Certain Amendments. Any addition, amendment or other modification of any agreement or provision governing or related to the ability of any Project Company or Company Group Party to make Restricted Payments, directly or indirectly, to the Borrower shall become effective if such provisions as added, amended or modified, taken as a whole, are materially more restrictive than such provisions as in effect on the Closing Date; provided that, notwithstanding the foregoing, no Event of Default pursuant to this clause (m) shall occur if immediately after giving effect to any such addition, amendment or other modification, the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.11 for the most recently completed Measurement Period, such compliance to be calculated as if any Restricted Payments from such Company Group Party or Project Company, as applicable, to the Borrower had not been, and shall not be permitted by the terms of such provisions to be, made. Notwithstanding anything to the contrary contained in this Article VIII, in the event that the Borrower fails to comply with the requirements of Section 7.11, until the expiration of the tenth day subsequent to the date the certificate calculating such compliance is required to be delivered pursuant to Section 6.02(a) (the period from such failure to comply to such tenth day, the “Cure Period”), the Borrower shall have the right to issue Permitted Cure Securities for cash or otherwise receive cash contributions to the capital of the Borrower (collectively, the “Cure Right”), and upon the receipt by the Borrower of such cash (the “Cure Amount”) pursuant to the exercise by the Borrower of such Cure Right compliance with the covenants set forth in Section 7.11 shall be recalculated giving effect to the following pro forma adjustments: (a) Borrower Cash Flow shall be increased, solely for the purpose of measuring compliance with Section 7.11 and not for any other purpose under this Agreement, by an amount equal to the Cure Amount; and (b) if, after giving effect to the foregoing recalculations, the Borrower shall then be in compliance with the requirements of Section 7.11, the Borrower shall be deemed to have satisfied the requirements of Section 7.11 as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of Section 7.11 that had occurred shall be deemed cured for the purposes of this Agreement. Notwithstanding anything herein to the contrary, (a) in each two-fiscal-quarter period there shall be at least one fiscal quarter in which the Cure Right is not exercised, (b) in each eight-fiscal-quarter period, there shall be a period of at least four consecutive fiscal quarters during which the Cure Right is not exercised, (c) the Cure Amount shall be no greater than the amount required for purposes of complying with Section 7.11 as of the relevant date of determination and (d) no more than five (5) Cure Rights may be exercised in the aggregate.
Appears in 3 contracts
Samples: Credit Agreement (NRG Yield, Inc.), Credit Agreement, Credit Agreement (NRG Yield, Inc.)
Certain Amendments. Any additionThe Borrower will not, amendment and will not permit or cause any of its Subsidiaries to, (i) amend, modify or waive, or permit the amendment, modification or waiver of, any provision of any Subordinated Indebtedness, the effect of which would be (a) to increase the principal amount due thereunder or provide for any mandatory prepayments not already provided for by the terms thereof, (b) to shorten or accelerate the time of payment of any amount due thereunder (to the extent such modification would cause any such Subordinated Indebtedness to become due within one year after the due date for repayment of any of the Obligations), (c) to increase the applicable interest rate (to the extent payable in cash) or amount of any fees or costs due thereunder, (d) to amend any of the subordination provisions thereunder (including any of the definitions relating thereto), (e) to make any covenant or event of default therein more restrictive or add any new covenant or event of default, (f) to grant any security or collateral to secure payment thereof, or (g) to effect any change in the rights or obligations of the Credit Parties thereunder or of the holders thereof that, in the reasonable determination of the Administrative Agent, would be adverse in any material respect to the rights or interests of the Lenders, (ii) breach or otherwise violate any of the subordination provisions applicable to any Subordinated Indebtedness, including, without limitation, restrictions against payment of principal and interest thereon, or (iii) amend, modify or change any provision of its articles or certificate of incorporation or formation, bylaws, partnership agreement, operating agreement or other modification of any agreement applicable formation or provision governing or related to the ability of any Project Company or Company Group Party to make Restricted Payments, directly or indirectly, to the Borrower shall become effective if such provisions as added, amended or modified, taken as a whole, are materially more restrictive than such provisions as in effect on the Closing Date; provided that, notwithstanding the foregoing, no Event of Default pursuant to this clause (m) shall occur if immediately after giving effect to any such addition, amendment or other modification, the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.11 for the most recently completed Measurement Period, such compliance to be calculated as if any Restricted Payments from such Company Group Party or Project Companyorganizational documents, as applicable, to the Borrower had not been, and shall not be permitted by the terms of such provisions any class or series of its Capital Stock other than in a manner that could not reasonably be expected to be, made. Notwithstanding anything to adversely affect the contrary contained Lenders in this Article VIII, in the event any material respect (provided that the Borrower fails to comply with shall give the requirements of Section 7.11, until the expiration of the tenth day subsequent to the date the certificate calculating such compliance is required to be delivered pursuant to Section 6.02(a) (the period from such failure to comply to such tenth day, the “Cure Period”), the Borrower shall have the right to issue Permitted Cure Securities for cash or otherwise receive cash contributions to the capital of the Borrower (collectively, the “Cure Right”), and upon the receipt by the Borrower of such cash (the “Cure Amount”) pursuant to the exercise by the Borrower of such Cure Right compliance with the covenants set forth in Section 7.11 shall be recalculated giving effect to the following pro forma adjustments:
(a) Borrower Cash Flow shall be increased, solely for the purpose of measuring compliance with Section 7.11 and not for any other purpose under this Agreement, by an amount equal to the Cure Amount; and
(b) if, after giving effect to the foregoing recalculations, the Borrower shall then be in compliance with the requirements of Section 7.11, the Borrower shall be deemed to have satisfied the requirements of Section 7.11 as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, Administrative Agent and the applicable breach Lenders notice of any such amendment, modification or default of Section 7.11 change that had occurred shall be deemed cured for the purposes of this Agreement. Notwithstanding anything herein to the contraryis material, (a) in each two-fiscal-quarter period there shall be at least one fiscal quarter in which the Cure Right is not exercised, (b) in each eight-fiscal-quarter period, there shall be a period of at least four consecutive fiscal quarters during which the Cure Right is not exercised, (c) the Cure Amount shall be no greater than the amount required for purposes of complying together with Section 7.11 as of the relevant date of determination and (d) no more than five (5) Cure Rights may be exercised in the aggregatecopies thereof).
Appears in 2 contracts
Samples: Credit Agreement (Symmetry Medical Inc.), Credit Agreement (Symmetry Medical Inc.)
Certain Amendments. Any addition(a) No Second Priority Collateral Document may be amended, amendment supplemented or other modification of any agreement otherwise modified or provision governing or related entered into to the ability of any Project Company extent such amendment, supplement or Company Group Party to make Restricted Payments, directly or indirectly, to the Borrower shall become effective if such provisions as added, amended or modified, taken as a whole, are materially more restrictive than such provisions as in effect on the Closing Date; provided that, notwithstanding the foregoing, no Event of Default pursuant to this clause (m) shall occur if immediately after giving effect to any such addition, amendment or other modification, the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.11 for the most recently completed Measurement Period, such compliance to be calculated as if any Restricted Payments from such Company Group Party or Project Company, as applicable, to the Borrower had not been, and shall not be permitted by the terms of such provisions to beany new Second Priority Collateral Document, made. Notwithstanding anything to the contrary contained in this Article VIII, in the event that the Borrower fails to comply would be prohibited by or inconsistent with the requirements of Section 7.11, until the expiration any of the tenth day subsequent to the date the certificate calculating such compliance is required to be delivered pursuant to Section 6.02(a) (the period from such failure to comply to such tenth day, the “Cure Period”), the Borrower shall have the right to issue Permitted Cure Securities for cash or otherwise receive cash contributions to the capital of the Borrower (collectively, the “Cure Right”), and upon the receipt by the Borrower of such cash (the “Cure Amount”) pursuant to the exercise by the Borrower of such Cure Right compliance with the covenants set forth in Section 7.11 shall be recalculated giving effect to the following pro forma adjustments:
(a) Borrower Cash Flow shall be increased, solely for the purpose of measuring compliance with Section 7.11 and not for any other purpose under this Agreement, by an amount equal to the Cure Amount; and
(b) if, after giving effect to the foregoing recalculations, the Borrower shall then be in compliance with the requirements of Section 7.11, the Borrower shall be deemed to have satisfied the requirements of Section 7.11 as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of Section 7.11 that had occurred shall be deemed cured for the purposes terms of this Agreement. The Borrower agrees to deliver to the Designated Senior Priority Representative copies of (i) any amendments, supplements or other modifications to the Second Priority Collateral Documents and (ii) any new Second Priority Collateral Documents promptly after effectiveness thereof. Each Second Priority Representative, for itself and on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, agrees that each Second Priority Collateral Document under its Second Priority Debt Facility shall include the following language (or language to similar effect reasonably approved by the Designated Senior Priority Representative): “Notwithstanding anything herein to the contrary, (ai) the liens and security interests granted to the [Second Priority Representative] pursuant to this Agreement are expressly subject and subordinate to the liens and security interests granted in each two-fiscal-quarter period there favor of the Senior Priority Secured Parties (as defined in the Intercreditor Agreement referred to below), including liens and security interests granted to XXXXXX XXXXXXX SENIOR FUNDING, INC., as collateral agent, pursuant to or in connection with the First Lien Credit Agreement dated as of October 22, 2018 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time), among Holdings, the Borrower, the lenders from time to time party thereto and XXXXXX XXXXXXX SENIOR FUNDING, INC., as administrative agent and collateral agent, and the other parties thereto, and (ii) the exercise of any right or remedy by the [Second Priority Representative] or any other secured party hereunder is subject to the limitations and provisions of the First Lien/Second Lien Intercreditor Agreement, dated as of October 22, 2018 (as amended, restated, supplemented or otherwise modified from time to time, the “First Lien/Second Lien Intercreditor Agreement”), among XXXXXX XXXXXXX SENIOR FUNDING, INC., as First Lien Administrative Agent, XXXXXX XXXXXXX SENIOR FUNDING, INC., as Second Lien Administrative Agent, Holdings, the Borrower and certain of its affiliated entities party thereto. In the event of any conflict between the terms of the First Lien/Second Lien Intercreditor Agreement and the terms of this Agreement, the terms of the First Lien/Second Lien Intercreditor Agreement shall be at least one fiscal quarter in which the Cure Right is not exercised, govern.”
(b) In the event that each applicable Senior Priority Representative and/or the Senior Priority Secured Parties enter into any amendment, waiver or consent in respect of any of the Senior Priority Collateral Documents for the purpose of adding to or deleting from, or waiving or consenting to any departures from any provisions of, any Senior Priority Collateral Document or changing in any manner the rights of the Senior Priority Representatives, the Senior Priority Secured Parties, Holdings, the Borrower or any other Grantor thereunder (including the release of any Liens in Senior Priority Collateral) in a manner that is applicable to all Senior Priority Debt Facilities, then such amendment, waiver or consent shall apply automatically to any comparable provision of each eight-fiscal-quarter periodcomparable Second Priority Collateral Document without the consent of any Second Priority Representative or any Second Priority Secured Party and without any action by any Second Priority Representative, there Holdings, the Borrower or any other Grantor; provided, however, that (x) no such amendment, waiver or consent shall be have the effect (i) of removing assets subject to the Lien of any Second Priority Collateral Document, except to the extent that a period release of at least four consecutive fiscal quarters during which such Lien is provided for in Section 5.01(a), (ii) imposing duties that are materially adverse on any Second Priority Representative without its consent or (iii) altering the Cure Right is terms of the Second Priority Collateral Documents to permit other Liens on the Collateral not exercisedpermitted under the terms of the Second Priority Debt Documents as in effect on the date hereof or Article VI hereof and (y) written notice of such amendment, waiver or consent shall have been given to each Second Priority Representative within 10 Business Days after the effectiveness of such amendment, waiver or consent.
(c) The Senior Priority Debt Documents may be amended, restated, amended and restated, waived, supplemented or otherwise modified in accordance with their terms, and the Cure Amount shall indebtedness under the Senior Priority Debt Documents may be no greater than Refinanced, in each case, without the amount required for purposes consent of complying with Section 7.11 as any Second Priority Representative or Second Priority Secured Party; provided, however, that, without the consent of the relevant date Second Lien Administrative Agent, acting with the consent of determination the Required Lenders (as such term is defined in the Second Lien Credit Agreement) and each other Second Priority Representative (acting with the consent of the requisite holders of each series of Additional Second Priority Debt), no such amendment, restatement, amendment and restatement, waiver, supplement or modification (including self-effecting or other modifications pursuant to Section 2.14 or Section 2.15 of the First Lien Credit Agreement) shall contravene any provision of this Agreement.
(d) no more than five (5) Cure Rights The Second Priority Debt Documents may be exercised amended, restated, waived, supplemented or otherwise modified in accordance with their terms, and the indebtedness under the Second Priority Debt Documents may be Refinanced, in each case, without the consent of any Senior Priority Representative or Senior Priority Secured Party; provided, however, that, without the consent of the First Lien Administrative Agent, acting with the consent of the Required Lenders (as such term is defined in the aggregateFirst Lien Credit Agreement) and each other Senior Priority Representative (acting with the consent of the requisite holders of each series of Additional Senior Priority Debt), no such amendment, restatement, supplement or modification (including self-effecting or other modifications pursuant to Section 2.14 or 2.15 of the Second Lien Credit Agreement) shall contravene any provision of this Agreement.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Grocery Outlet Holding Corp.), First Lien Credit Agreement (Grocery Outlet Holding Corp.)
Certain Amendments. Any additionThe Borrower will not, amendment and will not permit or cause any of its Subsidiaries to, without the prior written consent of the Required Lenders (not to be unreasonably withheld or delayed), (i) amend, modify or waive, or permit the amendment, modification or waiver of, any provision of any Subordinated Indebtedness, or breach or otherwise violate any of the subordination provisions applicable thereto, including, without limitation, restrictions against payment of principal and interest thereon (other than amendments, modifications or waivers that do not affect payments, prepayments, subordination, the definition of senior indebtedness, information, affirmative or negative covenants, defaults or other provisions that would be expected to affect the Lenders adversely, as determined in the reasonable judgment of the Required Lenders), (ii) amend, modify or waive, or permit the amendment, modification or waiver of, in any manner that would be expected to affect the Lenders adversely (as determined in the reasonable judgment of the Required Lenders), any provision of the Preferred Stock Purchase Agreement, the Series G Preferred Stock Purchase Agreement, the Stockholders Agreement, the Warrants, the Partners/B&W Agreements, the Wilsxx Xxxloyment Agreement or any other agreement entered into by it with respect to its Capital Stock, or enter into any new agreement with respect to its Capital Stock (other than any underwriting agreement necessary for the consummation of a Qualified Public Offering), or (iii) amend, modify or change, in any manner that would be expected to affect the Lenders adversely (as determined in the reasonable judgment of the Required Lenders), any provision of its certificate or articles of incorporation, certificate of partnership, certificate or articles of organization, operating agreement, partnership agreement or provision governing or related to the ability of any Project Company or Company Group Party to make Restricted Payments, directly or indirectly, to the Borrower shall become effective if such provisions as added, amended or modified, taken as a whole, are materially more restrictive than such provisions as in effect on the Closing Date; provided that, notwithstanding the foregoing, no Event of Default pursuant to this clause (m) shall occur if immediately after giving effect to any such addition, amendment or other modification, the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.11 for the most recently completed Measurement Period, such compliance to be calculated as if any Restricted Payments from such Company Group Party or Project Companybylaws, as applicable, to the Borrower had not been, and shall not be permitted by or the terms of such provisions to be, madeany class or series of its Capital Stock (including Preferred Stock). Notwithstanding anything to the contrary contained in this Article VIII, in the event that the The Borrower fails to comply with the requirements of Section 7.11, until the expiration of the tenth day subsequent to the date the certificate calculating such compliance is required to be delivered pursuant to Section 6.02(a) (the period from such failure to comply to such tenth day, the “Cure Period”), the Borrower shall have the right to issue Permitted Cure Securities for cash or otherwise receive cash contributions to the capital of the Borrower (collectively, the “Cure Right”), and upon the receipt by the Borrower of such cash (the “Cure Amount”) pursuant to the exercise by the Borrower of such Cure Right compliance with the covenants set forth in Section 7.11 shall be recalculated giving effect to the following pro forma adjustments:
(a) Borrower Cash Flow shall be increased, solely for the purpose of measuring compliance with Section 7.11 and not for any other purpose under this Agreement, by an amount equal to the Cure Amount; and
(b) if, after giving effect to the foregoing recalculations, the Borrower shall then be in compliance with the requirements of Section 7.11, the Borrower shall be deemed to have satisfied the requirements of Section 7.11 as of the relevant date of determination with the same effect as though there had been will give no failure to comply therewith at such date, and the applicable breach or default of Section 7.11 that had occurred shall be deemed cured for the purposes of this Agreement. Notwithstanding anything herein to the contrary, (a) in each two-fiscal-quarter period there shall be at least one fiscal quarter in which the Cure Right is not exercised, (b) in each eight-fiscal-quarter period, there shall be a period of at least four consecutive fiscal quarters during which the Cure Right is not exercised, (c) the Cure Amount shall be no greater than the amount required for purposes of complying with Section 7.11 as of the relevant date of determination and (d) no more less than five (5) Cure Rights may be exercised Business Days' prior written notice to the Agent of any proposed amendment, modification or waiver of or with respect to any document or agreement referenced in the aggregatethis SECTION 8.10.
Appears in 2 contracts
Samples: Credit Agreement (Eclipsys Corp), Credit Agreement (Eclipsys Corp)
Certain Amendments. Any additionNeither this Agreement, the Note nor any of the Security Documents nor any terms hereof or thereof may be amended unless such amendment is approved by the Borrowers and the Majority Lenders, provided that no such amendment shall, without the consent of each Lender affected thereby, (i) reduce the interest rate or other modification extend the time of payment of scheduled principal payments or interest or fees on the Facility, or reduce the principal amount of the Facility or any fees hereunder, (ii) increase or decrease the Commitment of any agreement Lender or provision governing or related subject any Lender to the ability any additional obligation (it being understood that a waiver of any Project Company or Company Group Party to make Restricted Payments, directly or indirectly, to the Borrower shall become effective if such provisions as added, amended or modified, taken as a whole, are materially more restrictive than such provisions as in effect on the Closing Date; provided that, notwithstanding the foregoing, no Event of Default pursuant to this clause (m) shall occur if immediately after giving effect to or any such addition, amendment or other modification, mandatory repayment of the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.11 for the most recently completed Measurement Period, such compliance to be calculated as if any Restricted Payments from such Company Group Party or Project Company, as applicable, to the Borrower had not been, and Facility shall not be permitted by constitute a change in the terms of such provisions any Commitment of any Lender), (iii) amend, modify or waive any provision of this Section 16.8, (iv) amend the definition of Majority Lenders or any other definition referred to bein this Section 16.8, made. Notwithstanding anything (v) consent to the contrary contained in this Article VIII, in the event that the Borrower fails to comply with the requirements of Section 7.11, until the expiration of the tenth day subsequent to the date the certificate calculating such compliance is required to be delivered pursuant to Section 6.02(a) (the period from such failure to comply to such tenth day, the “Cure Period”), the Borrower shall have the right to issue Permitted Cure Securities for cash assignment or otherwise receive cash contributions to the capital of the Borrower (collectively, the “Cure Right”), and upon the receipt transfer by the Borrower Borrowers of such cash (the “Cure Amount”) pursuant to the exercise by the Borrower any of such Cure Right compliance with the covenants set forth in Section 7.11 shall be recalculated giving effect to the following pro forma adjustments:
(a) Borrower Cash Flow shall be increased, solely for the purpose of measuring compliance with Section 7.11 its rights and not for any other purpose obligations under this Agreement, by an amount equal (vi) release any Security Party from any of its obligations under any Security Document except as expressly provided herein or in such Security Document, (vii) amend any provision relating to the Cure maintenance of collateral under Section 9.3 or (viii) amend the definition of Available Amount; and
(b) if, after giving effect to . All amendments approved by the foregoing recalculations, the Borrower shall then Majority Lenders under this Section 16.8 must be in compliance with the requirements of Section 7.11, the Borrower shall be deemed to have satisfied the requirements of Section 7.11 as writing and signed by each of the relevant date Borrowers and each of determination with the same effect Lenders. In the event that any Lender is unable to or refuses to sign an amendment approved by the Majority Lenders hereunder, such Lender hereby appoints the Agent as though there had been no failure to comply therewith at such date, and the applicable breach or default of Section 7.11 that had occurred shall be deemed cured its Attorney-In-Fact for the purposes of signing such amendment. No provision of this Agreement. Notwithstanding anything herein Section 16 or any other provisions relating to the contrary, (a) in each two-fiscal-quarter period there shall Agent may be at least one fiscal quarter in which modified without the Cure Right is not exercised, (b) in each eight-fiscal-quarter period, there shall be a period of at least four consecutive fiscal quarters during which the Cure Right is not exercised, (c) the Cure Amount shall be no greater than the amount required for purposes of complying with Section 7.11 as consent of the relevant date of determination and (d) no more than five (5) Cure Rights may be exercised in the aggregateAgent.
Appears in 1 contract
Certain Amendments. Any additionNeither this Agreement, the Notes nor any of the Security Documents nor any terms hereof or thereof may be amended unless such amendment is approved by the Borrowers and the Majority Lenders, provided that no such amendment shall, without the written consent of each Lender affected thereby, (i) reduce the interest rate or other modification extend the time of a scheduled payment of principal or interest or fees on the Facilities, or reduce the principal amount of the Facilities or any fees hereunder, (ii) increase or decrease the Commitment of any agreement Lender or provision governing or related subject any Lender to the ability any additional obligation (it being understood that a waiver of any Project Company or Company Group Party to make Restricted Payments, directly or indirectly, to the Borrower shall become effective if such provisions as added, amended or modified, taken as a whole, are materially more restrictive than such provisions as in effect on the Closing Date; provided that, notwithstanding the foregoing, no Event of Default pursuant to this clause (m) shall occur if immediately after giving effect to Default, other than a payment default, or any such addition, amendment or other modification, mandatory repayment of the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.11 for the most recently completed Measurement Period, such compliance to be calculated as if any Restricted Payments from such Company Group Party or Project Company, as applicable, to the Borrower had not been, and Facilities shall not be permitted by constitute a change in the terms of such provisions any Commitment of any Lender), (iii) amend, modify or waive any provision of this Section 15.8, (iv) amend the definition of Majority Lenders or any other definition referred to bein this Section 15.8, made. Notwithstanding anything (v) consent to the contrary contained in this Article VIII, in the event that the Borrower fails to comply with the requirements of Section 7.11, until the expiration of the tenth day subsequent to the date the certificate calculating such compliance is required to be delivered pursuant to Section 6.02(a) (the period from such failure to comply to such tenth day, the “Cure Period”), the Borrower shall have the right to issue Permitted Cure Securities for cash assignment or otherwise receive cash contributions to the capital of the Borrower (collectively, the “Cure Right”), and upon the receipt transfer by the Borrower Borrowers of such cash (the “Cure Amount”) pursuant to the exercise by the Borrower any of such Cure Right compliance with the covenants set forth in Section 7.11 shall be recalculated giving effect to the following pro forma adjustments:
(a) Borrower Cash Flow shall be increased, solely for the purpose of measuring compliance with Section 7.11 their rights and not for any other purpose obligations under this Agreement, or (vi) release any Security Party from any of its obligations under any Security Document except as expressly provided in Section 2.2(k) of the Mortgages (provided that the requirement under this subparagraph (vi) is not intended to extend to amendments to, or temporary waivers of, obligations unless the subject matter of such obligation is identified elsewhere in this Section 15.8); provided, further, that approval by an amount equal all Lenders shall be required for any amendment or waivers with respect to the Cure Amount; and
(b) if, after giving effect to the foregoing recalculations, the Borrower shall then be prepayment provisions contained in compliance with the requirements of Section 7.11, the Borrower shall be deemed to have satisfied the requirements of Section 7.11 as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of Section 7.11 that had occurred shall be deemed cured for the purposes 5.3 of this Agreement. Notwithstanding anything herein All amendments approved by the Majority Lenders under this Section 15.8 must be in writing and signed by the Borrowers, each of the Lenders comprising the Majority Lenders and, if applicable, each Lender affected thereby and any such amendment shall be binding on all the Lenders; provided, however, that any amendments or waivers with respect to the contrary, (a) prepayment provisions contained in each two-fiscal-quarter period there shall Section 5.3 of this Agreement must be at least one fiscal quarter in which writing and signed by the Cure Right is not exercised, (b) in each eight-fiscal-quarter period, there shall be a period of at least four consecutive fiscal quarters during which the Cure Right is not exercised, (c) the Cure Amount shall be no greater than the amount required for purposes of complying with Section 7.11 as Borrowers and all of the relevant date of determination and (d) no more than five (5) Cure Rights may be exercised in the aggregateLenders.
Appears in 1 contract
Samples: Term Loan and Revolving Credit Facility Agreement (Stolt Nielsen S A)
Certain Amendments. Any additionThe Borrower shall not, amendment or other modification nor shall the Borrower permit any of any agreement or provision governing or related to the ability of any Project Company or Company Group Party to make Restricted PaymentsSubsidiaries to, directly or indirectly:
(a) terminate, amend, modify or change its respective organizational documents, if such termination, amendment, modification or change would be materially adverse to the Borrower shall become effective if such provisions as addedinterests of the Lender;
(b) permit any Loan Party or its Subsidiaries to enter into, amended terminate, cancel, amend, restate, supplement or modifiedotherwise modify any Material Operating Lease (in each case, except in connection with an extension or entry into a new Material Operating Lease in compliance with Section 6.21(b)) in a manner no less favorable in any material respect, taken as a whole, are materially more restrictive to the Borrower and the Restricted Subsidiaries than the Material Operating Lease being replaced, terminated, canceled, amended, restated, supplemented or otherwise modified unless (i) consistent with those available in the market at such provisions time for agreements pertaining to similarly situated properties and among similarly situated parties (as determined by the Borrower in effect good faith) and in connection with which the Lender has received reasonably satisfactory projections for the 12 month period after the date of such termination, cancellation, restatement, supplement, entry or other modification showing, on the Closing Date; provided that, notwithstanding the foregoing, no Event of Default pursuant to this clause (m) shall occur if immediately a pro forma basis after giving effect to any such additionthereto, amendment or other modification, that the Borrower Loan Parties shall be in pro forma compliance with the covenants financial covenant set forth in Section 7.11 for the most recently completed Measurement Period, such compliance to be calculated as if any Restricted Payments from such Company Group Party or Project Company, as applicable, to the Borrower had not been, and shall not be permitted by the terms of such provisions to be, made. Notwithstanding anything to the contrary contained in this Article VIII, in the event that the Borrower fails to comply with the requirements of Section 7.11, until the expiration of the tenth day subsequent to the date the certificate calculating such compliance is required to be delivered pursuant to Section 6.02(a) Senior REIT Credit Agreement (the period from such failure to comply to such tenth day, the “Cure Period”), the Borrower shall have the right to issue Permitted Cure Securities for cash or otherwise receive cash contributions to the capital of the Borrower (collectively, the “Cure Right”), and upon the receipt by the Borrower of such cash (the “Cure Amount”) pursuant to the exercise by the Borrower of such Cure Right compliance with the covenants set forth in Section 7.11 shall be recalculated without giving effect to the following pro forma adjustments:
proviso thereto) or (aii) Borrower Cash Flow shall be increased, solely for the purpose of measuring compliance with Section 7.11 and not for any other purpose under this Agreement, by an amount equal otherwise reasonably satisfactory to the Cure AmountLender (whose consent to such terms shall not be unreasonably withheld, conditioned or delayed); and
provided that nothing in this clause (b) ifis intended to restrict (x) mergers or consolidations of Loan Parties permitted under Section 7.04, after giving effect to the foregoing recalculations, the Borrower shall then be or (zy) any Disposition completed in compliance accordance with the requirements of Section 7.11, the Borrower shall be deemed to have satisfied the requirements of Section 7.11 as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of Section 7.11 that had occurred shall be deemed cured for the purposes of this Agreement. Notwithstanding anything herein to the contrary, (a) in each two-fiscal-quarter period there shall be at least one fiscal quarter in which the Cure Right is not exercised, (b) in each eight-fiscal-quarter period, there shall be a period of at least four consecutive fiscal quarters during which the Cure Right is not exercised, 7.05;
(c) permit any Property to cease to be wholly owned by a Loan Party or ground leased by a Loan Party pursuant to a long term Ground Lease which has been reviewed and approved by the Cure Amount shall Lender (such approval not to be no greater than the amount required for purposes of complying unreasonably withheld, delayed or conditioned) except in connection with a Disposition completed in accordance with Section 7.11 as of the relevant date of determination and 7.05; or
(d) no more than five permit any Operating Lessee to terminate or to amend, modify or change any Management Agreement in any material respect without the prior written consent of the Lender (5such consent not to be unreasonably delayed, conditioned or withheld):; provided that nothing in this clause (d) Cure Rights may be exercised is intended to restrict (x) mergers or consolidations of Loan Parties permitted under Section 7.04, (y) acquisitions of Properties or (z) any Disposition completed in the aggregateaccordance with Section 7.05.
Appears in 1 contract
Certain Amendments. Any addition, amendment or other modification of any agreement or provision governing or related to the ability of any Project Company or Company Group Party to make Restricted Payments, directly or indirectly, to the Borrower shall become effective if such provisions as added, amended or modified, taken as a whole, are materially more restrictive than such provisions as in effect on the Closing Datedate hereof; provided that, notwithstanding the foregoing, no Event of Default pursuant to this clause (m) shall occur if immediately after giving effect to any such addition, amendment or other modification, the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.11 for the most recently completed Measurement Period, such compliance to be calculated as if any Restricted Payments from such Company Group Party or Project Company, as applicable, to the Borrower had not been, and shall not be permitted by the terms of such provisions to be, made. Notwithstanding anything to the contrary contained in this Article VIII, in the event that the Borrower fails to comply with the requirements of Section 7.11, until the expiration of the tenth day subsequent to the date the certificate calculating such compliance is required to be delivered pursuant to Section 6.02(a) (the period from such failure to comply to such tenth day, the “Cure Period”6.02(b), the Borrower shall have the right to issue Permitted Cure Securities for cash or otherwise receive cash contributions to the capital of the Borrower (collectively, the “Cure Right”), and upon the receipt by the Borrower of such cash (the “Cure Amount”) pursuant to the exercise by the Borrower of such Cure Right compliance with the covenants set forth in Section 7.11 shall be recalculated giving effect to the following pro forma adjustments:
(a) Borrower Cash Flow shall be increased, solely for the purpose of measuring compliance with Section 7.11 and not for any other purpose under this Agreement, by an amount equal to the Cure Amount; and
(b) if, after giving effect to the foregoing recalculations, the Borrower shall then be in compliance with the requirements of Section 7.11, the Borrower shall be deemed to have satisfied the requirements of Section 7.11 as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of Section Sections 7.11 that had occurred shall be deemed cured for the purposes of this Agreement. Notwithstanding anything herein to the contrary, (a) in each two-fiscal-quarter period there shall be at least one fiscal quarter in which the Cure Right is not exercised, (b) in each eight-fiscal-quarter period, there shall be a period of at least four consecutive fiscal quarters during which the Cure Right is not exercised, (c) the Cure Amount shall be no greater than the amount required for purposes of complying with Section 7.11 as of the relevant date of determination and (d) no more than five (5) Cure Rights may be exercised in the aggregate.
Appears in 1 contract
Samples: Credit Agreement (NRG Yield, Inc.)
Certain Amendments. Any addition, amendment or other modification of any agreement or provision governing or related to the ability of any Project Company or Company Group Party to make Restricted Payments, directly or indirectly, to the Borrower shall become effective if such provisions as added, amended or modified, taken as a whole, are materially more restrictive than such provisions as in effect on the Closing Date; provided that, notwithstanding the foregoing, no Event of Default pursuant to this clause (m) shall occur if immediately after giving effect to any such addition, amendment or other modification, the Borrower shall be in pro forma compliance with the covenants set forth in Notwithstanding Section 7.11 for the most recently completed Measurement Period, such compliance to be calculated as if any Restricted Payments from such Company Group Party or Project Company, as applicable, to the Borrower had not been, and shall not be permitted by the terms of such provisions to be, made. Notwithstanding anything to the contrary contained in this Article VIII, in the event that the Borrower fails to comply with the requirements of Section 7.11, until the expiration of the tenth day subsequent to the date the certificate calculating such compliance is required to be delivered pursuant to Section 6.02(a) (the period from such failure to comply to such tenth day, the “Cure Period”), the Borrower shall have the right to issue Permitted Cure Securities for cash or otherwise receive cash contributions to the capital of the Borrower (collectively, the “Cure Right”), and upon the receipt by the Borrower of such cash (the “Cure Amount”) pursuant to the exercise by the Borrower of such Cure Right compliance with the covenants set forth in Section 7.11 shall be recalculated giving effect to the following pro forma adjustments:11.1.1
(a) [Required Consents] or any other provision in any Loan Document to the contrary (I) the Borrower Cash Flow shall be increasedand the Administrative Agent (or to the extent relating to Collateral, solely the Collateral Agent), on behalf of the Lenders and without any consent or action by any Lender, may amend, modify, supplement or restate in whole or in part any of the Loan Documents from time to time or consent to such action by the Collateral Agent to (i) cure any defect or error, (ii) comply with any provision hereunder or under any other Loan Document, (iii) add Guarantors of the Obligations, (iv) add property or other assets as Collateral, (v) add covenants of the Borrower or the other Loan Parties for the purpose benefit of measuring compliance with Section 7.11 and not for the Lenders or to surrender any other purpose under this Agreement, by an amount equal to the Cure Amount; and
(b) if, after giving effect to the foregoing recalculations, right or power herein conferred upon the Borrower shall then be in compliance with the requirements of Section 7.11, the Borrower shall be deemed to have satisfied the requirements of Section 7.11 as or any of the relevant date other Loan Parties, (vi) approve of determination with the same effect as though there had been no failure any correction or update to comply therewith at such date, and the applicable breach any Schedule hereto or default of Section 7.11 that had occurred shall be deemed cured for the purposes of this Agreement. Notwithstanding anything herein to the contrary, any
(a) any amendment, waiver or consent to a Loan Document that modifies in each two-fiscal-quarter period there any adverse manner the interests, rights or obligations Lenders holding the Revolving Credit Commitments (in their capacity as such) in a manner substantially different from and more adverse than the effect of such waiver, amendment or consent on the Lenders of the Pari Passu Term A Loans in their capacity as such (other than as set forth in immediately succeeding clause (b)) shall be at least one fiscal quarter in which require the Cure Right is not exercisedconsent of the (A) Required Lenders and (B) the Required Revolving Lenders, (b) any amendments or waivers to any condition in each eight-fiscal-quarter periodSection 7.2 [Each Additional Loan or Letter of Credit] that relates to a condition to borrowing of Revolving Credit Loans or Swing Loans or the issuance, there extension of or amendment of a Letter of Credit shall be a period only require the consent of at least four consecutive fiscal quarters during which the Cure Right is not exercised, Required Revolving Lenders and (c) any amendment or waiver that modifies in any adverse manner the Cure Amount interests, rights or obligations of the Lenders of the Pari Passu Term A Loans (in their capacity as such) in a manner substantially different from and more adverse than the effect of such waiver or amendment on the Lenders holding the Revolving Credit Commitments in their capacity as such shall require the consent of the (A) Required Lenders and (B) the Required Term A Lenders (in their capacities as such). Notwithstanding Section 11.1.1
(a) [Required Consents], (x) only the consent of the respective parties thereto shall be no greater than the amount required for purposes of complying with Section 7.11 as any amendments or waivers of the relevant date Administrative Agent’s Letter, (y) only the consent of determination the applicable Lender, the Borrower and the Administrative Agent shall be required for any amendments or waivers of the notice referenced in the definition of “Issuing Lenders” and (dz) no more than five amendments to the Loan Documents expressly contemplated by clause (5ii)(a) Cure Rights may be exercised in of the aggregate.definition of Pari Passu Term B Debt, Section 2.13(e) [Pari Passu Term A Loans], Section 4.14 [Conforming Changes Relative to Term SOFR Rate], Section 4.6 [Benchmark Replacement Setting] or Section 8.2.11
Appears in 1 contract
Certain Amendments. Any addition, amendment or other modification (a) The introductory paragraph of any agreement or provision governing or related to the ability of any Project Company or Company Group Party to make Restricted Payments, directly or indirectly, to the Borrower shall become effective if such provisions as added, amended or modified, taken as a whole, are materially more restrictive than such provisions as in effect on the Closing Date; provided that, notwithstanding the foregoing, no Event of Default pursuant to this clause (m) shall occur if immediately after giving effect to any such addition, amendment or other modification, the Borrower Rights Agreement shall be in pro forma compliance with the covenants set forth in Section 7.11 for the most recently completed Measurement Periodamended to state: "THE RIGHTS AGREEMENT, such compliance to be calculated dated as if any Restricted Payments from such Company Group Party or Project Companyof August 17, 1995, as applicableamended, to the Borrower had not been(this "Agreement"), and shall not be permitted by the terms of such provisions to bebetween Medicis Pharmaceutical Corporation, made. Notwithstanding anything to the contrary contained in this Article VIII, in the event that the Borrower fails to comply with the requirements of Section 7.11, until the expiration of the tenth day subsequent to the date the certificate calculating such compliance is required to be delivered pursuant to Section 6.02(a) a Delaware corporation (the period from such failure to comply to such tenth day, the “Cure Period”), the Borrower shall have the right to issue Permitted Cure Securities for cash or otherwise receive cash contributions to the capital of the Borrower (collectively, the “Cure Right”"Company"), and upon the receipt by the Borrower of such cash Norwest Bank Minnesota, N.A., a national banking association, as successor-in-interest to American Stock Transfer & Trust Company, a New York corporation, as rights agent (the “Cure Amount”) pursuant to the exercise by the Borrower of such Cure Right compliance with the covenants set forth in Section 7.11 shall be recalculated giving effect to the following pro forma adjustments:
(a) Borrower Cash Flow shall be increased, solely for the purpose of measuring compliance with Section 7.11 and not for any other purpose under this Agreement, by an amount equal to the Cure Amount; and"Rights Agent")."
(b) if, The third sentence of Section 3(a) of the Rights Agreement is hereby amended to read as follows: As soon as practicable after giving effect to the foregoing recalculationsDistribution Date, the Borrower shall then be in compliance with the requirements of Section 7.11Company will prepare and execute, the Borrower shall Rights Agent will countersign and the Company will send or cause to be deemed sent (and the Rights Agent will, if requested by the Company, send) by first-class, insured, postage-prepaid mail, to have satisfied the requirements each record holder of Section 7.11 Class A Common Shares and Class B Common Shares as of the relevant date Close of determination with Business on the same effect Distribution Date, at the address of such holder shown on the records of the Company, a Right Certificate, in substantially the form of EXHIBIT A to Amendment No. 2, dated as though there had been no failure of March 17, 1997 ("Amendment No. 2") to comply therewith at such datethis Agreement (a "Right Certificate"), evidencing one Right for each Class A Common Share and the applicable breach or default of Section 7.11 that had occurred shall be deemed cured for the purposes of this Agreement. Notwithstanding anything herein to the contrary, (a) in each two-fiscal-quarter period there shall be at least one fiscal quarter in which the Cure Right is not exercised, (b) in each eight-fiscal-quarter period, there shall be a period of at least four consecutive fiscal quarters during which the Cure Right is not exercised, Class B Common Share so held.
(c) Section 3(b) of the Cure Amount Rights Agreement is hereby amended by adding the following at the end thereof: Upon the effectiveness of Amendment No. 2, the Summary of Rights to Purchase Preference Shares, shall be no greater than in substantially the amount required for purposes form of complying with Section 7.11 EXHIBIT B to Amendment No. 2 and thereafter all references in this Agreement to the Summary of Rights shall be references to the Summary of Rights as of the relevant date of determination and so amended.
(d) no more than five Section 3(c) of the Rights Agreement is hereby amended to read as follows:
(5e) Cure Certificates for Class A Common Shares and Class B Common Shares which become outstanding (including, without limitation, reacquired Class A Common This certificate also evidences and entitles the holder hereof to certain rights as set forth in a Rights may be exercised Agreement, dated as of August 17, 1995, between Medicis Pharmaceutical Corporation and Norwest Bank Minnesota, N.A., as successor-in-interest to American Stock Transfer & Trust Company, as Rights Agent (as amended, the "Rights Agreement"), the terms of which are hereby incorporated herein by reference and a copy of which is on file at the principal executive offices of Medicis Pharmaceutical Corporation. Under certain circumstances, as set forth in the aggregateRights Agreement, such Rights will be evidenced by separate certificates and will no longer be evidenced by this certificate. Medicis Pharmaceutical Corporation will mail to the holder of this certificate a copy of the Rights Agreement without charge after receipt of a written request therefor. Under certain circumstances, as set forth in the Rights Agreement, Rights issued to any Person who becomes an Acquiring Person (as defined in the Rights Agreement) may become null and void.
(f) Certificates for Class A Common Shares and Class B Common Shares which become outstanding (including, without limitation, reacquired Class A Common Shares and Class B Common Shares referred to in the last sentence of this paragraph (c)) after the Record Date but prior to the earliest of the Distribution Date, the Redemption Date or the Final Expiration Date shall have impressed on, printed on, written on or otherwise affixed to them the following legend: This certificate also evidences and entitles the holder hereof to certain rights as set forth in a Rights Agreement, dated as of August 17, 1995, between Medicis Pharmaceutical Corporation and Norwest Bank Minnesota, N.A., as successor-in-interest to American Stock Transfer & Trust Company, as Rights Agent (as amended, the "Rights Agreement"), the terms of which are hereby incorporated herein by reference and a copy of which is on file at the principal executive offices of Medicis Pharmaceutical Corporation. Under certain circumstances, as set forth in the Rights Agreement, such Rights will be evidenced by separate certificates and will no longer be evidenced by this
Appears in 1 contract
Certain Amendments. Any additionEach of Parent and the Borrower will not, amendment and will not permit or cause any of its Subsidiaries to, (i) amend, modify or waive, or permit the amendment, modification or waiver of, any provision of any of the Subordinated Notes, the Subordinated Loan Agreement or any other Subordinated Indebtedness, the effect of which would be (a) to increase the principal amount due thereunder or provide for any mandatory prepayments not already provided for by the terms thereof, (b) to shorten or accelerate the time of payment of any amount due thereunder (to the extent such modification would cause any such Subordinated Indebtedness to become due within one year after the due date for repayment of any of the Obligations), (c) to increase the applicable interest rate (to the extent payable in cash) or amount of any fees or costs due thereunder, (d) to amend any of the subordination provisions thereunder (including any of the definitions relating thereto), (e) to make any covenant or event of default therein more restrictive or add any new covenant or event of default, (f) to grant any security or collateral to secure payment thereof, or (g) to effect any change in the rights or obligations of the Credit Parties thereunder or of the holders thereof that, in the reasonable determination of the Administrative Agent, would be adverse in any material respect to the rights or interests of the Lenders, (ii) breach or otherwise violate any of the subordination provisions applicable to the Subordinated Notes or any other Subordinated Indebtedness, including, without limitation, restrictions against payment of principal and interest thereon, or (iii) amend, modify or change any provision of its articles or certificate of incorporation or formation, bylaws, partnership agreement, operating agreement or other modification of any agreement applicable formation or provision governing or related to the ability of any Project Company or Company Group Party to make Restricted Payments, directly or indirectly, to the Borrower shall become effective if such provisions as added, amended or modified, taken as a whole, are materially more restrictive than such provisions as in effect on the Closing Date; provided that, notwithstanding the foregoing, no Event of Default pursuant to this clause (m) shall occur if immediately after giving effect to any such addition, amendment or other modification, the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.11 for the most recently completed Measurement Period, such compliance to be calculated as if any Restricted Payments from such Company Group Party or Project Companyorganizational documents, as applicable, to the Borrower had not been, and shall not be permitted by the terms of such provisions any class or series of its Capital Stock or the Stockholders Agreement dated as of October 18, 2000 among the Borrower, Parent and the stockholders named therein, as amended (including Section 6 thereof), other than in a manner that could not reasonably be expected to be, made. Notwithstanding anything to adversely affect the contrary contained Lenders in this Article VIII, in the event any material respect (provided that the Borrower fails to comply with shall give the requirements of Section 7.11, until the expiration of the tenth day subsequent to the date the certificate calculating such compliance is required to be delivered pursuant to Section 6.02(a) (the period from such failure to comply to such tenth day, the “Cure Period”), the Borrower shall have the right to issue Permitted Cure Securities for cash or otherwise receive cash contributions to the capital of the Borrower (collectively, the “Cure Right”), and upon the receipt by the Borrower of such cash (the “Cure Amount”) pursuant to the exercise by the Borrower of such Cure Right compliance with the covenants set forth in Section 7.11 shall be recalculated giving effect to the following pro forma adjustments:
(a) Borrower Cash Flow shall be increased, solely for the purpose of measuring compliance with Section 7.11 and not for any other purpose under this Agreement, by an amount equal to the Cure Amount; and
(b) if, after giving effect to the foregoing recalculations, the Borrower shall then be in compliance with the requirements of Section 7.11, the Borrower shall be deemed to have satisfied the requirements of Section 7.11 as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, Administrative Agent and the applicable breach Lenders notice of any such amendment, modification or default of Section 7.11 change that had occurred shall be deemed cured for the purposes of this Agreement. Notwithstanding anything herein to the contraryis material, (a) in each two-fiscal-quarter period there shall be at least one fiscal quarter in which the Cure Right is not exercised, (b) in each eight-fiscal-quarter period, there shall be a period of at least four consecutive fiscal quarters during which the Cure Right is not exercised, (c) the Cure Amount shall be no greater than the amount required for purposes of complying together with Section 7.11 as of the relevant date of determination and (d) no more than five (5) Cure Rights may be exercised in the aggregatecopies thereof).
Appears in 1 contract
Certain Amendments. Any addition(i) No amendment, amendment modification, termination or other modification waiver of any agreement or provision governing or related to the ability of any Project Company or Company Group Party to make Restricted Payments, directly or indirectly, to the Borrower shall become effective if such provisions as added, amended or modified, taken as a whole, are materially more restrictive than such provisions as in effect on the Closing Date; provided that, notwithstanding the foregoing, no Event of Default pursuant to this clause (m) shall occur if immediately after giving effect consent with respect to any such additionprovision of this Agreement that increases the percentage advance rates set forth in the definition of the US Borrowing Base, amendment or other modificationthat makes less restrictive the nondiscretionary criteria for exclusion from Eligible US Accounts, Eligible US Inventory and Eligible US PPE set forth in Sections 1.8, 1.9 and 1.10, shall be effective unless the Borrower same shall be in pro forma compliance writing and signed by US Agent, Supermajority US Lenders and US Borrowers.
(ii) No amendment, modification, termination or waiver of or consent with respect to any provision of this Agreement that increases the covenants percentage advance rates set forth in the definition of the Netherlands Borrowing Base, or that makes less restrictive the nondiscretionary criteria for exclusion from Eligible Netherlands Accounts set forth in Section 7.11 1.11, shall be effective unless the same shall be in writing and signed by Netherlands Agent, Supermajority Netherlands Lenders and Netherlands Borrowers.
(iii) No amendment, modification, termination or waiver shall, unless in writing and signed by US Agent and each US Lender directly affected thereby: (a) increase the amount of the Commitment of such directly affected US Lender; (b) reduce the principal of, rate of interest on or Fees payable with respect to any US Revolving Loan or US Letter of Credit Obligations of any affected US Lender; (c) extend the scheduled date for the most recently completed Measurement Periodreduction of any component of the US Borrowing Base or the final maturity date of the principal amount of any US Revolving Loan of any affected US Lender; (d) waive, forgive, defer, extend or postpone any payment of interest or Fees as to any affected US Lender (which action shall be deemed only to affect those US Lenders to whom such compliance payments are made); (e) release any Guaranty (except in connection with an Asset Disposition permitted hereunder, or of the Guarantor of such Guaranty) or, except in the case of any transaction otherwise permitted in Section 3.7 (as amended from time to time), release or subordinate US Collateral with a book value exceeding 5% of the book value of all US Collateral in the aggregate (which action shall be calculated as if deemed to directly affect all US Lenders); (f) change the percentage of the US Commitments or of the aggregate unpaid principal amount of the US Revolving Loans that shall be required for US Lenders or any Restricted Payments from such Company Group Party of them to take any action hereunder; (g) amend or Project Company, as applicable, to waive any provision of this Section 9.2 or clause (z) of the Borrower had not been, and shall not be permitted by definition of the term “US Borrowing Availability” or the definition of the terms of such provisions to be“Requisite Lenders”, made. Notwithstanding anything to “Requisite US Lenders” or “Supermajority US Lenders”; (h) alter the contrary contained in this Article VIII, in the event that the Borrower fails to comply with the requirements of Section 7.11, until the expiration of the tenth day subsequent to the date the certificate calculating such compliance is required to be delivered pursuant to Section 6.02(a) (the period from such failure to comply to such tenth day, the “Cure Period”), the Borrower shall have the right to issue Permitted Cure Securities for cash or otherwise receive cash contributions to the capital of the Borrower (collectively, the “Cure Right”), and upon the receipt by the Borrower of such cash (the “Cure Amount”) pursuant to the exercise by the Borrower of such Cure Right compliance with the covenants priorities set forth in Section 7.11 9.4 of the US Security Agreement or (i) make any change to Section 8.7 that adversely affects any US Lender. Furthermore, no amendment, modification, termination or waiver affecting the rights or duties of US Agent or US L/C Issuers under this Agreement or any other Loan Document shall be recalculated giving effect effective unless in writing and signed by US Agent or US L/C Issuers, as the case may be, in addition to US Lenders required hereinabove to take such action. Each amendment, modification, termination or waiver shall be effective only in the following pro forma adjustments:specific instance and for the specific purpose for which it was given. No amendment, modification, termination or waiver shall be required for US Agent to take additional US Collateral pursuant to any Loan Document.
(iv) No amendment, modification, termination or waiver shall, unless in writing and signed by Netherlands Agent and each Netherlands Lender directly affected thereby: (a) Borrower Cash Flow shall be increased, solely for increase the purpose amount of measuring compliance with Section 7.11 and not for any other purpose under this Agreement, by an amount equal to the Cure AmountCommitment of such directly affected Netherlands Lender; and
(b) ifreduce the principal of, after giving effect rate of interest on or Fees payable with respect to any Netherlands Revolving Loan or Netherlands Letter of Credit Obligations of any affected Netherlands Lender; (c) extend the foregoing recalculationsfinal maturity date of the principal amount of any Netherlands Revolving Loan of any affected Netherlands Lender; (d) waive, forgive, defer, extend or postpone any payment of interest or Fees as to any affected Netherlands Lender (which action shall be deemed only to affect those Netherlands Lenders to whom such payments are made); (e) release any Guaranty (except in connection with an Asset Disposition permitted hereunder, or of the Borrower shall then be Guarantor of such Guaranty) or, except in compliance the case of any transaction otherwise permitted in Section 3.7 (as amended from time to time), release or subordinate Netherlands Collateral with a book value exceeding 5% of the requirements book value of Section 7.11, all assets in the Borrower aggregate (which action shall be deemed to have satisfied directly affect all Netherlands Lenders); (f) change the requirements of Section 7.11 as percentage of the relevant date Netherlands Commitments or of determination with the same effect as though there had been no failure to comply therewith at such date, and aggregate unpaid principal amount of the applicable breach or default of Section 7.11 Netherlands Revolving Loans that had occurred shall be deemed cured required for Netherlands Lenders or any of them to take any action hereunder; (g) amend or waive this Section 9.2 or the definition of the term “Requisite Lenders”, “Requisite Netherlands Lenders” or “Netherlands Supermajority Lenders”; or (h) make any change to Section 8.7 that adversely affects any Netherlands Lender. Furthermore, no amendment, modification, termination or waiver affecting the rights or duties of Netherlands Agent or Netherlands L/C Issuers under this Agreement or any other Loan Document shall be effective unless in writing and signed by Netherlands Agent or Netherlands L/C Issuers, as the case may be, in addition to Netherlands Lenders required hereinabove to take such action. Each amendment, modification, termination or waiver shall be effective only in the specific instance and for the purposes of this Agreement. Notwithstanding anything herein to the contraryspecific purpose for which it was given.
(v) No amendment, (a) in each two-fiscal-quarter period there modification, termination or waiver shall be at least one fiscal quarter in which the Cure Right is not exercisedrequired for any Agent to take additional Collateral pursuant to any Loan Document. No amendment, (b) in each eight-fiscal-quarter periodmodification, there termination or waiver of any provision of any Note shall be a period effective without the written concurrence of at least four consecutive fiscal quarters during which the Cure Right is not exercisedholder of that Note. No notice to or demand on any Credit Party in any case shall entitle such Credit Party or any other Credit Party to any other or further notice or demand in similar or other circumstances. Any amendment, (c) the Cure Amount modification, termination, waiver or consent effected in accordance with this Section 9.2 shall be no greater than the amount required for purposes of complying with Section 7.11 as binding upon each holder of the relevant date Notes at the time outstanding and each future holder of determination and (d) no more than five (5) Cure Rights may be exercised in the aggregateNotes.
Appears in 1 contract
Samples: Credit Agreement (RPP Capital Corp)
Certain Amendments. Any additionNeither this Agreement, the Note nor any of the Security Documents nor any terms hereof or thereof may be amended unless such amendment is approved by the Borrower and the Majority Banks, provided that no such amendment shall, without the consent of each Bank affected thereby, (i) reduce the interest rate or other modification extend the time of payment of principal or interest or fees on the Reimbursement Obligations or the Loan, as the case may be, or reduce the principal amount of the Reimbursement Obligations or the Loan, as the case may be, or any fees hereunder, (ii) increase or decrease the Commitment of any agreement Bank or provision governing or related subject any Bank to the ability any additional obligation (it being understood that a waiver of any Project Company or Company Group Party to make Restricted Payments, directly or indirectly, to the Borrower shall become effective if such provisions as added, amended or modified, taken as a whole, are materially more restrictive than such provisions as in effect on the Closing Date; provided that, notwithstanding the foregoing, no Event of Default pursuant to this clause (m) shall occur if immediately after giving effect to or any such addition, amendment mandatory repayment of the Reimbursement Obligations or other modification, the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.11 for the most recently completed Measurement Period, such compliance to be calculated as if any Restricted Payments from such Company Group Party or Project CompanyLoan, as applicablethe case may be, to the Borrower had not been, and shall not be permitted by constitute a change in the terms of such provisions to beany Commitment of any Bank), made. Notwithstanding anything (iii) amend, modify or waive any provision of this Section 16.8, (iv) amend the definition of Majority Banks, (v) consent to the contrary contained in this Article VIII, in the event that the Borrower fails to comply with the requirements of Section 7.11, until the expiration of the tenth day subsequent to the date the certificate calculating such compliance is required to be delivered pursuant to Section 6.02(a) (the period from such failure to comply to such tenth day, the “Cure Period”), the Borrower shall have the right to issue Permitted Cure Securities for cash assignment or otherwise receive cash contributions to the capital of the Borrower (collectively, the “Cure Right”), and upon the receipt transfer by the Borrower of such cash (the “Cure Amount”) pursuant to the exercise by the Borrower any of such Cure Right compliance with the covenants set forth in Section 7.11 shall be recalculated giving effect to the following pro forma adjustments:
(a) Borrower Cash Flow shall be increased, solely for the purpose of measuring compliance with Section 7.11 its rights and not for any other purpose obligations under this Agreement, by an amount equal (vi) release any Security Party from any of its obligations under any Security Document except as expressly provided herein or in such Security Document or (vii) amend any provision relating to the Cure Amount; and
(b) if, after giving effect to maintenance of collateral under Section 10.5. All amendments approved by the foregoing recalculations, Majority Banks under this Section 16.8 must be in writing and signed by the Borrower shall then be in compliance with the requirements of Section 7.11, the Borrower shall be deemed to have satisfied the requirements of Section 7.11 as and each of the relevant date of determination with Banks. In the same effect event that any Bank is unable to or refuses to sign an amendment approved by the Majority Banks hereunder, such Bank hereby appoints the Administrative Agent as though there had been no failure to comply therewith at such date, and the applicable breach or default of Section 7.11 that had occurred shall be deemed cured its Attorney-In-Fact for the purposes of signing such amendment. No provision of this Agreement. Notwithstanding anything herein Section 16 or any other provisions relating to the contrary, (a) in each two-fiscal-quarter period there shall be at least one fiscal quarter in which the Cure Right is not exercised, (b) in each eight-fiscal-quarter period, there shall be a period of at least four consecutive fiscal quarters during which the Cure Right is not exercised, (c) the Cure Amount shall be no greater than the amount required for purposes of complying with Section 7.11 as of the relevant date of determination and (d) no more than five (5) Cure Rights Agents may be exercised in modified without the aggregateconsent of each Agent.
Appears in 1 contract
Samples: Facility Agreement (Omi Corp/M I)
Certain Amendments. Any additionNeither this Credit Facility Agreement, the Note nor any of the Security Documents nor any terms hereof or thereof may be amended unless such amendment is approved by the Borrowers and the Majority Lenders, provided that no such amendment shall, without the written consent of each Lender affected thereby, (i) reduce the interest rate or other modification extend the time of a scheduled payment of principal or interest or fees on the Facility, or reduce the principal amount of the Facility or any fees hereunder, (ii) increase or decrease the Commitment of any agreement Lender or provision governing or related subject any Lender to the ability any additional obligation (it being understood that a waiver of any Project Company or Company Group Party to make Restricted Payments, directly or indirectly, to the Borrower shall become effective if such provisions as added, amended or modified, taken as a whole, are materially more restrictive than such provisions as in effect on the Closing Date; provided that, notwithstanding the foregoing, no Event of Default pursuant to this clause (m) shall occur if immediately after giving effect to Default, other than a payment default, or any such addition, amendment or other modification, the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.11 for the most recently completed Measurement Period, such compliance to be calculated as if any Restricted Payments from such Company Group Party or Project Company, as applicable, to the Borrower had not been, and mandatory repayment of Facility shall not be permitted by constitute a change in the terms of such provisions any Commitment of any Lender), (iii) amend, modify or waive any provision of this Section 15.8, (iv) amend the definition of Majority Lenders or any other definition referred to bein this Section 15.8, made. Notwithstanding anything (v) consent to the contrary contained assignment or transfer by the Borrowers of any of their rights and obligations under this Credit Facility Agreement, (vi) accept payment for the obligations of the Security Parties under this Credit Facility Agreement in this Article VIIIany currency other than Dollars, in the event that the Borrower fails to comply with (vii) waive the requirements regarding the delivery of audited financial statements under Section 7.119.1(d), until (viii) release any Security Party from any of its obligations under any Security Document except as expressly provided herein or in such Security Document or (vii) amend any provision relating to the expiration maintenance of collateral under Section 9.4; provided, further, that approval by all Lenders shall be required for any amendment or waivers with respect to Section 5.3 of this Credit Facility Agreement. All amendments approved by the Majority Lenders under this Section 15.8 must be in writing and signed by the Borrowers, each of the tenth day subsequent to Lenders comprising the date Majority Lenders and, if applicable, each Lender affected thereby and any such amendment shall be binding on all the certificate calculating such compliance is required to be delivered pursuant Lenders; provided, however, that any amendments or waivers with respect to Section 6.02(a) (5.3 of this Credit Facility Agreement must be in writing and signed by the period from such failure to comply to such tenth day, the “Cure Period”), the Borrower shall have the right to issue Permitted Cure Securities for cash or otherwise receive cash contributions to the capital Borrowers and all of the Borrower (collectively, the “Cure Right”), and upon the receipt by the Borrower of such cash (the “Cure Amount”) pursuant to the exercise by the Borrower of such Cure Right compliance with the covenants set forth in Section 7.11 shall be recalculated giving effect to the following pro forma adjustments:
(a) Borrower Cash Flow shall be increased, solely for the purpose of measuring compliance with Section 7.11 and not for any other purpose under this Agreement, by an amount equal to the Cure Amount; and
(b) if, after giving effect to the foregoing recalculations, the Borrower shall then be in compliance with the requirements of Section 7.11, the Borrower shall be deemed to have satisfied the requirements of Section 7.11 as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of Section 7.11 that had occurred shall be deemed cured for the purposes of this Agreement. Notwithstanding anything herein to the contrary, (a) in each two-fiscal-quarter period there shall be at least one fiscal quarter in which the Cure Right is not exercised, (b) in each eight-fiscal-quarter period, there shall be a period of at least four consecutive fiscal quarters during which the Cure Right is not exercised, (c) the Cure Amount shall be no greater than the amount required for purposes of complying with Section 7.11 as of the relevant date of determination and (d) no more than five (5) Cure Rights may be exercised in the aggregateLenders.
Appears in 1 contract
Certain Amendments. Any additionThis Agreement and the other Loan Documents, and the terms of this Agreement and the other Loan Documents, may not be amended unless such amendment is approved by the Borrower and the Majority Lenders, provided that no such amendment shall, without the consent of each Lender affected thereby, (i) reduce the interest rate or other modification extend the time of payment of scheduled principal payments or interest or fees on the Facility, or reduce the principal amount of the Facility or any fees hereunder, (ii) increase or decrease the Commitment of any agreement Lender or provision governing or related subject any Lender to the ability any additional obligation (it being understood that a waiver of any Project Company or Company Group Party to make Restricted Payments, directly or indirectly, to the Borrower shall become effective if such provisions as added, amended or modified, taken as a whole, are materially more restrictive than such provisions as in effect on the Closing Date; provided that, notwithstanding the foregoing, no Event of Default pursuant to this clause (m) shall occur if immediately after giving effect to or any such addition, amendment or other modification, the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.11 for the most recently completed Measurement Period, such compliance to be calculated as if any Restricted Payments from such Company Group Party or Project Company, as applicable, to the Borrower had not been, and mandatory repayment of Facility shall not be permitted by constitute a change in the terms of such provisions to beany Commitment of any Lender), made. Notwithstanding anything (iii) amend, modify or waive any provision of this Section 14.8, (iv) amend the definition of Majority Lenders, (v) consent to the contrary contained in this Article VIII, in the event that the Borrower fails to comply with the requirements of Section 7.11, until the expiration of the tenth day subsequent to the date the certificate calculating such compliance is required to be delivered pursuant to Section 6.02(a) (the period from such failure to comply to such tenth day, the “Cure Period”), the Borrower shall have the right to issue Permitted Cure Securities for cash assignment or otherwise receive cash contributions to the capital of the Borrower (collectively, the “Cure Right”), and upon the receipt transfer by the Borrower of such cash (the “Cure Amount”) pursuant to the exercise by the Borrower any of such Cure Right compliance with the covenants set forth in Section 7.11 shall be recalculated giving effect to the following pro forma adjustments:
(a) Borrower Cash Flow shall be increased, solely for the purpose of measuring compliance with Section 7.11 its rights and not for any other purpose obligations under this Agreement, (vi) release the Borrower from any of its obligations under this Agreement and the other Loan Documents except as expressly provided in this Agreement or the other Loan Documents, (vii) release a Guarantor from any of its obligations under this Agreement or the Guaranty to which it is a party except as expressly provided in this Agreement or the relevant Guaranty, (viii) amend, modify or waive any of the Events of Default or any mandatory prepayment pursuant to Section 5.4, (ix) extend the Final Availability Date or (x) amend or waive any provision if the Facility Agent or any Lender reasonably believes that it may constitute a “material modification” within the meaning of FATCA that may result (directly or indirectly) in any party to this Agreement or any Security Document being required to make a FATCA Withholding. All amendments approved by an amount equal the Majority Lenders under this Section 14.8 must be in writing and signed by the Borrower and each of the Majority Lenders. No provision of this Section 14 or any other provisions relating to the Cure Amount; and
(b) if, after giving effect to Facility Agent may be modified without the foregoing recalculations, the Borrower shall then be in compliance with the requirements of Section 7.11, the Borrower shall be deemed to have satisfied the requirements of Section 7.11 as consent of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of Section 7.11 that had occurred shall be deemed cured for the purposes of this Agreement. Notwithstanding anything herein to the contrary, (a) in each two-fiscal-quarter period there shall be at least one fiscal quarter in which the Cure Right is not exercised, (b) in each eight-fiscal-quarter period, there shall be a period of at least four consecutive fiscal quarters during which the Cure Right is not exercised, (c) the Cure Amount shall be no greater than the amount required for purposes of complying with Section 7.11 as of the relevant date of determination and (d) no more than five (5) Cure Rights may be exercised in the aggregateFacility Agent.
Appears in 1 contract
Certain Amendments. Any additionNeither this Credit Facility Agreement, the Consent and Agreement, the Note, nor any Security Document nor any terms hereof or thereof may be amended unless such amendment is approved by the Borrowers and the Majority Lenders, provided that no such amendment shall, without the written consent of each Lender affected thereby, (i) reduce the interest rate or other modification extend the time of a scheduled payment of principal or interest or fees on the Facility, or reduce the principal amount of the Facility or any fees hereunder, (ii) increase or decrease the Commitment of any agreement Lender or provision governing or related subject any Lender to the ability any additional obligation (it being understood that a waiver of any Project Company or Company Group Party to make Restricted Payments, directly or indirectly, to the Borrower shall become effective if such provisions as added, amended or modified, taken as a whole, are materially more restrictive than such provisions as in effect on the Closing Date; provided that, notwithstanding the foregoing, no Event of Default pursuant to this clause (m) shall occur if immediately after giving effect to Default, other than a payment default, or any such addition, amendment or other modification, the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.11 for the most recently completed Measurement Period, such compliance to be calculated as if any Restricted Payments from such Company Group Party or Project Company, as applicable, to the Borrower had not been, and mandatory repayment of Facility shall not be permitted by constitute a change in the terms of such provisions any Commitment of any Lender), (iii) amend, modify or waive any provision of this Section 14.8, (iv) amend the definition of Majority Lenders or any other definition referred to bein this Section 14.8, made. Notwithstanding anything (v) consent to the contrary contained assignment or transfer by the Borrowers of any of their rights and obligations under this Credit Facility Agreement, (vi) accept payment for the obligations of the Security Parties under this Credit Facility Agreement in this Article VIIIany currency other than Dollars, in the event that the Borrower fails to comply with (vii) waive the requirements regarding the delivery of audited financial statements under Section 7.119.1(d), until (viii) release any Security Party from any of its obligations under any Security Document except as expressly provided herein or in such Security Document or (ix) amend any provision relating to the expiration maintenance of collateral under Section 9.4; provided, further, that approval by all Lenders shall be required for any amendment or waivers with respect to Section 5.3 of this Credit Facility Agreement. All amendments approved by the Majority Lenders under this Section 14.8 must be in writing and signed by the Borrowers, each of the tenth day subsequent to Lenders comprising the date Majority Lenders and, if applicable, each Lender affected thereby and any such amendment shall be binding on all the certificate calculating such compliance is required to be delivered pursuant Lenders; provided, however, that any amendments or waivers with respect to Section 6.02(a) (5.3 of this Credit Facility Agreement must be in writing and signed by the period from such failure to comply to such tenth day, the “Cure Period”), the Borrower shall have the right to issue Permitted Cure Securities for cash or otherwise receive cash contributions to the capital Borrowers and all of the Borrower (collectively, the “Cure Right”), and upon the receipt by the Borrower of such cash (the “Cure Amount”) pursuant to the exercise by the Borrower of such Cure Right compliance with the covenants set forth in Section 7.11 shall be recalculated giving effect to the following pro forma adjustments:
(a) Borrower Cash Flow shall be increased, solely for the purpose of measuring compliance with Section 7.11 and not for any other purpose under this Agreement, by an amount equal to the Cure Amount; and
(b) if, after giving effect to the foregoing recalculations, the Borrower shall then be in compliance with the requirements of Section 7.11, the Borrower shall be deemed to have satisfied the requirements of Section 7.11 as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of Section 7.11 that had occurred shall be deemed cured for the purposes of this Agreement. Notwithstanding anything herein to the contrary, (a) in each two-fiscal-quarter period there shall be at least one fiscal quarter in which the Cure Right is not exercised, (b) in each eight-fiscal-quarter period, there shall be a period of at least four consecutive fiscal quarters during which the Cure Right is not exercised, (c) the Cure Amount shall be no greater than the amount required for purposes of complying with Section 7.11 as of the relevant date of determination and (d) no more than five (5) Cure Rights may be exercised in the aggregateLenders.
Appears in 1 contract
Certain Amendments. Any additionThe Borrower shall not, amendment or other modification nor shall the Borrower permit any of any agreement or provision governing or related to the ability of any Project Company or Company Group Party to make Restricted PaymentsSubsidiaries to, directly or indirectly:
(a) terminate, amend, modify or change its respective organizational documents, if such termination, amendment, modification or change would be materially adverse to the Borrower shall become effective if such provisions as addedinterests of the Lender;
(b) permit any Loan Party or its Subsidiaries to enter into, amended terminate, cancel, amend, restate, supplement or modifiedotherwise modify any Material Operating Lease (in each case, except in connection with an extension or entry into a new Material Operating Lease in compliance with Section 6.21(b)) in a manner no less favorable in any material respect, taken as a whole, are materially more restrictive to the Borrower and the Restricted Subsidiaries than the Material Operating Lease being replaced, terminated, canceled, amended, restated, supplemented or otherwise modified unless (i) consistent with those available in the market at such provisions time for agreements pertaining to similarly situated properties and among similarly situated parties (as determined by the Borrower in effect good faith) and in connection with which the Lender has received reasonably satisfactory projections for the 12 month period after the date of such termination, cancellation, restatement, supplement, entry or other modification showing, on the Closing Date; provided that, notwithstanding the foregoing, no Event of Default pursuant to this clause (m) shall occur if immediately a pro forma basis after giving effect to any such additionthereto, amendment or other modification, that the Borrower Loan Parties shall be in pro forma compliance with the covenants financial covenant set forth in Section 7.11 for the most recently completed Measurement Period, such compliance to be calculated as if any Restricted Payments from such Company Group Party or Project Company, as applicable, to the Borrower had not been, and shall not be permitted by the terms of such provisions to be, made. Notwithstanding anything to the contrary contained in this Article VIII, in the event that the Borrower fails to comply with the requirements of Section 7.11, until the expiration of the tenth day subsequent to the date the certificate calculating such compliance is required to be delivered pursuant to Section 6.02(a) Senior REIT Credit Agreement (the period from such failure to comply to such tenth day, the “Cure Period”), the Borrower shall have the right to issue Permitted Cure Securities for cash or otherwise receive cash contributions to the capital of the Borrower (collectively, the “Cure Right”), and upon the receipt by the Borrower of such cash (the “Cure Amount”) pursuant to the exercise by the Borrower of such Cure Right compliance with the covenants set forth in Section 7.11 shall be recalculated without giving effect to the following pro forma adjustments:
proviso thereto or (aii) Borrower Cash Flow shall be increased, solely for the purpose of measuring compliance with Section 7.11 and not for any other purpose under this Agreement, by an amount equal otherwise reasonably satisfactory to the Cure AmountLender (whose consent to such terms shall not be unreasonably withheld, conditioned or delayed); and
provided that nothing in this clause (b) if, after giving effect is intended to the foregoing recalculations, the Borrower shall then be restrict (x) mergers or consolidations of Loan Parties permitted under Section 7.04 or (z) any Disposition completed in compliance accordance with the requirements of Section 7.11, the Borrower shall be deemed to have satisfied the requirements of Section 7.11 as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of Section 7.11 that had occurred shall be deemed cured for the purposes of this Agreement. Notwithstanding anything herein to the contrary, (a) in each two-fiscal-quarter period there shall be at least one fiscal quarter in which the Cure Right is not exercised, (b) in each eight-fiscal-quarter period, there shall be a period of at least four consecutive fiscal quarters during which the Cure Right is not exercised, 7.05;
(c) permit any Property to cease to be wholly owned by a Loan Party or ground leased by a Loan Party pursuant to a long term Ground Lease which has been reviewed and approved by the Cure Amount shall Lender (such approval not to be no greater than the amount required for purposes of complying unreasonably withheld, delayed or conditioned) except in connection with a Disposition completed in accordance with Section 7.11 as of the relevant date of determination and 7.05; or
(d) no more than five permit any Operating Lessee to terminate or to amend, modify or change any Management Agreement in any material respect without the prior written consent of the Lender (5such consent not to be unreasonably delayed, conditioned or withheld): provided that nothing in this clause (d) Cure Rights may be exercised is intended to restrict (x) mergers or consolidations of Loan Parties permitted under Section 7.04, (y) acquisitions of Properties or (z) any Disposition completed in the aggregateaccordance with Section 7.05.
Appears in 1 contract
Certain Amendments. Any additionThe Borrower shall not, amendment or other modification nor shall the Borrower permit any of any agreement or provision governing or related to the ability of any Project Company or Company Group Party to make Restricted Paymentsits Subsidiaries to, directly or indirectly:
(a) terminate, amend, modify or change its respective organizational documents, if such termination, amendment, modification or change would be materially adverse to the Borrower shall become effective if such provisions as addedinterests of the Lenders;
(b) enter into, amended terminate, cancel, amend, restate, supplement or modifiedotherwise modify any Material Operating Lease (in each case, except in connection with an extension or entry into a new Material Operating Lease in compliance with Section 6.14) in a manner less favorable in any material respect, taken as a whole, are materially more restrictive to the Borrower and its Subsidiaries (other than the ESH Parties) than the Material Operating Lease being replaced, terminated, canceled, amended, restated, supplemented or otherwise modified unless (i) consistent with those available in the market at such provisions time for agreements pertaining to similarly situated properties and among similarly situated parties (as determined by the Borrower in effect good faith) and the Administrative Agent has received reasonably satisfactory projections for the 12 month period after the date of such termination, cancellation, restatement, supplement, entry or other modification showing, on the Closing Date; provided that, notwithstanding the foregoing, no Event of Default pursuant to this clause (m) shall occur if immediately a pro forma basis after giving effect to any such additionthereto, amendment or other modification, that the Borrower Loan Parties shall be in pro forma compliance with the financial covenants set forth in Section 7.11 for the most recently completed Measurement Period, such compliance to be calculated as if any Restricted Payments from such Company Group Party or Project Company, as applicable, to the Borrower had not been, and shall not be permitted by the terms of such provisions to be, made. Notwithstanding anything to the contrary contained in this Article VIII, in the event that the Borrower fails to comply with the requirements of Section 7.11, until the expiration of the tenth day subsequent to the date the certificate calculating such compliance is required to be delivered pursuant to Section 6.02(a) 7.1 (the period from such failure to comply to such tenth day, the “Cure Period”), the Borrower shall have the right to issue Permitted Cure Securities for cash or otherwise receive cash contributions to the capital of the Borrower (collectively, the “Cure Right”), and upon the receipt by the Borrower of such cash (the “Cure Amount”) pursuant to the exercise by the Borrower of such Cure Right compliance with the covenants set forth in Section 7.11 shall be recalculated without giving effect to the following pro forma adjustments:
(a) Borrower Cash Flow shall be increased, solely for the purpose of measuring compliance with Section 7.11 and not for any other purpose under this Agreement, by an amount equal to the Cure Amount; and
proviso in clause (b) if, after giving effect thereto) or (ii) otherwise reasonably satisfactory to the foregoing recalculationsAdministrative Agent (whose consent to such terms shall not be unreasonably withheld, the Borrower shall then be conditioned or delayed); provided that nothing in compliance with the requirements of Section 7.11, the Borrower shall be deemed to have satisfied the requirements of Section 7.11 as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of Section 7.11 that had occurred shall be deemed cured for the purposes of this Agreement. Notwithstanding anything herein to the contrary, (a) in each two-fiscal-quarter period there shall be at least one fiscal quarter in which the Cure Right is not exercised, clause (b) in each eight-fiscal-quarter period, there shall be a period is intended to restrict mergers or consolidations of at least four consecutive fiscal quarters during which the Cure Right is not exercised, Loan Parties permitted under Section 7.4; or
(c) permit any Operating Lessee to terminate or to amend, modify or change any Management Agreement in any material respect without the Cure Amount shall be no greater than the amount required for purposes of complying with Section 7.11 as prior written consent of the relevant date Administrative Agent (such consent not to be unreasonably delayed, conditioned or withheld); provided that nothing in this clause (b) is intended to restrict (x) mergers or consolidations of determination and (d) no more than five (5) Cure Rights may be exercised in the aggregateLoan Parties permitted under Section 7.4.
Appears in 1 contract
Certain Amendments. Any addition, amendment or other modification (a) The introductory paragraph of any agreement or provision governing or related to the ability of any Project Company or Company Group Party to make Restricted Payments, directly or indirectly, to the Borrower shall become effective if such provisions as added, amended or modified, taken as a whole, are materially more restrictive than such provisions as in effect on the Closing Date; provided that, notwithstanding the foregoing, no Event of Default pursuant to this clause (m) shall occur if immediately after giving effect to any such addition, amendment or other modification, the Borrower Rights Agreement shall be in pro forma compliance with the covenants set forth in Section 7.11 for the most recently completed Measurement Periodamended to state: "THE RIGHTS AGREEMENT, such compliance to be calculated dated as if any Restricted Payments from such Company Group Party or Project Companyof August 17, 1995, as applicableamended, to the Borrower had not been(this "Agreement"), and shall not be permitted by the terms of such provisions to bebetween Medicis Pharmaceutical Corporation, made. Notwithstanding anything to the contrary contained in this Article VIII, in the event that the Borrower fails to comply with the requirements of Section 7.11, until the expiration of the tenth day subsequent to the date the certificate calculating such compliance is required to be delivered pursuant to Section 6.02(a) a Delaware corporation (the period from such failure to comply to such tenth day, the “Cure Period”), the Borrower shall have the right to issue Permitted Cure Securities for cash or otherwise receive cash contributions to the capital of the Borrower (collectively, the “Cure Right”"Company"), and upon the receipt by the Borrower of such cash Norwest Bank Minnesota, N.A., a national banking association, as successor-in-interest to American Stock Transfer & Trust Company, a New York corporation, as rights agent (the “Cure Amount”) pursuant to the exercise by the Borrower of such Cure Right compliance with the covenants set forth in Section 7.11 shall be recalculated giving effect to the following pro forma adjustments:
(a) Borrower Cash Flow shall be increased, solely for the purpose of measuring compliance with Section 7.11 and not for any other purpose under this Agreement, by an amount equal to the Cure Amount; and"Rights Agent")."
(b) if, The third sentence of Section 3(a) of the Rights Agreement is hereby amended to read as follows: As soon as practicable after giving effect to the foregoing recalculationsDistribution Date, the Borrower shall then be in compliance with the requirements of Section 7.11Company will prepare and execute, the Borrower shall Rights Agent will countersign and the Company will send or cause to be deemed sent (and the Rights Agent will, if requested by the Company, send) by first-class, insured, postage-prepaid mail, to have satisfied the requirements each record holder of Section 7.11 Class A Common Shares and Class B Common Shares as of the relevant date Close of determination with Business on the same effect Distribution Date, at the address of such holder shown on the records of the Company, a Right Certificate, in substantially the form of EXHIBIT A to Amendment No. 2, dated as though there had been no failure of March 17, 1997 ("Amendment No. 2") to comply therewith at such datethis Agreement (a "Right Certificate"), evidencing one Right for each Class A Common Share and the applicable breach or default of Section 7.11 that had occurred shall be deemed cured for the purposes of this Agreement. Notwithstanding anything herein to the contrary, (a) in each two-fiscal-quarter period there shall be at least one fiscal quarter in which the Cure Right is not exercised, (b) in each eight-fiscal-quarter period, there shall be a period of at least four consecutive fiscal quarters during which the Cure Right is not exercised, Class B Common Share so held.
(c) Section 3(b) of the Cure Amount Rights Agreement is hereby amended by adding the following at the end thereof: Upon the effectiveness of Amendment No. 2, the Summary of Rights to Purchase Preference Shares, shall be no greater than in substantially the amount required for purposes form of complying with Section 7.11 EXHIBIT B to Amendment No. 2 and thereafter all references in this Agreement to the Summary of Rights shall be references to the Summary of Rights as of the relevant date of determination and so amended.
(d) no more than five Section 3(c) of the Rights Agreement is hereby amended to read as follows:
(5e) Cure Rights may be exercised Certificates for Class A Common Shares and Class B Common Shares which become outstanding (including, without limitation, reacquired Class A Common Shares and Class B Common Shares referred to in the aggregatelast sentence of this paragraph (c)) after the Record Date but prior to the earliest of the Distribution Date, the Redemption Date or the Final Expiration Date shall have impressed on, printed on, written on or otherwise affixed to them the following legend: This certificate also evidences and entitles the holder hereof to certain rights as set forth in a Rights Agreement, dated as of August 17, 1995, between Medicis Pharmaceutical Corporation and Norwest Bank Minnesota, N.A., as successor-in-interest to American Stock Transfer & Trust Company, as Rights Agent (as amended, the "Rights Agreement"), the terms of which are hereby incorporated herein by reference and a copy of which is on file at the principal executive offices of Medicis Pharmaceutical Corporation. Under certain circumstances, as set forth in the Rights Agreement, such Rights will be evidenced by separate certificates and will no longer be evidenced by this certificate. Medicis Pharmaceutical Corporation will mail to the holder of this certificate a copy of the Rights Agreement without charge after receipt of a written request therefor. Under certain circumstances, as set forth in the Rights Agreement, Rights issued to any Person who becomes an Acquiring Person (as defined in the Rights Agreement) may become null and void.
(f) Certificates for Class A Common Shares and Class B Common Shares which become outstanding (including, without limitation, reacquired Class A Common Shares and Class B Common Shares referred to in the last sentence of this paragraph (c)) after the Record Date but prior to the earliest of the Distribution Date, the Redemption Date or the Final Expiration Date shall have impressed on, printed on, written on or otherwise affixed to them the following legend: This certificate also evidences and entitles the holder hereof to certain rights as set forth in a Rights Agreement, dated as of August 17, 1995, between Medicis Pharmaceutical Corporation and Norwest Bank Minnesota, N.A., as successor-in-interest to American Stock Transfer & Trust Company, as Rights Agent (as amended, the "Rights Agreement"), the terms of which are hereby incorporated herein by reference and a copy of which is on file at the principal executive offices of Medicis Pharmaceutical Corporation. Under certain circumstances, as set forth in the Rights Agreement, such Rights will be evidenced by separate certificates and will no longer be evidenced by this
Appears in 1 contract
Certain Amendments. Any additionNeither this Credit Facility Agreement, the Note nor any of the Security Documents nor any terms hereof or thereof may be amended unless such amendment is approved by the Borrower and the Majority Lenders, provided that no such amendment shall, without the written consent of each Lender affected thereby, (i) reduce the interest rate or other modification extend the time of a scheduled payment of principal or interest or fees on the Facility, or reduce the principal amount of the Facility or any fees hereunder, (ii) increase or decrease the Commitment of any agreement Lender or provision governing or related subject any Lender to the ability any additional obligation (it being understood that a waiver of any Project Company or Company Group Party to make Restricted Payments, directly or indirectly, to the Borrower shall become effective if such provisions as added, amended or modified, taken as a whole, are materially more restrictive than such provisions as in effect on the Closing Date; provided that, notwithstanding the foregoing, no Event of Default pursuant to this clause (m) shall occur if immediately after giving effect to Default, other than a payment default, or any such addition, amendment or other modification, the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.11 for the most recently completed Measurement Period, such compliance to be calculated as if any Restricted Payments from such Company Group Party or Project Company, as applicable, to the Borrower had not been, and mandatory repayment of Facility shall not be permitted by constitute a change in the terms of such provisions any Commitment of any Lender), (iii) amend, modify or waive any provision of this Section 15.8, (iv) amend the definition of Majority Lenders or any other definition referred to bein this Section 15.8, made. Notwithstanding anything (v) consent to the contrary contained in this Article VIII, in the event that the Borrower fails to comply with the requirements of Section 7.11, until the expiration of the tenth day subsequent to the date the certificate calculating such compliance is required to be delivered pursuant to Section 6.02(a) (the period from such failure to comply to such tenth day, the “Cure Period”), the Borrower shall have the right to issue Permitted Cure Securities for cash assignment or otherwise receive cash contributions to the capital of the Borrower (collectively, the “Cure Right”), and upon the receipt transfer by the Borrower of any of their rights and obligations under this Credit Facility Agreement, (vi) accept payment for the obligations of the Security Parties under this Credit Facility Agreement in any currency other than Dollars, (vii) waive the requirements regarding the delivery of audited financial statements under Section 9.1(d), (viii) release any Security Party from any of its obligations under any Security Document except as expressly provided herein or in such cash Security Document or (the “Cure Amount”vii) pursuant amend any provision relating to the exercise maintenance of collateral under Section 9.4; provided, further, that approval by all Lenders shall be required for any amendment or waivers with respect to Section 5.3 of this Credit Facility Agreement. All amendments approved by the Majority Lenders under this Section 15.8 must be in writing and signed by the Borrower, each of the Lenders comprising the Majority Lenders and, if applicable, each Lender affected thereby and any such amendment shall be binding on all the Lenders; provided, however, that any amendments or waivers with respect to Section 5.3 of this Credit Facility Agreement must be in writing and signed by the Borrower of such Cure Right compliance with the covenants set forth in Section 7.11 shall be recalculated giving effect to the following pro forma adjustments:
(a) Borrower Cash Flow shall be increased, solely for the purpose of measuring compliance with Section 7.11 and not for any other purpose under this Agreement, by an amount equal to the Cure Amount; and
(b) if, after giving effect to the foregoing recalculations, the Borrower shall then be in compliance with the requirements of Section 7.11, the Borrower shall be deemed to have satisfied the requirements of Section 7.11 as all of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of Section 7.11 that had occurred shall be deemed cured for the purposes of this Agreement. Notwithstanding anything herein to the contrary, (a) in each two-fiscal-quarter period there shall be at least one fiscal quarter in which the Cure Right is not exercised, (b) in each eight-fiscal-quarter period, there shall be a period of at least four consecutive fiscal quarters during which the Cure Right is not exercised, (c) the Cure Amount shall be no greater than the amount required for purposes of complying with Section 7.11 as of the relevant date of determination and (d) no more than five (5) Cure Rights may be exercised in the aggregateLenders.
Appears in 1 contract
