Amendment to Section 4.11. Section 4.11 of the Business Combination Agreement is hereby amended by deleting the following language: The SPAC Closing Cash will be sufficient to enable SPAC to pay all of the SPAC Transaction Expenses accrued and unpaid as of the Closing.
Amendment to Section 4.11. Section 4.11 of the Existing Credit Agreement is hereby amended by replacing it in its entirety with the following:
(a) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (a) neither a Reportable Event nor a failure to meet the minimum funding standards of Section 412 or 430 of the Code or Section 302 or 303 of ERISA has occurred during the five-year period prior to the date on which this representation is made or deemed made with respect to any Plan, (b) each Plan has been operated and maintained in compliance in all respects with applicable Law, including the applicable provisions of ERISA and the Code, and the governing documents for such Plan, (c) no termination of a Single Employer Plan has occurred, and no Lien in favor of the PBGC or a Plan has arisen, during such five-year period, (d) the present value of all accrued benefits under each Single Employer Plan (based on those assumptions used to fund such Plans) did not, as of the last annual valuation date prior to the date on which this representation is made or deemed made, exceed the value of the assets of such Plan allocable to such accrued benefits by a material amount, (e) neither the Initial Borrower nor any Commonly Controlled Entity has had a complete or partial withdrawal from any Multiemployer Plan that has resulted or could reasonably be expected to result in a material liability under ERISA which remains unsatisfied and (f) no such Multiemployer Plan is Insolvent.
(b) As of the Refinancing Amendment Closing Date and throughout the term of this Agreement, at least one of the following is and will be true with respect to the Borrowers:
(i) the Borrowers are not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the Commitments,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house a...
Amendment to Section 4.11. Effective as of the date hereof, part (a) of the third sentence of Section 4.11 of the Credit Agreement is hereby amended to remove the phrase “including business interruption insurance”.
Amendment to Section 4.11. Section 4.11 of the Initial Agreement is hereby amended and restated in its entirety on the Amendment Effective Date as follows:
Amendment to Section 4.11. Section 4.11 of the Interim Investors Agreement is hereby deleted in its entirety and the following is inserted in lieu thereof: “Family Investor Rollover. Parent, the Family Investor and each Sponsor Investor will cooperate to structure the contribution of the equity held by the Family Investor to Parent as contemplated by the Equity Commitment Letter executed by the Family Investor and the Assignment and Assumption Agreement, dated as of the date hereof, among the Sponsor Investors and the Family Investor (the “Family Investor Assignment”) as a tax-free exchange (other than with respect to any cash received by the Family Investor in the Merger or as consideration for the purchase by Parent of any shares held by the Family Investor pursuant to the last sentence of this Section 4.11) to the extent permitted by law; provided, however, that under no circumstances shall any party be required to take any action or agree to any amendment, waiver or modification of the Merger Agreement or any related agreement (including this Agreement) pursuant to this Section 4.11 if such action or amendment, waiver or modification would be adverse to such person or any Sponsor Investor (provided that the incurrence of immaterial costs or expenses shall not be deemed to be adverse for purposes of this sentence). In addition, none of the Parent or any Sponsor Investor may take any action to amend, modify or waive any provision of the Merger Agreement or any related agreement (including this Agreement) if such amendment, waiver or modification would result in an adverse change in the ability of the Family Investor to contribute the equity held by it to Parent as a tax-free exchange (other than with respect to any cash received by the Family Investor in the Merger or as consideration for the purchase by Parent of any shares held by the Family Investor pursuant to the last sentence of this Section 4.11). Notwithstanding anything to the contrary contained in this Agreement (including Schedule B hereof), the Equity Commitment Letter executed by the Family Investor or any other agreement or document, subject to the entry into a subscription agreement in a form reasonably satisfactory to Parent and the satisfaction of any conditions set forth therein, Parent hereby agrees that, immediately prior to the Closing, Parent will purchase from the Family Investor and any Permitted Family Transferee and any Friends and Family Participant at a purchase price per share payable in cash equal to ...
Amendment to Section 4.11. Section 4.11 of the Guarantee and Collateral Agreement is hereby amended by deleting such section in its entirety and inserting in lieu thereof the words “[RESERVED]”.
Amendment to Section 4.11. Section 4.11 of the Existing Credit Agreement is hereby amended by replacing the comma at the end of clause (c) thereof with the following language (to be inserted immediately prior to the words “the Borrower may”): “, or (d) becomes a Defaulting Lender, then, upon the occurrence of any of the events set forth in clauses (a), (b), (c) or (d)”.
Amendment to Section 4.11. Section 4.11 of the Stock Purchase Agreement is hereby deleted and amended to read as follows: “The parties acknowledge and agree that none of the Acquired Companies, other than the Company, are direct subsidiaries of Seller as of the date of this Agreement. Prior to the Closing, Quiksilver and its Affiliates intend to restructure the ownership of the Acquired Companies to cause Riviera SNC, Cleveland Golf Canada Corp. and Cleveland Golf Asia YK to be direct wholly-owned subsidiaries of Seller (the “Restructuring”). For the avoidance of doubt, all of the issued and outstanding shares of stock of Belfry Golf Limited and Cleveland Deutschland GmbH shall be held by Riviera SNC as of the Closing. The allocation of the Purchase Price with respect to each of the Company, Riviera SNC, Cleveland Golf Canada Corp. and Cleveland Golf Asia YK is set forth in Exhibit D.” Exhibit D to the Stock Purchase Agreement is attached hereto as Annex 1.
Amendment to Section 4.11. The first sentence of Section 4.11 is hereby amended and restated in its entirety to read as follows:
Amendment to Section 4.11. Section 4.11 of the Merger Agreement is hereby amended by deleting Section 4.11 thereof in its entirety and substituting “[Intentionally Omitted]” therefor.
