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.
Conditions to Effectiveness of Increase As a condition precedent to such increase, the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the Revolving Credit Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party or the General Partner acting on behalf of such Loan Party (x) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (y) in the case of the Borrower, certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (except to the extent such representation or warranty is already subject to a materiality qualifier, in which case such representation or warranty shall be true and correct in all respects) on and as of the Revolving Credit Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (except to the extent such representation or warranty is already subject to a materiality qualifier, in which case such representation or warranty shall be true and correct in all respects) as of such earlier date, and except that for purposes of this Section 2.14, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01, (B) no Default exists or would result from such increase and (C) giving effect to such increase and any contemporaneous increase of any other Applicable Secured Indebtedness, the aggregate amount of Applicable Secured Indebtedness is less than or equal to $2,100,000,000. In addition, mortgage amendments and date-down endorsements reasonably requested by the Administrative Agent shall have been delivered and the items described in clause (g) of the definition of “Material Real Property Mortgage Deliverables” shall have been delivered to the extent applicable. The Borrower shall prepay any Revolving Credit Loans outstanding on the Revolving Credit Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Revolving Credit Loans ratable with any revised Applicable Percentages arising from any nonratable increase in the Commitments under this Section.
Effectiveness of Redemption If notice of redemption has been duly given and if on or before the Redemption Date specified in the notice all funds necessary for the redemption have been deposited by the Credit Union, in trust for the pro rata benefit of the Holders of the Senior Subordinated Securities called for redemption, with a bank or trust company doing business in the Borough of Manhattan, The City of New York, and having a capital and surplus of at least $500 million and selected by the Board of Directors, so as to be and continue to be available solely therefor, then, notwithstanding that any Senior Subordinated Security so called for redemption has not been surrendered for cancellation, on and after the Redemption Date interest shall cease to accrue on the aggregate principal amount of such Senior Subordinated Securities so called for redemption, the aggregate principal amount of such Senior Subordinated Securities so called for redemption shall no longer be deemed outstanding and shall cease to bear interest from and after the Redemption Date. All rights with respect to such Senior Subordinated Securities (or the portion thereof so called for redemption) shall forthwith on such Redemption Date cease and terminate, except only the right of the Holders thereof to receive the redemption price payable on such redemption from such bank or trust company, without interest. Any funds unclaimed at the end of three years from the Redemption Date shall, to the extent permitted by applicable law, be released to the Credit Union, after which time the Holders of such Senior Subordinated Securities (or portion thereof so called for redemption) shall look only to the Credit Union for payment of the redemption price of such Senior Subordinated Securities.
Conditions to Effectiveness of Agreement The effectiveness of this Agreement, the obligations of each Extending Lender to convert its existing Revolving Credit Commitments into Revolving Credit Commitments (as defined in the Restated Credit Agreement) under the Restated Credit Agreement, the obligations of each New Lender to make available Revolving Credit Commitments (as defined in the Restated Credit Agreement), and the amendment and restatement of the Original Credit Agreement as the Restated Credit Agreement are subject to the satisfaction of the following conditions (the date on which such conditions are satisfied, the “Restatement Date”):
(a) The Administrative Agent shall have received a counterpart of this Agreement, executed and delivered by (i) the Borrower, (ii) each other Loan Party, (iii) each Existing Lender, (iv) each New Lender, (v) the L/C Issuer, (vi) the Swing Line Lender and (vii) the Required Secured Parties.
(b) All of the conditions precedent set forth in Article IV of the Restated Credit Agreement shall have been satisfied or waived.
(c) The Borrower shall have paid all amounts due and payable as of the Restatement Date to the Administrative Agent and the Collateral Agent pursuant to the Loan Documents.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Restated Credit Agreement and the other Loan Documents (as defined in the Restated Credit Agreement) shall be true and correct in all material respects on and as of the Restatement Date as if made on and as of such date except to the extent such representations and warranties expressly refer to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); provided that any representation or warranty that is qualified as to materiality, “Material Adverse Effect” or similar language is true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(e) No Default or Event of Default shall have occurred and be continuing on the Restatement Date.
Conditions Precedent to Effectiveness of Amendment This Amendment shall become effective when, and only when, each of the conditions below has been complied with to the satisfaction of the Agent and the Lenders and the documents required below have been delivered to the Agent and the Lenders:
(a) Counterparts of this Amendment duly executed by Borrower, Guarantors and Lenders;
(b) A copy of the resolutions approving this Amendment, and authorizing the transactions contemplated herein duly adopted by the Managers of Borrower, accompanied by a certificate of the duly authorized Secretary of Borrower, certifying that such copy is a true and correct copy of the resolutions duly adopted by the Managers of Borrower, and that such resolutions constitute all the resolutions adopted with respect to such transactions, and have not been amended, modified or revoked in any respect and are in full force and effect as of the date hereof;
(c) A copy of the resolutions approving this Amendment, and authorizing the transactions contemplated herein duly adopted by the Board of Directors or Members of each Guarantor, as the case may be, accompanied by a certificate of the duly authorized Secretary of such Guarantor, certifying that such copy is a true and correct copy of the resolutions duly adopted by the Board of Directors or Members of such Guarantor, and that such resolutions constitute all the resolutions adopted with respect to such transactions, and have not been amended, modified or revoked in any respect and are in full force and effect as of the date hereof;
(d) Payment of all fees (to be determined)required to be paid to the Lenders in connection with this Amendment;
(e) Payment by Borrower of the fees and expenses of counsel to Lenders in connection with the preparation and negotiation of this Amendment and all documents and instruments contemplated hereby; and
(f) The execution and delivery of such additional documents and instruments which the Agent and its counsel may deem necessary to effectuate this Amendment or any document executed and delivered to Lenders in connection herewith or therewith.
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 Representations; Survival Each party is entitled to rely on the representations, warranties and agreements of each of the other parties and all such representation, warranties and agreement will be effective regardless of any investigation that any party has undertaken or failed to undertake. Unless otherwise stated in this Agreement, and except for instances of fraud, the representations, warranties and agreements will survive the Closing Date and continue in full force and effect until one (1) year after the Closing Date.
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.
Conditions Precedent to Effectiveness of Agreement Section 3.1 The effectiveness of this Agreement is subject to (i) the satisfaction of the conditions set forth in Section 3.2 of this Agreement and (ii) that Agent shall have received a duly executed counterpart of this Agreement from Borrower and all Lenders.
Section 3.2 The effectiveness of this Agreement is subject to the satisfaction of the following conditions:
(a) Agent shall have received a reaffirmation of guaranty from HHG in the form attached hereto as Exhibit A;
(b) Borrower shall have paid all fees and other amounts due and payable by it under the Loan Agreement, including to the extent invoiced, fees, costs and expenses owing to Xxxxxx & Xxxxxxx LLP, under any other Financing Agreement or under the Fee Letter; and
(c) Agent shall have received a Secretary’s Certificate of the Borrower and HHG certifying the passage and continued effectiveness of resolutions from the Borrower and HHG approving the transactions contemplated by this Agreement and the incumbency of the officers executing this Agreement and the documents delivered in connection therewith, in each case in form and substance satisfactory to the Agent.
(d) The Agent shall have received, for the account of each Incremental Lender, the payment of a commitment fee equal to 5.0% of each Incremental Lender’s Incremental Commitment.
(e) The representations and warranties contained in this Agreement shall be true and correct in all material respects.
(f) Each Incremental Lender which is not also an Existing Lender shall have received from Borrower all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act.
(g) Agent and the Incremental Lenders shall have received the following legal opinions and documents: (x) executed legal opinions of Xxxxxxx XxXxxxxxx LLP, special counsel to the Borrower and HHG, and Ice Xxxxxx, special Indiana counsel to the Borrower and HHG, as required by Section 2.3(c)(iii) of the Loan Agreement (including an opinion as to no conflicts with Indebtedness), (y) a certificate executed by a senior officer of the Borrower and HHG certifying that all of the conditions precedent to the making of the Loans set forth in Section 4.2 of the Loan Agreement shall be satisfied as of the date of the increase in the Maximum Credit contemplated by this Agreement, both before and after giving effect to such increase, and (z) all other documents reasonably requested by the Agent in connection with this Agreement, in each case in form and substance satisfactory to the Agent.
Conditions Precedent to Effectiveness of this Agreement This Agreement shall become effective on and as of the date hereof (the “Effective Date”), provided that the following conditions precedent have been satisfied on such date:
(a) There shall have occurred (i) no Material Adverse Change since December 31, 2018, except as shall have been disclosed or contemplated in the SEC Reports, and (ii) no material adverse change in the primary or secondary loan syndication markets or capital markets generally that makes it impracticable to consummate the transactions contemplated by the Loan Documents.
(b) The Lenders shall have been given such access, as such Lenders have reasonably requested, to the management, records, books of account, contracts and properties of the Borrower and its Significant Subsidiaries as they shall have requested.
(c) All governmental and third party consents, authorizations and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Agents that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated by the Loan Documents.
(d) The Borrower shall have notified each Lender and the Agent in writing as to the proposed Effective Date.
(e) The Borrower shall have paid all accrued fees and reasonable expenses due and payable to the Agents, the Lenders and the Arrangers on or prior to the Effective Date, including, to the extent invoiced, reimbursements or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(f) Each of the Agent and the Lenders shall have received (i) all documentation and other information that it reasonably requested from the Borrower (such request to be made not less than three (3) Business Days prior to the Effective Date) in order to comply with its obligations under the applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “PATRIOT Act”) and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Effective Date, the Agent and any Lender that has requested a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification.
(g) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate, substantially in the form of Exhibit D hereto, signed on behalf of the Borrower by a duly authorized Financial Officer of the Borrower, dated the Effective Date, stating, among other things, that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(h) The Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance satisfactory to the Agent and (except for any Notes requested by the Lenders) in sufficient copies for each Lender:
(i) Counterpart signature pages of this Agreement, executed by each of the parties hereto.
(ii) Notes, if any, to the order of each Lender requesting the issuance of a Note as of the Effective Date pursuant to Section 2.16.
(iii) Certified copies of the resolutions of the Board of Directors of the Borrower approving each Loan Document to which it is a party, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to each Loan Document to which it is a party.
(iv) A certificate of the Corporate Secretary or an Assistant Corporate Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign each Loan Document to which it is a party and the other documents to be delivered hereunder or thereunder.
(v) Favorable opinion letters of Xxxxxxx Xxxxx, the Associate General Counsel of DTE Energy, and Hunton Xxxxxxx Xxxxx LLP, counsel to the Borrower, substantially in the form of Exhibits E-1 and E-2, respectively, hereto.
