any time and from time to time, in their sole discretion time and without the consent of or notice to any First Lien Agent or any other the First Lien Secured Party (except to the extent such consent is required pursuant to the express provisions of this Section 5.2)Parties, and without incurring any liability to any First Lien Agent or any other the First Lien Secured Party or Parties and without impairing or releasing the subordination provided for herein (i) Replace any Second Lien Debt Facility with a Second Lien Substitute Facility in accordance with Section 7.5 hereofrights or obligations hereunder or otherwise, (ii) add an Additional Second Lien Debt Facility in accordance with Section 7.6 hereof or (iii) amend, restate, supplement, refinancemodify, extendwaive, consolidatesubstitute, restructure renew, refinance or otherwise modify replace any or all of the Second Lien Documents in any manner whatsoever (each of such actions described in clauses (i)Loan Documents; provided, (ii) and (iii)however, a “Second Lien Modification”); provided that, so long as the Discharge of First Lien Obligations has not occurred, that without the prior written consent of the each First Lien Agent (each acting with the consent of the applicable requisite First Lien Secured Parties)Agent, no such the Second Lien Modification shall (A) breach Agent and the express terms of this Agreement, (B) result in a scheduled amortization payment under, or the scheduled final maturity date of, any Second Lien Debt Facility, occurring earlier than [●]1 (for the avoidance of doubt, any acceleration of the obligations under any Second Lien Document or Second Lien Modification that implements acceleration provisions in any Second Lien Document that, when taken as a whole, are not, at the time such Second Lien Modification becomes effective, materially more restrictive on the Borrower and its Subsidiaries than the corresponding acceleration provisions of the First Lien Documents when taken as a whole Secured Parties shall not implicate this clause (B) (it being understood and agreed that the acceleration provisions amend, restate, supplement, modify, waive, substitute, renew, refinance or replace any or all of the Second Lien Indenture Loan Documents to:
(1) increase the aggregate outstanding principal amount of the Second Lien Obligations in excess of the amount of the Maximum Second Lien Facility Amount;
(2) increase the effective yield on Indebtedness under the Second Lien Credit Agreement by more than 300 basis points, including by increasing the aggregate amount of the rates of interest set forth in the definition of “Applicable Margin” as defined in effect the Second Lien Credit Agreement, together with any fees that are similar to interest that are recurring through the term of the Second Lien Credit Agreement, in an amount that would increase the effective yield on Indebtedness under the Second Lien Credit Agreement by more than 300 basis points (other than any increase occurring because of fluctuations in underlying rate indices or the imposition of the default rate at the percentage set forth in the Second Lien Credit Agreement on the date hereof, when taken as a whole, are not materially more restrictive on );
(3) shorten the Borrower and its Subsidiaries than the corresponding acceleration provisions scheduled maturity of the First Lien Documents when taken as a whole)), (C) implement mandatory prepayment, redemption or repurchase provisions in any Second Lien Debt Facility that would Obligations;
(4) require such any mandatory prepayments or scheduled repayments of the Second Lien Debt Facility to be mandatorily prepaid, redeemed or repurchased prior to [●]2; Obligations except as provided that this clause (C) shall not apply to (1) any provision in the Second Lien Indenture Loan Documents as in effect on the date hereof or (2) require that any acceleration, event of default or mandatory offer to purchase/repurchase provisions of any Second Lien Document (including any Second Lien Indenture Document) that, when taken as a whole, are not materially more restrictive scheduled payment on the Borrower and its Subsidiaries than the corresponding provisions of the Second Lien Indenture Documents as in effect on Obligations be made earlier than the date hereof when taken as a whole (provided that a certificate of a Responsible Officer delivered to each First Lien Agent and each Second Lien Agent at least five originally scheduled for such payment;
(5) Business Days prior to increase the effectiveness amount of the applicable Second Lien Modification with any prepayment premium or call protection;
(x6) a reasonably detailed description of the material terms and conditions of such amendment and (y) drafts of the documentation relating thereto attachedchange any conditions, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (2) shall be conclusive evidence that such terms and conditions satisfy such requirement unless any First Lien Agent notifies the Borrower within such five (5) Business Day period that it disagrees with such determination (including a description of the basis upon which it disagrees)) or (D) implement covenants covenants, defaults or events of defaults in default thereunder that expressly restricts any Second Lien Debt Facility that, when taken as a whole, are, at the time such Second Lien Modification becomes effective, materially more restrictive on the Borrower and its Subsidiaries than the corresponding provisions Loan Party from making payments of the First Lien Documents when taken as a whole (it being understood and agreed Obligations that neither the covenants in would otherwise be permitted under the Second Lien Indenture Loan Documents as in effect on the date hereof, when taken as a whole, nor the events of default ;
(7) amends any covenant or financial covenant in the Second Lien Indenture Documents as in effect on the date hereof, when taken as a whole, are materially manner that makes it more restrictive on the Borrower and its Subsidiaries than the corresponding provisions of the First Lien Documents when taken as a whole)or less favorable to any Loan Party; provided that a certificate of a Responsible Officer delivered to each First Lien Agent and each Second Lien Agent at least five or
(5) Business Days prior to the effectiveness of the applicable Second Lien Modification with (x) a reasonably detailed description of the material terms and conditions of such 8) make any other amendment and (y) drafts of the documentation relating thereto attached, stating that the Borrower has determined or modification in good faith that such terms and conditions satisfy the requirement contravention of this clause (D) shall be conclusive evidence that such terms and conditions satisfy such requirement unless any First Lien Agent notifies the Borrower within such five (5) Business Day period that it disagrees with such determination (including a description of the basis upon which it disagrees). 1 To be the date that is the 91st day after the maturity date of the first lien term loan facility. 2 To be the date that is the 91st day after the maturity date of the first lien term loan facilityAgreement.
(c) In the event that each First Lien Agent or Subject to Sections 5.2(a) and (b) above, the First Lien Secured Parties Obligations and the relevant Credit Party enter into any amendment, modification, waiver or consent in respect of any of the First Lien Collateral Documents (other than this Agreement) that is not prohibited under this Agreement, then such amendment, modification, waiver or consent shall apply automatically to any comparable provisions of the Second Lien Collateral DocumentsObligations may be refinanced, in whole or in part, in each case, without notice to, or the consent of (except to the extent a consent is required to permit the refinancing transaction under any First Lien Loan Document or any Second Lien Loan Document) of the First Lien Agent, the First Lien Secured Party and Parties, the Second Lien Agent or the Second Lien Secured Parties, as the case may be, all without any action by any affecting the Lien 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 First Lien Agent or the Second Lien Agent, as the Borrower or any other Credit Party; provided that (i) no such amendmentcase may be, modification, waiver or consent shall (A) remove assets subject to the Liens securing the Second Lien Obligations or release any such Liens, except to the extent that such release is permitted or required by Section 2.4(b) hereof and provided that there is a concurrent release of the corresponding Liens securing the First Lien Obligations, (B) amend, modify or otherwise affect the rights or duties of any Second Lien Agent without its prior written consent or (C) permit Liens on the Collateral that are not permitted under the terms of the Second Lien Documents and (ii) notice of such amendment, modification waiver or consent shall have been given to each Second Lien Agent no later than the fifth Business Day following the effective date of such amendment, modification, waiver or consent.
(d) The Borrower agrees that each applicable Second Lien Debt Facility and each applicable Second Lien Collateral Document shall contain the applicable provisions set forth on Annex I hereto, or similar provisions approved by each First Lien Agent, which approval shall not be unreasonably withheld or delayed. Each of the Borrower and each Second Lien Agent further agrees that each Second Lien Collateral Document covering any Collateral that is comprised of Real Property shall contain such other language as each First Lien Agent may reasonably request to reflect the subordination of such Second Lien Collateral Document and in form and substance reasonably acceptable to the First Lien Collateral Document covering Agent or the Second Lien Agent, as the case may be, and any such Collateral pursuant refinancing transaction shall be in accordance with any applicable provisions of both the First Lien Loan Documents and the Second Lien Loan Documents (to this Agreementthe extent such documents survive the refinancing).
Appears in 1 contract
Samples: Intercreditor Agreement (Rh)
