Most Favored Lender Covenant. (a) If at any time (x) any Principal Credit Facility, (y) the 2014 Note Purchase Agreement or (z) any agreement or document evidencing any Indebtedness of the Company that is pari passu with the Obligations in an aggregate principal amount (or with lending commitments) equal to the greater of $15,000,000 or 2% of Consolidated Total Assets (together with any Principal Credit Facility, a “More Favorable Lending Agreement”) shall include any Financial Covenant (or any thereof shall be amended or otherwise modified to include any Financial Covenant) that is not contained in this Agreement or is more restrictive on the Company than any analogous Financial Covenant contained in this Agreement (including, without limitation, any such Financial Covenant existing on the First Amendment Effective Date) (any such covenant or event of default, an “Additional Covenant”), then the Company shall provide a Most Favored Lender Notice to the holders of Notes with respect to such Additional Covenant. Thereupon, unless waived in writing by the Required Holders within five (5) days of receipt of such notice by the holders of the Notes, such Additional Covenant, together with all definitions relating thereto, shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if set forth fully herein, without any further action required on the part of any Person, effective as of the date when such Additional Covenant became effective under such More Favorable Lending Agreement. (b) If, after the date of execution of any amendment or modification under any More Favorable Lending Agreement that results in the amendment or deemed amendment of this Agreement pursuant to Section 10.12(a), the subject Financial Covenant is excluded, terminated, loosened, amended or otherwise modified under such More Favorable Lending Agreement or such More Favorable Lending Agreement itself is terminated and not replaced, then such Financial Covenant, without any further action on the part of the Company or any of the holders of the Notes, shall unconditionally be deemed on the date of execution of any such amendment or modification to be then and thereupon similarly excluded, terminated, loosened, amended or otherwise modified under this Agreement (it being understood and agreed that any waiver of any holders’ right to prepayment under the 2014 Note Purchase Agreement pursuant to the terms of any Financial Covenant of the type described in clause (b) of the definition thereof, shall not be deemed to constitute a waiver of any right of the holders of the Notes to prepayment under this Agreement pursuant to any such corresponding Financial Covenant incorporated herein pursuant to Section 10.12(a)), or if such More Favorable Lending Agreement itself is terminated and not replaced, such Financial Covenant shall be deemed to be terminated on the date of such termination; provided that if a Default or Event of Default shall exist at the time any such Financial Covenant is to be so excluded, terminated, loosened, amended or modified under this Agreement pursuant to this Section 10.12(b), the prior written consent thereto of the Required Holders shall be required as a condition to the exclusion, termination, loosening, amendment or other modification of any such Financial Covenant for so long as such Default or Event of Default continues to exist; and provided, further, that if any fee or other consideration shall be paid to the lenders or holders of the Indebtedness under such More Favorable Lending Agreement in connection with such amendment or modification, the equivalent of such fee or other consideration shall be paid to the holders of the Notes (except to the extent any such fee or other consideration shall be paid to the lenders or holders of the Indebtedness under any such More Favorable Lending Agreement (x) in connection with any refinancing or extension of such More Favorable Lending Agreement in connection with which any such Financial Covenant is amended or modified or (y) in the case of the Credit Agreement, in connection with any amendment to the Credit Agreement to conform the definition of “Consolidated Shareholders Equity” contained therein to the definition of “Consolidated Shareholders Equity” set forth in this Agreement). In any and all events, the affirmative and negative covenants and related definitions and Events of Default contained in this Agreement as in effect on the First Amendment Effective Date, as amended (other than pursuant to operation of Section 10.12(a)) shall not in any event be deemed or construed to be excluded, terminated, loosened, amended or otherwise modified by operation of the terms of this Section 10.12(b), and only any Financial Covenant included pursuant to Section 10.12(a) shall be so excluded, terminated, loosened, amended or otherwise modified pursuant to the terms of this Section 10.12(b). (c) The Company and the Required Holders shall from time to time promptly execute and deliver at the Company’s expense (including, without limitation, the reasonable fees and expenses of counsel for the holders of the Notes) an amendment to this Agreement in form and substance reasonably satisfactory to the Company and the Required Holders evidencing that, pursuant to this Section 10.12, this Agreement then and thereafter includes, excludes, amends or otherwise modifies any Financial Covenant; provided that the execution and delivery of such amendment shall not be a precondition to the effectiveness of such amendment.”
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Most Favored Lender Covenant. (a) If at any time (x) any Principal Credit Facility, (y) the 2014 2011 Note Purchase Agreement or (z) any agreement or document evidencing any Indebtedness of the Company that is pari passu with the Obligations in an aggregate principal amount (or with lending commitments) equal to the greater of $15,000,000 or 2% of Consolidated Total Assets (together with any Principal Credit FacilityFacility and the 2011 Note Purchase Agreement, a “More Favorable Lending Agreement”) shall include any Financial Covenant (or any thereof shall be amended or otherwise modified to include any Financial Covenant) that is not contained in this Agreement or is more restrictive on the Company than any analogous Financial Covenant contained in this Agreement (including, without limitation, any such Financial Covenant existing on the First Amendment Effective Datedate of this Agreement) (any such covenant or event of default, an “Additional Covenant”), then the Company shall provide a Most Favored Lender Notice to the holders of Notes with respect to such Additional Covenant. Thereupon, unless waived in writing by the Required Holders within five (5) days of receipt of such notice by the holders of the Notes, such Additional Covenant, together with all definitions relating thereto, shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if set forth fully herein, without any further action required on the part of any Person, effective as of the date when such Additional Covenant became effective under such More Favorable Lending Agreement.
(b) If, after the date of execution of any amendment or modification under any More Favorable Lending Agreement that results in the amendment or deemed amendment of this Agreement pursuant to Section 10.12(a), the subject Financial Covenant is excluded, terminated, loosened, amended or otherwise modified under such More Favorable Lending Agreement or such More Favorable Lending Agreement itself is terminated and not replaced, then such Financial Covenant, without any further action on the part of the Company or any of the holders of the Notes, shall unconditionally be deemed on the date of execution of any such amendment or modification to be then and thereupon similarly excluded, terminated, loosened, amended or otherwise modified under this Agreement (it being understood and agreed that any waiver of any holders’ right to prepayment under the 2014 Note Purchase Agreement pursuant to the terms of any Financial Covenant of the type described in clause (b) of the definition thereof, shall not be deemed to constitute a waiver of any right of the holders of the Notes to prepayment under this Agreement pursuant to any such corresponding Financial Covenant incorporated herein pursuant to Section 10.12(a))Agreement, or if such More Favorable Lending Agreement itself is terminated and not replaced, such Financial Covenant shall be deemed to be terminated on the date of such termination; provided that if a Default or Event of Default shall exist at the time any such Financial Covenant is to be so excluded, terminated, loosened, amended or modified under this Agreement pursuant to this Section 10.12(b), the prior written consent thereto of the Required Holders shall be required as a condition to the exclusion, termination, loosening, amendment or other modification of any such Financial Covenant for so long as such Default or Event of Default continues to exist; and provided, further, that if any fee or other consideration shall be paid to the lenders or holders of the Indebtedness under such More Favorable Lending Agreement in connection with such amendment or modification, the equivalent of such fee or other consideration shall be paid to the holders of the Notes (except to the extent any such fee or other consideration shall be paid to the lenders or holders of the Indebtedness under any such More Favorable Lending Agreement (x) in connection with any refinancing or extension of such More Favorable Lending Agreement in connection with which any such Financial Covenant is amended or modified or (y) in the case of the Credit Agreement, in connection with any amendment to the Credit Agreement to conform the definition of “Consolidated Shareholders Equity” contained therein to the definition of “Consolidated Shareholders Equity” set forth in this Agreement). In any and all events, the affirmative and negative covenants and related definitions and Events of Default contained in this Agreement as in effect on of the First Amendment Effective Date, as amended date of this Agreement (other than pursuant to operation of Section 10.12(a)) shall not in any event be deemed or construed to be excluded, terminated, loosened, amended or otherwise modified by operation of the terms of this Section 10.12(b), and only any Financial Covenant included pursuant to Section 10.12(a) shall be so excluded, terminated, loosened, amended or otherwise modified pursuant to the terms of this Section 10.12(b).
(c) The Company and the Required Holders shall from time to time promptly execute and deliver at the Company’s expense (including, without limitation, the reasonable fees and expenses of counsel for the holders of the Notes) an amendment to this Agreement in form and substance reasonably satisfactory to the Company and the Required Holders evidencing that, pursuant to this Section 10.12, this Agreement then and thereafter includes, excludes, amends or otherwise modifies any Financial Covenant; provided that the execution and delivery of such amendment shall not be a precondition to the effectiveness of such amendment.”
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Most Favored Lender Covenant. (a) If If, at any time (x) any Principal Credit Facility, (y) after the 2014 Note Purchase Agreement or (z) any agreement or document evidencing any Indebtedness date of the Company that is pari passu with Third Amendment, the Obligations in an aggregate principal amount (or with lending commitments) equal to the greater Operating Line of $15,000,000 or 2% of Consolidated Total Assets (together with any Principal Credit Facility, a “More Favorable Lending Agreement”) shall include any Financial Covenant financial covenants that address ratios or limitations that are the same as, or similar to, the ratios and limitations addressed in paragraphs (b), (c), (d), and (e) of Section 8.6 of this Agreement, and that would be more beneficial to the Noteholders than relevant similar covenants or any thereof shall be amended or otherwise modified to include any Financial Covenant) that is not like provisions contained in this Agreement or is more restrictive on the Company than any analogous Financial Covenant contained in this Agreement said paragraphs of Section 8.6 (including, without limitation, any such Financial Covenant existing on the First Amendment Effective Date) (any such covenant or event of default, an herein referred to as “Additional CovenantUpdated Covenants”), then the Company shall provide written notice within 10 Business Days of the effectiveness thereof to each Noteholder (which notice shall include a Most Favored Lender Notice to description of the holders of Notes with respect to such Additional CovenantUpdated Covenants, any defined terms used therein and related explanatory calculations, as applicable). Thereupon, unless waived in writing by the Required Holders Noteholders within five (5) days 10 Business Days of such Noteholders’ receipt of such notice by the holders of the Notesnotice, such Additional Covenant, together with all definitions relating thereto, Updated Covenants shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if set forth fully herein, without any further action required on the part of any Personin this Agreement, effective as of the date when such Additional Covenant Updated Covenants became effective under the Operating Line of Credit. Upon the request of the Required Noteholders, the Company and the Required Noteholders shall enter into an additional agreement or an amendment to this Agreement (as the Required Noteholders may request), evidencing the incorporation of such More Favorable Lending AgreementUpdated Covenants substantially as provided for in the Operating Line of Credit.
(b) IfProvided that no Default or Event of Default is then in existence (or at such later time when a then existing Default or Event of Default is waived, after the date of execution of any amendment cured or modification under any More Favorable Lending Agreement that results in the amendment or deemed amendment of this Agreement pursuant to Section 10.12(aotherwise no longer exists), the subject Financial (i) if any Updated Covenant is excluded, terminated, loosened, amended or otherwise modified under such More Favorable Lending Agreement or such More Favorable Lending Agreement itself is terminated and not replaced, then such Financial Covenant, without any further action on the part of the Company or any of the holders of the Notes, shall unconditionally be deemed on the date of execution of any such amendment or modification to be then and thereupon similarly excluded, terminated, loosened, amended or otherwise modified under this Agreement (it being understood and agreed that any waiver of any holders’ right to prepayment under the 2014 Note Purchase Agreement pursuant to the terms of any Financial Covenant of the type described in clause (b) of the definition thereof, shall not be deemed to constitute a waiver of any right of the holders of the Notes to prepayment under this Agreement pursuant to any such corresponding Financial Covenant has been incorporated herein pursuant to Section 10.12(a))7.13(a) is subsequently amended, modified or if waived in the Operating Line of Credit with the effect that such More Favorable Lending Agreement itself Updated Covenant is terminated and not replacedmade less restrictive, such Financial Covenant Updated Covenant, as amended, modified or waived, shall be deemed to be terminated on incorporated by reference into this Agreement, mutatis mutandis, as if set forth fully in this Agreement, effective as of the date when such amendment, modification or waiver became effective under the Operating Line of Credit, and in the case of a waiver, for the period or periods during which such waiver is effective under the Operating Line of Credit (provided, however, that if any Updated Covenant is made less restrictive than the corresponding financial covenant in this Agreement as of the effective date of the Third Amendment, as such corresponding financial covenant may thereafter be amended by the parties (other than by operation of this Section 7.13), then the Updated Covenant shall at that time be of no further force or effect and the corresponding financial covenant in this Agreement shall be in effect), and (ii) if any Updated Covenant that has been incorporated herein pursuant to Section 7.13(a) is subsequently removed or terminated from the Operating Line of Credit or the Company is otherwise no longer required to comply therewith under the Operating Line of Credit, or the Operating Line of Credit is repaid in full (with the obligors under such facility having no further ability to incur indebtedness thereunder), then the Company shall, effective as of the date when (x) the removal or termination of such termination; provided that if a Default Updated Covenant became effective under the Operating Line of Credit, (y) the requirement to comply therewith ceases to exist, or Event (z) repayment in full of the Operating Line of Credit is made (with the obligors under such facility having no further ability to incur indebtedness thereunder), in each case, no longer be or remain obligated to comply with the corresponding Updated Covenant hereunder. For the avoidance of doubt, all covenants and Events of Default shall exist at the time any such Financial Covenant is to be so excluded, terminated, loosened, amended or modified under set forth in this Agreement other than through the application of Section 7.13(a) shall remain in full force and effect, regardless of the incorporation, modification, waiver or removal of any Updated Covenants pursuant to this Section 10.12(b)7.13 or any amendment, the prior written consent thereto of the Required Holders shall be required as a condition to the exclusion, termination, loosening, amendment modification or other modification of any waiver which makes such Financial Updated Covenant for so long as less restrictive or removes or terminates such Default or Event of Default continues to exist; and provided, further, that if any fee or other consideration shall be paid to the lenders or holders of the Indebtedness under such More Favorable Lending Agreement in connection with such amendment or modification, the equivalent of such fee or other consideration shall be paid to the holders of the Notes (except to the extent any such fee or other consideration shall be paid to the lenders or holders of the Indebtedness under any such More Favorable Lending Agreement (x) in connection with any refinancing or extension of such More Favorable Lending Agreement in connection with which any such Financial Covenant is amended or modified or (y) in the case of the Credit Agreement, in connection with any amendment to the Credit Agreement to conform the definition of “Consolidated Shareholders Equity” contained therein to the definition of “Consolidated Shareholders Equity” set forth in this Agreement). In any and all events, the affirmative and negative covenants and related definitions and Events of Default contained in this Agreement as in effect on the First Amendment Effective Date, as amended (other than pursuant to operation of Section 10.12(a)) shall not in any event be deemed or construed to be excluded, terminated, loosened, amended or otherwise modified by operation of the terms of this Section 10.12(b), and only any Financial Covenant included pursuant to Section 10.12(a) shall be so excluded, terminated, loosened, amended or otherwise modified pursuant to the terms of this Section 10.12(b)Updated Covenant.
(c) The Company and the Required Holders shall from time to time promptly execute and deliver at the Company’s expense (including, without limitation, the reasonable fees and expenses of counsel for the holders of the Notes) an amendment to this Agreement in form and substance reasonably satisfactory to the Company and the Required Holders evidencing that, pursuant to this Section 10.12, this Agreement then and thereafter includes, excludes, amends or otherwise modifies any Financial Covenant; provided that the execution and delivery of such amendment shall not be a precondition to the effectiveness of such amendment.”
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Most Favored Lender Covenant. (a) If at any time (x) after the date hereof the Company or any Subsidiary shall be party to any Principal Credit Facility, (y) the 2014 Note Purchase Agreement or (z) any agreement or document evidencing any Indebtedness of the Company that is pari passu with the Obligations in an aggregate principal amount (or with lending commitments) equal to the greater of $15,000,000 or 2% of Consolidated Total Assets (together with any which Principal Credit Facility, a “More Favorable Lending Agreement”) shall include Facility includes any Financial Covenant (or any thereof shall be amended or Covenants that are not otherwise modified to include any Financial Covenant) that is not contained included in this Agreement (herein referred to as “New Covenants”) or is that would be more restrictive on beneficial to the Company holders than any analogous Financial Covenant relevant similar covenants or like provisions contained in this Agreement (includingherein referred to as “Improved Covenants”, without limitationand, any such Financial Covenant existing on the First Amendment Effective Date) (any such covenant or event of defaulttogether with New Covenants, an collectively, “Additional CovenantCovenants”), then the Company shall provide written notice within ten (10) Business Days of the effectiveness thereof to each holder (which notice shall include a Most Favored Lender Notice to description of the holders of Notes with respect to such Additional CovenantCovenants, any defined terms used therein and related explanatory calculations, as applicable). Thereupon, unless waived in writing by the Required Majority Holders within five ten (510) days Business Days of such holders’ receipt of such notice notice, such Additional Covenants shall be deemed incorporated by the holders reference into this Agreement, mutatis mutandi, as if set forth fully in this Agreement, effective as of the Notesdate when such Additional Covenants became effective under the applicable Principal Credit Facility (such Additional Covenants, as so incorporated, herein referred to as “Incorporated Covenants”). Upon the request of the Majority Holders, the Company and the Majority Holders shall enter into an additional agreement or an amendment to this Agreement (as the Majority Holders may request), evidencing the incorporation of such Additional Covenants substantially as provided for in the applicable Principal Credit Facility.
(b) Provided that no Default or Event of Default is then in existence (including as a result of a breach of an Incorporated Covenant), (i) if any Additional Covenant that has been incorporated herein pursuant to Section 9.10(a) is subsequently amended or modified in each relevant Principal Credit Facility with the effect that such Additional Covenant is made less restrictive, such Additional Covenant, together with all definitions relating thereto, as amended or modified shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if set forth fully herein, without any further action required on the part of any Personin this Agreement, effective as of the date when such amendment or modification became effective under the applicable Principal Credit Facility, and (ii) if any Additional Covenant that has been incorporated herein pursuant to Section 9.10(a) is subsequently removed or terminated from each relevant Principal Credit Facility or the Company or any Subsidiary, as the case may be, is otherwise no longer required to comply therewith under any Principal Credit Facility, then the Company and any such Subsidiaries shall, effective as of the date when (x) the removal or termination of such Additional Covenant became effective under such More Favorable Lending Agreement.
the applicable Principal Credit Facility, or (by) Ifthe requirement to comply therewith ceases to exist, after in each case, no longer be or remain obligated to comply with the date of execution of any amendment or modification under any More Favorable Lending Agreement that results corresponding Incorporated Covenant hereunder; provided, however, that, if in the amendment or deemed amendment of this Agreement pursuant to Section 10.12(a), the subject Financial Covenant is excluded, terminated, loosened, amended or otherwise modified under such More Favorable Lending Agreement or such More Favorable Lending Agreement itself is terminated and not replaced, then such Financial Covenant, without any further action on the part of the Company or any of the holders of the Notes, shall unconditionally be deemed on the date of execution of connection with any such amendment or modification to be then and thereupon similarly excluded, terminated, loosened, amended making an Additional Covenant less restrictive in any Principal Credit Facility or otherwise modified under this Agreement (it being understood and agreed that any waiver of any holders’ right to prepayment under the 2014 Note Purchase Agreement pursuant to the terms of any Financial Covenant such removal or termination of the type described effectiveness of an Additional Covenant in clause a Principal Credit Facility (bin either such case, a “Facility Covenant Loosening”) any consideration is provided to any lender or lenders or agent in respect of the definition thereofsuch Principal Credit Facility in consideration of such Facility Covenant Loosening, shall not be deemed to constitute a waiver of any right of then the holders of Notes shall be (concurrently with the Notes provision of such consideration to prepayment under such lender, lenders or agent) provided with equivalent consideration to such consideration on a pro rata basis for the loosening, removal or termination of the effectiveness of the corresponding Incorporated Covenant in this Agreement pursuant to any and no such corresponding Financial loosening, removal or termination of the effectiveness of such Incorporated Covenant incorporated herein pursuant to Section 10.12(a)), or if such More Favorable Lending in this Agreement itself is terminated and not replaced, such Financial Covenant shall be deemed to be terminated on the date of effective unless and until such termination; provided that if a Default or Event of Default shall exist at the time any such Financial Covenant equivalent consideration is to be so excluded, terminated, loosened, amended or modified under this Agreement pursuant to this Section 10.12(b), the prior written consent thereto of the Required Holders shall be required as a condition to the exclusion, termination, loosening, amendment or other modification of any such Financial Covenant for so long as such Default or Event of Default continues to exist; and provided, further, that if any fee or other consideration shall be paid to the lenders or holders of the Indebtedness under such More Favorable Lending Agreement in connection with such amendment or modification, the equivalent of such fee or other consideration shall be paid to the holders of the Notes (except to the extent any such fee or Notes. It being understood however that, other consideration shall be paid to the lenders or holders of the Indebtedness under any such More Favorable Lending Agreement (x) than as provided in connection with any refinancing or extension of such More Favorable Lending Agreement in connection with which any such Financial Covenant is amended or modified or (y) in the case of the Credit AgreementSection 17, in connection with any amendment to the Credit Agreement to conform the definition of “Consolidated Shareholders Equity” contained therein to the definition of “Consolidated Shareholders Equity” set forth in this Agreement). In any and all events, the affirmative and negative covenants and related definitions and Events of Default contained in this Agreement as in effect on the First Amendment Effective Date, as amended (other than pursuant to operation of Section 10.12(a)) shall not in any event be deemed or construed to be excluded, terminated, loosened, amended or otherwise modified by operation of to delete any Improved Covenant or to make any such Improved Covenant less restrictive on the terms of this Section 10.12(b), and only any Group than the relevant similar Financial Covenant included pursuant to Section 10.12(a) shall be so excluded, terminated, loosened, amended or otherwise modified pursuant it replaced (in the form that such Financial Covenant took in this Agreement immediately prior to the terms initial application of this Section 10.12(b9.10(a) thereto).
(c) The Company and the Required Holders shall from time to time promptly execute and deliver at the Company’s expense (including, without limitation, the reasonable fees and expenses of counsel for the holders of the Notes) an amendment to this Agreement in form and substance reasonably satisfactory to the Company and the Required Holders evidencing that, pursuant to this Section 10.12, this Agreement then and thereafter includes, excludes, amends or otherwise modifies any Financial Covenant; provided that the execution and delivery of such amendment shall not be a precondition to the effectiveness of such amendment.”
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Most Favored Lender Covenant. (a) If at any time after the Third Amendment Effective Date the Credit Agreement (xwhether by amendment, restatement, replacement or otherwise) any Principal Credit Facilityincludes covenants (whether affirmative or negative, (yand whether maintenance or incurrence) the 2014 Note Purchase Agreement or (z) any agreement defaults or document evidencing any Indebtedness events of the Company default that is pari passu with the Obligations in an aggregate principal amount (or with lending commitments) equal to the greater of $15,000,000 or 2% of Consolidated Total Assets (together with any Principal Credit Facility, a “More Favorable Lending Agreement”) shall include any Financial Covenant (or any thereof shall be amended or otherwise modified to include any Financial Covenant) that is not are more restrictive than those contained in this Agreement or is more restrictive on the Company than any analogous Financial Covenant contained are not provided for in this Agreement (including, without limitation, any such Financial Covenant existing on the First Amendment Effective Date) (any each such covenant and default or event events of default, an default herein referred to as “Additional CovenantMore Favorable Provision”), then the Company shall provide promptly, and in any event within 5 Business Days of the inclusion of such covenants or defaults, so advise and notify each holder of a Most Favored Lender Notice to the holders Note in writing. Such writing shall include a verbatim statement of Notes with respect to such Additional CovenantMore Favorable Provision. Thereupon, unless waived in writing by the Required Holders within five (5) days 5 Business Days of the holders’ receipt of such notice by the holders of the Notesnotice, such Additional Covenant, More Favorable Provision (together with all definitions relating thereto, any related defined terms) shall be deemed automatically incorporated by reference into in this Agreement, mutatis mutandis, Agreement as if set forth fully herein, without any further action required on the part of any Personmutatis mutandis, effective as of the date when such Additional Covenant More Favorable Provisions became effective under such More Favorable Lending Agreement.
other agreement, instrument or document (b) If, after the date of execution of any amendment or modification under any More Favorable Lending Agreement that results in the amendment or deemed amendment of this Agreement pursuant to Section 10.12(a), the subject Financial Covenant is excluded, terminated, loosened, amended or otherwise modified under each such More Favorable Lending Agreement or such More Favorable Lending Agreement itself is terminated and not replaced, then such Financial Covenant, without any further action on the part of the Company or any of the holders of the Notes, shall unconditionally be deemed on the date of execution of any such amendment or modification to be then and thereupon similarly excluded, terminated, loosened, amended or otherwise modified under this Agreement (it being understood and agreed that any waiver of any holders’ right to prepayment under the 2014 Note Purchase Agreement pursuant to the terms of any Financial Covenant of the type described in clause (b) of the definition thereof, shall not be deemed to constitute a waiver of any right of the holders of the Notes to prepayment under this Agreement pursuant to any such corresponding Financial Covenant Provision as incorporated herein pursuant is herein referred to Section 10.12(a)), or if as an “Incorporated Provision”) and no such More Favorable Lending Agreement itself is terminated and not replaced, such Financial Covenant shall Incorporated Provision may thereafter be deemed to be terminated on the date of such termination; provided that if a Default or Event of Default shall exist at the time any such Financial Covenant is to be so excluded, terminated, loosenedwaived, amended or modified under this Agreement pursuant to this Section 10.12(b), without the prior written consent thereto of the Required Holders; each such Incorporated Provision that is a covenant (in contrast to a default or event of default) shall be deemed incorporated by reference into Section 11(c) of the Agreement as if fully set forth therein. Thereafter, upon the request of the Required Holders, the Company and the Required Holders shall be required enter into an additional agreement or an amendment to this Agreement (as a condition to the exclusionRequired Holders may request), termination, looseningevidencing the incorporation of such Incorporated Provision substantially as provided for in the Credit Agreement. Each Incorporated Provision shall remain unchanged herein notwithstanding any subsequent waiver, amendment or other modification of any such Financial Covenant for so long as such Default or Event of Default continues to exist; and provided, further, that if any fee or other consideration shall be paid to the lenders or holders of the Indebtedness under such More Favorable Lending Agreement Provision giving rise to such Incorporated Provision (unless making such provision more restrictive as determined by the Required Holders in connection with such amendment or modification, the equivalent of such fee or other consideration shall be paid to the holders of the Notes (except to the extent any such fee or other consideration shall be paid to the lenders or holders of the Indebtedness under any such More Favorable Lending Agreement (x) in connection with any refinancing or extension of such More Favorable Lending Agreement in connection with which any such Financial Covenant is amended or modified or (y) in the case of the Credit Agreement, in connection with any amendment to the Credit Agreement to conform the definition of “Consolidated Shareholders Equity” contained therein to the definition of “Consolidated Shareholders Equity” set forth in this Agreementtheir sole discretion). In furtherance of the foregoing and for the avoidance of doubt, any and all events, incorporation by reference into this Agreement of a More Favorable Provision shall have no impact on the affirmative and negative covenants and related definitions and Events continuing effectiveness of Default any similar financial covenant contained in this Agreement as in effect on the First Amendment Effective Date, as amended (other than pursuant to operation of Section 10.12(a)) shall not in any event be deemed or construed to be excluded, terminated, loosened, amended or otherwise modified by operation of the terms of this Section 10.12(b), and only any Financial Covenant included pursuant to Section 10.12(a) shall be so excluded, terminated, loosened, amended or otherwise modified pursuant to the terms of this Section 10.12(b).
(c) The Company and the Required Holders shall from time to time promptly execute and deliver at the Company’s expense (including, without limitation, the reasonable fees and expenses of counsel for the holders of the Notes) an amendment to this Agreement in form and substance reasonably satisfactory to the Company and the Required Holders evidencing that, pursuant to this Section 10.12, this Agreement then and thereafter includes, excludes, amends or otherwise modifies any Financial Covenant; provided that the execution and delivery effective time of such amendment shall not be a precondition to the effectiveness of such amendmentincorporation by reference.”
13. Section 10 of Existing Note Agreement is hereby amended and restated in its entirety to read as follows:
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