Modifications to ABL Documents and Term Documents. (a) The ABL Agent and the ABL 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 Credit Party, without incurring any liability to the Term Agent or any Term 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 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 rates of interest 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 (other than any increase occurring because of fluctuations in underlying rate indices or the imposition of 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 ABL Credit 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) or (i) increase the percentage set forth in Section 2.09(a) (“Commitment Fee”) of the 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, in a manner which would effect an increase in the ABL Borrowing Base or any component thereof; (7) fail to establish and maintain (i) any Reserve in effect on the date hereof or (ii) the Term Loan 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 Reserves (other than the Term Loan Reserve) to 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 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 (10) 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 impair the discretionary rights and ability of the ABL Agent to (1) modify, reduce, increase or eliminate any and all other Reserves (as defined in the ABL Credit Agreement) other than as provided in clause (6) above, or (2) determine the eligibility of Collateral for inclusion in the calculation of the Borrowing Base, in each case, as provided in the ABL Credit Agreement. (b) The Term Agent and the Term Credit Parties may at any time and from time to time and without consent of or notice to the ABL Credit Parties, without incurring any liability to the ABL 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 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 aggregate outstanding principal amount of the Term Obligations to an amount in excess of the Maximum Term Loan Facility Amount; (2) increase the rates of interest (including, without limitation, the definition of “Applicable Margin”) set forth in the Term Loan 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 (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) unless the ABL Credit Agreement has been or is contemporaneously so amended, amend any requirement set forth in Sections 7.15(a) of the Term Loan Agreement (or any defined term used therein), or 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 “ABL Borrowing Base” contained in the Term Loan Agreement, or any component definition thereof; (8) change the definitions of “Accelerated Borrowing Base Delivery Event”, “Cash Dominion Event”, “Payment Conditions”, “Prepayment Event”, “Term Loan Reserve”, or any 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 Documents as in effect on the date hereof; or (10) amend the Term Documents in any manner which would have the effect of contravening the terms of this Agreement. (c) Subject to 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 Credit Parties, the Term Agent or the Term 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 (or an authorized agent or trustee on their behalf) execute and deliver to the ABL Agent or the Term Agent, as the case may be, 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
Sources: Intercreditor Agreement (Destination Maternity Corp)
Modifications to ABL Documents and Term Documents. (a) The ABL Agent and the ABL Credit 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 Credit Secured Party, without incurring any liability to the Term Agent or any Term Credit 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 Credit Secured 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 rates 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 definition of “Applicable Margin” as defined in the ABL Credit Agreement by more than 2.00% per annum at any level of (as in effect on the pricing grid applicable thereto (other than date hereof), except any increase occurring because of fluctuations fluctuation in underlying rate indices or in connection with the imposition of the Default Rate (as defined in the ABL Credit Agreement) a default rate of interest in accordance with the terms of the ABL Credit Agreement), or increase the percentage set forth in of the definition of “Default Rate” set forth in the ABL Credit Agreement default rate by more than 2.00% per annum above the annum, or add or increase to a rate applicable thereto (other than any increase occurring because in excess of fluctuations in underlying rate indices) or (i) increase the percentage set forth in Section 2.09(a) (“Commitment Fee”) of the ABL Credit Agreement by more than 0.752.00% 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 a manner which would effect an increase in the ABL Borrowing Base connection therewith, or any component thereof;
other ABL Loan Document (7) fail to establish and maintain (i) any Reserve in effect on the date hereof or (ii) the Term Loan 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 Reserves 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 Reserve) Obligations in addition to 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 those set forth in Section 7.15 of under the ABL Credit Agreement (as in effect on the date hereof) or this Agreement, or
(4) change or amend any defined term used therein), or waive the Loan Parties’ non-compliance with the requirements of such Section provision of the ABL Credit Agreement;
(9) extend Loan Documents relating to the dates on which Borrowing Base Certificates are required to be delivered by the Borrower, provided that the foregoing shall not limit the discretion assignment of all or any portion of the ABL Agent Obligations to require more frequent reporting; or
(10) amend the ABL Documents in a Credit Party, Sponsor or 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 impair the discretionary rights and ability of the ABL Agent to (1) modify, reduce, increase or eliminate any and all other Reserves (as defined in the ABL Credit Agreement) other than as provided in clause (6) above, or (2) determine the eligibility of Collateral for inclusion in the calculation of the Borrowing Base, in each case, as provided in the ABL Credit Agreementtheir respective Affiliates.
(b) The Term Agent and the Term Credit Secured Parties may at any time and from time to time and without consent of or notice to the ABL Credit Secured Parties, without incurring any liability to the ABL Credit 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 Credit 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 aggregate outstanding maximum principal amount of the Term Loan Obligations to an amount in excess of the Maximum Term Loan Facility Amount;,
(2) increase the rates rate of interest (including, without limitation, whether in respect of the definition interest that is payable in cash or in respect of “Applicable Margin”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 by more than 2.00% per annum (other than any increase occurring because of fluctuations as in underlying rate indices or effect on the date hereof), except in connection with the imposition of the Default Rate (as defined in the Term Loan Agreement) a default rate of interest 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 Documents (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) unless increase the ABL Credit Agreement has been percentage of the default rate by more than 2.00% per annum, or is contemporaneously so amended, amend any requirement add or increase to a rate in excess of 2.00% per annum above the fee set forth in Sections 7.15(a) of the Term Loan Agreement (or any defined term used therein), or 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 “ABL Borrowing Base” contained in the Term Loan Agreement, or any component definition thereof;
(8) change the definitions of “Accelerated Borrowing Base Delivery Event”, “Cash Dominion Event”, “Payment Conditions”, “Prepayment Event”, “Term Loan Reserve”fee letter in connection therewith, or any component definition thereof;
other Term Loan Document (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 Documents 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
(106) change or amend any provision of the Term Documents in relating to the assignment of all or any manner which would have portion of the effect Term Obligations to a Credit Party, Sponsor , or any of contravening the terms of this Agreementtheir respective affiliates.
(c) Subject to Sections 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 Credit Secured Parties, the Term Agent or the Term Credit 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 Indebtedness (or an authorized agent or trustee on their behalf) execute and deliver 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, an intercreditor agreement 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
Sources: Intercreditor Agreement
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 Credit 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 Credit Secured Party, and without incurring any liability to the Term Agent or any Term Credit 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, or replace any or all of the ABL Documents; providedextend, howeverconsolidate, that without the consent of the Term Agent, the ABL 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 rates of interest 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 (other than any increase occurring because of fluctuations in underlying rate indices or the imposition of the Default Rate (as defined in the ABL Credit Agreement) in accordance with the terms of the ABL Credit Agreement)restructure, or increase the percentage set forth in the definition otherwise modify any of “Default Rate” set forth in the ABL Credit 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) or (i) increase the percentage set forth in Section 2.09(a) (“Commitment Fee”) of the 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, in a manner which would effect an increase in the ABL Borrowing Base or any component thereof;
(7) fail to establish and maintain (i) any Reserve in effect on the date hereof or (ii) the Term Loan 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 Reserves (other than the Term Loan Reserve) to 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 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
(10) amend the ABL Documents in any manner whatsoever, other than in a manner which would have the effect of contravening the terms of this Agreement; , provided, however, without the provisions consent of this Section 5.2(a) the Term Agent, the ABL Agent and the ABL Lenders shall not limit, restrict agree to any amendment or impair the discretionary rights and ability modification of the ABL Credit Agreement which would (i) increase the Total Commitments (as defined in the ABL Credit Agreement 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 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) that is required to be maintained in Section 6.8(b) of the ABL Credit Agreement as in effect on the date hereof. The ABL Agent to (1) modifyagrees that upon the request of the Term Agent, reduce, increase it shall make itself available for discussion with the Term Agent regarding the amount or eliminate computation of any and all other Reserves (as defined in the ABL Credit Agreement as in effect on the date hereof) that are permitted to be established pursuant to the ABL Credit Agreement) other than , provided that, except as provided in clause (6) abovebelow, 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 (2) determine consent from, the eligibility Term Agent or the Term Secured Parties thereto; provided further that the ABL Agent shall not eliminate any category of Collateral Reserves existing as of the date hereof or change the methodology for inclusion in the calculation of such Reserves without the Borrowing Baseconsent of the Term Agent. Furthermore, in each casethe ABL Agent agrees that, if and to the extent that Excess Availability (as provided 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 Agreement, the Term Reserve shall not be eliminated or reduced by the ABL Agent without the prior written consent of the 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 Credit 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 Credit PartiesAgent or any ABL Secured Party, and without incurring any liability to the ABL Credit Parties and without Agent or any ABL Secured 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 Credit 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 aggregate outstanding principal amount of the Term Obligations to an amount in excess of the Maximum Term Loan Facility Amount;
(2) increase the rates of interest (including, without limitation, the definition of “Applicable Margin”) set forth in the Term Loan Agreement by more than 2.00% per annum (other than any increase occurring because through the capitalization of fluctuations in underlying rate indices or the imposition of the Default Rate PIK Amounts (as defined in the Term Loan Agreement) Credit Agreement as amended, restated, supplemented or otherwise modified in accordance with the terms hereof)) in excess of the Term Loan Agreement)sum of $150,000,000 less any principal payments made on account thereof, or (ii) directly increase the percentage set forth in the definition of “Default Rate” set forth in interest rates on the Term Loan Agreement by more Obligations to a rate greater than 2.002.0% per annum above rates as are in effect on the date hereof (excluding imposition of a default rate applicable thereto of interest not greater than 2.0% per annum), (other than iii) terminate the Term Borrower’s right to the PIK Election (as defined in the Term Credit Agreement as in effect on the date hereof); provided that the foregoing shall not be deemed to limit any increase occurring because of fluctuations in underlying rate indices);
(3) amendments which increase the Prepayment Fee as set forth 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 Section 2.09(b) of a manner more restrictive than the prohibitions and restrictions contained in the Term Loan Agreement;
Credit Agreement as in effect on the date hereof, (4v) shorten the scheduled maturity of the Term Obligations;
, (5vi) require any scheduled principal payments or other mandatory prepayments or scheduled repayments principal payments on account of the Term Obligations except as provided in (other than for mandatory prepayments under the Term Documents Credit Agreement (as in effect on the date hereof hereof)) or require that any payment on the Term Obligations be made earlier than the date originally scheduled for such payment payment, or reduce, waive (vii) change any provisions of Sections 7.05 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) unless the ABL Credit Agreement has been or is contemporaneously so amended, amend any requirement set forth in Sections 7.15(a7.08(d) of the Term Loan Credit Agreement (or any defined term used therein), or 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 “ABL Borrowing Base” contained in the Term Loan Agreement, or any component definition thereof;
(8) change the definitions of “Accelerated Borrowing Base Delivery Event”, “Cash Dominion Event”, “Payment Conditions”, “Prepayment Event”, “Term Loan Reserve”, or any 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 more restrictive than those in effect under the Term Documents as in effect on of the date hereof; or
(10) amend the Term Documents in any manner which would have the effect of contravening the terms of this Agreement.
(c) Subject No consent furnished by the ABL Agent or the Term Agent pursuant to 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 Credit Secured Parties, the Term Agent or the Term Credit 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 Indebtedness (or an authorized agent or trustee on their behalf) execute and deliver 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, an intercreditor agreement 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
Sources: Intercreditor Agreement (Zale Corp)
Modifications to ABL Documents and Term Documents. (a) The ABL Agent and the ABL 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 Credit Party, without incurring any liability to the Term Agent or any Term 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 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 (67) below, take or fail to take any action pursuant to the ABL Documents or this Agreement Agreement, to:
(1) increase the rates of interest 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 (other than any increase occurring because of fluctuations in underlying rate indices or the imposition of 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 ABL Credit 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) or (i) increase the percentage set forth in Section 2.09(a) (“Commitment Fee”) of the 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, in a manner which would effect an increase in the ABL Borrowing Base or any component thereof;
(7) fail to establish and maintain (i) any Reserve in effect on the date hereof or (ii) the Term Loan Reserve as and when required under Section 3.9 hereof; provided thatprovided, in each case that 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 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 Reserves, or 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
(10) 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 impair the discretionary rights and ability of the ABL Agent to (1) modify, reduce, increase or eliminate any and all other Reserves (as defined in the ABL Credit Agreement) other than as provided in clause (67) above, or (2) determine the eligibility of Collateral for inclusion in the calculation of the Borrowing Base, in each case, as provided in the ABL Credit Agreement; provided, that the ABL Agent agrees to impose a methodology no less restrictive than that used as of the date hereof in determining eligibility.
(b) The Term Agent and the Term Credit Parties may at any time and from time to time and without consent of or notice to the ABL Credit Parties, without incurring any liability to the ABL 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 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 aggregate outstanding principal amount of the Term Obligations to an amount in excess of the Maximum Term Loan Facility Amount;
(2) increase the rates of interest (including, without limitation, the definition of “Applicable Margin”) set forth in the Term Loan 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 (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) unless the ABL Credit Agreement has been or is contemporaneously so amended, amend any requirement set forth in Sections 7.15(a) of the Term Loan Agreement (or any defined term used therein), or 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 “ABL Borrowing Base” contained in the Term Loan Agreement, or any component definition thereof;
(8) change the definitions of “Accelerated Borrowing Base Delivery Event”, “Cash Dominion Event”, “Payment Conditions”, “Prepayment Event”, “Term Loan Reserve”, or any 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 Documents as in effect on the date hereof; or
(10) amend the Term 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) shall not limit, restrict or impair the discretionary rights and ability of the Term Agent to (1) modify, reduce, increase or eliminate any and all other Reserves (as defined in the Term Loan Agreement), or (2) determine the eligibility of Collateral for inclusion in the calculation of the Term Borrowing Base, in each case, as provided in the Term Loan Agreement. Further, nothing herein shall be deemed to 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 Intellectual Property Reserve.
(c) Subject to 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 Credit Parties, the Term Agent or the Term 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 (or an authorized agent or trustee on their behalf) execute and deliver to the ABL Agent or the Term Agent, as the case may be, 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
Sources: Intercreditor Agreement (Destination Maternity Corp)
Modifications to ABL Documents and Term Documents. (a) The ABL Agent and the ABL 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 Credit Party, without incurring any liability to the Term Agent or any Term 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 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 rates of interest 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 (other than any increase occurring because of fluctuations in underlying rate indices or the imposition of 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 ABL Credit 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) or (i) increase the percentage set forth in Section 2.09(a) (“Commitment Fee”) of the 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, in a manner which would effect an increase in the ABL Borrowing Base or any component thereof;
(7) fail to establish and maintain (i) any Reserve in effect on the date hereof or (ii) the Term Loan 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 Reserves (other than the Term Loan Reserve) to 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 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
(10) 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 impair the discretionary rights and ability of the ABL Agent to (1) modify, reduce, increase or eliminate any and all other Reserves (as defined in the ABL Credit Agreement) other than as provided in clause (6) above, or (2) determine the eligibility of Collateral for inclusion in the calculation of the Borrowing Base, in each case, as provided in the ABL Credit Agreement.
(b) The Term Agent and the Term Credit Parties may at any time and from time to time and without consent of or notice to the ABL Credit Parties, without incurring any liability to the ABL 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 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 aggregate outstanding principal amount of the Term Obligations to an amount in excess of the Maximum Term Loan Facility Amount;
(2) increase the rates of interest (including, without limitation, the definition of “Applicable Margin”) set forth in the Term Loan 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 (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) unless the ABL Credit Agreement has been or is contemporaneously so amended, amend any requirement set forth in Sections 7.15(a) of the Term Loan Agreement (or any defined term used therein), or 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 “ABL Borrowing Base” contained in the Term Loan Agreement, or any component definition thereof;
(8) change the definitions of “Accelerated Borrowing Base Delivery Event”, “Cash Dominion Event”, “Payment Conditions”, “Prepayment Event”, “Term Loan Reserve”, or any 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 Documents as in effect on the date hereof; or
(10) amend the Term Documents in any manner which would have the effect of contravening the terms of this Agreement.
(c) Subject to 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 Credit Parties, the Term Agent or the Term 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 (or an authorized agent or trustee on their behalf) execute and deliver to the ABL Agent or the Term Agent, as the case may be, 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
Sources: Intercreditor Agreement
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 Credit 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 Credit Party, and without incurring any liability to the Term Agent or any other Term 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, or replace any or all of the ABL Documents; providedextend, howeverconsolidate, that without the consent of the Term Agent, the ABL 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 rates of interest 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 (other than any increase occurring because of fluctuations in underlying rate indices or the imposition of the Default Rate (as defined in the ABL Credit Agreement) in accordance with the terms of the ABL Credit Agreement)restructure, or increase the percentage set forth in the definition otherwise modify any of “Default Rate” set forth in the ABL Credit 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) or (i) increase the percentage set forth in Section 2.09(a) (“Commitment Fee”) of the 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, in a manner which would effect an increase in the ABL Borrowing Base or any component thereof;
(7) fail to establish and maintain (i) any Reserve in effect on the date hereof or (ii) the Term Loan 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 Reserves (other than the Term Loan Reserve) to 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 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
(10) amend the ABL Documents in any manner whatsoever, other than in a manner which would have the effect of contravening the terms of this Agreement; , provided, however, without the provisions consent of this Section 5.2(a) shall not limitthe Term Agent, restrict or impair the discretionary rights and ability of the ABL Agent and the ABL Lenders shall not amend, restate, supplement, replace, refinance, extend, consolidate, restructure, or otherwise modify the ABL Documents in a manner which would (i) increase the Total Commitments (as defined in the A&R ABL Credit Agreement as in effect on the date hereof) to an amount in excess of the amounts set forth in clause (1a) modifyof the definition of Maximum ABL Obligations, reduce(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 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. 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 eliminate computation of any and all other Reserves (as defined in the A&R ABL Credit Agreement as in effect on the date hereof) that are permitted to be established pursuant to the A&R 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 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 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 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 Credit Agreement), excluding any Reserves (as defined in the A&R ABL Credit Agreement) other than the Incremental Reserve (as provided defined in clause (6the A&R ABL Credit Agreement) above, or plus (2) determine the eligibility of Collateral for inclusion Aggregate FILO Commitments (as defined in the calculation of the Borrowing Base, in each case, as provided in the A&R ABL Credit Agreement). The Term Reserve shall be automatically adjusted upon delivery of each Borrowing Base Certificate or otherwise only with the prior written consent of the 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 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 Credit PartiesAgent or any other ABL Secured Party, and without incurring any liability to the ABL Credit Parties and without Agent or any other ABL Secured 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 Credit 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 aggregate outstanding principal amount of the Term Obligations to an amount in excess of the Maximum Term Loan Facility Amount;
(2) increase the rates of interest (including, without limitation, the definition of “Applicable Margin”) set forth in the Term Loan 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 (as defined in the A&R Term Loan AgreementCredit Agreement as in effect on the date hereof) in accordance with the terms excess of the Term Loan Agreement)sum of $80,000,000 less any principal payments made on account thereof, or (ii) directly increase the percentage set forth in the definition of “Default Rate” set forth in interest rates on the Term Loan Agreement by more Obligations to a rate greater than 2.002.0% per annum above rates as are in effect on the date hereof (excluding imposition of a default rate applicable thereto of interest not greater than 2.0% per annum), (other iii) directly or indirectly prohibit or restrict the payment of principal of, interest on, the ABL Obligations, in a manner more restrictive than any increase occurring because of fluctuations the prohibitions and restrictions contained in underlying rate indices);
the A&R Term Credit Agreement as in effect on the date hereof, (3) increase the Prepayment Fee as set forth in Section 2.09(b) of the Term Loan Agreement;
(4iv) shorten the scheduled maturity of the Term Obligations;
, (5v) require any scheduled principal payments or other mandatory prepayments or scheduled repayments principal payments on account of the Term Obligations except as provided in (other than for mandatory prepayments under the A&R Term Documents Credit Agreement (as in effect on the date hereof hereof)) or require that any payment on the Term Obligations be made earlier than the date originally scheduled for such payment payment; or reduce, waive (vi) change any provisions of Sections 6.1(i) 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) unless the ABL Credit Agreement has been or is contemporaneously so amended, amend any requirement set forth in Sections 7.15(aix) of the A&R Term Loan Credit Agreement (or any defined term used therein), or 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 “ABL Borrowing Base” contained in the Term Loan Agreement, or any component definition thereof;
(8) change the definitions of “Accelerated Borrowing Base Delivery Event”, “Cash Dominion Event”, “Payment Conditions”, “Prepayment Event”, “Term Loan Reserve”, or any 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 more restrictive than those in effect under the Term Documents as in effect on of the date hereof; or
(10) amend the Term Documents in any manner which would have the effect of contravening the terms of this Agreement.
(c) Subject No consent furnished by the ABL Agent or the Term Agent pursuant to 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 Credit Secured Parties, the Term Agent or the other Term 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 Indebtedness (or an authorized agent or trustee on their behalf) execute and deliver 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, an intercreditor agreement 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
Sources: Intercreditor Agreement (Zale Corp)