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 First 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 Grantor shall cause that each new Second Priority Collateral Document under a Second Priority Debt Facility shall include the following language (or language to similar effect reasonably approved by the Designated First 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 First Priority Secured Parties (as defined in the Intercreditor Agreement referred to below), including liens and security interests granted to Barclays Bank PLC, as collateral agent, pursuant to or in connection with the Amended and Restated Senior Secured Term Loan Facility dated as of December 5, 2016 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time), among the Borrower, the lenders from time to time party thereto and Barclays Bank PLC, as administrative 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 Junior Priority Intercreditor Agreement dated as of December 5, 2016 (as amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), among Barclays Bank PLC, as First Lien Collateral Agent, WILMINGTON TRUST, NATIONAL ASSOCIATION, as Second Lien Collateral Agent, OCWEN LOAN SERVICING, LLC, a Delaware limited liability company (the “Borrower”), the other Grantors from time to time party thereto. In the event of any conflict between the terms of the Intercreditor Agreement and the terms of this Agreement, the terms of the 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 First Priority Representative and/or the First Priority Secured Parties enter into any amendment, waiver or consent in respect of any of the First Priority Collateral Documents for the purpose of adding to or deleting from, or waiving or consenting to any departures from any provisions of, any First Priority Collateral Document or changing in any manner the rights of the First Priority Representatives, the First Priority Secured Parties, the Borrower or any other Grantor thereunder (including the release of any Liens in First Priority Collateral) in a manner that is applicable to all First 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 the Borrower or any other Grantor; provided, however, that (x) no such amendment, waiver or consent shall be have the effect of (i) 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) or (ii) imposing any additional duties on any Second Priority Representative or otherwise adversely affecting any Second Priority Representative’s rights, protections, immunities or indemnities without its written consent 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 Cure Right is not exercisedeffectiveness of such amendment, waiver or consent.
(c) The First 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 First 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 Collateral Agent (acting with the consent of determination the requisite holders of Noteholders pursuant to the terms of the Second Lien Initial Agreement) and each other Second Priority Representative (acting with the consent of the requisite holders of each series of Second Priority Debt), no such amendment, restatement, supplement or modification 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, renewed, extended or replaced, in each case, without the consent of any First Priority Representative or First Priority Secured Party; provided, however, that, without the consent of the First Lien Collateral Agent, acting with the consent of the Required Lenders (as such term is defined in the aggregateFirst Lien Credit Agreement) and each other First Priority Representative (acting with the consent of the requisite holders of each series of Additional First Priority Debt), no such amendment, restatement, supplement or modification shall contravene any provision of this Agreement.
Appears in 2 contracts
Samples: Indenture (Ocwen Financial Corp), Junior Priority Intercreditor Agreement (Ocwen Financial Corp)
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 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(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 additionSubject to this Section 14.8 (and except as provided in Section 14.7(f)), this 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 Loan, or reduce the principal amount of the Loan 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 Loan 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, Majority Tranche A Lenders or Majority Tranche B 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, or (ix) permit the Secured Obligations to be subordinated to any other Financial Indebtedness for borrowed money of a Loan Party or Credit Support Party. 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) ifFacility Agent may be modified without the consent of the Facility Agent. For the avoidance of doubt, after giving effect to any amendment, consents or waiver which amends, waives or otherwise modifies any term or provision that directly affects the foregoing recalculationsrights or duties of the Tranche A Lenders or the Tranche B Lenders, respectively, and does not directly affect the Borrower rights or duties of the other Lenders, in each case, shall then be in compliance permitted 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 Majority Tranche A Lenders or the same effect as though there had been no failure to comply therewith at such dateMajority Tranche B Lenders, 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 lieu of the relevant date written consent of determination and (d) no more than five (5) Cure Rights may be exercised in the aggregateMajority Lenders.
Appears in 1 contract
Samples: Credit Agreement (Tidewater Inc)
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 Lenders;
(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 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 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) (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 AmountAdministrative Agent (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 in compliance with the requirements restrict (x) mergers or consolidations of Loan Parties permitted under 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 contrary7.04, (ay) acquisitions of Properties or (z) any Disposition completed 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, accordance with Section 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 Administrative Agent (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 Administrative Agent (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 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 Lenders;
(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 (i) 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 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 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) (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 AmountAdministrative Agent (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 in compliance with the requirements restrict (x) mergers or consolidations of Loan Parties permitted under 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 contrary7.04, (ay) acquisitions of Properties or (z) any Disposition completed 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, accordance with Section 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 Administrative Agent (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 Administrative Agent (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 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 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 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 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 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 The Purchase Agreement is hereby amended ab initio 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 adjustmentsfollows:
(a) Borrower Cash Flow Section 6.5(b) of the Purchase Agreement is amended to delete the phrase "within two weeks of the date hereof" from the first sentence thereof and to insert the phrase "prior to 5:00 p.m., Pacific time, on September 20, 2004" in substitution therefor.
(b) Section 6.5(l) of the Purchase Agreement is amended to delete the phrase "the fifteenth day following the date of this Agreement" therefrom and to insert the phrase "5:00 p.m., Pacific time, on September 20, 2004" in substitution therefor.
(c) Section 6.5(k) of the Purchase Agreements is amended and restated as follows: "Sellers shall (i) cause all amounts credited to participant accounts, whether vested or unvested, under the Soundview Deferred Compensation Plan (the "Deferred Compensation Plan") to be increasedpaid in cash to each participant without the requirement of any further employment promptly after the termination of employment of such participant, solely and (ii) shall assume all liabilities associated with the Deferred Compensation Plan, in each case, other than for the purpose of measuring compliance with Section 7.11 and not for any other purpose under this AgreementRetained Emloyees. Within fourteen days following the Closing Date, by Sellers shall pay to Purchaser an amount equal to the Cure Amount; and
(b) ifamount received by Seller upon distribution of the rabbi trust assets with respect to John Cronin. Following such payments, after giving effect Sellers shall have no xxxxxxxxxx with respect to the foregoing recalculations, Deferred Compensation Plan with respect to the Borrower shall then be in compliance with Retained Employees. Any amount owed under the requirements of Section 7.11, Deferred Compensation Plan that exceeds the Borrower amount paid to Purchaser pursuant to the prior sentence 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 a Company Liability for the all 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 Section 6.5(m) of the Purchase Agreement is amended to delete the phrase "On and following the fifteenth day following the date hereof" therefrom and to insert the phrase "Following 5:00 p.m., Pacific time, on September 20, 2004" in substitution therefor.
(5e) Cure Rights Section 6.7(a) of the Purchase Agreement is amended (i) to insert the phrase "provided, however, that Sellers shall not be obligated to endeavor to obtain releases from tenants and subtenants of Sellers or any of their Subsidiaries (including CCM, the Company and their respective Subsidiaries), but instead shall be obligated to endeavor to obtain estoppel certificates from such tenants and subtenants in substantially the form approved by Purchaser" at the end of the first sentence thereof, and (ii) to delete the phrase "and will indemnify Purchaser for any damages resulting from the failure to obtain such releases prior to Closing" from the last sentence thereof.
(f) Section 6.7(b) of the Purchase Agreement is amended to insert the following sentences at the end thereof: "Notwithstanding the previous sentence, the parties acknowledge that following the Closing Sellers and their Affiliates may elect to perform, at their sole risk and expense, certain research-related services to certain research clients of the Business. Any Damages incurred or suffered by any Purchaser Indemnitees to the extent that they result or arise from Sellers' and their Affiliates' performance of such services following the Closing shall constitute Company Liabilities for all purposes of this Agreement."
(g) Section 9.2(a) of the Purchase Agreement is amended to insert the phrase "; or (iii) any leases of real property and premises to which any of CCM, the Company or any of their respective Subsidiaries may be exercised in subject prior to the aggregateClosing Date, including but not limited to the leases and other agreements specified on Section 3.14 of the Disclosure Schedule" at the end of the first sentence thereof.
(h) Section 7.2(i) of the Purchase Agreement is amended and restated as follows: "Sellers shall have received the material non-governmental consents that are listed on Section 3.4 of the Disclosure Schedule hereof, the failure of which to obtain would be material to CCM or the Company or Purchaser or Purchaser; provided, however, that it is expressly agreed that there is no obligation on the part of any party hereto to obtain the consents set forth on Section 7.2(i) of the Disclosure Schedule."
Appears in 1 contract
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 Note, the Subordination and Intercreditor Agreement, any of the Security Documents nor any terms hereof or thereof may be amended unless such amendment is approved by the Obligors, the Facility Agent 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 subject any Lender to any additional obligation (it being understood that a waiver of any Event of Default, other than a payment default, or any mandatory repayment of the Facility shall not constitute a change in the Commitment of any Lender), (iii) amend, modify or waive any provision governing of this Section 16.8, (iv) amend the definition of Majority Lenders or related any other definition referred to in this Section 16.8, (v) consent to the ability assignment or transfer by the Borrower of any Project Company of its rights and obligations under this Agreement, (vi) release any Security Party from any of its obligations under any Security Document except as expressly provided herein or Company Group Party to make in such Security Document or (vii) amend the definition of “Restricted PaymentsParty”, directly “Sanctions Authority”, “Sanctions List” or indirectly“Sanctions Laws” or Sections 2.1(p), to 9.1(hh), 9.1(ii), or 9.2(q), 9.2(z). All amendments approved by the Borrower shall become effective Majority Lenders under this Section 16.8 must be in writing and signed by the Obligors, each of the Lenders comprising the Majority Lenders and, if such provisions as addedapplicable, 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 each Lender affected thereby and any such addition, amendment or other modification, the Borrower shall be in pro forma compliance with binding on all 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, madeLenders. Notwithstanding anything to the contrary contained in this Article VIIISection 16.8, in the event that the Borrower fails no amendment 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 recalculationsNote, the Borrower shall then be in compliance with the requirements of Section 7.11Subordination and Intercreditor Agreement, the Borrower shall be deemed to have satisfied the requirements of Section 7.11 as any of the relevant date of determination with Security Documents shall affect the same effect as though there had been no failure to comply therewith at such daterights, and the applicable breach duties, obligations, protections, immunities 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 indemnities of the relevant date of determination and (d) no more than five (5) Cure Rights may be exercised in Facility Agent or the aggregateCollateral Agent without its written consent.
Appears in 1 contract
Samples: Term Loan Credit Facility Agreement (SEACOR Marine Holdings Inc.)
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
