Conditions to Effectiveness of this Agreement (a) This Agreement and the First Amendment shall become effective (the date of such effectiveness being referred to herein as the “Forbearance Effective Date”) upon satisfaction or waiver of each of:
(i) execution of this Agreement and the First Amendment by the TL Agents, the Forbearing Lenders, and the Debt Parties and delivery of the same to the TL Agents;
(ii) execution of the Supplemental Indentures and delivery of the same to the Agents and the Forbearing Lenders, and such Notes Amendments have taken effect in accordance with their terms;
(iii) amendments to the ABL North America Credit Documents (the “ABL Amendments”), in the form executed and delivered on the date hereof, reflecting, among other things, the additional incurrence of no less than $4.48 million of Indebtedness under the ABL North America Credit Agreement to be provided by the ABL Lenders on the Forbearance Effective Date (the “Supplemental Financing”), the conversion of certain Holdings Preferred Equity Interests into an amount of unsecured and subordinated ABL North America Obligations (the “Preferred Roll-Up”), and forbearances and consents by the lenders under the ABL North America Credit Documents (collectively, the “ABL Lenders”) (the “ABL Forbearances and Consents”), in each case as set forth therein and in accordance with the ABL North America Intercreditor Agreement, as amended in accordance herewith;
(iv) the Intercreditor Agreements have each been amended (each, an “Intercreditor Amendment”) so as to permit or otherwise facilitate the Initial Transactions, and such amendments have been executed by the parties thereto, delivered to the Parties hereto, and have taken effect in accordance with their terms;
(v) [Reserved]
(vi) the Holdings Preferred Equity Documents, in form and substance reasonably acceptable to the Forbearing Lenders, have become effective in accordance with their terms, and have been delivered to the Parties hereto;
(vii) International Holdings becomes a co-Administrative Borrower under the Credit Agreement;
(viii) the IP Transfer, IP NA License, IP Europe License, TDX IP License, Motion IP License, Dolomite IP License, and Aviva IP License have occurred on terms reasonably acceptable to the Forbearing Lenders;
(ix) entry by the applicable Forbearing Lenders and the Ad Hoc Group into the mutual release agreement attached hereto as Exhibit J (the “Mutual Lender Release”);
(x) delivery by the Debt Parties of any and all updated perfection certificates and other security documents required under the Credit Agreement, Indentures, and any of the Company’s other Material Indebtedness;
(xi) the other Initial Transaction Documents, each being in form and substance reasonably acceptable to the Forbearing Lenders, shall have been executed by the parties thereto, delivered to the Parties hereto, and have taken effect in accordance with their terms;
(xii) the other Initial Transactions, each being on terms reasonably acceptable to the Forbearing Lenders, shall have been effectuated;
(xiii) Highbridge and ▇▇▇▇▇ ▇▇▇▇ shall have received access to any and all datarooms used by the Company and/or its Related Parties in the Sale Process to provide prospective buyers with diligence or other marketing materials;
(xiv) payment by the Administrative Borrower to the Administrative Agent for the benefit of each Forbearing Lender in the manner and amount set forth in clause (a) of Schedule 5 hereto (the “Forbearance Fee”);
(xv) payment to the parties and in the amounts set forth in clause (b) of Schedule 5 hereto;
(xvi) all required board and other governance approvals (any such approval or consent not to be unreasonably withheld, conditioned, or delayed) have been received for, and the transactions contemplated under and by, this Agreement, including all Initial Transactions, have been fully authorized;
(xvii) the Company has provided to the Forbearing Lenders: (1) the most recent Monthly Reporting; (2) a Budget for the then subsequent month; (3) an initial Account Balance Report; (4) a Variance Report; and (5) a Rolling 13-Week Cash Flow Forecast for the week prior to the date of this Agreement;
(xviii) the Administrative Borrower has paid all interest (excluding applicable default interest) and other amounts in cash that became due on or about August 5, 2024 under the Credit Agreement and remain due immediately prior to the Forbearance Effective Date;
(xix) the Company has provided the Forbearing Lenders and TL Agents with Compliance Certificates of a type set forth in sections 5.01(d)(ii) and 5.03(b) of the Credit Agreement;
(xx) the ABL Lenders have provided the Company with the Supplemental Financing in accordance with its terms;
(xxi) the Administrative Agent shall have received a customary written opinion (addressed to the Agents and the Lenders and dated as the Forbearance Effective Date) of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLC, as counsel to the Debt Parties, in form and substance reasonably satisfactory to the Lenders (or their counsel);
(xxii) that certain ▇▇▇▇▇▇▇ and Restated Non-Employee Director Compensation Policy is approved by the board of directors of Holdings; and
(xxiii) the ▇▇▇▇▇▇▇ Incentive Agreement, satisfactory to ▇▇▇▇▇ ▇▇▇▇▇▇▇, is approved by the board of directors of International Holdings. For purposes of determining compliance with the conditions specified in this section 8, each Forbearing Lender that has signed this Agreement shall be deemed to have consented to, approved, or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to, approved by, or acceptable or satisfactory to a Forbearing Lender unless the Administrative Agent shall have received notice from such Forbearing Lender prior to the proposed Forbearance Effective Date specifying its objection thereto.
Conditions to Effectiveness of this Amendment Notwithstanding anything to the contrary set forth herein, this Amendment shall become effective upon satisfaction in a manner reasonably satisfactory to the Agent of each of the following conditions (such time, the “Effective Time”):
(a) the delivery to the Agent of a counterpart of this Amendment executed by Borrower, the other Credit Parties, the Agent and the Lenders;
(b) the Borrower shall have delivered to Agent evidence reasonably satisfactory to Agent demonstrating that, based upon the financial statements for the twelve month period ended September 9, 2013 delivered to Agent and the Lenders in accordance with the Credit Agreement: (i) EBITDA of the Credit Parties and their Subsidiaries is not less than $11,100,000 (“Fourth Amendment EBITDA”) and (ii) the ratio of total Funded Indebtedness of the Credit Parties and their subsidiaries to Fourth Amendment EBITDA, calculated giving pro forma effect to the transactions consummated on the Fourth Amendment Effective Date, payment of all costs and expenses in connection therewith, and funding of the Incremental Term Loan and the prepayment of certain Loans on the Fourth Amendment Effective Date, is equal to or less than 3.50:1.00;
(c) the Agent shall have received, for the ratable benefit of the Lenders a closing fee of $215,625 of which Agent, in its capacity as a Lender and for its affiliates who are Lenders, will retain $122,083.33 and Regions Bank, as a Lender, will receive $93,541.67;
(d) the Borrower shall have reimbursed Agent for all costs and expenses (including all legal fees and expenses) incurred by Agent in connection with this Amendment;
(e) the accuracy of the representations and warranties contained in Section 3 hereof;
(f) since December 26, 2011 there shall not have occurred any Material Adverse Effect;
(g) no Default or Event of Default exists or will arise as a direct result of this Amendment; and
(h) delivery to Agent of the other documents and deliveries set forth on Exhibit D attached hereto (in fully-executed forms, where applicable).
Conditions Precedent to Effectiveness of this Amendment This Amendment shall become effective upon the satisfaction in full or waiver by all Lenders of the following conditions precedent (the first date upon which all such conditions shall have been satisfied being herein called the “Amendment Effective Date”):
Conditions Precedent to Effectiveness of this Agreement This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the following conditions precedent have been satisfied:
(a) All governmental and third party consents 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 LC Issuer) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the LC Issuer that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(b) The LC Issuer shall have received the following in form and substance satisfactory to the LC Issuer:
(i) Certified copies of the resolutions of the board of directors (or persons performing similar functions) of the Company approving the Agreement and each of the LC Facility Documents to which it is or is to be a party, and of all documents evidencing other necessary Governmental Authorizations, or other necessary consents, approvals, authorizations, notices, filings or actions, with respect to this Agreement and any of the LC Facility Documents to which it is or is to be a party.
(ii) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each domestic Account Party listing the certificate or articles of incorporation (or similar Constitutive Document) of each such Account Party and each amendment thereto on file in the office of such Secretary of State (or such governmental authority) and certifying (A) that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in its office, (B) if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization.
(iii) A certificate of the Secretary or an Assistant Secretary of each domestic Account Party certifying the names and true signatures of the officers of such Account Party authorized to sign each LC Facility Document to which it is a party and the other documents to be delivered hereunder.
(iv) A favorable opinion of General Counsel or Associate General Counsel to the Account Parties, substantially in the form of Exhibit A-1 hereto and as to such other matters as the LC Issuer may reasonably request.
(v) A favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special New York counsel to the Account Parties, in substantially the form of Exhibit A-2 hereto and as to such other matters as the LC Issuer may reasonably request.
(vi) Such other approvals, opinions or documents as the LC Issuer may reasonably request.
(vii) Evidence that the 3-Year Agreement and each of the Other LC Facilities has been entered into and all conditions precedent to the effectiveness of the 3-Year Agreement and each of the Other LC Facilities (except the entry into and effectiveness of this Agreement) have been satisfied or waived.
(viii) Evidence that the security interests granted to each of Bank of America, N.A., HSBC Bank, National Association and JPMorgan Chase Bank in respect of those certain letter of credit agreements between each of such parties and the Company and dated as of June 25, 2003 have been terminated and all liens thereunder have been released.
(c) The Company shall have paid all accrued fees and expenses of the LC Issuer in connection with this Agreement.
(d) All amounts owing by the Company or any of its Subsidiaries to the lenders and agents under the Existing Letter of Credit Agreement shall have been, paid in full, and all commitments of the lenders under the Existing Letter of Credit Agreement (except for the letters of credit issued thereunder which are to be deemed issued under this Agreement or the 3-Year Agreement) shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, terminated in accordance with the terms of the Existing Letter of Credit Agreement and all guarantees given, and security interests granted, in connection therewith shall have been terminated.
Conditions Precedent to the Effectiveness of this Amendment This Amendment shall become effective as of the date first written above when, and only when, each of the following conditions precedent shall have been satisfied or waived (the “Amendment No. 1 Effective Date”) by the Administrative Agent: