Effectiveness of Amendment This Amendment and the amendments contained herein shall become effective on the date (the “First Amendment Effective Date”) when each of the conditions set forth below shall have been fulfilled to the satisfaction of the Administrative Agent: (a) The Administrative Agent shall have received counterparts of this Amendment, duly executed and delivered on behalf of the Borrower, the other Loan Parties, the Administrative Agent and the Lenders party hereto, the Supplement and Joinder, duly executed and delivered on behalf of the Borrower, the other Loan Parties, the Administrative Agent and the Lenders party thereto, as well as allonges to the Revolving Credit Notes or amended and restated Revolving Credit Notes, in each case, as required by the Supplement and Joinder (all of the foregoing, collectively, the “Modification Documents”). (b) Before and after giving effect to this Amendment, no event shall have occurred and be continuing that constitutes an Event of Default, or that would constitute an Event of Default but for the requirement that notice be given or that a period of time elapse, or both. (c) Before and after giving effect to this Amendment, all representations and warranties of the Borrower contained in the Credit Agreement, and all representations and warranties of each other Loan Party in each Loan Document to which it is a party, shall be true and correct at the First Amendment Effective Date as if made on and as of such First Amendment Effective Date, or, to the extent such representations or warranties are expressly stated to be made as of a particular date, such representations and warranties are true and correct as of such date. (d) The Borrower shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrower and the other Loan Parties to authorize the execution and delivery of this Amendment and the other Modification Documents, (2) certified copies of any amendments to the articles or certificate of incorporation, formation or organization, bylaws, partnership certificate or operating agreement of the Borrower and each other Loan Party since the date of the Credit Agreement or, as applicable, the joinder of a Loan Party to the Loan Documents, (3) a certificate of incumbency for the officers or other authorized agents, members or partners of the Borrower and each other Loan Party executing this Amendment, the other Modification Documents and the other Loan Documents related hereto and (4) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request. (e) The Administrative Agent (or its counsel) shall have received a favorable written opinion of Winston & Xxxxxx LLP, special counsel to the Loan Parties, and favorable written opinions of local counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Loan Parties, this Amendment, the other Modification Documents and the other documents required hereby and the transactions contemplated herein and therein as the Administrative Agent shall reasonably request. (f) The Administrative Agent (or its counsel) shall have received the results of a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such Persons, and in which the chief executive office of each such Person is located and in the other jurisdictions reasonably requested by the Administrative Agent, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Administrative Agent that the Liens indicated in any such financing statement (or similar document) would be permitted by Section 7.2 of the Credit Agreement or have been or will be contemporaneously released or terminated. (g) No change shall have occurred which has had or could reasonably be expected to have a Material Adverse Effect. (h) All documents delivered pursuant to this Amendment and the other Modification Documents must be of form and substance satisfactory to the Administrative Agent and its counsel, and all legal matters incident to this Amendment and the other Modification Documents must be satisfactory to the Administrative Agent’s counsel. (i) Payment by the Borrower in immediately available funds of the fees agreed to in the Fee Letter and the fees and expenses required to be paid by Section 10 of this Amendment. (j) Satisfaction of the conditions precedent to effectiveness of the Supplement and Joinder, in accordance with the terms and conditions set forth therein.
AMENDMENT OF REGISTRATION RIGHTS Any provision of this Agreement may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and Investors who hold a majority in interest of the Registrable Securities. Any amendment or waiver effected in accordance with this Section 10 shall be binding upon each Investor and the Company.
Filing and Effectiveness of Registration Statement The Company has prepared and filed with the Commission the Registration Statement (file number 333-[●]) on Form S-1, including the related Preliminary Prospectus, for registration under the Act of the offering and sale of the Offered Securities. Such Registration Statement, including any amendments thereto filed prior to the Execution Time, has become effective. The Company has filed one or more amendments thereto, including the related Preliminary Prospectus, each of which has previously been furnished to the Representative. The Company will file with the Commission the Prospectus in accordance with Rule 424(b). As filed, such Prospectus shall contain all information required by the Act and, except to the extent the Representative shall agree in writing to a modification, shall be in all substantive respects in the form furnished to the Representative prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus) as the Company has advised the Representative, prior to the Execution Time, will be included or made therein. The Company has complied to the Commission’s satisfaction with all requests of the Commission for additional or supplemental information.
Amendment to Registration Rights Agreement (a) Section 1(a) of the Registration Rights Agreement is hereby amended and restated in its entirety as follows:
Effectiveness of Amendments The amendments contained in this Amendment shall become effective provided the Agent shall have received at least five (5) counterparts of this Amendment, duly executed by the Company and all of the Lenders, and the Agent shall have received the following, each duly executed or certified: 3.1 This Amendment duly executed by the Borrower. 3.2 A copy of the resolutions of the Board of Directors of the Borrower authorizing the execution, delivery and performance of this Amendment certified as true and accurate by its Secretary or Assistant Secretary, along with a certification by such Secretary or Assistant Secretary (i) certifying that there has been no amendment to the Certificate of Incorporation or Bylaws of the Borrower since true and accurate copies of the same were delivered to the Lender with a certificate of the Secretary of the Borrower dated December 27, 2000, and (ii) identifying each officer of the Borrower authorized to execute this Amendment and any other instrument or agreement executed by the Borrower in connection with this Amendment (collectively, the "Amendment Documents"), and certifying as to specimens of such officer's signature and such officer's incumbency in such offices as such officer holds. 3.3 Certified copies of all documents evidencing any necessary corporate action, consent or governmental or regulatory approval (if any) with respect to this Amendment. 3.4 The Consent and Reaffirmation of Guarantors, in the form attached hereto as Exhibit A, duly executed by each Guarantor. 3.5 The Borrower shall have satisfied such other conditions as specified by the Agent and the Lenders, including payment of all unpaid legal fees and expenses incurred by the Agent through the date of this Amendment in connection with the Credit Agreement and the Amendment Documents.
Conditions to Effectiveness of Amendment (a) The amendments set forth in Part I of this Amendment (other than the amendments solely relating to transaction costs associated with the IPO referred to in clause (a)(iv)(B) of the “Consolidated EBITDA” definition and the corresponding reference in the “Excess Cash Flow” definition) shall be effective on the date on which all of the following conditions precedent have been satisfied or waived (the “First Effective Date”): (i) The Administrative Agent (or its counsel) shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of each of (A) Holdings, (B) the Borrower and (C) the Required Lenders; (ii) The Borrower shall have paid all fees and expenses of the Administrative Agent, including the reasonable fees and expenses of counsel to the Administrative Agent; (iii) After giving effect to the Amendment, no Default or Event of Default shall have occurred and be continuing; and (iv) The Administrative Agent shall have received such fees as separately agreed between the Administrative Agent (or any of its Affiliates) and the Borrower. (b) The amendments set forth in Part II of this Amendment (together with the amendments set forth in Part I solely relating to transaction costs associated with the IPO referred to in clause (a)(iv)(B) of the “Consolidated EBITDA” definition and the corresponding reference in the “Excess Cash Flow” definition) shall be effective on the date on which all of the following conditions precedent have been satisfied or waived (the “Second Effective Date”): (i) The conditions set forth in Section 10(a) above shall have been satisfied; and (ii) (A) The IPO shall have been consummated on or before September 30, 2004, and (B) the Borrower shall have purchased, retired or redeemed (or made arrangements satisfactory to the Administrative Agent to do so; it being understood that open market purchases, a cash tender offer pursuant to documents provided to the Administrative Agent on or before the Second Effective Date and arrangements for redemptions pursuant to the Senior Subordinated Note Indenture are all satisfactory to the Administrative Agent) the Loans or the Senior Subordinated Notes in an aggregate principal amount not less than $75,000,000. (c) The amendment set forth in Part III of this Amendment shall be effective on the date on which all of the following conditions precedent have been satisfied or waived (the “Third Effective Date”): (i) The conditions set forth in Section 10(a) above shall have been satisfied; and (ii) The Administrative Agent (or its counsel) shall have received (after giving effect to any assignments entered into pursuant to Section 2.20) a counterpart of this Amendment, executed and delivered by a duly authorized officer of each of the Lenders with Term Loan Commitments. (d) The Administrative Agent shall notify the Borrower and each Lender (via IntraLinks or such other means reasonably determined by the Administrative Agent) of the occurrence of the First Effective Date, the Second Effective Date and the Third Effective Date.
Effectiveness of Registration No Shares shall be offered by either you or the Fund under any of the provisions of this Agreement and no orders for the purchase or sale of such Shares under this Agreement shall be accepted by the Fund if and so long as the effectiveness of the registration statement then in effect or any necessary amendments thereto shall be suspended under any of the provisions of the 1933 Act, or if and so long as a current prospectus as required by Section 5(b) (2) of the 1933 Act is not on file with the SEC; provided, however, that nothing contained in this paragraph 5 shall in any way restrict or have any application to or bearing upon the Fund's obligation to repurchase its Shares from any shareholder in accordance with the provisions of the Fund's prospectus, statement of additional information or charter documents, as amended from time to time.
Filing and Effectiveness of Registration Statement; Certain Defined Terms The Company has filed with the Commission a registration statement on Form S-3 (File No. 333-216864) covering the registration of the Offered Securities under the Act, including a related preliminary prospectus or prospectuses. At any particular time, this initial registration statement, as amended, in the form then on file with the Commission, including all material then incorporated by reference therein, all information contained in the registration statement (if any) filed pursuant to Rule 462(b) and then deemed to be a part of the initial registration statement, and all 430A Information, all 430B Information and all 430C Information, if any, that in any case has not then been superseded or modified, shall be referred to as the “Initial Registration Statement”. The Company may also have filed, or may file with the Commission, a Rule 462(b) registration statement covering the registration of Offered Securities. At any particular time, this Rule 462(b) registration statement, in the form then on file with the Commission, including the contents of the Initial Registration Statement incorporated by reference therein and including all 430A Information, all 430B Information and all 430C Information, if any, that in any case has not then been superseded or modified, shall be referred to as the “Additional Registration Statement”. As of the time of execution and delivery of this agreement (this “Agreement”), the Initial Registration Statement has been declared effective under the Act and is not proposed to be amended, and no stop order suspending the effectiveness of the Initial Registration Statement has been issued by the Commission and to the knowledge of the Company no proceedings for that purpose have been instituted or threatened by the Commission. Any Additional Registration Statement has or will become effective upon filing with the Commission pursuant to Rule 462(b) and is not proposed to be amended. The Offered Securities all have been or will be duly registered under the Act pursuant to the Initial Registration Statement and, if applicable, the Additional Registration Statement. For purposes of this Agreement:
Effectiveness of Registration Statement The Registration Statement, including any Rule 462(b) Registration Statement, has become effective and at Closing Time no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters. A prospectus containing the Rule 430A Information shall have been filed with the Commission in accordance with Rule 424(b) (or a post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rule 430A) or, if the Company has elected to rely upon Rule 434, a Term Sheet shall have been filed with the Commission in accordance with Rule 424(b).
Amendments to Rights Agreement The Rights Agreement is hereby amended as follows: (a) The definition of “Acquiring Person” in Section 1(a) of the Rights Agreement is amended by inserting the following new sentence at the end of such definition: “Notwithstanding anything in this Agreement to the contrary, none of Xxxxxxx Corporation, Smile Acquisition Corp. or any Affiliate or Associate of either shall be deemed to be an Acquiring Person or a Beneficial Owner of Common Stock, either individually or collectively, solely as a result of (i) the approval, execution, delivery, announcement or performance of the Merger Agreement; (ii) the commencement or consummation of the Offer; or (iii) the consummation of the Merger or any of the other transactions contemplated in the Merger Agreement.” (b) The definition of “Stock Acquisition Date” in Section 1(dd) of the Rights Agreement is amended to add the following sentence at the end thereof: “Notwithstanding anything in this Agreement to the contrary, a Stock Acquisition Date shall not be deemed to have occurred solely as a result of (i) the approval, execution, delivery, announcement or performance of the Merger Agreement; (ii) the commencement or consummation of the Offer; or (iii) the consummation of the Merger or any of the other transactions contemplated in the Merger Agreement.” (c) The definition of “Triggering Event” in Section 1(ii) of the Rights Agreement is amended to add the following sentence at the end thereof: “Notwithstanding anything in this Agreement to the contrary, a Triggering Event shall not be deemed to have occurred solely as a result of (i) the approval, execution, delivery, announcement or performance of the Merger Agreement; (ii) the commencement or consummation of the Offer; or (iii) the consummation of the Merger or any of the other transactions contemplated in the Merger Agreement.” (d) The following definitions are added to Section 1 of the Rights Agreement: “(jj) ‘Merger’ shall mean the merger of Smile Acquisition Corp. with and into the Company, in accordance with the terms and conditions of the Merger Agreement. (kk) ‘Merger Agreement’ shall mean the Agreement and Plan of Merger dated as of April 12, 2006 by and among Xxxxxxx Corporation, Smile Acquisition Corp. and the Company, as amended from time to time. (ll) ‘Offer’ shall mean the tender offer by Smile Acquisition Corp. commenced pursuant to the Merger Agreement.” (e) Section 3(a) of the Rights Agreement is amended to add the following sentence at the end thereof: “Notwithstanding anything in this Agreement to the contrary, a Distribution Date shall not be deemed to have occurred solely as the result of (i) the approval, execution, delivery, announcement or performance of the Merger Agreement; (ii) the commencement or consummation of the Offer; or (iii) the consummation of the Merger or any of the other transactions contemplated in the Merger Agreement.” (f) Section 7(a) of the Rights Agreement is modified, amended and restated in its entirety as follows: “Subject to Section 7(e) hereof, at any time after the Distribution Date, the registered holder of any Rights Certificate may exercise the Rights evidenced thereby (except as otherwise provided herein including, without limitation, the restrictions on exercisability set forth in Section 9(c), Section 11(a)(iii) and Section 23(a) hereof) in whole or in part upon surrender of the Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof duly executed, to the Rights Agent at the principal office or offices of the Rights Agent designated for such purpose, together with payment of the aggregate Purchase Price with respect to the total number of one one-hundredths of a share (or other securities, cash or other asserts, as the case may be) as to which such surrendered Rights are then exercisable, at or prior to the earliest of (i) the time immediately prior to the Effective Time (as such term is defined in the Merger Agreement), (ii) 5:00 P.M., New York City time, on December 11, 2010, or such later date as may be established by the Board of Directors prior to the expiration of the Rights (such date, as it may be extended by the Board (the ‘Final Expiration Date’), or (iii) the time at which the Rights are redeemed or exchanged as provided in Section 23 or Section 24 hereof (the earliest of (i), (ii) and (iii) being herein referred to as the ‘Expiration Date’).” (g) Section 11(a)(ii) of the Rights Agreement is amended to add the following at the end thereof immediately prior to the period: “; provided, however, that, notwithstanding anything in this Agreement to the contrary, a Section 11(a)(ii) Event shall not be deemed to have occurred solely as a result of (A) the approval, execution, delivery, announcement or performance of the Merger Agreement; (B) the commencement or consummation of the Offer; or (C) the consummation of the Merger or any of the other transactions contemplated in the Merger Agreement.” (h) Section 13(a) of the Rights Agreement is amended to add the following at the end thereof immediately prior to the period: “; provided, however, that, notwithstanding anything in this Agreement to the contrary, a Section 13 Event shall not be deemed to have occurred solely as a result of (i) the approval, execution, delivery, announcement or performance of the Merger Agreement; (ii) the commencement or consummation of the Offer; or (iii) the consummation of the Merger or any of the other transactions contemplated in the Merger Agreement.” (i) Section 25 of the Rights Agreement is amended to add the following new section at the end thereof: (c) Notwithstanding anything in this Agreement to the contrary, the Company shall not be required to give any notice hereunder to any holder of a Rights Certificate solely as a result of (i) the approval, execution, delivery, announcement or performance of the Merger Agreement; (ii) the commencement or consummation of the Offer; or (iii) the consummation of the Merger or any of the other transactions contemplated in the Merger Agreement.” (j) A new Section 35 with the heading “Termination at the Effective Time” is hereby added to the Rights Agreement reading in its entirety as follows: (a) This Agreement and the Rights established hereby will terminate in all respects immediately prior to the Effective Time (as such term is defined in the Merger Agreement). The Company hereby agrees to promptly notify the Rights Agent, in writing, upon the occurrence of the Effective Time, which notice shall specify (i) that the Effective Time has occurred, and (ii) the date upon which this Agreement and the Rights established hereby were terminated. (b) The Rights Agent shall not be subject to, nor be required to comply with, or determine if any event has occurred under (including, but not limited to, the commencement or consummation of the Offer, the occurrence of the Merger or the Effective Time), or any Person has complied with, the Merger Agreement or any agreements and documents related to or referred to in the Merger Agreement or any other agreement between or among the parties thereto, even though reference thereto may be made in this Agreement, or to comply with any notice, instruction, direction, request or other communication, paper or document other than as expressly set forth in this Agreement.”
