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 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 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 to Effectiveness of Agreement This Agreement shall not be effective until the date on which each of the following conditions have been satisfied, in the sole discretion of, or waived in writing by, the Managing Agents and the Administrative Agent (such date, the “Effective Date”):
Conditions to Effectiveness of Amendment This Amendment shall become effective upon the satisfaction (or waiver in writing by each Lender) of each of the following conditions precedent:
(a) receipt by the Borrower, the Additional Delayed Draw Borrower, the Guarantors, the Administrative Agent and the Lenders of a counterpart signature of the others to this Amendment duly executed and delivered by each of the Borrower, the Additional Delayed Draw Borrower, the Guarantors, the Administrative Agent and the Lenders;
(b) the hiring by Holdings of a Chief Restructuring Officer acceptable to each Lender in its sole and absolute discretion (the “CRO”), reporting directly to the special restructuring committee of the board of directors of Holdings, to (i) oversee all aspects of daily and weekly cash flows, including both receivables and payables management (ii) be granted sole approval rights over all cash disbursements and (iii) develop and ensure compliance with the Weekly Budget;
(c) receipt by the Administrative Agent of the Closing Budget in a form acceptable to the Lenders, collectively, in their sole and absolute discretion;
(d) receipt by the Administrative Agent of all notices, certificates, and other documentation provided by the Borrower or any of its Affiliates, or any of its or their officers or directors, to Silicon Valley Bank pursuant to the SVB Loan Agreement since April 1, 2017, including any borrowing base certificates, summary accounts receivable and accounts payable agings, and inventory certificates;
(e) receipt by the Administrative Agent of a payoff letter from Silicon Valley Bank, in form and substance satisfactory to each Lender in its sole and absolute discretion;
(f) receipt by the Administrative Agent of a Secretary’s Certificate, with respect to the Borrower, the Additional Delayed Draw Borrower and the Guarantors, in substantially the form delivered on the Restatement Date, in each case attaching resolutions of each such Person’s Board of Directors (or other managing body, in the case of other than a corporation) then in full force and effect authorizing the execution, delivery and performance of this Amendment and the transactions contemplated hereby;
(g) receipt by the Administrative Agent of a copy of a good standing certificate for each of the Borrower, the Additional Delayed Draw Borrower and the Guarantors, dated within 30 days of the date hereof, from the jurisdiction of formation for each such Person; and
(h) receipt by the Administration Agent of an opinion of counsel to the Borrower, the Additional Delayed Draw Borrower and the Guarantors, in form and substance reasonably satisfactory to the Lenders in their sole discretion.