Common use of Applicability of Covenants; Enforcement Clause in Contracts

Applicability of Covenants; Enforcement. (a) From the Closing Date until the Acquisition Effective Date, the only covenants applicable to the Borrower under Sections 7 and 8 of this Agreement shall be the following: Section 7.4 (as it relates to the Borrower’s legal existence), Section 7.9 and Section 7.10. Notwithstanding the foregoing, if and to the extent the Borrower and its Restricted Subsidiaries take any action or inaction, during the period from the Closing Date until the Acquisition Effective Date, that is prohibited from being taken by the Borrower and its Restricted Subsidiaries by Section 7 or Section 8, and such action or inaction is continuing as of the Acquisition Effective Date, an Event of Default shall be deemed to exist immediately after giving effect to and as of the Acquisition Effective Date; provided that (i) no action or inaction taken or omitted by the Target or any of its subsidiaries at any time prior to the Acquisition Effective Date (other than an action or inaction that would require or permit the Borrower to terminate the Acquisition Agreement or decline to consummate the Acquisition) shall constitute a breach of this Agreement or the other Loan Documents or shall otherwise constitute an Event of Default and (ii) for purposes of determining retroactive compliance with the provisions of Sections 7 and 8 under this Section 12, the terms “Restricted Subsidiary,” “Loan Party,” “Subsidiary Guarantor” and other terms that are defined with reference to a Person signing a Loan Document, shall, on and immediately after giving effect to the Acquisition Effective Date, include the Borrower’s Subsidiaries to the extent any such Subsidiary is, immediately after giving effect to the Acquisition Effective Date, a Restricted Subsidiary, Loan Party, Subsidiary Guarantor or similar applicable designation. In addition, the absence of an Event of Default shall not be an Escrow Condition that must be satisfied or waived in order for the Escrow Property to be released from the Escrow Account pursuant to Section 6.2 of this Agreement or Section 3(b) of the Escrow Agreement.

Applicability of Covenants; Enforcement. (a) From the Closing Date until the Acquisition Effective Date, the only covenants applicable to the Borrower under Sections 7 and 8 of this Agreement shall be the following: Section 7.4 (as it relates to the Borrower’s legal existence), Section 7.9 and Section 7.10. Notwithstanding the foregoing, if and to the extent the Borrower and its Restricted Subsidiaries take any action or inaction, during the period from the Closing Date until the Acquisition Effective Date, that is prohibited from being taken by the Borrower and its Restricted Subsidiaries by Section 7 or Section 8, and such action or inaction is continuing as of the Acquisition Effective Date, an Event of Default shall be deemed to exist immediately after giving effect to and as of the Acquisition Effective Date; provided that (i) no action or inaction taken or omitted by the Target or any of its subsidiaries at any time prior to the Acquisition Effective Date (other than an action or inaction that would require or permit the Borrower to terminate the Acquisition Agreement or decline to consummate the Acquisition) shall constitute a breach (164) of this Agreement or the other Loan Documents or shall otherwise constitute an Event of Default and (ii) for purposes of determining retroactive compliance with the provisions of Sections 7 and 8 under this Section 12, the terms “Restricted Subsidiary,” “Loan Party,” “Subsidiary Guarantor” and other terms that are defined with reference to a Person signing a Loan Document, shall, on and immediately after giving effect to the Acquisition Effective Date, include the Borrower’s Subsidiaries to the extent any such Subsidiary is, immediately after giving effect to the Acquisition Effective Date, a Restricted Subsidiary, Loan Party, Subsidiary Guarantor or similar applicable designation. In addition, the absence of an Event of Default shall not be an Escrow Condition that must be satisfied or waived in order for the Escrow Property to be released from the Escrow Account pursuant to Section 6.2 of this Agreement or Section 3(b) of the Escrow Agreement.