Suspension of Certain Obligations The Company shall not be required to comply with the provisions of subsections (f), (g) or (h) of this Section 4 during any period from the time (i) the Agents shall have suspended solicitation of offers for the purchase of Notes in their capacity as agents pursuant to a request from the Company and (ii) no Agent shall then hold any Notes purchased from the Company as principal, as the case may be, until the time the Company shall determine that solicitation of offers for the purchase of Notes should be resumed or an Agent shall subsequently purchase Notes from the Company as principal.
Survival of Certain Obligations The obligations of Sections 3, 4, 8, 9, 12 and 13 shall survive any termination of this Agreement.
Effectiveness of Contract This Contract shall come into effect on the date the Contract is signed by both parties or such other later date as maybe stated in the SCC.
Effectiveness of the Agreement This Agreement shall become effective when both the Company and the Representative have executed the same and delivered counterparts of such signatures to the other party.
Effectiveness of Covenants (a) After the Issue Date, following the first day: (i) the Notes have an Investment Grade Rating from both of the Ratings Agencies; and (ii) no Default has occurred and is continuing under this Indenture; the Company and its Restricted Subsidiaries will not be subject to Sections 4.10, 4.11, 4.13, 4.14, 4.16 and 5.01(a)(ii) of this Indenture (collectively, the “Suspended Covenants”).
(b) If at any time the Notes’ credit rating is downgraded from an Investment Grade Rating by any Rating Agency, then the Suspended Covenants will thereafter be reinstated as if such covenants had never been suspended (the “Reinstatement Date”) and be applicable pursuant to the terms of this Indenture (including in connection with performing any calculation or assessment to determine compliance with the terms of this Indenture), unless and until the Notes subsequently attain an Investment Grade Rating and no Default or Event of Default is in existence (in which event the Suspended Covenants shall no longer be in effect for such time that the Notes maintain an Investment Grade Rating); provided, however, that no Default, Event of Default or breach of any kind shall be deemed to exist or have occurred under this Indenture, the Notes or the Guarantees with respect to the Suspended Covenants based on, and none of the Company or any of its Subsidiaries shall bear any liability for, any actions taken or events occurring during the Suspension Period or any actions taken at any time pursuant to any contractual obligation arising prior to the Reinstatement Date, regardless of whether such actions or events would have been permitted if the applicable Suspended Covenants remained in effect during such period. The period of time between the date of suspension of the covenants and the Reinstatement Date is referred to as the “Suspension Period.”
(c) On the Reinstatement Date, all Indebtedness Incurred during the Suspension Period will be deemed to have been outstanding on the Issue Date, so that it is classified as permitted under clause (iii) of the definition of “Permitted Indebtedness”. Calculations made after the Reinstatement Date of the amount available to be made as Restricted Payments under Section 4.11 will be made as though Section 4.11 had been in effect since the Issue Date and throughout the Suspension Period. Accordingly, Restricted Payments made during the Suspension Period will reduce the amount available to be made as Restricted Payments under the first paragraph of Section 4.11 to the extent such Restricted Payments were not otherwise permitted to be made pursuant to clauses (i) through (ix) of the third paragraph of Section 4.11, provided that the amount available to be made as Restricted Payments on the Reinstatement Date pursuant to the first paragraph of Section 4.11 shall not be reduced below zero solely as a result of such Restricted Payments under Section 4.11. Additionally, upon any Reinstatement Date, the amount of Available Asset Sale Proceeds will be reset to zero.
(d) During any period when the Suspended Covenants are suspended, the Board of Directors of the Company may not designate any of the Company’s Subsidiaries as Unrestricted Subsidiaries pursuant to this Indenture. The Company shall give the Trustee prompt written notification of the beginning of any Suspension Period or any Reinstatement Date.
Certain Obligations Whenever this Agreement requires any of the Subsidiaries of any Party to take any action, this Agreement will be deemed to include an undertaking on the part of such Party to cause such Subsidiary to take such action.
Effectiveness of the Contract This contract shall come into force on the date when it is signed with official seals by the legal representatives, responsible persons or authorized signers of both parties.
Conditions to Effectiveness of this Agreement This Agreement shall become effective on and as of the date hereof (the “Incremental Facility Closing Date”), upon satisfaction of only the following conditions:
(a) The Administrative Agent and the Incremental Term Lender shall have received from the Borrower, Holdings, each Subsidiary Guarantor, the Administrative Agent, the Collateral Agent and the Incremental Term Lender either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent and the Incremental Term Lender (which may include telecopy or other electronic transmission (including “pdf”) of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent and the Incremental Term Lender shall have received, on behalf of such parties and the Lenders, an opinion of Xxxxxx & Bird LLP, as special counsel for the Loan Parties and Xxxx Plant Xxxxx, as Minnesota special counsel for the Loan Parties, each dated as of the Incremental Facility Closing Date and addressed to the Administrative Agent, the Incremental Term Lender and the Lenders, and of such other counsel to the Loan Parties satisfactory to the Administrative Agent and the Incremental Term Lender, in each case, in form and substance reasonably satisfactory to the Administrative Agent and the Incremental Term Lender.
(c) The Administrative Agent shall have received: (i) a certificate as to the good standing of each Loan Party, as of a recent date, from the Secretary of State or similar Governmental Authority of the state of its incorporation or organization and (ii) an Officer’s Certificate of the Secretary or Assistant Secretary of each Loan Party dated the Incremental Facility Closing Date and certifying (A) that attached thereto are copies of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, (B) that attached thereto are the true and complete copy of the bylaws or operating (or limited liability company) agreement of such Loan Party as in effect on the Incremental Facility Closing Date, (C) that attached thereto is a true and complete copy of resolutions duly adopted by the Governing Board of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of such Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(d) The Administrative Agent shall have received an Officer’s Certificate, dated the Incremental Facility Closing Date and signed by a Financial Officer of the Borrower, certifying compliance with the conditions precedent set forth in Sections 3(f), (g), (i) and (j) hereof (and, in the case of clause (i), attaching calculations demonstrating such compliance).
(e) The Incremental Term Lender shall have received (i) all fees due and payable on the Incremental Facility Closing Date pursuant to any agreement relating to the arrangement of the Incremental Term Loan Commitments and (ii) to the extent invoiced at least two Business Days prior to the Incremental Facility Closing Date, all costs and expenses due and payable (whether pursuant to the Loan Documents or any agreement relating to the arrangement of the Incremental Term Loan Commitments) on or prior to the Incremental Facility Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable and documented out of pocket costs and expenses (including, without limitation, reasonable fees, charges and disbursements of Xxxxxx & Xxxxxxx LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(f) The representations and warranties of each Loan Party set forth in Section 5 of this Agreement and in each other Loan Document shall be true and correct in all material respects on and as of the Incremental Facility Closing Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date or period, in which case they shall be true and correct in all material respects as of such earlier date or period; provided that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on the Incremental Facility Closing Date or on such earlier date, as the case may be.
(g) No Default or Event of Default shall exist or would immediately result from the extension of the Incremental Term Loans or from the application of the proceeds therefrom.
(h) The Borrower shall have delivered or caused to be delivered to the Administrative Agent and the Incremental Term Lender a solvency certificate from the Chief Financial Officer of Holdings setting forth the conclusions that, after giving effect to the transactions contemplated hereby, Holdings and its Subsidiaries (on a consolidated basis) are Solvent.
(i) The incurrence of the Incremental Term Loans and the application of proceeds thereof (and assuming the Incremental Term Loans are fully drawn) complies with the requirements set forth in Section 2.22(a) of the Credit Agreement.
(j) The Borrower shall have given notice of the prepayment of the outstanding “Revolving Loans” under and as defined in the Revolving Credit Agreement in accordance with Section 2.12(b) of the Revolving Credit Agreement, and substantially contemporaneously with the funding of the Incremental Term Loans, shall have made such prepayment of such Revolving Loans.
(k) The Administrative Agent and the Incremental Term Lender shall have received prior to the Incremental Facility Closing Date, to the extent requested from the Borrower in writing by the Administrative Agent at least 2 Business Days prior the Incremental Facility Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act that has been requested by the Administrative Agent prior to the Incremental Facility Closing Date.
Assumption of Certain Liabilities (a) Upon the terms and subject to the conditions of this Agreement, at the Closing, Purchaser agrees to cause the Designated Purchasers to assume, pay, perform and discharge when due, all liabilities or obligations listed in this Section 2.03, and only such liabilities or obligations listed in this Section 2.03 (except as otherwise specifically provided in this Agreement), whether arising before or after the Closing and whether known or unknown, fixed or contingent (the "Assumed Liabilities"):
(i) all liabilities set forth on the Closing Date Balance Sheet, other than any such liabilities that are Excluded Liabilities;
(ii) all liabilities and obligations of Sellers arising under or pursuant to the Acquired Contracts, the Permits, the Acquired Intellectual Property and the Acquired Know-how;
(iii) all liabilities and obligations relating to employee benefit plans, programs or arrangements associated with or relating to any Transferred Employee, but only to the extent such liabilities and obligations are expressly assumed by any Designated Purchaser pursuant to Article VII of this Agreement;
(iv) the Specified Contingent Liabilities in an amount equal to (and no amounts in excess of) the aggregate amount (the "Contingent Reserve Amount") of the Contingency Reserves reflected or shown on the Closing Date Balance Sheet; and
(v) all other liabilities and obligations of Parent and Sellers to the extent relating to the Business other than the Excluded Liabilities; provided, however, that with respect to any such other liability or obligation not relating exclusively to the Business, the Designated Purchasers shall only assume that portion of such liability or obligation that is allocable to the Business on a pro rata basis.
(b) Notwithstanding anything herein to the contrary or any other writing to the contrary, Purchaser shall cause the Designated Purchasers to assume only the Assumed Liabilities, and nether the Purchaser nor any other Designated Purchaser shall assume any other liability or obligation of Parent or any Seller (or any predecessor owner of all or part of its business and assets) of whatever nature whether presently in existence or arising hereafter. All such other liabilities and obligations ahll be retained by and remain obligations of Parent or Sellers (or any such predecessor owner) (all such liabilities and obligations not being assumed being herein referred to as the "Excluded Liabilities"). Without limiting the generality of the foregoing, the Excluded Liabilities shall include the following:
(i) all liabilities and obligations which are attributable to any of the Excluded Assets, or associated with the realization of the benefits of any of the Excluded Assets;
(ii) the Tax Liabilities, other than the Assumed Tax Liabilities in an amount equal to (and no amounts in excess of) the amount of any specific reserve therefor reflected or shown on the Closing Date Balance Sheet;
(iii) the Existing Seller Indebtedness, other than Capital Lease Obligations reflected on the Closing Date Balance Sheet in an amount not in excess of $100,000 in the aggregate and other than as set forth in Schedule 5.14;
(iv) all liabilities and obligations relating to compensation and any pension, deferred compensation, vacation, medical benefit, life insurance, severance of other employee health or safety matters (other than worker's compensation) and any other employee benefit plans, programs or arrangements associated with or relating to any Transferred Employee or any other employee or former employee employed in the Business and all liabilities and obligations relating to or arising from the employment or cessation of employment of any such employee (including, but not limited to, all liabilities and obligations under any severance plan or arrangement of Parent, Sellers, the Purchased Entities or their respective Affiliates), except to the extent such liabilities and obligations are expressly assumed pursuant to Article VII of this Agreement;
(v) all liabilities and obligations arising from worker's compensation claims relating to pre-Closing events;
(vi) all Specified Contingent Liabilities to the extent the aggregate amount of Specified Contingent Liabilities exceeds the Contingent Reserve Amount;
(vii) all liabilities and obligations to the extent arising from the Excluded Joint Ventures;
(viii) all liabilities and obligations covered, but only to the extent covered, by any insurance policy maintained by Parent, Sellers, the Purchased Entities or any of their respective Affiliates; and
(ix) all other liabilities and obligations of Parent and Sellers to the extent not relating to the Business; provided, however, that with respect to any such other liability or obligation not relating exclusively to the Business, Parent and Sellers shall only retain that portion of such liability or obligation that is not allocable to the Business on a pro rata basis.
(c) Notwithstanding anything to the contrary in this Section 2.03, to the extent a liability is included in the calculation of Closing Date Net Tangible Asset Value (as finally determined in accordance with Section 2.05), such liability shall (in an amount equal to (and no amount in excess of) the amount included in such calculation) be deemed to be an Assumed Liability, whether or not such liability is listed as an Excluded Liability under Section 2.03(b).
Restrictions on Payment of Certain Debt Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any (a) Permitted Ratio Debt or Subordinated Debt, except (i) any scheduled payment, or other contractually required payment, as and when due and payable in accordance with the terms of the definitive documentation governing such Permitted Ratio Debt or Subordinated Debt (including any applicable subordination agreements), (ii) fees and expenses payable to holders of such Permitted Ratio Debt or Subordinated Debt required under the definitive documentation governing such Permitted Ratio Debt or Subordinated Debt (including any applicable subordination agreements), (iii) in connection with, and to the extent permitted hereby, any Refinancing Debt in connection with such Permitted Ratio Debt or Subordinated Debt and (iv) any other payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) so long as the Permitted Payment Conditions have been satisfied; or (b) Term Debt, except (i) any scheduled payment, or other contractually required payment, as and when due and payable in accordance with the terms of the definitive documentation governing such Term Debt (including any applicable Intercreditor Agreement), (ii) fees and expenses payable to Term Agent and Term Lenders required under the Term Loan Debt Documents, (iii) in connection with, and to the extent permitted hereby, any Refinancing Debt in connection with such Term Debt and (iii) other payments to the extent expressly permitted in the Intercreditor Agreement and (iv) any other payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) so long as the Permitted Payment Conditions have been satisfied.
