Integration; Effectiveness This Agreement, the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent or any L/C Issuer, constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
Effectiveness Any notice or other communication in respect of this Agreement may be given in any manner set forth below (except that a notice or other communication under Section 5 or 6 may not be given by facsimile transmission or electronic messaging system) to the address or number or in accordance with the electronic messaging system details provided (see the Schedule) and will be deemed effective as indicated:—
(i) if in writing and delivered in person or by courier, on the date it is delivered;
(ii) if sent by telex, on the date the recipient’s answerback is received;
(iii) if sent by facsimile transmission, on the date that transmission is received by a responsible employee of the recipient in legible form (it being agreed that the burden of proving receipt will be on the sender and will not be met by a transmission report generated by the sender’s facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or the equivalent (return receipt requested), on the date that mail is delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic message is received, unless the date of that delivery (or attempted delivery) or that receipt, as applicable, is not a Local Business Day or that communication is delivered (or attempted) or received, as applicable, after the close of business on a Local Business Day, in which case that communication shall be deemed given and effective on the first following day that is a Local Business Day.
Termination Effectiveness This Agreement and the Proxy shall terminate and shall have no further force or effect as of the Expiration Date. Notwithstanding the foregoing, nothing set forth in this Section 11 or elsewhere in this Agreement shall relieve either party hereto from any liability, or otherwise limit the liability of either party hereto, for any breach of this Agreement. The effectiveness of this Agreement is conditioned upon the execution and delivery of the Merger Agreement by the parties thereto.
Counterparts; Integration; Effectiveness This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Agreement.
Filing and Effectiveness The Merger shall become effective when the following actions shall have been completed:
(a) This Agreement and the Merger shall have been adopted and approved by the shareholders of each Constituent Corporation in accordance with the requirements of the Delaware General Corporation Law and the Nevada Corporation Law;
(b) All of the conditions precedent to the consummation of the Merger specified in this Agreement shall have been satisfied or duly waived by the party entitled to satisfaction thereof;
(c) An executed Certificate of Merger or an executed, acknowledged and certified counterpart of this Agreement meeting the requirements of the Delaware General Corporation Law shall have been filed with the Secretary of State of the State of Delaware; and
(d) An executed Certificate of Merger or an executed counterpart of this Agreement meeting the requirements of the Nevada Corporation Law shall have been filed with the Secretary of State of the State of Nevada. The date and time when the Merger shall become effective, as aforesaid, is herein called the "Effective Date of the Merger."
Term and Effectiveness This Agreement shall become effective as of the first date written above. Once effective, this Agreement shall remain in effect for two years, and thereafter shall continue automatically for successive one-year periods; provided that such continuance is specifically approved at least annually by: (i) the vote of the Board of Directors, or by the vote of a majority of the outstanding voting securities of the Company and (ii) the vote of a majority of the Independent Directors, in accordance with the requirements of the 1940 Act.
Amendment Effectiveness Sections 1.02 and 1.03 of this Amendment shall become effective as of the first date (the “First Incremental Term Facility Amendment Effective Date”) on which the following conditions have been satisfied or waived:
(a) The Administrative Agent and KKR Capital Markets LLC (the “Arranger”) (or their counsel) shall have received from (i) the Borrower, (ii) Holdings, (iii) the First Additional Term B Lender party hereto and (iv) the Administrative Agent, either (x) counterparts of this Amendment signed on behalf of such parties or (y) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmissions of signed signature pages) that such parties have signed counterparts of this Amendment.
(b) The obligation of the First Additional Term B Lender party hereto to make First Additional Term Loans on the First Incremental Term Facility Amendment Effective Date is subject to the satisfaction of the following conditions:
(i) Immediately before and after giving effect to the borrowing of the First Additional Term Loans, the conditions set forth in paragraphs (a) and (b) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the First Incremental Term Facility Amendment Effective Date.
(ii) The Administrative Agent and the First Additional Term B Lender party hereto shall have received a certificate of a Responsible Officer of the Borrower dated the First Incremental Term Facility Amendment Effective Date, certifying compliance with clause (i) above.
(iii) The Administrative Agent and the Arranger shall have received a written opinion (addressed to the Administrative Agent and the First Additional Term B Lender party hereto and dated the First Incremental Term Facility Amendment Effective Date) of (i) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, New York and Delaware counsel for the Loan Parties and (ii) Xxxxx Xxxx Xxxxxxxxxx Xxxxxxxx LLP, special Nevada counsel for the Loan Parties. The Borrower hereby requests each such counsel to deliver such opinion.
(iv) The Administrative Agent and the Arranger shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority (or a representation that such Organizational Documents have not been amended since the Effective Date), (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party (or a representation that such Responsible Officers are the same as those whose signature and incumbency certificates were delivered to the Administrative Agent on the Effective Date), (iii) resolutions of the Board of Directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of this Amendment, certified as of the First Incremental Term Facility Amendment Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(v) The Administrative Agent shall have received a Borrowing Request in a form reasonably acceptable to the Administrative Agent requesting that the First Additional Term B Lender make the First Additional Term Loans to the Borrower on the First Incremental Term Facility Amendment Effective Date.
(vi) Each Loan Party shall have entered into the First Incremental Term Facility Amendment Reaffirmation Agreement.
(vii) The Administrative Agent and the Arranger shall have received all documentation at least three Business Days prior to the First Incremental Term Facility Amendment Effective Date and other information about the Loan Parties that shall have been reasonably requested in writing at least 10 Business Days prior to the First Incremental Term Facility Amendment Effective Date and that the Administrative Agents or the Arranger have reasonably determined is required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation Title III of the USA Patriot Act.
(viii) The Administrative Agent shall have received copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent on or prior to the First Incremental Term Facility Amendment Effective Date with respect to the Loan Parties.
(c) The Administrative Agent and the Arranger shall have received, in immediately available funds, payment or reimbursement of all reasonable and documented costs, fees, out-of-pocket expenses, compensation and other amounts then due and payable in connection with this Amendment, including, to the extent invoiced at least two Business Days prior to the First Incremental Term Facility Amendment Effective Date, the reasonable fees, charges and disbursements of counsel for the Administrative Agent and the Arranger.
(d) The Borrower shall have paid to the Arranger the fees in the amounts previously agreed in writing to be received on the First Incremental Term Facility Amendment Effective Date.
(e) The Administrative Agent shall notify the Borrower, the First Additional Term B Lender and the other Lenders of the First Incremental Term Facility Amendment Effective Date and such notice shall be conclusive and binding. Notwithstanding the foregoing, the amendment effected hereby shall not become effective and the obligations of the First Additional Term B Lender hereunder to make First Additional Term Loans will automatically terminate if each of the conditions set forth or referred to in Section 1.04 hereof has not been satisfied or waived at or prior to 5:00 p.m., New York City time, on April 25, 2017.
Conditions of Effectiveness This Amendment shall not become effective until each of the following has been satisfied:
3.1 Bank One, NA, as a Bank (in such capacity “Bank One”) and in its capacity as Agent, Fifth Third Bank (“Fifth Third”), as a Bank, shall have each entered into an Assignment Agreement in the form prescribed by the Credit Agreement, pursuant to the terms of which Bank One shall have assigned to Fifth Third an amount equal to 40% of Bank One’s Commitment under the Credit Agreement as of the date hereof, and the Loan Parties shall have provided any required consent and acknowledgment with respect thereto.
3.2 This Amendment shall have been executed by the Loan Parties, the Agent, and the Banks.
3.3 The Loan Parties shall furnish to the Agent certified copies of the resolutions of the Board of Directors or the members, as the case may be, of the Loan Parties approving this Amendment, and of all documents evidencing other necessary corporate or company action, as the case may be, and governmental approvals, if any, with respect to this Amendment.
3.4 The Loan Parties shall furnish to the Agent such other approvals, opinions, or documents as the Agent may reasonably request.
3.5 The Loan Parties shall furnish to the Agent executed originals of the Amended and Restated Revolving Notes described in Section 1.6 hereof.
3.6 The Loan Parties shall furnish to the Agent executed originals of the Amended and Restated Term Notes described in Section 1.7 hereof.
3.7 The Loan Parties shall have entered into such amendments of the Subordination Agreements as shall be acceptable to the Agent so as to provide that (i) the stated maturity date of all Subordinated Debt shall occur not earlier than the Termination Date (as amended hereby), and (ii) except as otherwise provided in the Subordination Agreements as of the date of this Amendment, no holder of Subordinated Debt is entitled to receive any regularly scheduled payments of principal, interest or dividends or any other amount due with respect to the Subordinated Debt prior to the stated maturity of such Subordinated Debt, provided, however, that payment of interest with respect to the Xxxxxxx Xxxxx Subordinated Debt and the Replacement Notes may be made quarterly (on a calendar basis) in arrears commencing as of September 30, 2004 and continuing quarterly (on a calendar basis) thereafter, provided that the Fixed Charge Coverage Ratio as of the date of each such interest payment, beginning September 30, 2004, shall as of the date of such payment, be not less than 1.75 to 1, such ratio to be determined in each case in accordance with GAAP for the period of four consecutive calendar quarters of the Company then ending. For purposes of determining compliance with the Fixed Charge Coverage Ratio as set forth in this Section 3.7, each calculation shall include in the determination of the “sum” (as set forth in section (b)(ii) of the definition of Fixed Charge Coverage Ratio contained in the Credit Agreement”) the amount of any interest which has been actually paid by the Company during such 12 month period, or which is proposed to be paid with respect to the Xxxxxxx Xxxxx Subordinated Debt and the Replacement Notes as of the quarter end for which such Fixed Charge Coverage Ratio is then being tested
3.8 The Loan Parties shall have paid a participation fee solely to Fifth Third in the amount of $10,000.
3.9 The Loan Parties shall have paid the Agent’s Fees in accordance with Section 5.4 of the Credit Agreement, in the amount of $10,000.00.
3.10 The Loan Parties shall have paid all out of pocket fees and disbursements of the Agent, including all unpaid fees and disbursements of Xxxxxxxxx Xxxxxx PLLC due and owing as of the date of this Amendment.
Notice of Effectiveness Within two (2) Business Days after the Registration Statement which includes the Registrable Securities is ordered effective by the Commission, the Company shall deliver, and shall cause legal counsel for the Company to deliver, to the transfer agent for such Registrable Securities (with copies to the Holders whose Registrable Securities are included in such Registration Statement) confirmation that the Registration Statement has been declared effective by the Commission in the form attached hereto as Exhibit B.
Continuing Effectiveness As hereby amended, the Credit Agreement shall remain in full force and effect and is hereby ratified and confirmed in all respects. After the effectiveness hereof, all references in the Credit Agreement or other Loan Documents to the “Agreement”, the “Credit Agreement” or similar terms shall refer to the Credit Agreement as amended hereby. This Amendment is a Loan Document.
