This excerpt taken from the NVLS 10-Q filed Aug 7, 2008.
1. Executive has been employed by the Company and is currently serving as the Chairman and Chief Executive Officer.
2. The Company desires to continue to employ Executive and to assure itself of the continued services of Executive for the term of this Agreement, and Executive desires to be employed by the Company for such period, upon the following terms and conditions.
3. The Company and Employee have previously entered into an Employment Agreement, dated as of March 11, 2005 (the 2005 Employment Agreement), and now desire to amend and restate in its entirety the 2005 Employment Agreement with this Agreement to address the applicable requirements of Section 409A of the Internal Revenue Code of 1986, as amended (Code) and to adopt certain other technical revisions.
This excerpt taken from the NVLS 10-Q filed May 7, 2008.
WHEREAS, the Borrower, the Guarantors, the Lenders and the Administrative Agent entered into that certain Credit Agreement dated as of December 26, 2006 (the Credit Agreement); and
WHEREAS, the Borrower has requested that the Lenders amend the Credit Agreement as set forth below.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows, effective as of the Effective Date:
1. Amendments. The Credit Agreement is hereby amended as follows:
(a) Section 6.5(j) of the Credit Agreement is hereby amended to read as follows:
(j) Investments in Subsidiaries, including Investments made in connection with the formation of Subsidiaries (provided that the aggregate amount of such Investments shall not exceed $400,000,000 at any time; provided, however, if the Borrower has unrestricted cash on its balance sheet in an amount equal to the aggregate principal amount of Revolving Loans and Swing Line Loans then outstanding, the aggregate amount of such Investments at any time may be increased to $600,000,000); provided, however, if the Borrower provides Cash Collateral to secure the Obligations in accordance with Section 2.19, the Borrower and its Subsidiaries may make Investments in Subsidiaries, including Investments made in connection with the formation of Subsidiaries, in excess of the limitation on any such Investments provided above in this clause (j);
(b) Section 6.6(b) of the Credit Agreement is hereby amended to read as follows:
(b) Permit the aggregate principal amount of unsecured intercompany Indebtedness owing from the Non-Guarantor Subsidiaries to the Loan Parties to exceed $400,000,000 at any time; provided, however, if the Borrower has unrestricted cash on its balance sheet in an amount equal to the aggregate principal amount of Revolving Loans and Swing Line Loans then outstanding, the aggregate principal amount of unsecured intercompany Indebtedness owing from the Non-Guarantor Subsidiaries to the Loan Parties at such time may be increased to $600,000,000; provided further however, if the Borrower provides Cash Collateral to secure the Obligations in accordance with Section 2.19, the unsecured intercompany Indebtedness owing from the Non-Guarantor Subsidiaries to the Loan Parties may exceed the limitations provided above in this Section 6.6(b).
2. Conditions Precedent. This Amendment shall be effective upon the satisfaction of the following conditions precedent:
(a) the Administrative Agent shall have received counterparts of this Amendment duly executed by the Borrower, the Guarantors, the Required Lenders and the Administrative Agent; and
(b) the Administrative Agent shall have received, for the benefit of each Lender signing this Amendment on or before April 22, 2008, an amendment fee equal to 0.05% of such Lenders Revolving Commitment.
(a) The Credit Agreement, and the obligations of the Loan Parties thereunder and under the other Loan Documents, are hereby ratified and confirmed and shall remain in full force and effect according to their terms.
(b) Each Guarantor (i) acknowledges and consents to all of the terms and conditions of this Amendment, (ii) affirms all of its obligations under the Loan Documents and (iii) agrees that this Amendment and all documents executed in connection herewith do not operate to reduce or discharge its obligations under the Credit Agreement or the other Loan Documents.
(c) The Borrower and the Guarantors hereby represent and warrant as follows:
(i) Each Loan Party has taken all necessary action to authorize the execution, delivery and performance of this Amendment.
(ii) This Amendment has been duly executed and delivered by the Loan Parties and constitutes each of the Loan Parties legal, valid and binding obligations, enforceable in accordance with its terms, except as such enforceability may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).
(iii) No consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental authority or third party is required in connection with the execution, delivery or performance by any Loan Party of this Amendment.
(d) The Loan Parties represent and warrant to the Lenders that (i) the representations and warranties of the Loan Parties set forth in Article III of the Credit Agreement and in each other Loan Document are true and correct as of the date hereof with the same effect as if made on and as of the date hereof, except to the extent such representations and warranties expressly relate solely to an earlier date and (ii) no event has occurred and is continuing which constitutes a Default or an Event of Default.
(e) This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of an executed counterpart of this Amendment by telecopy shall be effective as an original and shall constitute a representation that an executed original shall be delivered.