Amendments to Credit Agreement Contract Clauses (1,336)

Amendments to Credit Agreement. As of the date hereof, the Credit Agreement is amended as follows: 1.1 Definitions. Section 1.1 of the Credit Agreement is amended by the addition, the deletion or the amendment and restatement of the following definitions, as applicable, to read in their entirety as follows: (a) Subsection (k) of the definition of Permitted Indebtedness is hereby amended and restated to read as follows: "(k) unsecured Indebtedness and unsecured Guaranty Obligations for Indebtedness of the Portfolio Companies no...t otherwise permitted by the other clauses of this definition in an aggregate principal amount not to exceed Ten Million Dollars ($10,000,000)." (b) Subsection (b) of the definition of Permitted Investments is hereby amended and restated to read as follows: "(b) Investments consisting of (i) the Debt Investments listed on Schedule 7.26(b), (ii) the Equity Investments listed on Schedules 7.26(a) and (c), and (iii) "follow-on" Investments consisting of Debt Investments or Equity Interests in Portfolio Companies currently owned by Credit Parties in an aggregate amount not to exceed Twenty-Eight Million Five Hundred Thousand and 00/100 Dollars ($28,500,000);" (c) The following new definition shall be inserted in the appropriate alphabetical order: ""Fifth Amendment Closing Date" means May 7, 2018." 1.2 Section 2.4(a). Section 2.4(a) of the Credit Agreement is amended and restated in its entirety to read as follows: "(a) Letters of Credit. Subject to the terms and conditions of this Agreement, the Lenders agree to incur, from time to time, upon the request of Borrower and for Borrower's account, Letter of Credit Obligations by Agent causing Letters of Credit to be issued by a bank or other legally authorized Person selected by or acceptable to Agent in its sole discretion (each, an "L/C Issuer") for such Borrower's account, which may be guaranteed by Agent; provided, that if the L/C Issuer is a Lender, then such Letters of Credit shall not be guaranteed by Agent but rather each Lender shall, subject to the terms and conditions hereinafter set forth, purchase (or be deemed to have purchased) risk participations in all such Letters of Credit issued with the written consent of Agent, as more fully described in Section 2.4(b)(ii) below. The initial L/C Issuer shall be Santander Bank, N.A. and all Letters of Credit issued by Santander Bank, N.A. shall be issued in its capacity as a Lender, not as Agent. The aggregate amount of all Letter of Credit Obligations relating to the issuance of Letters of Credit shall not at any time exceed Fifteen Million Dollars ($15,000,000); provided, however, in no event shall Agent cause a Letter of Credit to be issued to the extent that (i) Agent is in receipt of written notice that the conditions precedent set forth in Section 6 of this Agreement cannot be satisfied or (ii) the face amount of such Letter of Credit would then cause the sum of (x) the outstanding Revolving Loans plus (y) outstanding Letters of Credit, to exceed Borrowing Availability. All Letters of Credit shall be payable in Dollars. No standby Letter of Credit shall have an expiry date that is more than one year following the date of issuance thereof and no commercial Letter of Credit shall have an expiry date that is more than 90 days following the date of issuance thereof, unless otherwise determined by the Agent, in its sole discretion, and neither Agent nor Lenders shall be under any obligation to incur Letter of Credit Obligations in respect of, or purchase risk participations in, any Letter of Credit having an expiry date that is later than the Final Maturity Date. 1.3 No Other Changes. Except as explicitly amended by this Fifth Amendment, all of the terms and conditions of the Credit Agreement shall remain in full force and effect and shall apply to all Revolving Loans and Letters of Credit thereunder. View More

Amendments to Credit Agreement. a. Section 1.1 of the Credit Agreement is hereby amended by inserting or amending and restating, as applicable, the following definitions in their entirety: "Final Payment Date" means the earlier to occur of (a) June 4, 2022; or (b) the date that is 90 days prior to the earliest maturity date set forth in any of the 2013 Notes or the 2014 Notes. "Final Revolving Commitment Termination Date" means the earlier to occur of (a) June 4, 2019; or (b) such earlier date on which the Revolving Loans shal...l become due and payable in accordance with the terms of this Agreement and the other Loan Documents. b. Section 2.3(e) of the Credit Agreement is hereby amended by deleting the words "July 2, 2018" appearing therein and replacing such language with the words "July 1, 2019". The execution, delivery, and performance of this Amendment and the performance by Borrower of each Loan Document to which it is a party (i) have been duly approved by all necessary action and no other proceedings are necessary to consummate such transactions; and (ii) are not in contravention of (A) any law, rule, or regulation, or any order, judgment, decree, writ, injunction, or award of any arbitrator, court or governmental authority binding on it, (B) the terms of its organizational documents, or (C) any provision of any contract or undertaking to which it is a party or by which any of its properties may be bound or affected; b. This Amendment has been duly executed and delivered by Borrower. This Amendment will, upon its effectiveness in accordance with the terms hereof, and each Loan Document to which Borrower is a party is the legal, valid and binding obligation of Borrower, enforceable against Borrower in accordance with its terms, and is in full force and effect except as such validity and enforceability is limited by the laws of insolvency and bankruptcy, laws affecting creditors' rights and principles of equity applicable hereto; c. No injunction, writ, restraining order, or other order of any nature prohibiting, directly or indirectly, the consummation of the transactions contemplated herein has been issued and remains in force by any Governmental Authority against Borrower; d. Borrower does not have any actual or potential claim or cause of action against Agent or any Lender for any actions or events occurring on or before the date hereof, and Borrower hereby waives and releases any right to assert same; e. No Default or Event of Default has occurred and is continuing on the date hereof or as of the date of the effectiveness of this Amendment after giving effect to this Amendment; and f. The representations and warranties in the Credit Agreement and the other Loan Documents are true and correct in all material respects (except to the extent qualified by materiality, then such representations and warranties are true and correct in all respects) on and as of the date hereof, as though made on such date (except to the extent that such representations and warranties relate solely to an earlier date). View More

Amendments to Credit Agreement. Subject to the terms and conditions set forth herein, the Credit Agreement is hereby amended by amending and restating the definition of "Maturity Date" contained in Section 1.01 of the Credit Agreement in its entirety such that after giving effect to this Amendment, such definition shall read as follows: "‘Maturity Date' means March 15, 2020; provided, however, that if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day." 2. Effectiveness; Conditions Prec...edent. The effectiveness of this Amendment and the amendment to the Credit Agreement provided in Section 1 hereof are subject to the satisfaction of the following conditions precedent: (a) The Administrative Agent shall have received counterparts of this Amendment, duly executed by the Borrowers, the Administrative Agent and each of the Lenders, which counterparts may be delivered by telefacsimile or other electronic means (including .pdf), but such delivery will be promptly followed by the delivery of original signature pages by each Person party hereto unless waived by the Administrative Agent; and (b) All fees and expenses payable to the Administrative Agent (including the fees and expenses of counsel to the Administrative Agent to the extent due and payable under Section 10.04(a) of the Credit Agreement) estimated to date and for which invoices have been presented a reasonable period of time prior to the effectiveness hereof shall have been paid in full (without prejudice to final settling of accounts for such fees and expenses). For purposes of determining compliance with the conditions specified in this Section 2, each Lender that has signed this Amendment 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 or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the date hereof specifying its objection thereto. View More

Amendments to Credit Agreement. The Credit Agreement is hereby amended by deleting the definition of the term "Credit Expiration Date" appearing in Article 1 of the Credit Agreement in its entirety and by substituting the following in lieu thereof: ""Credit Expiration Date" means July, 31, 2021." 3. Representations and Warranties. The Borrower represents and warrants to the Bank that each and all of the representations and warranties of the Borrower in the Credit Agreement and the other Financing Documents are true and correct... on the date hereof as if the same were made on the date hereof. View More

Amendments to Credit Agreement. Effective as of the Seventh Amendment Effective Date (as defined below), the Existing Credit Agreement is hereby amended as follows: (a) Section 1.01 of the Existing Credit Agreement is amended by inserting the following defined terms in alphabetical order: "Seventh Amendment" means that certain Seventh Amendment to Credit Agreement, dated as of the Fifth Amendment Effective Date, by and among the Administrative Agent, the Borrower, the other Loan Parties and each Lender party thereto. "Seventh ...Amendment Effective Date" means May 1, 2022. (b) Clause (d) of Section 6.26 of the Existing Credit Agreement is amended by (i) deleting the reference to "May 2, 2022" and (ii) replacing that reference with "May 8, 2022". (c) Section 6.26 of the Existing Credit Agreement is amended by inserting a new clause (h) as follows: (h) No later than the Seventh Amendment Effective Date, the Borrower shall have appointed a chief transformation officer (together with any permitted successors from time to time, the "CTO") reasonably satisfactory to the Administrative Agent and the Required Lenders pursuant to a scope of engagement reasonably satisfactory to the Administrative Agent and Required Lenders, and thereafter shall retain such CTO, or any replacement thereof from time to time that is reasonably satisfactory to the Administrative Agent and Required Lenders and is engaged promptly after the resignation or dismissal of the CTO pursuant to a scope of engagement substantially similar to the existing scope of engagement or otherwise reasonably satisfactory to the Administrative Agent and the Required Lenders. View More

Amendments to Credit Agreement. (a) The following defined term in the Credit Agreement is hereby amended and restated in its entirety as follows: "Cash Dominion Trigger Event" shall mean (a) the occurrence and continuance of an Event of Default or (b) Liquidity is less than $5,000,000 for five (5) consecutive Business Days; provided that a Cash Dominion Trigger Event shall cease to exist, with respect to clause (a) above, upon the waiver in writing of the applicable Event of Default, and with respect to clause (b) above, when ...Borrowers have Excess Availability, for sixty (60) consecutive days, exceeding $15,000,000. "Covenant Testing Trigger Event" shall mean (a) the occurrence and continuance of an Event of Default or (b) Liquidity is less than $5,000,000 for five (5) consecutive Business Days; provided that a Covenant Testing Trigger Event shall cease to exist, with respect to clause (a) above, upon the waiver of the applicable Event of Default, and with respect to clause (b) above, when Borrowers have Excess Availability, for sixty (60) consecutive days, exceeding $15,000,000. "Liquidity" shall mean, as of any date, the sum of (a) Excess Availability as of such date, plus (b) the aggregate amount of unrestricted cash held by the Loan Parties and their domestic Subsidiaries in Depository Accounts established at Agent or a Control Account Bank. "Maximum Revolving Advance Amount" shall mean $16,850,000. (b) Clause (vii) of Section 2.1(a) of the Credit Agreement shall be amended and restated in its entirety as follows: (vii) [reserved]; (c) The Revolving Commitment Amount of $50,000,000 set forth below PNC's signature on the signature page attached to the Credit Agreement is hereby deleted and replaced with $16,850,000. View More

Amendments to Credit Agreement. Effective as of the Fourth Amendment Effective Date (as defined below), the Existing Credit Agreement is hereby amended as follows: (a) The definition of "Availability Block" in Section 1.01 of the Existing Credit Agreement is hereby deleted in its entirety. (b) The definition of "Availability Reserve" in Section 1.01 of the Existing Credit Agreement is amended by replacing clause (h) thereof with "[reserved]". (c) The first sentence and second sentence through an including clause (a) of the def...inition of "Eligible Inventory" in Section 1.01 of the Existing Credit Agreement are amended to read as follows (provided that no changes are made to clauses (b) through (l) of the second sentence of such definition): ""Eligible Inventory" means Inventory (other than work in process) owned by the Borrower that the Administrative Agent, in its Permitted Discretion, deems to be Eligible Inventory. Without limiting the foregoing, no Inventory shall be Eligible Inventory unless it (a) is a finished good or raw material, and not packaging or shipping materials, labels, samples, display items or bags;" (d) The following terms are added to Section 1.01 of the Existing Credit Agreement in alphabetical order: ""Fourth Amendment" means that certain Fourth Amendment to Credit Agreement, dated as of the Fourth Amendment Effective Date, by and among the Administrative Agent, the Collateral Agent, Swingline Lender, L/C Issuer, the Borrower, the other Loan Parties and each Lender party thereto. "Fourth Amendment Effective Date" means November 1, 2021." (e) Section 6.02(b) of the Existing Credit Agreement is amended by deleting ", at all times that the minimum Availability covenant set forth on Schedule 7.11(a) is required to be tested,". (f) Section 6.02(c) of the Existing Credit Agreement is deleted in its entirety and replaced with the following new Section 6.02(c): "(c) Borrowing Base Reports. No later than the third Business Day of each week and at such other times as the Administrative Agent may request, (i) a Borrowing Base Report and (ii) a Consolidated Borrowing Base Report, in each case as of the close of business of the previous week (provided that it is understood and agreed that the information contained therein with respect to Inventory may be calculated as of the most recent month-end), together with such supporting information and backup documentation as the Administrative Agent may reasonably request. All information (including calculations of Availability) in a Borrowing Base Report and Consolidated Borrowing Base Report shall be certified by the Borrower. The Administrative Agent may from time to time adjust such report (w) to reflect the Administrative Agent's reasonable estimate of declines in value of Collateral, due to collections received in the Dominion Account or otherwise; (x) to adjust advance rates to reflect changes in dilution, quality, mix and other factors affecting Collateral; (y) to reflect adjustments made to the Term Loan Borrowing Base by the Term Loan Agent in accordance with the Term Loan Agreement; and (z) to the extent any information or calculation does not comply with this Agreement." (g) Article VI of the Existing Credit Agreement is amended by adding the following new Section 6.25 at the end of such article: 6.25 Engagement and Retention of Consultant. The Loan Parties shall continue to retain Riveron RTS, LLC (the "Consultant"), or any replacement thereof from time to time that is satisfactory to the Administrative Agent and engaged promptly after the resignation or dismissal of the Consultant, as a consultant pursuant to the scope of engagement previously entered into as of October 1, 2021, between the Consultant and Borrower, as amended by that certain Amendment to Engagement Letter, dated November 1, 2021 (the "Consultant Amendment to Engagement Letter" and such engagement letter, as so amended and as it may be amended, restated, supplemented or otherwise modified from time to time after the Fourth Amendment Effective Date in accordance with this terms and with the prior written consent of the Administrative Agent, not to be unreasonably withheld, the "Consultant Engagement Letter"), or a replacement scope of engagement upon substantially similar terms as the Consultant Engagement Letter or otherwise acceptable to the Administrative Agent. 2 (h) Schedule 7.11 to the Existing Credit Agreement is hereby amended and restated by replacing such schedule with the Schedule 7.11 attached hereto as Annex A. View More

Amendments to Credit Agreement. Effective as of the date of this Amendment, the Existing Credit Agreement is hereby amended as follows: (a) Section 1.01 of the Existing Credit Agreement is hereby amended by adding the following definition in proper alphabetical order: "Atalaya Maximum Committed Amount" means the lesser of (i) the "Maximum Committed Amount" under, and as defined in, the Atalaya Credit Agreement and (ii) $125,000,000. (b) Section 1.01 of the Existing Credit Agreement is hereby amended by deleting the definition ...of "Approved Bank Partner Originator State" in its entirety and replacing it with the following: "Approved Bank Partner Originator State" means, (i) [***] (ii) [***] and (iii) such other states that the Borrower requests, in writing, to add and which are approved in writing by the Administrative Agent in its sole discretion; provided, however, that in no event will a state in which a Bank Partner Originator Regulatory Trigger Event or a Regulatory Trigger Event is continuing be an "Approved Bank Partner Originator State". (c) Section 1.01 of the Existing Credit Agreement is hereby amended by deleting the definition of "Targeted Ares Draw" in its entirety and replacing it with the following: "Targeted Ares Draw" means, with respect to any date of determination, the lesser of (A) the product of (x) the Total SPV Drawn Amount as of such date of determination, multiplied by (y) a fraction, (i) the numerator of which is the Maximum Committed Amount hereunder and (ii) the denominator of which is the Total SPV Committed Amount and (B) the Undrawn Amount. (d) Section 1.01 of the Existing Credit Agreement is hereby amended by deleting the definition of "Targeted Atalaya Draw" in its entirety and replacing it with the following: "Targeted Atalaya Draw" means, with respect to any date of determination, the lesser of (A) the product of (x) the Total SPV Drawn Amount as of such date of determination, multiplied by (y) a fraction, (i) the numerator of which is the Atalaya Maximum Committed Amount and (ii) the denominator of which is the Total SPV Committed Amount and (B) the "Undrawn Amount" under, and as defined in, the Atalaya Credit Agreement. (e) Section 1.01 of the Existing Credit Agreement is hereby amended by deleting the definition of "Total SPV Committed Amount" in its entirety and replacing it with the following: "Total SPV Committed Amount" means the sum of (i) the Maximum Committed Amount hereunder plus (ii) the Atalaya Maximum Committed Amount. 2 (f) Section 5.19 of the Existing Credit Agreement is hereby deleted in its entirety and replaced with the following: Section 5.19 Proportional Draws. The Credit Parties shall cause the Borrower and the Atalaya Borrower to borrow amounts under this Agreement and the Atalaya Credit Agreement, pro rata based on the Maximum Committed Amount hereunder and the Atalaya Maximum Committed Amount; provided, however that (i) compliance with the foregoing requirement shall be tested only as of the last day of each calendar quarter and (ii) discrepancies of $[***] or less between the Targeted Atalaya Draw and the aggregate amount actually drawn under the Atalaya Credit Agreement or between the Targeted Ares Draw and the aggregate amount actually drawn under this Agreement, in each case, since the Closing Date and measured as of the end of each calendar quarter shall not constitute a breach of the foregoing requirement. (g) Appendix D of the Existing Credit Agreement is hereby amended by amending and restating paragraph 16, paragraph 17, paragraph 18 and paragraph 20 in their entirety as follows: 16. The amount by which the aggregate Remaining Funded Amount of all Eligible Receivables relating to Obligors located in the state with the highest concentration of Obligors exceeds [***]% of the aggregate Remaining Funded Amount of all Eligible Receivables. (h) Appendix D of the Existing Credit Agreement is hereby amended by inserting the following as new paragraph 22 and paragraph 23, respectively: 22. The amount by which the aggregate Remaining Funded Amount of all Eligible Receivables relating to Obligors located in [***] exceeds [***]% of the aggregate Remaining Funded Amount of all Eligible Receivables. 3 23. The amount by which the aggregate Remaining Funded Amount of all Eligible Receivables relating to Obligors located in [***] exceeds [***]% of the aggregate Remaining Funded Amount of all Eligible Receivables. View More

Amendments to Credit Agreement. Effective as of the date of this Amendment, the Existing Credit Agreement is hereby amended as follows: (a) Section 1.1 of the Existing Credit Agreement is hereby amended by deleting the definition of "Lock-Out Period" in its entirety and replacing it with the following: "Lock-Out Period" means the first sixteen (16) months of the Revolving Commitment Period.

Amendments to Credit Agreement. Subject to the satisfaction of the conditions precedent specified in Section 4 below, the Credit Agreement shall be amended as follows: (a)Article X. Section 10.01 of the Credit Agreement is hereby amended to amend and restate Section 10.01(a)(viii) in its entirety as follows: "(viii) change the definition of the term "Borrowing Base" or any component definition thereof if, as a result thereof, the amounts available to be borrowed by the Borrowers would be increased without the written consent o...f each Lender, provided that the foregoing shall not limit the discretion of the Agent to change, establish or eliminate any Reserves and provided, further, that only the written consent of the Agent and the Lead Borrower shall be required to modify Schedule 1.05 hereto." (b)Article X. Article X of the Credit Agreement is hereby amended to add the following new Section 10.29 as follows: Section 10.29. Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Swap Contracts or any other agreement or instrument that is a QFC (such support, "QFC Credit Support" and each such QFC a "Supported QFC"), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the "U.S. Special Resolution Regimes") in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States): (a)In the event a Covered Entity that is party to a Supported QFC (each, a "Covered Party") becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support. (b)As used in this Section 10.29, the following terms have the following meanings: "BHC Act Affiliate" of a party means an "affiliate" (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party. "Covered Entity" means any of the following: (i) a "covered entity" as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); 2 (ii) a "covered bank" as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a "covered FSI" as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). "Default Right" has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. "QFC" has the meaning assigned to the term "qualified financial contract" in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D). (c)Amended and Restated Schedule. Schedule 1.05 to the Credit Agreement shall be amended and restated in its entirety in the form of Schedule 1.05 attached hereto. View More