Cash Position. Borrower will maintain average outstanding collected deposit balances of not less than $6,000,000, to be tested quarterly.” 6. In order to cause the Obligations to equal each Lender’s Commitment Percentage, as amended by this First Amendment, Borrower and Lender hereby consent and agree that, on the date hereof, M&T and VNB shall cause Revolving Credit Loans to be made in such amounts as set forth on Schedule 6 attached hereto and made a part hereof (identified therein as the “Reallocation Amounts”). The Reallocation Amounts shall be paid and delivered, by wire transfer within one (1) business day of the date hereof, to each of IDB and Leumi, as the case may be, as more particularly described on Schedule 6, pursuant to wire instructions to be provided, and shall be applied by IDB and Leumi, as the case may be, as a partial repayment of outstanding Revolving Credit Loans due such Lender, without prepayment penalty or premium. 7. The effectiveness of this First Amendment shall be expressly subject to receipt by the Lender of the following items: (a) a fully executed First Amendment; (b) a fully executed Revolving Credit Note in the form attached as Exhibit A; (c) payment of all costs and expenses incurred by the Lender; (d) payment to Lender of the commitment fees in the amount set forth on Schedule 7(d) attached hereto, which the Borrower and Guarantors acknowledge was earned by the Lender in connection with this First Amendment; (e) payment to the Lender’s counsel for fees and expenses in connection with the preparation, negotiation and execution of this First Amendment; and (f) such other agreements and instruments as the Lender reasonably deems necessary to carry out the terms and provisions of this First Amendment. 8. All terms and conditions of the Loan Agreement, except as modified by this agreement are hereby affirmed and ratified. 9. Borrower hereby represents and warrants that: (a) Except as set forth on the attached schedules, any and all of the representations, warranties and schedules contained in the Loan Agreement or any of the other Loan Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date; (b) Except as otherwise expressly disclosed to Lender in writing by Borrower, no event has occurred and is continuing which constitutes an Event of Default under the Loan Agreement or under any of the other Loan Documents or which upon the giving of notice or the lapse of time or both would constitute an Event of Default; (c) As of the date hereof and after giving effect to the provisions set forth in Section 6 hereof, it is legally, validly and enforceably indebted to VNB under its Revolving Credit Note in the principal amount of $13,163,636.36, to M&T under its Revolving Credit Note in the principal amount of $13,163,636.36, to Leumi under its Revolving Credit Note in the principal amount of $4,936,363.64, to IDB under its Revolving Credit Note in the principal amount of $4,936,363.64, all of which amounts are due without offset, claim, defense, counterclaim or right of recoupment; and (d) Borrower and each Guarantor hereby release and discharge Lender from all claims or liabilities in any way arising from or in any way connected with the Loan Agreement or the Loan Documents to the extent arising through the date of execution hereof. 10. This First Amendment shall be governed and construed in accordance with the laws of the State of New York. 11. No modification or waiver of or with respect to any provisions of this First Amendment and all other agreements, instruments and documents delivered pursuant hereto or thereto, nor consent to any departure by the Lender from any of the terms or conditions thereof, shall in any event be effective unless it shall be in writing and executed in accordance with the provisions of the Loan Agreement, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No consent to or demand on the Borrower or any Guarantor in any case shall, of itself, entitle it, him or her to any other or further notice or demand in similar or other circumstances. 12. The provisions of this First Amendment are severable, and if any clause or provision shall be held invalid or unenforceable in whole or in part in any jurisdiction, then such invalidity or unenforceability shall affect only such clause or provision, or part thereof, in such jurisdiction and shall not in any manner affect such clause or provision in any other jurisdiction, or any other clause or provision in the First Amendment in any jurisdiction. 13. This First Amendment may be signed in any number of counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument. 14. This First Amendment shall be binding upon and inure to the benefit of the Borrower and its successors and to the benefit of the Lender and its successors and assigns. The rights and obligations of the Borrower under this First Amendment shall not be assigned or delegated without the prior written consent of the Lender, and any purported assignment or delegation without such consent shall be void.
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Cash Position. Borrower will maintain average outstanding collected deposit balances of not less than $6,000,0003,000,000, to be tested quarterly.”
633. In order to cause the Obligations to equal each Lender’s Commitment Percentage, as amended by this First Amendment, Borrower and Lender hereby consent and agree that, on the date hereof, M&T and VNB shall cause Revolving Credit Loans to be made in such amounts as set forth on Schedule 6 attached hereto and made a part hereof (identified therein as the “Reallocation Amounts”). The Reallocation Amounts shall be paid and delivered, by wire transfer within one (1) business day Section 5.04 of the date hereof, to each Loan Agreement is hereby deleted in its entirety and is of IDB no further force and Leumi, as the case may be, as more particularly described on Schedule 6, pursuant to wire instructions to be provided, and shall be applied by IDB and Leumi, as the case may be, as a partial repayment of outstanding Revolving Credit Loans due such Lender, without prepayment penalty or premiumeffect.
734. Section 6.01(f) of the Loan Agreement is hereby deleted in its entirety and is of no further force and effect.
35. Schedule 2.09 to the Loan Agreement is hereby deleted in its entirety and is of no further force and effect.
36. Exhibit C to the Loan Agreement is hereby deleted in its entirety and is of no further force and effect.
37. The effectiveness of this First Fourth Amendment shall be expressly subject to receipt by the Lender of the following items:
(a) a fully executed First Fourth Amendment;
(b) a fully executed Revolving Credit Note in the form attached as Exhibit A;
(c) payment of all costs and expenses incurred by the Lender;
(dc) payment to Lender of the commitment fees fee in the amount amounts set forth on Schedule 7(d) 1 attached hereto, which the Borrower and Guarantors acknowledge was earned by the Lender in connection with this First Fourth Amendment;
(ed) payment to the Lender’s counsel for fees and expenses in connection with the preparation, negotiation and execution of this First Fourth Amendment; and
(fe) such other agreements and instruments as the Lender reasonably deems necessary to carry out the terms and provisions of this First Fourth Amendment.
838. All terms and conditions of the Loan AgreementDocuments, except as modified by this agreement are hereby affirmed and ratified.
939. Borrower hereby represents and warrants that:
(a) Except as set forth on the attached schedules, any and all of the representations, warranties and schedules contained in the Loan Agreement or any of the other Loan Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date;
(b) Except as otherwise expressly disclosed to Lender in writing by Borrower, no event has occurred and is continuing which constitutes an Event of Default under the Loan Agreement or under any of the other Loan Documents or which upon the giving of notice or the lapse of time or both would constitute an Event of Default;
(c) As of the date hereof and after giving effect to the provisions set forth in Section 6 hereof, it is legally, validly and enforceably indebted to VNB under its Revolving Credit Note in the principal amount of $13,163,636.363,533,335.00, to M&T under its Revolving Credit Note in the principal amount of $13,163,636.366,183,335.00, to Leumi under its Revolving Credit Note in the principal amount of $4,936,363.641,766.665.00, and to IDB under its Revolving Credit Note in the principal amount of $4,936,363.641,766.665.00, all of which amounts are due without offset, claim, defense, counterclaim or right of recoupment; and
(d) Borrower and each Guarantor hereby release and discharge Lender from all claims or liabilities in any way arising from or in any way connected with the Loan Agreement or the Loan Documents to the extent arising through the date of execution hereof.
1040. This First Fourth Amendment shall be governed and construed in accordance with the laws of the State of New York.
1141. No modification or waiver of or with respect to any provisions of this First Fourth Amendment and all other agreements, instruments and documents delivered pursuant hereto or thereto, nor consent to any departure by the Lender from any of the terms or conditions thereof, shall in any event be effective unless it shall be in writing and executed in accordance with the provisions of the Loan Agreement, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No consent to or demand on the Borrower or any Guarantor in any case shall, of itself, entitle it, him or her to any other or further notice or demand in similar or other circumstances.
1242. The provisions of this First Fourth Amendment are severable, and if any clause or provision shall be held invalid or unenforceable in whole or in part in any jurisdiction, then such invalidity or unenforceability shall affect only such clause or provision, or part thereof, in such jurisdiction and shall not in any manner affect such clause or provision in any other jurisdiction, or any other clause or provision in the First Fourth Amendment in any jurisdiction.
1343. This First Fourth Amendment may be signed executed in any number counterparts each of which so executed shall be deemed to be an original, but all of such counterparts with the same effect as if the signatures thereto shall together constitute but one and hereto were upon the same instrument. Delivery by fax or other electronic transmission (including a .pdf e-mail transmission) of an executed counterpart of a signature page to this Fourth Amendment shall be effective as delivery of an original executed counterpart of this Fourth Amendment.
1444. This First Fourth Amendment shall be binding upon and inure to the benefit of the Borrower and its successors and to the benefit of the Lender and its successors and assigns. The rights and obligations of the Borrower under this First Fourth Amendment shall not be assigned or delegated without the prior written consent of the Lender, and any purported assignment or delegation without such consent shall be void.
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