Amendment and Restatement of Existing Credit Agreement Upon the execution and delivery of this Agreement, the Existing Credit Agreement shall be amended and restated to read in its entirety as set forth herein. With effect from and including the Effective Date, (i) the Commitments of each Lender party hereto shall be as set forth on Appendix A (and (a) to the extent that such Lender constitutes a lender under the Existing Credit Agreement (a “Consenting Lender”), such Consenting Lender’s commitment thereunder shall be terminated and replaced with its respective Commitment hereunder and (b) any lender under the Existing Credit Agreement that is not listed on Appendix A shall cease to be a Lender hereunder and its commitment thereunder shall be terminated; provided that, for the avoidance of doubt, such lender under the Existing Credit Agreement shall continue to be entitled to the benefits of Section 9.03 of the Existing Credit Agreement), (ii) all accrued and unpaid interest and fees and other amounts owing under the Existing Credit Agreement shall have been paid by the Borrower under the Existing Credit Agreement, whether or not such interest, fees or other amounts would otherwise be due and payable at such time pursuant to the Existing Credit Agreement, (iii) the Commitment Ratio of the Consenting Lenders shall be redetermined based on the Commitments set forth in the Appendix A and the participations of the Consenting Lenders in, and the obligations of the Consenting Lenders in respect of, any Letters of Credit or Swingline Loans outstanding on the Effective Date shall be reallocated to reflect such redetermined Commitment Ratio and (iv) each JLA Issuing Bank shall have the Fronting Sublimit set forth in Appendix B.
Amendment and Restatement of the Existing Credit Agreement The parties to this Agreement agree that, upon (i) the execution and delivery by each of the parties hereto of this Agreement and (ii) satisfaction of the conditions set forth in Section 3.01, the terms and provisions of the Existing Credit Agreement shall be and hereby are amended, superseded and restated in their entirety by the terms and provisions of this Agreement. This Agreement is not intended to and shall not constitute a novation. All loans made and obligations incurred under the Existing Credit Agreement which are outstanding on the Effective Date shall continue as Obligations under (and shall be governed by the terms of) this Agreement and the other Loan Documents. Without limiting the foregoing, upon the effectiveness hereof: (a) all references in the “Loan Documents” (as defined in the Existing Credit Agreement) to the “Agent”, the “Credit Agreement” and the “Loan Documents” shall be deemed to refer to the Agent, this Agreement and the Loan Documents, (b) all obligations constituting “Obligations” with any Lender or any Affiliate of any Lender which are outstanding on the Effective Date shall continue as Obligations under this Agreement and the other Loan Documents, (c) the Agent shall make such reallocations, sales, assignments or other relevant actions in respect of each Lender’s credit and loan exposure under the Existing Credit Agreement as are necessary in order that each such Lender’s outstanding Revolving Credit Advances hereunder reflect such Lender’s Pro Rata Share of the outstanding aggregate Revolving Credit Advances on the Effective Date, (d) the Existing Revolving Credit Advances (as defined in Section 2.01) of each Departing Lender shall be repaid in full (accompanied by any accrued and unpaid interest and fees thereon), each Departing Lender’s “Commitment” under the Existing Credit Agreement shall be terminated and each Departing Lender shall not be a Lender hereunder, and (e) the Borrower hereby agrees to compensate each Lender (including each Departing Lender) for any and all losses, costs and expenses incurred by such Lender in connection with the sale and assignment of any Eurodollar Rate Advances (including the “Eurodollar Rate Advances” under the Existing Credit Agreement) and such reallocation described above, in each case on the terms and in the manner set forth in Section 8.04(c) hereof.
Effectiveness of Supplemental Indenture This Supplemental Indenture shall become effective upon the execution and delivery of this Supplemental Indenture by the Company, the Guarantors, the New Guarantor and the Trustee.
Effect of Amendment and Restatement It is the intent of the parties hereto that this Agreement shall, as of the date hereof, replace in its entirety the Original Trust Agreement; provided, however, that with respect to the period of time from January 20, 2021 through the date hereof, the rights and obligations of the parties shall be governed by the Original Trust Agreement; and provided further, that the amendment and restatement of the Original Trust Agreement shall not affect any of the grants, conveyances or transfers contemplated by the Original Trust Agreement to have occurred prior to the date hereof.
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.
Amendments to Existing Credit Agreement Effective on (and subject to the occurrence of) the Effective Date, the Existing Credit Agreement is hereby amended in accordance with this Part II. Except as so amended, the Existing Credit Agreement shall continue in full force and effect.
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.
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.
Amendment and Restatement of Prior Agreement The Prior Agreement is hereby amended and restated in its entirety as set forth herein. Such amendment and restatement is effective upon the execution of this Agreement on the date hereof by the Company and certain of the Prior Investors who are party hereto, pursuant to Section 5.5 of the Prior Agreement. Upon such execution, all provisions of, rights granted and covenants made in the Prior Agreement are hereby waived, released and superseded in their entirety and shall have no further force or effect, including, without limitation, all rights of first refusal and any notice period associated therewith otherwise applicable to the transactions contemplated by the Purchase Agreement.
Supplements and Amendments; Whole Agreement This Warrant may be amended or supplemented only by an instrument in writing signed by the parties hereto. This Warrant contains the full understanding of the parties hereto with respect to the subject matter hereof and thereof and there are no representations, warranties, agreements or understandings other than expressly contained herein and therein.
