Common use of Payments and Modifications of Subordinated Debt Clause in Contracts

Payments and Modifications of Subordinated Debt. No Borrower will directly or indirectly (a) declare, pay, make or set aside any amount for payment in respect of Subordinated Debt, except for payments made in full compliance with and expressly permitted under the Subordination Agreement, (b) amend or otherwise modify the terms of any Subordinated Debt, except for amendments or modifications made in full compliance with the Subordination Agreement, (c) make any optional repurchase or optional redemption of the Convertible Notes, (d) amend or otherwise modify the terms of the Convertible Notes term if such change or amendment would materially increase the obligations of Borrowers or confer additional material rights on the holder of such Debt in a manner adverse to Credit Parties, any Subsidiaries, Agent or Lenders, except, in any case, for modifications or amendments constituting Permitted Refinancing Debt. Borrowers shall, prior to entering into any such amendment or modification, deliver to Agent reasonably in advance of the execution thereof, any final or execution form copy thereof. Notwithstanding anything to the contrary set forth in this Section 5.5 or otherwise in this Agreement, the Borrowers may (A) refund, refinance, replace or exchange any Convertible Notes Debt with Permitted Refinancing Debt; (B) repay any Convertible Notes Debt by making payment in Equity Interests that are not Disqualified Equity Interests upon the conversion thereof (and making cash payments on account of fractional shares in connection with such conversion to the extent constituting a Permitted Distribution); (C) on the stated maturity thereof, repay the 2018 Convertible Notes in cash using Qualified Cash described in the definition of “Liquidity Condition”; and (D) pay, when due, interest, fees and reimbursable indemnities and expenses payable in respect of any Convertible Notes Debt.

Payments and Modifications of Subordinated Debt. No Borrower Obligor will, or will permit any Subsidiary to, directly or indirectly (a) unless all amounts due and payable to Purchaser are paid in full, declare, pay, make or set aside any amount for payment in respect of any Subordinated Debt, except for (i) payments made in full compliance with and expressly permitted under a subordination agreement in form and substance satisfactory to Purchaser (other than by a Subordinated Debt Permitted Refinancing) and (ii) with the Subordination Agreementprior written consent of Purchaser, (b) amend or otherwise modify the terms of any Subordinated Debt, except for amendments or modifications made in full compliance with the Subordination Agreement, (c) declare, pay, make or set aside any optional repurchase amount for payment in respect of any Debt hereinafter incurred that, by its terms, or optional redemption of by separate agreement, is subordinated to the Convertible NotesObligations, except for payments made in full compliance with and expressly permitted under the subordination provisions applicable thereto, or (d) amend or otherwise modify the terms of any such Debt if the Convertible Notes effect of such amendment or modification is to (i) increase the interest rate or fees on, or change the manner or timing of payment of, such Debt, (ii) accelerate or shorten the dates upon which payments of principal or interest are due on, or the principal amount of, such Debt, (iii) change in a manner adverse to any Obligor or the Purchaser any event of default or add or make more restrictive any covenant with respect to such Debt, (iv) change the prepayment provisions of such Debt or any of the defined terms related thereto, (v) change the subordination provisions thereof (or the subordination terms of any guaranty thereof), or (vi) change or amend any other term if such change or amendment would materially increase the obligations of Borrowers the obligor or confer additional material rights on the holder of such Debt in a manner adverse to Credit Parties, any Subsidiaries, Agent of the Obligors or Lenders, except, in any case, for modifications or amendments constituting Permitted Refinancing Debtthe Purchasers. Borrowers The Obligors shall, prior to entering into any such amendment or modification, deliver to Agent the Purchaser reasonably in advance of the execution thereof, any final or execution form copy thereof. Notwithstanding anything to For the contrary set forth avoidance of doubt, nothing contained in this Section 5.5 or otherwise is intended to restrict the Company from making payments of principal and interest with respect to any Permitted ABL Senior Debt in this accordance with the terms of the Existing Senior Secured Debt Documents and the Midcap Intercreditor Agreement, the Borrowers may (A) refund, refinance, replace or exchange any Convertible Notes ; it being understood that Permitted ABL Senior Debt with Permitted Refinancing Debt; (B) repay any Convertible Notes Debt by making payment in Equity Interests that are is not Disqualified Equity Interests upon the conversion thereof (and making cash payments on account of fractional shares in connection with such conversion to the extent constituting a Permitted Distribution); (C) on the stated maturity thereof, repay the 2018 Convertible Notes in cash using Qualified Cash described in the definition of “Liquidity Condition”; and (D) pay, when due, interest, fees and reimbursable indemnities and expenses payable in respect of any Convertible Notes Subordinated Debt.

Payments and Modifications of Subordinated Debt. No Borrower will directly or indirectly (a) declare, pay, make or set aside any amount for payment in respect of Subordinated Debt, except for payments made in full compliance with and expressly permitted under the Subordination Agreement, (b) amend or otherwise modify the terms of any Subordinated Debt, except for amendments or modifications made in full compliance with the Subordination Agreement, (c) make any optional repurchase or optional redemption of the Convertible Notes, (d) amend or otherwise modify the terms of the Convertible Notes term if such change or amendment would materially increase the obligations of Borrowers or confer additional material rights on the holder of such Debt in a manner adverse to Credit Parties, any Subsidiaries, Agent or Lenders, except, in any case, for modifications or amendments constituting Permitted Refinancing Debt; provided that amendment of, or side letter in connection with, the 2018 Convertible Notes in a manner that aligns the settlement and conversion provisions with VP/#37286916.5 those contained in the 2022 Convertible Notes shall be permitted (any such amendment or side letter, a “2018 Specified Amendment”). Borrowers shall, prior to entering into any such amendment or modification, deliver to Agent reasonably in advance of the execution thereof, any final or execution form copy thereof. Notwithstanding anything to the contrary set forth in this Section 5.5 or otherwise in this Agreement, the Borrowers may (A) refund, refinance, replace or exchange any Convertible Notes Debt with Permitted Refinancing Debt; (B) repay any Convertible Notes Debt by making payment in Equity Interests equity interests that are not Disqualified Equity Interests upon the conversion thereof (and making cash payments on account of fractional shares in connection with such conversion to the extent constituting a Permitted Distribution); (C) on the stated maturity thereof, repay the 2018 Convertible Notes in cash using Qualified Cash described in the definition of “Liquidity Condition”[reserved]; and (D) pay, when due, interest, fees and reimbursable indemnities and expenses payable in respect of any Convertible Notes Debt; and (E) pay an amendment fee to the holders of the 2018 Convertible Notes in connection with a 2018 Specified Amendment in an amount not to exceed $275,000.

Payments and Modifications of Subordinated Debt. No Borrower will directly or indirectly (a) declare, pay, make or set aside any amount for payment in respect of Subordinated Debt, except for payments made in full compliance with and expressly permitted under the Subordination Agreement, (b) amend or otherwise modify the terms of any Subordinated Debt, except for amendments or modifications made in full compliance with the Subordination Agreement, (c) make any optional repurchase or optional redemption of the Convertible Notes, (d) amend or otherwise modify the terms of the Convertible Notes term if such change or amendment would materially increase the obligations of Borrowers or confer additional material rights on the holder of such Debt in a manner adverse to Credit Parties, any Subsidiaries, Agent or Lenders, except, in any case, for modifications or amendments constituting Permitted Refinancing Debt; provided that amendment of, or side letter in connection with, the 2018 Convertible Notes in a manner that aligns the settlement and conversion provisions with those contained in the 2022 Convertible Notes shall be permitted (any such amendment or side letter, a “2018 Specified Amendment”). Borrowers shall, prior to entering into any such amendment or modification, deliver to Agent reasonably in advance of the execution thereof, any final or execution form copy thereof. Notwithstanding anything to the contrary set forth in this Section 5.5 or otherwise in this Agreement, the Borrowers may (A) refund, refinance, replace or exchange any Convertible Notes Debt with Permitted Refinancing Debt; (B) repay any Convertible Notes Debt by making payment in Equity Interests equity interests that are not Disqualified Equity Interests upon the conversion thereof (and making cash payments on account of fractional shares in connection with such conversion to the extent constituting a Permitted Distribution); (C) on the stated maturity thereof, or, solely with respect to the 2018 Convertible Notes, such earlier date between the Closing Date and the stated maturity thereof upon notice thereof by Borrowers to Agent, repay, purchase or redeem the 2018 Convertible Notes and repay the 2018 2022 Convertible Notes in cash using Qualified Cash described in the definition of “Liquidity Condition”” and, in the case of the 2018 Convertible Notes, proceeds of the Term Loans; provided that the maximum amount of Qualified Cash and proceeds of Term Loans used to repay the 2018 Convertible Notes shall not exceed $45,000,000 (with any excess beyond the then-outstanding principal amount thereof being allocated to pay premiums to incentivize the holders thereof to forego any settlement in shares); (D) pay, when due, interest, fees and reimbursable indemnities and expenses payable in respect of any Convertible Notes Debt; and (E) pay an amendment fee to the holders of the 2018 Convertible Notes in connection with a 2018 Specified Amendment in an amount not to exceed $275,000.

Payments and Modifications of Subordinated Debt. No Borrower will directly or indirectly (a) declare, pay, make or set aside any amount for payment in respect of Subordinated Debt, except for payments made in full compliance with and expressly permitted under the Subordination Agreement, (b) amend or otherwise modify the terms of any Subordinated Debt, except for amendments or modifications made in full compliance with the Subordination Agreement, (c) make any optional repurchase or optional redemption of the Convertible Notes, (d) amend or otherwise modify the terms of the Convertible Notes term if such change or amendment would materially increase the obligations of Borrowers or confer additional material rights on the holder of such Debt in a manner adverse to Credit Parties, any Subsidiaries, Agent or Lenders, except, in any case, for modifications or amendments constituting Permitted Refinancing Debt; provided that amendment of, or side letter in connection with, the 2018 Convertible Notes in a manner that aligns the settlement and conversion provisions with those contained in the 2022 Convertible Notes shall be permitted (any such amendment or side letter, a “2018 Specified Amendment”). Borrowers shall, prior to entering into any such amendment or modification, deliver to Agent reasonably in advance of the execution thereof, any final or execution form copy thereof. Notwithstanding anything to the contrary set forth in this Section 5.5 or otherwise in this Agreement, the Borrowers may (A) refund, refinance, replace or exchange any Convertible Notes Debt with Permitted Refinancing Debt; (B) repay any Convertible Notes Debt by making payment in Equity Interests equity interests that are not Disqualified Equity Interests upon the conversion thereof (and making cash payments on account of fractional shares in connection with such conversion to the extent constituting a Permitted Distribution); (C) on the stated maturity thereof, repay the 2018 Convertible Notes in cash using Qualified Cash described in the definition of “Liquidity Condition”[reserved]; and (D) pay, when due, interest, fees and reimbursable indemnities and expenses payable in respect of any Convertible Notes Debt; and (E) pay an amendment fee to the holders of the 2018 Convertible Notes in connection with a 2018 Specified Amendment in an amount not to exceed $275,000.”

Payments and Modifications of Subordinated Debt. No Borrower will not, and will not permit any Subsidiary to, directly or indirectly (a) declare, pay, make or set aside any amount for payment in respect of the XxXxxxxx Debt and Debt permitted under Section 5.1(g) (the “Subordinated Debt”), except for regularly scheduled payments of principal and interest (but no voluntary prepayments except in accordance with Section 5.4(d)(i) and 5.4(e)) in respect of such Subordinated Debt made in full compliance with any and expressly permitted under the Subordination Agreement, all subordination provisions applicable to such Subordinated Debt; or (b) amend or otherwise modify the terms of any Subordinated Debt if the effect of such amendment or modification is to (i) increase the interest rate or fees on, or change the manner or timing of payment of, such Debt; (ii) change the dates upon which payments of principal or interest are due on, except for amendments or modifications made in full compliance the principal amount of, such Debt; (iii) change any event of default or add or make more restrictive any covenant with respect to such Debt; (iv) change the Subordination Agreement, (c) make prepayment provisions of such Debt or any optional repurchase or optional redemption of the Convertible Notes, defined terms related thereto; (dv) amend change the subordination provisions thereof (or otherwise modify the subordination terms of the Convertible Notes any guaranty thereof); or (vi) change or amend any other term if such change or amendment would materially increase the obligations of Borrowers the obligor or confer additional material rights on the holder of such Debt in a manner adverse to Credit PartiesBorrower, any Subsidiaries, Administrative Agent or Lenders, except, as determined by the Administrative Agent and Lenders in any case, for modifications or amendments constituting Permitted Refinancing Debttheir reasonable discretion. Borrowers Borrower shall, prior to entering into any such amendment or modification, deliver to Administrative Agent reasonably in advance of the execution thereof, any final or execution form copy thereof. Notwithstanding anything thereof and, if approval of Required Lenders is required by the terms of this Agreement prior to the contrary set forth in this Section 5.5 or otherwise in this Agreement, the Borrowers may (A) refund, refinance, replace or exchange any Convertible Notes Debt with Permitted Refinancing Debt; (B) repay any Convertible Notes Debt by making payment in Equity Interests that are not Disqualified Equity Interests upon the conversion thereof (and making cash payments on account of fractional shares in connection with such conversion to the extent constituting a Permitted Distribution); (C) on the stated maturity thereof, repay the 2018 Convertible Notes in cash using Qualified Cash described in the definition of “Liquidity Condition”; and (D) pay, when due, interest, fees and reimbursable indemnities and expenses payable in respect taking of any Convertible Notes Debtsuch action, Borrower agrees not to take, nor permit any of its Subsidiaries to take, any such action with respect to any such items without obtaining such approval from Required Lenders.”

Payments and Modifications of Subordinated Debt. No Borrower will, or will permit any Subsidiary to, directly or indirectly indirectly, (a) declare, pay, make or set aside any amount for payment in respect of Subordinated Debt, except for payments made in full compliance with and expressly Debt unless permitted under pursuant to the applicable Subordination Agreement, Agreement or (b) amend or otherwise modify the terms of any Subordinated Debt if the effect of such amendment or modification is to (i) increase the interest rate or fees on, or change the manner or timing of payment of, such Subordinated Debt; (ii) change the dates upon which payments of principal or interest are due on, except for amendments or modifications made in full compliance the principal amount of, such Subordinated Debt; (iii) change any event of default or add or make more restrictive any covenant with respect to such Subordinated Debt; (iv) change the Subordination Agreement, (c) make prepayment provisions of such Subordinated Debt or any optional repurchase or optional redemption of the Convertible Notes, defined terms related thereto; (dv) amend change the subordination provisions thereof (or otherwise modify the subordination terms of the Convertible Notes any Guarantee thereof); (vi) change or amend any other term if such change or amendment would materially increase the obligations of Borrowers the obligor or confer additional material rights on the holder of such Subordinated Debt in a manner adverse to Credit Partiesany Borrower, any SubsidiariesSubsidiary, Administrative Agent or Lenders, except, in ; or (viii) otherwise conflict with the terms of or be prohibited under the terms of any case, for modifications or amendments constituting Permitted Refinancing DebtSubordination Agreement applicable thereto. Borrowers Each Borrower shall, prior to entering into any such amendment or modification, deliver to Administrative Agent reasonably in advance of the execution thereof, any final or execution form copy thereof. Notwithstanding anything thereof and, if approval of Required Lenders is required by the terms of this Agreement prior to the contrary set forth in this Section 5.5 or otherwise in this Agreement, the Borrowers may (A) refund, refinance, replace or exchange any Convertible Notes Debt with Permitted Refinancing Debt; (B) repay any Convertible Notes Debt by making payment in Equity Interests that are not Disqualified Equity Interests upon the conversion thereof (and making cash payments on account of fractional shares in connection with such conversion to the extent constituting a Permitted Distribution); (C) on the stated maturity thereof, repay the 2018 Convertible Notes in cash using Qualified Cash described in the definition of “Liquidity Condition”; and (D) pay, when due, interest, fees and reimbursable indemnities and expenses payable in respect taking of any Convertible Notes Debtsuch action, such Borrower agrees not to take, nor permit any of its Subsidiaries to take, any such action with respect to any such items without obtaining such approval from Required Lenders.

Payments and Modifications of Subordinated Debt. No Borrower will directly or indirectly (a) declare, pay, make or set aside any amount for payment in respect of Subordinated Debt, except for payments made in full compliance with and expressly permitted under the Subordination Agreement, (b) amend or otherwise modify the terms of any Subordinated Debt, except for amendments or modifications made in full compliance with the Subordination Agreement, (c) make any optional repurchase or optional redemption of the Convertible Notes, (d) amend or otherwise modify the terms of the Convertible Notes term if such change or amendment would materially increase the obligations of Borrowers or confer additional material rights on the holder of such Debt in a manner adverse to Credit Parties, any Subsidiaries, Agent or Lenders, except, in any case, for modifications or amendments constituting Permitted Refinancing Debt; provided that amendment of, or side letter in connection with, the 2018 Convertible Notes in a manner that aligns the settlement and conversion provisions with those contained in the 2022 Convertible Notes shall be permitted (any such amendment or side letter, a “2018 Specified Amendment”). Borrowers shall, prior to entering into any such amendment or modification, deliver to Agent reasonably in advance of the execution thereof, any final or execution form copy thereof. Notwithstanding anything to the contrary set forth in this Section 5.5 or otherwise in this Agreement, the Borrowers may (A) refund, refinance, replace or exchange any Convertible Notes Debt with Permitted Refinancing Debt; (B) repay any Convertible Notes Debt by making payment in Equity Interests Interestsequity interests that are not Disqualified Equity Interests upon the conversion thereof (and making cash payments on account of fractional shares in connection with such conversion to the extent constituting a Permitted Distribution); (C) on the stated maturity thereof, repay the 2018or, solely with respect to the 2018 Convertible Notes, such earlier date between the Closing Date and the stated maturity thereof upon notice thereof by Borrowers to Agent, repay, purchase or redeem the 2018 Convertible Notes and repay the 2022 Convertible Notes in cash using Qualified Cash described in the definition of “Liquidity Condition”; and, in the case of the 2018 Convertible Notes, proceeds of the Term Loans; provided that the maximum amount of Qualified Cash and proceeds of Term Loans used to repay the 2018 Convertible Notes shall not exceed $45,000,000 (with any excess beyond the then-outstanding principal amount thereof being allocated to pay premiums to incentivize the holders thereof to forego any settlement in shares); (D) pay, when due, interest, fees and reimbursable indemnities and expenses payable in respect of any Convertible Notes Debt.; and (E) pay an amendment fee to the holders of the 2018 Convertible Notes in connection with a 2018 Specified Amendment in an amount not to exceed $275,000.

Payments and Modifications of Subordinated Debt. No Borrower Obligor will, or will permit any Subsidiary to, directly or indirectly (a) declare, pay, make or set aside any amount for payment in respect of any Subordinated Debt, except for payments made in full compliance with and expressly permitted under the Subordination Agreementa subordination agreement in form and substance satisfactory to Purchaser (other than by a Subordinated Debt Permitted Refinancing), (b) amend or otherwise modify the terms of any Subordinated Debt, except for amendments or modifications made in full compliance with the Subordination Agreement, (c) declare, pay, make or set aside any optional repurchase amount for payment in respect of any Debt hereinafter incurred that, by its terms, or optional redemption of by separate agreement, is subordinated to the Convertible NotesObligations, except for payments made in full compliance with and expressly permitted under the subordination provisions applicable thereto, or (d) amend or otherwise modify the terms of any such Debt if the Convertible Notes effect of such amendment or modification is to (i) increase the interest rate or fees on, or change the manner or timing of payment of, such Debt, (ii) accelerate or shorten the dates upon which payments of principal or interest are due on, or the principal amount of, such Debt, (iii) change in a manner adverse to any Obligor or the Purchaser any event of default or add or make more restrictive any covenant with respect to such Debt, (iv) change the prepayment provisions of such Debt or any of the defined terms related thereto, (v) change the subordination provisions thereof (or the subordination terms of any guaranty thereof), or (vi) change or amend any other term if such change or amendment would materially increase the obligations of Borrowers the obligor or confer additional material rights on the holder of such Debt in a manner adverse to Credit Parties, any Subsidiaries, Agent of the Obligors or Lenders, except, in any case, for modifications or amendments constituting Permitted Refinancing Debtthe Purchasers. Borrowers The Obligors shall, prior to entering into any such amendment or modification, deliver to Agent the Purchaser reasonably in advance of the execution thereof, any final or execution form copy thereof. Notwithstanding anything to For the contrary set forth avoidance of doubt, nothing contained in this Section 5.5 or otherwise is intended to restrict the Company from making payments of principal and interest with respect to any Permitted ABL Senior Debt in this accordance with the terms of the Existing Senior Secured Debt Documents and the Midcap Intercreditor Agreement, the Borrowers may (A) refund, refinance, replace or exchange any Convertible Notes ; it being understood that Permitted ABL Senior Debt with Permitted Refinancing Debt; (B) repay any Convertible Notes Debt by making payment in Equity Interests that are is not Disqualified Equity Interests upon the conversion thereof (and making cash payments on account of fractional shares in connection with such conversion to the extent constituting a Permitted Distribution); (C) on the stated maturity thereof, repay the 2018 Convertible Notes in cash using Qualified Cash described in the definition of “Liquidity Condition”; and (D) pay, when due, interest, fees and reimbursable indemnities and expenses payable in respect of any Convertible Notes Subordinated Debt.

Payments and Modifications of Subordinated Debt. No Notwithstanding the provisions of Section 5.4 or any other provision of this Agreement, Borrower will not, and will not permit any Subsidiary to, directly or indirectly (a) except with the consent of Administrative Agent and the Required Lenders, and as otherwise expressly permitted under this Agreement, redeem or otherwise acquire, or declare, pay, make or set aside any amount in respect of the redemption or other acquisition of, all or any portion of the Convertible Senior Notes; (b) declare, pay, make or set aside any amount for payment in respect of Subordinated DebtDebt or the Convertible Senior Notes, except for regularly scheduled payments of principal and interest (but no voluntary prepayments) in respect of such Debt made in full compliance with and expressly permitted under the Subordination AgreementAgreement or the Convertible Senior Debt Documents, as applicable, and, if any, any other subordination provisions applicable to such Debt; or (bc) amend or otherwise modify the terms of any Subordinated Debt or the Convertible Senior Note Documents if the effect of such amendment or modification is to (i) increase the interest rate or fees on, or change the manner or timing of payment of, such Debt; (ii) change the dates upon which payments of principal or interest are due on, except for amendments or modifications made in full compliance the principal amount of, such Debt; (iii) change any event of default or add or make more restrictive any covenant with respect to such Debt; (iv) change the Subordination Agreement, (c) make prepayment provisions of such Debt or any optional repurchase or optional redemption of the Convertible Notes, defined terms related thereto; (dv) amend change the subordination provisions thereof (or otherwise modify the subordination terms of the Convertible Notes any guaranty thereof); or (vi) change or amend any other term if such change or amendment would materially increase the obligations of Borrowers the obligor or confer additional material rights on the holder of such Debt in a manner adverse to Credit PartiesBorrower, any Subsidiaries, Administrative Agent or Lenders, except, in any case, for modifications or amendments constituting Permitted Refinancing Debt. Borrowers Borrower shall, prior to entering into any such amendment or modification, deliver to Administrative Agent reasonably in advance of the execution thereof, any final or execution form copy thereof. Notwithstanding anything thereof and, if approval of Required Lenders is required by the terms of this Agreement prior to the contrary set forth in this Section 5.5 or otherwise in this Agreement, the Borrowers may (A) refund, refinance, replace or exchange any Convertible Notes Debt with Permitted Refinancing Debt; (B) repay any Convertible Notes Debt by making payment in Equity Interests that are not Disqualified Equity Interests upon the conversion thereof (and making cash payments on account of fractional shares in connection with such conversion to the extent constituting a Permitted Distribution); (C) on the stated maturity thereof, repay the 2018 Convertible Notes in cash using Qualified Cash described in the definition of “Liquidity Condition”; and (D) pay, when due, interest, fees and reimbursable indemnities and expenses payable in respect taking of any Convertible Notes Debtsuch action, Borrower agrees not to take, nor permit any of its Subsidiaries to take, any such action with respect to any such items without obtaining such approval from Required Lenders.