Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions: (i) the Double E Joint Venture shall have entered into (A) one or more Additional Material Contracts, each for a minimum three (3) year term and having contracted take-or-pay cash flow which, in the aggregate and on a pro forma basis, increases the maximum amount of Term Loans or Incremental Term Loans that would be permitted under the Base Case Model by at least $10,000,000, (B) the Compression Addition or (C) a Permitted Expansion approved pursuant to Section 6.8 of the JV LLC Agreement; (ii) the proceeds of the applicable Incremental Term Loans shall be used (A) to fund the Borrower’s Required Contribution in respect of the Project, a Permitted Expansion, or a Compression Addition and transaction fees and expenses incurred in connection with such Permitted Expansion, (B) if (1) permitted by the applicable Incremental Lenders, (2) the Restricted Payment Conditions are satisfied, and (3) the Restricted Payment amount does not exceed the amount of Equity Contributions made to Borrower to date in connection with the applicable Permitted Expansion, to make a Restricted Payment on the date of the funding of such Incremental Term Loans in connection with such Permitted Expansion, (C) to pay fees and expenses incurred in connection with the Incremental Term Loans, (D) to reimburse the Borrower’s Required Contributions or fees and expenses, or (E) to pay Debt Service prior to the Term Conversion Date, the Compression Addition or a Permitted Expansion and to fund the DSR Requirement; (iii) the proceeds of the applicable Incremental Revolving Credit Loans shall be used to fund the DSR Requirement associated with a Facility of Incremental Term Loans in an amount no greater (when taken together with such Facility) than the Incremental Availability Amount; (iv) after giving effect to such Incremental Commitments, the following conditions shall be satisfied (it being understood that all references to “the date of such Borrowing” or similar language shall be deemed to refer to the effective date of such Incremental Amendment): 33 KE 73718588.20 US-DOCS\142539518.2141222994.8 (A) the representations and warranties of the Borrower (with respect to the Borrower and, to the extent applicable, the Double E Joint Venture) and Pledgor set forth in Article V, other than Sections 5.07 (except clause (c) thereof), 5.14 (regarding projected and pro forma financial information), 5.12(c) and 5.02, shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on and as of the effective date of such Incremental Amendment with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; and (B) no Default or Event of Default shall exist and be continuing or would immediately result from such proposed Incremental Commitment or from the application of the proceeds therefrom; (v) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $500,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence); (vi) the aggregate principal amount of the Incremental Term Loans (the “Incremental Availability Amount”) incurred in connection with a Permitted Expansion shall reflect the maximum amount of Incremental Term Loans that, after giving pro forma effect to the incurrence of such Incremental Term Loans (taking into account any prepayments of the Facilities in connection therewith), can be supported based on an Adjusted Base Case Model reasonably satisfactory to the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), and the Administrative Agent shall have received such Adjusted Base Case Model in a form reasonably satisfactory to the Administrative Agent; (vii) if entered into in connection with a Permitted Expansion, the applicable Permitted Expansion and the agreements entered into in connection therewith would not reasonably be expected to have a Material Adverse Effect; (viii) if entered into in connection with a Permitted Expansion, the Borrower shall have delivered a certificate of the Independent Engineer certifying that (A) the applicable Permitted Expansion should not materially and adversely affect the Double E Joint Venture’s ability to perform its obligations under the Material Contracts to which it is a party and (B) the applicable Permitted Expansion will not diminish the value or compromise the operations of the Project; 34 KE 73718588.20 US-DOCS\142539518.2141222994.8
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof of such Incremental Amendment (the “Incremental Facility Closing Date”) of each of the following conditions: :
(i) the Double E Joint Venture no Default or Event of Default shall have entered into (A) one or more Additional Material Contracts, each for a minimum three (3) year term and having contracted take-or-pay cash flow which, in the aggregate and on a pro forma basis, increases the maximum amount of Term Loans or Incremental Term Loans that would be permitted under the Base Case Model by at least $10,000,000, (B) the Compression Addition or (C) a Permitted Expansion approved pursuant to Section 6.8 of the JV LLC Agreement; (ii) the proceeds of the applicable Incremental Term Loans shall be used (A) to fund the Borrower’s Required Contribution in respect of the Project, a Permitted Expansion, or a Compression Addition and transaction fees and expenses incurred in connection with such Permitted Expansion, (B) if (1) permitted by the applicable Incremental Lenders, (2) the Restricted Payment Conditions are satisfied, and (3) the Restricted Payment amount does not exceed the amount of Equity Contributions made to Borrower to date in connection with the applicable Permitted Expansion, to make a Restricted Payment on the date of the funding of such Incremental Term Loans in connection with such Permitted Expansion, (C) to pay fees and expenses incurred in connection with the Incremental Term Loans, (D) to reimburse the Borrower’s Required Contributions or fees and expenses, or (E) to pay Debt Service prior to the Term Conversion Date, the Compression Addition or a Permitted Expansion and to fund the DSR Requirement; (iii) the proceeds of the applicable Incremental Revolving Credit Loans shall be used to fund the DSR Requirement associated with a Facility of Incremental Term Loans in an amount no greater (when taken together with such Facility) than the Incremental Availability Amount; (iv) exist after giving effect to such Incremental Commitments, the following conditions shall be satisfied (it being understood that all references to “the date of such Borrowing” or similar language shall be deemed to refer to the effective date of such Incremental Amendment): 33 KE 73718588.20 US-DOCS\142539518.2141222994.8
(A) and the representations and warranties of the Borrower (with respect to the Borrower and, to the extent applicable, the Double E Joint Venture) and Pledgor set forth in Article V, other than Sections 5.07 (except clause (c) thereof), 5.14 (regarding projected and pro forma financial information), 5.12(c) and 5.02, V of this Agreement shall be true and correct in all material respects (except that or, in the case of any representation and warranty that is qualified as to “materiality,” or “Material Adverse Effect” shall be true and correct or similar language, in all respects as so qualifiedrespects) on and as of the effective date of the incurrence of such Incremental Amendment with the same effect as though made on and as of such date, except to the extent such Commitments (although any representations and or warranties which expressly relate to an earlier date, in which case they a given date or period shall be required only to be true and correct in all material respects (or in all respects, as applicable) as of the respective date or for the respective period, as the case may be); provided that in the case of Incremental Commitments incurred to finance a Permitted Acquisition or Investments permitted under Section 7.02(o) or (s) (each, a “Limited Condition Transaction”), (x) such earlier date; requirement shall be subject to customary “SunGard” conditionality (including waiver or non-requirement of (1) the representations and warranties hereunder and (B2) no the absence of a Default or Event of Default shall exist (other than with respect to a Default or Event of Default under Section 8.01(a) or (f)) and (y) the Consolidated Secured Net Leverage Ratio set forth in clause (iii)(C) below may, at the Borrowers’ election, be continuing or would immediately result from tested at the time such proposed Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Commitment or from the application of the proceeds therefrom; Lenders providing such Incremental Commitments;
(vii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $500,000 (provided 1,000,000 and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that such amount may be is not less than $10,000,000 if such amount represents all remaining availability under the limit set forth 5,000,000 and shall be in the next sentence); an increment of $1,000,000;
(viiii) the aggregate principal amount of the Incremental Term Loans and Incremental Revolving Loan Commitments shall not exceed (the “Incremental Availability Amount”A) an amount equal to $50,000,000 (net of Indebtedness incurred in connection with a Permitted Expansion shall reflect the maximum pursuant to Section 7.03(r)(i)(A) or (ii)(A)) plus (B) up to an additional amount of Incremental Term Loans that, after giving pro forma effect to and/or Incremental Revolving Loan Commitments so long as on and as of the date of the incurrence of such Incremental Term Loans or Incremental Commitments, the Consolidated Secured Net Leverage Ratio (taking into account determined on a Pro Forma Basis, including the pro forma effect of any prepayments Specified Transaction to be financed (in whole or in part) with the proceeds of the Facilities Incremental Loan, and assuming all previously established and simultaneously established Incremental Revolving Loan Commitments are fully drawn and excluding the cash proceeds of (x) any borrowing under any such Incremental Revolving Loan Commitments, (y) any Incremental Term Loans and (z) any other Indebtedness that is incurred substantially concurrently therewith) is no more than 3.75 to 1.00; and
(iv) the Loan Parties shall demonstrate compliance with the financial covenant set forth in connection Section 7.11 (determined on a Pro Forma Basis and assuming all previously established and simultaneously established Incremental Revolving Loan Commitments are fully drawn and excluding the cash proceeds of (x) any borrowing under any such Incremental Revolving Loan Commitments, (y) any Incremental Term Loans and (z) any other Indebtedness that is incurred substantially concurrently therewith), can be supported based on an Adjusted Base Case Model reasonably satisfactory to ) as of the Administrative Agent (such consent not most recent fiscal quarter end for which financial statements have been delivered or were required to be unreasonably withheld, conditioned delivered pursuant to Section 4.01 or delayed), and the Administrative Agent shall have received such Adjusted Base Case Model in a form reasonably satisfactory to the Administrative Agent; 6.01.
(viiv) if entered into in connection with a Permitted Expansion, the applicable Permitted Expansion and the agreements entered into in connection therewith would not reasonably be expected to have a Material Adverse Effect; (viii) if entered into in connection with a Permitted Expansion, the Borrower shall have delivered a certificate for purposes of the Independent Engineer certifying that calculations in clauses (iii) and (iv) above, (A) with respect to any Incremental Commitments, assuming a borrowing of the applicable Permitted Expansion should not materially and adversely affect the Double E Joint Venture’s ability to perform its obligations under the Material Contracts to which it is a party and maximum amount of Loans available thereunder, (B) to the applicable Permitted Expansion will extent the proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to such repayment of Indebtedness and (C) Indebtedness incurred under clause (iii)(A) above shall be available at all times and not diminish the value subject to any ratio test, whether incurred simultaneously with amounts under clause (iii)(C) or compromise the operations of the Project; 34 KE 73718588.20 US-DOCS\142539518.2141222994.8otherwise.
Appears in 1 contract
Sources: Credit Agreement (Blucora, Inc.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, Amendment and the Incremental Commitments thereunder, availability of any initial credit extensions thereunder shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions: :
(ia) (x) no Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the Double E Joint Venture shall have entered into (A) one primary purpose of which is to finance an acquisition or more Additional Material Contractsother Investment permitted by this Agreement that is not conditioned upon obtaining third-party financing, each for a minimum three (3) year term and having contracted take-or-pay cash flow which, in the aggregate and on a pro forma basis, increases the maximum amount of Term Loans or Incremental Term Loans that would be permitted under the Base Case Model by at least $10,000,000, (B) the Compression Addition or (C) a Permitted Expansion approved requirement pursuant to Section 6.8 of the JV LLC Agreement; this clause (ii4)(a)(x) the proceeds of the applicable Incremental Term Loans shall be used (Athat no Event of Default under Section 8.01(1) to fund the Borrower’s Required Contribution in respect of the Project, a Permitted Expansion, or a Compression Addition and transaction fees and expenses incurred in connection with such Permitted Expansion, (BSection 8.01(6) if (1) permitted by the applicable Incremental Lenders, (2) the Restricted Payment Conditions are satisfied, and (3) the Restricted Payment amount does not exceed the amount of Equity Contributions made to Borrower to date in connection with the applicable Permitted Expansion, to make a Restricted Payment on the date of the funding of such Incremental Term Loans in connection with such Permitted Expansion, (C) to pay fees and expenses incurred in connection with the Incremental Term Loans, (D) to reimburse the Borrower’s Required Contributions or fees and expenses, or (E) to pay Debt Service prior to the Term Conversion Date, the Compression Addition or a Permitted Expansion and to fund the DSR Requirement; (iii) the proceeds of the applicable Incremental Revolving Credit Loans shall be used to fund the DSR Requirement associated with a Facility of Incremental Term Loans in an amount no greater (when taken together with such Facility) than the Incremental Availability Amount; (iv) exist after giving effect to such Incremental Commitments, the following conditions shall be satisfied and (it being understood that all references to “the date of such Borrowing” or similar language shall be deemed to refer to the effective date of such Incremental Amendment): 33 KE 73718588.20 US-DOCS\142539518.2141222994.8
(Ay) the representations and warranties of the Borrower (with respect to the Borrower and, to the extent applicable, the Double E Joint Venture) and Pledgor set forth contained in Article V, V or any other than Sections 5.07 (except clause (c) thereof), 5.14 (regarding projected and pro forma financial information), 5.12(c) and 5.02, Loan Document shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on and as of the effective date of such Incremental Amendment with the same effect as though made on and as of such date(provided that, except to the extent that such representations and warranties expressly relate specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (Bafter giving effect to any qualification therein) in all respects on such respective dates); provided that, in connection with an acquisition or other Investment permitted hereunder that is not conditioned upon obtaining third-party financing, the conditions in the proviso to clause (x) and in clause (y) shall only be required to the extent requested by the Persons holding more than 50% of the applicable Incremental Term Loans and Incremental Term Commitments or Incremental Revolving Loans and Incremental Revolving Commitments, as the case may be (provided, further, that, in the case of any such acquisition or other Investment with a purchase price in excess of $20.0 million, the conditions contained in the proviso to clause (x) with respect to no Default or Event of Default under Section 8.01(1) or Section 8.01(6) and in clause (y) with respect to Specified Representations, in each case, shall exist and be continuing required whether or would immediately result from not requested by such proposed Incremental Commitment or from the application of the proceeds therefrom; Persons, unless waived in accordance with Section 10.01);
(vb) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $500,000 5.0 million (provided that such amount may be less than $10,000,000 5.0 million if such amount represents all remaining availability under the limit set forth in clause (c) of this Section 2.14(4)) and each Incremental Revolving Commitment shall be in an aggregate principal amount that is not less than $5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the next sentencelimit set forth in clause (c) of Section 2.14(4); );
(vic) the aggregate principal amount of the Incremental Term Loans (and Incremental Revolving Commitments shall not, together with the “Incremental Availability Amount”) incurred in connection with a Permitted Expansion shall reflect the maximum aggregate principal amount of Permitted Incremental Term Loans thatEquivalent Debt, after giving exceed the sum of:
(A) (1) the greater of (i) $200.0 million and (ii) 100% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the most recently ended Test Period (calculated on a pro forma effect to basis)$150.0 million plus (2) the incurrence aggregate amount of such Incremental (x) voluntary prepayments of Term Loans (taking into account any prepayments including Incremental Term Loans) and Permitted Incremental Equivalent Debt (other than Permitted Incremental Equivalent Debt consisting of revolving credit facilities) (including purchases of the Facilities in connection therewith), can be supported based on an Adjusted Base Case Model reasonably satisfactory to the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), and the Administrative Agent shall have received such Adjusted Base Case Model in a form reasonably satisfactory to the Administrative Agent; (vii) if entered into in connection with a Permitted Expansion, the applicable Permitted Expansion and the agreements entered into in connection therewith would not reasonably be expected to have a Material Adverse Effect; (viii) if entered into in connection with a Permitted Expansion, the Borrower shall have delivered a certificate of the Independent Engineer certifying that (A) the applicable Permitted Expansion should not materially and adversely affect the Double E Joint Venture’s ability to perform its obligations under the Material Contracts to which it is a party and (B) the applicable Permitted Expansion will not diminish the value or compromise the operations of the Project; 34 KE 73718588.20 US-DOCS\142539518.2141222994.8Loans or
Appears in 1 contract
Sources: Credit Agreement (Superior Industries International Inc)
Effectiveness of Incremental Amendment. The obtaining of Other Commitments, the making of Other Term Loans, the effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof of such Incremental Amendment (or, in the case of Other Commitments and Other Term Loans, on the date of the extension of such commitments or the incurrence or issuance of such Other Term Loans, as applicable) (the “Incremental Facility Closing Date”) of each of the following conditions: :
(i) the Double E Joint Venture shall have entered into with respect to any Incremental Commitments, (A) one or more Additional Material Contracts, each for a minimum three (3) year term and having contracted take-or-pay cash flow which, in the aggregate and on a pro forma basis, increases the maximum amount no Event of Term Loans or Incremental Term Loans that would be permitted under the Base Case Model by at least $10,000,000, (B) the Compression Addition or (C) a Permitted Expansion approved pursuant to Section 6.8 of the JV LLC Agreement; (ii) the proceeds of the applicable Incremental Term Loans Default shall be used (A) to fund the Borrower’s Required Contribution in respect of the Project, a Permitted Expansion, or a Compression Addition and transaction fees and expenses incurred in connection with such Permitted Expansion, (B) if (1) permitted by the applicable Incremental Lenders, (2) the Restricted Payment Conditions are satisfied, and (3) the Restricted Payment amount does not exceed the amount of Equity Contributions made to Borrower to date in connection with the applicable Permitted Expansion, to make a Restricted Payment on the date of the funding of such Incremental Term Loans in connection with such Permitted Expansion, (C) to pay fees and expenses incurred in connection with the Incremental Term Loans, (D) to reimburse the Borrower’s Required Contributions or fees and expenses, or (E) to pay Debt Service prior to the Term Conversion Date, the Compression Addition or a Permitted Expansion and to fund the DSR Requirement; (iii) the proceeds of the applicable Incremental Revolving Credit Loans shall be used to fund the DSR Requirement associated with a Facility of Incremental Term Loans in an amount no greater (when taken together with such Facility) than the Incremental Availability Amount; (iv) exist after giving effect to such Incremental Commitments; provided, that in the following conditions case of Incremental Commitments incurred to finance a permitted acquisition or other permitted Investments (including in any event a Limited Condition Acquisition) no Event of Default (in the case of Limited Condition Acquisitions, as determined in accordance with Section 1.7) under Section 8.1(a), (b), (h) and (i) shall be satisfied exist on (it being understood that all references to “i) the date that the Borrower or the applicable Restricted Subsidiary consummates such permitted acquisition or other permitted Investments, or, (ii) in the case of Incremental Commitments incurred to finance a Limited Condition Acquisition, on the LCA Test Date; provided, that the applicable Incremental Lenders may waive, in each case of clauses (i) or (ii), such condition regarding an absence of such Borrowing” or similar language shall be deemed to refer to an Event of Default and the effective date of such Incremental Amendment): 33 KE 73718588.20 US-DOCS\142539518.2141222994.8
(A) requirement that the representations and warranties of the Borrower (with respect have to the Borrower and, to the extent applicable, the Double E Joint Venture) be made and Pledgor set forth in Article V, other than Sections 5.07 (except clause (c) thereof), 5.14 (regarding projected and pro forma financial information), 5.12(c) and 5.02, shall be true and correct accurate in all material respects (except that any representation and warranty that is qualified as shall be subject to customary “materialitySungard” or “Material Adverse Effectcertain funds” shall be true and correct in all respects as so qualified) on and as of the effective date of such Incremental Amendment with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; and limitations;
(B) no Default or Event of Default shall exist and be continuing or would immediately result from such proposed Incremental Commitment or from the application of the proceeds therefrom; (vii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 5,000,000 and shall be in an increment of $500,000 1,000,000 (provided that such amount may be less than $10,000,000 5,000,000 if such amount represents all remaining availability under the limit set forth in clause (iii) below) and each Incremental Revolving Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the next sentencelimit set forth in clause (iii) below);
(iii) the aggregate amount of the Incremental Term Loans, the Incremental Revolving Commitments and Other Term Loans shall not exceed (A) an amount equal to $100,000,000 (minus the aggregate amount of Indebtedness incurred pursuant to Section 2.23(d)(iii)(A) of the Second Lien Credit Agreement), plus (B) up to an additional amount of Incremental Term Loans, Incremental Revolving Commitments, Other Commitments and/or Other Term Loans, (i) so long as the Consolidated First Lien Leverage Ratio (determined on a Pro Forma Basis) is equal to or less than 4.40:1.00, (ii) to the extent such Indebtedness consists of Other Term Loans that are secured on a junior lien basis and not subordinated in right of payment to the Term Loans and the Revolving Loans, so long as the Consolidated Senior Secured Leverage Ratio (determined on a Pro Forma Basis) is equal to or less than 5.50:1.00 or (iii) to the extent such Indebtedness consists of Other Term Loans that are unsecured or secured on a junior lien basis and subordinated in right of payment to the Term Loans and the Revolving Loans, so long as the Consolidated Leverage Ratio (determined on a Pro Forma Basis) is equal to or less than 6.00:1.00 as of the last day of the most recently ended period of four fiscal quarters of the Borrower for which financial statements are available, determined on the applicable Incremental Facility Closing Date, after giving effect to any such incurrence or issuance on a Pro Forma Basis, and, in each case, with respect to any Incremental Revolving Commitment or Incremental Term Commitment established at such time, assuming a borrowing of the maximum amount of Loans available thereunder, and excluding the cash proceeds of any such Incremental Term Loans, Incremental Revolving Commitments, Other Commitments and/or Other Term Loans that are being incurred for the purposes of netting; provided that to the extent the proceeds thereof are used to repay Indebtedness, such repayment of Indebtedness shall be calculated on a Pro Forma Basis and subject to other customary pro forma adjustments, including, in connection with an investment, plus (C) (1) the amount of all debt buybacks conducted under this Agreement and under the Second Lien Credit Agreement, but limited to the actual cash amount paid by Borrower or its Restricted Subsidiaries in connection with such buyback plus (2) an amount equal to all voluntary prepayments of, in each case, without duplication, (x) the Loans and the Second Lien Term Facility Indebtedness and (y) any Incremental Term Loans, Other Term Loans, Second Lien Incremental Term Loans, Second Lien Other Term Loans, Incremental Equivalent Debt or Second Lien Incremental Equivalent Debt and permanent voluntary commitment reductions of the Revolving Commitments, including any Incremental Revolving Commitments (less all such reductions applied to increase the corresponding incremental facility basket under the Second Lien Term Facility, Second Lien Incremental Equivalent Debt or Incremental Equivalent Debt), other than voluntary prepayments and voluntary commitment reductions to the extent funded or replaced by a substantially contemporaneous refinancing with long-term indebtedness (in each case, to the extent originally incurred under the “free and clear” prong); (viit being understood that (x) amounts under clause (B) (to the extent compliant therewith) shall be deemed to have used prior to utilization of amounts under clause (A) or (C), (y) loans may be incurred under both clauses (A), (B) and (C) above, and proceeds from any such incurrence under such clauses (A), (B) and (C) above, may be utilized in a single transaction by first calculating the incurrence under clause (B) above and then calculating the incurrence under clause (A) or (C) above and, for the avoidance of doubt, any such incurrence under clause (A) or (C) shall not be given pro forma effect for purposes of determining the Consolidated First Lien Leverage Ratio, Consolidated Senior Secured Leverage Ratio and/or Consolidated Leverage Ratio, as applicable, for purposes of effectuating the incurrence under clause (B) in such single transaction and (z) the Borrower may redesignate any such Indebtedness originally incurred pursuant to clause (A) or (C) as incurred pursuant to clause (B) if, at the time of such redesignation, the Borrower would be permitted to incur the aggregate principal amount of the Incremental Term Loans Indebtedness being so redesignated); and
(the “Incremental Availability Amount”iv) incurred in connection with a Permitted Expansion shall reflect the maximum amount of Incremental Term Loans that, after giving pro forma effect to the incurrence of such Incremental Term Loans (taking into account any prepayments of extent reasonably requested by the Facilities in connection therewith)Administrative Agent, can be supported based on an Adjusted Base Case Model reasonably satisfactory to receipt by the Administrative Agent (of customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date other than changes to such consent not legal opinion resulting from a change in law, change in fact or change to be unreasonably withheld, conditioned or delayed), and the Administrative Agent shall have received such Adjusted Base Case Model in a counsel’s form of opinion reasonably satisfactory to the Administrative Agent; (vii) if entered into in connection with a Permitted Expansion, the applicable Permitted Expansion and the agreements entered into in connection therewith would not reasonably be expected to have a Material Adverse Effect; (viii) if entered into in connection with a Permitted Expansion, the Borrower shall have delivered a certificate of the Independent Engineer certifying that (A) the applicable Permitted Expansion should not materially and adversely affect the Double E Joint Venture’s ability to perform its obligations under the Material Contracts to which it is a party and (B) the applicable Permitted Expansion will not diminish the value or compromise the operations of the Project; 34 KE 73718588.20 US-DOCS\142539518.2141222994.8.
Appears in 1 contract
Effectiveness of Incremental Amendment. The obtaining of Other Commitments, the making of Other Term Loans, the effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof of such Incremental Amendment (or, in the case of Other Commitments and Other Term Loans, on the date of the extension of such commitments or the incurrence or issuance of such Other Term Loans, as applicable) (the “Incremental Facility Closing Date”) of each of the following conditions: :
(i) the Double E Joint Venture shall have entered into with respect to any Incremental Commitments, (A) one or more Additional Material Contracts, each for a minimum three (3) year term and having contracted take-or-pay cash flow which, in the aggregate and on a pro forma basis, increases the maximum amount no Event of Term Loans or Incremental Term Loans that would be permitted under the Base Case Model by at least $10,000,000, (B) the Compression Addition or (C) a Permitted Expansion approved pursuant to Section 6.8 of the JV LLC Agreement; (ii) the proceeds of the applicable Incremental Term Loans Default shall be used (A) to fund the Borrower’s Required Contribution in respect of the Project, a Permitted Expansion, or a Compression Addition and transaction fees and expenses incurred in connection with such Permitted Expansion, (B) if (1) permitted by the applicable Incremental Lenders, (2) the Restricted Payment Conditions are satisfied, and (3) the Restricted Payment amount does not exceed the amount of Equity Contributions made to Borrower to date in connection with the applicable Permitted Expansion, to make a Restricted Payment on the date of the funding of such Incremental Term Loans in connection with such Permitted Expansion, (C) to pay fees and expenses incurred in connection with the Incremental Term Loans, (D) to reimburse the Borrower’s Required Contributions or fees and expenses, or (E) to pay Debt Service prior to the Term Conversion Date, the Compression Addition or a Permitted Expansion and to fund the DSR Requirement; (iii) the proceeds of the applicable Incremental Revolving Credit Loans shall be used to fund the DSR Requirement associated with a Facility of Incremental Term Loans in an amount no greater (when taken together with such Facility) than the Incremental Availability Amount; (iv) exist after giving effect to such Incremental Commitments; provided, that in the following conditions case of Incremental Commitments incurred to finance a permitted acquisition or other permitted Investments (including in any event a Limited Condition Acquisition) no Event of Default (in the case of Limited Condition Acquisitions, as determined in accordance with Section 1.7) under Section 8.1(a), (b), (h) and (i) shall be satisfied exist on (it being understood that all references to “i) the date that the Borrower or the applicable Restricted Subsidiary consummates such permitted acquisition or other permitted Investments, or, (ii) in the case of Incremental Commitments incurred to finance a Limited Condition Acquisition, on the LCA Test Date; provided, that the applicable Incremental Lenders may waive, in each case of clauses (i) or (ii), such condition regarding an absence of such Borrowing” or similar language shall be deemed to refer to an Event of Default and the effective date of such Incremental Amendment): 33 KE 73718588.20 US-DOCS\142539518.2141222994.8
(A) requirement that the representations and warranties of the Borrower (with respect have to the Borrower and, to the extent applicable, the Double E Joint Venture) be made and Pledgor set forth in Article V, other than Sections 5.07 (except clause (c) thereof), 5.14 (regarding projected and pro forma financial information), 5.12(c) and 5.02, shall be true and correct accurate in all material respects (except that any representation and warranty that is qualified as shall be subject to customary “materialitySungard” or “Material Adverse Effectcertain funds” shall be true and correct in all respects as so qualified) on and as of the effective date of such Incremental Amendment with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; and limitations;
(B) no Default or Event of Default shall exist and be continuing or would immediately result from such proposed Incremental Commitment or from the application of the proceeds therefrom; (vii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 5,000,000 and shall be in an increment of $500,000 1,000,000 (provided that such amount may be less than $10,000,000 5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceclause (iii) below); ;
(viiii) the aggregate principal amount of the Incremental Term Loans and Other Term Loans shall not exceed (A) an amount equal to $100,000,000 (minus the “aggregate amount of Indebtedness incurred pursuant to Section 2.23(d)(iii)(A) of the First Lien Credit Agreement), plus (B) up to an additional amount of Incremental Availability Amount”Term Loans, Other Commitments and/or Other Term Loans, (i) incurred so long as the Consolidated Senior Secured Leverage Ratio (determined on a Pro Forma Basis) is equal to or less than 5.50:1.00 or (ii) to the extent such Indebtedness consists of Other Term Loans that are unsecured or secured on a junior lien basis and subordinated in connection right of payment to the Term Loans, so long as the Consolidated Leverage Ratio (determined on a Pro Forma Basis) is equal to or less than 6.00:1.00 as of the last day of the most recently ended period of four fiscal quarters of the Borrower for which financial statements are available, determined on the applicable Incremental Facility Closing Date, after giving effect to any such incurrence or issuance on a Pro Forma Basis, and, in each case, with respect to any Incremental Term Commitment established at such time, assuming a Permitted Expansion shall reflect borrowing of the maximum amount of Incremental Term Loans thatavailable thereunder, after giving pro forma effect to and excluding the incurrence cash proceeds of any such Incremental Term Loans Other Commitments and/or Other Term Loans that are being incurred for the purposes of netting; provided that to the extent the proceeds thereof are used to repay Indebtedness, such repayment of Indebtedness shall be calculated on a Pro Forma Basis and subject to other customary pro forma adjustments, including, in connection with an investment, plus (taking into account C) (1) the amount of all debt buybacks conducted under this Agreement and under the First Lien Credit Agreement, but limited to the actual cash amount paid by Borrower or its Restricted Subsidiaries in connection with such buyback plus (2) an amount equal to all voluntary prepayments of, in each case, without duplication, (x) the Loans and the First Lien Term Loans and (y) any prepayments Incremental Term Loans, Other Term Loans, First Lien Incremental Indebtedness (other than First Lien Incremental Revolving Loans), Incremental Equivalent Debt or First Lien Incremental Equivalent Debt and permanent voluntary commitment reductions of the Facilities in connection therewithFirst Lien Revolving Commitments, including any First Lien Incremental Revolving Commitments (less all such reductions applied to increase the corresponding incremental facility basket under the First Lien Credit Agreement, First Lien Incremental Equivalent Debt or Incremental Equivalent Debt), can other than voluntary prepayments and voluntary commitment reductions to the extent funded or replaced by a substantially contemporaneous refinancing with long-term indebtedness(in each case, to the extent originally incurred under the “free and clear” prong); (it being understood that (x) amounts under clause (B) (to the extent compliant therewith) shall be supported based on an Adjusted Base Case Model deemed to have used prior to utilization of amounts under clause (A) or (C), (y) loans may be incurred under both clauses (A), (B) and (C) above, and proceeds from any such incurrence under such clauses (A), (B) and (C) above, may be utilized in a single transaction by first calculating the incurrence under clause (B) above and then calculating the incurrence under clause (A) or (C) above and, for the avoidance of doubt, any such incurrence under clause (A) or (C) shall not be given pro forma effect for purposes of determining the Consolidated Senior Secured Leverage Ratio and/or Consolidated Leverage Ratio, as applicable, for purposes of effectuating the incurrence under clause (B) in such single transaction and (z) the Borrower may redesignate any such Indebtedness originally incurred pursuant to clause (A) or (C) as incurred pursuant to clause (B) if, at the time of such redesignation, the Borrower would be permitted to incur the aggregate principal amount of Indebtedness being so redesignated); and
(iv) to the extent reasonably satisfactory to requested by the Administrative Agent, receipt by the Administrative Agent (of customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date other than changes to such consent not legal opinion resulting from a change in law, change in fact or change to be unreasonably withheld, conditioned or delayed), and the Administrative Agent shall have received such Adjusted Base Case Model in a counsel’s form of opinion reasonably satisfactory to the Administrative Agent; (vii) if entered into in connection with a Permitted Expansion, the applicable Permitted Expansion and the agreements entered into in connection therewith would not reasonably be expected to have a Material Adverse Effect; (viii) if entered into in connection with a Permitted Expansion, the Borrower shall have delivered a certificate of the Independent Engineer certifying that (A) the applicable Permitted Expansion should not materially and adversely affect the Double E Joint Venture’s ability to perform its obligations under the Material Contracts to which it is a party and (B) the applicable Permitted Expansion will not diminish the value or compromise the operations of the Project; 34 KE 73718588.20 US-DOCS\142539518.2141222994.8.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, Amendment and the Incremental Commitments thereunder, availability of any initial credit extensions thereunder shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions: :
(ia) (x) no Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the Double E Joint Venture shall have entered into (A) one primary purpose of which is to finance an acquisition or more Additional Material Contractsother Investment permitted by this Agreement that is not conditioned upon obtaining third-party financing, each for a minimum three (3) year term and having contracted take-or-pay cash flow which, in the aggregate and on a pro forma basis, increases the maximum amount of Term Loans or Incremental Term Loans that would be permitted under the Base Case Model by at least $10,000,000, (B) the Compression Addition or (C) a Permitted Expansion approved requirement pursuant to Section 6.8 of the JV LLC Agreement; this clause (ii4)(a)(x) the proceeds of the applicable Incremental Term Loans shall be used (Athat no Event of Default under Section 8.01(1) to fund the Borrower’s Required Contribution in respect of the Project, a Permitted Expansion, or a Compression Addition and transaction fees and expenses incurred in connection with such Permitted Expansion, (BSection 8.01(6) if (1) permitted by the applicable Incremental Lenders, (2) the Restricted Payment Conditions are satisfied, and (3) the Restricted Payment amount does not exceed the amount of Equity Contributions made to Borrower to date in connection with the applicable Permitted Expansion, to make a Restricted Payment on the date of the funding of such Incremental Term Loans in connection with such Permitted Expansion, (C) to pay fees and expenses incurred in connection with the Incremental Term Loans, (D) to reimburse the Borrower’s Required Contributions or fees and expenses, or (E) to pay Debt Service prior to the Term Conversion Date, the Compression Addition or a Permitted Expansion and to fund the DSR Requirement; (iii) the proceeds of the applicable Incremental Revolving Credit Loans shall be used to fund the DSR Requirement associated with a Facility of Incremental Term Loans in an amount no greater (when taken together with such Facility) than the Incremental Availability Amount; (iv) exist after giving effect to such Incremental Commitments, the following conditions shall be satisfied and (it being understood that all references to “the date of such Borrowing” or similar language shall be deemed to refer to the effective date of such Incremental Amendment): 33 KE 73718588.20 US-DOCS\142539518.2141222994.8
(Ay) the representations and warranties of the Borrower (with respect to the Borrower and, to the extent applicable, the Double E Joint Venture) and Pledgor set forth contained in Article V, V or any other than Sections 5.07 (except clause (c) thereof), 5.14 (regarding projected and pro forma financial information), 5.12(c) and 5.02, Loan Document shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on and as of the effective date of such Incremental Amendment with the same effect as though made on and as of such date(provided that, except to the extent that such representations and warranties expressly relate specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (Bafter giving effect to any qualification therein) in all respects on such respective dates); provided that, in connection with an acquisition or other Investment permitted hereunder that is not conditioned upon obtaining third-party financing, the conditions in the proviso to clause (x) and in clause (y) shall only be required to the extent requested by the Persons holding more than 50% of the applicable Incremental Term Loans and Incremental Term Commitments or Incremental Revolving Loans and Incremental Revolving Commitments, as the case may be (provided, further, that, in the case of any such acquisition or other Investment with a purchase price in excess of $20.0 million, the conditions contained in the proviso to clause (x) with respect to no Default or Event of Default under Section 8.01(1) or Section 8.01(6) and in clause (y) with respect to Specified Representations, in each case, shall exist and be continuing required whether or would immediately result from not requested by such proposed Incremental Commitment or from the application of the proceeds therefrom; Persons, unless waived in accordance with Section 10.01);
(vb) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $500,000 5.0 million (provided that such amount may be less than $10,000,000 5.0 million if such amount represents all remaining availability under the limit set forth in clause (c) of this Section 2.14(4)) and each Incremental Revolving Commitment shall be in an aggregate principal amount that is not less than $5.0 million (provided US-DOCS\122695800.10 that such amount may be less than $5.0 million if such amount represents all remaining availability under the next sentencelimit set forth in clause (c) of Section 2.14(4); );
(vic) the aggregate principal amount of the Incremental Term Loans and Incremental Revolving Commitments shall not, together with the aggregate principal amount of Permitted Incremental Equivalent Debt, exceed the sum of:
(A) (1) $150.0 million plus (2) the “aggregate amount of (x) voluntary prepayments of Term Loans (including Incremental Availability Amount”Term Loans) incurred and Permitted Incremental Equivalent Debt (other than Permitted Incremental Equivalent Debt consisting of revolving credit facilities) (including purchases of the Loans or Permitted Incremental Equivalent Debt by the Borrower or any of its Subsidiaries at or below par, in connection with a which case the amount of voluntary prepayments of such Loans or Permitted Expansion Incremental Equivalent Debt shall reflect be deemed not to exceed the maximum amount actual purchase price of such Loans or Permitted Incremental Equivalent Debt below par), in the case of prepayments of Incremental Term Loans thator Permitted Incremental Equivalent Debt, after giving pro forma effect only to the incurrence of extent such Incremental Term Loans or Permitted Incremental Equivalent Debt was secured on a pari passu basis with the First Lien Obligations under this Agreement and incurred in reliance on clause (taking into account any prepayments A)(1) above and (y) voluntary permanent commitment reductions in respect of Incremental Revolving Commitments or Permitted Incremental Equivalent Debt consisting of revolving credit commitments, in each case, to the Facilities extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was secured on a pari passu basis with the First Lien Obligations under this Agreement and incurred in connection therewithreliance on clause (A)(1) above, other than, in each case under clauses (x) and (y), can be supported based on an Adjusted Base Case Model reasonably satisfactory to the Administrative Agent from proceeds of long-term Indebtedness (such consent not to be unreasonably withheld, conditioned or delayedother than revolving Indebtedness), and the Administrative Agent shall have received such Adjusted Base Case Model in a form reasonably satisfactory to the Administrative Agent; (vii) if entered into in connection with a Permitted Expansion, the applicable Permitted Expansion and the agreements entered into in connection therewith would not reasonably be expected to have a Material Adverse Effect; (viii) if entered into in connection with a Permitted Expansion, the Borrower shall have delivered a certificate of the Independent Engineer certifying that (A) the applicable Permitted Expansion should not materially and adversely affect the Double E Joint Venture’s ability to perform its obligations under the Material Contracts to which it is a party and plus
(B) an unlimited amount, so long as in the applicable Permitted Expansion will not diminish the value or compromise the operations case of the Project; 34 KE 73718588.20 US-DOCS\142539518.2141222994.8this clause (B) only,
Appears in 1 contract
Sources: Credit Agreement (Superior Industries International Inc)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions: :
(i) the Double E Joint Venture shall have entered into (Ax) one or more Additional Material Contracts, each for a minimum three (3) year term and having contracted take-or-pay cash flow which, in the aggregate and on a pro forma basis, increases the maximum amount of Term Loans or Incremental Term Loans that would be permitted under the Base Case Model by at least $10,000,000, (B) the Compression Addition or (C) a Permitted Expansion approved pursuant to Section 6.8 of the JV LLC Agreement; (ii) if the proceeds of the applicable such Incremental Term Loans shall be Commitments are being used (A) to fund the Borrower’s Required Contribution in respect of the Project, finance a Permitted ExpansionAcquisition or other Investment permitted hereunder, no Event of Default under Sections 8.01(a), 8.01(f) or a Compression Addition 8.01(g) shall have occurred and transaction fees and expenses incurred in connection with such Permitted Expansion, (B) if (1) permitted by the applicable Incremental Lenders, (2) the Restricted Payment Conditions are satisfied, and (3) the Restricted Payment amount does not exceed the amount of Equity Contributions made to Borrower to date in connection with the applicable Permitted Expansion, to make a Restricted Payment on the date of the funding of such Incremental Term Loans in connection with such Permitted Expansion, (C) to pay fees and expenses incurred in connection with the Incremental Term Loans, (D) to reimburse the Borrower’s Required Contributions be continuing or fees and expenses, or (E) to pay Debt Service prior to the Term Conversion Date, the Compression Addition or a Permitted Expansion and to fund the DSR Requirement; (iii) the proceeds of the applicable Incremental Revolving Credit Loans shall be used to fund the DSR Requirement associated with a Facility of Incremental Term Loans in an amount no greater (when taken together with such Facility) than the Incremental Availability Amount; (iv) would exist after giving effect to such Incremental Commitments, or (y) if otherwise, no Event of Default shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments;
(ii) after giving effect to such Incremental Commitments and except as set forth in clause (i) above, the following conditions of Sections 4.02(i) and 4.02(ii) shall be satisfied (it being understood that all references to “the date of such BorrowingLoan” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment): 33 KE 73718588.20 US-DOCS\142539518.2141222994.8
(A); provided that, if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition or other Investment permitted hereunder, the reference in Section 4.02(i) to the accuracy of the representations and warranties of the Borrower (with respect to the Borrower andshall, to the extent applicableagreed by the Lender, the Double E Joint Venturerefer to customary “specified representations” and “specified acquisition representations”;
(iii) and Pledgor set forth in Article V, other than Sections 5.07 [reserved];
(except clause (c) thereof), 5.14 (regarding projected and pro forma financial information), 5.12(c) and 5.02, shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on and as of the effective date of such Incremental Amendment with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; and (B) no Default or Event of Default shall exist and be continuing or would immediately result from such proposed Incremental Commitment or from the application of the proceeds therefrom; (viv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 5,000,000 and shall be in an increment of $500,000 1,000,000 (provided that such amount may be less than $10,000,000 5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceSection 2.14(d)(v); );
(viv) the aggregate principal amount of the Incremental Term Loans incurred after the First Amendment Effective Date (when aggregated with the “Initial Loans and with amounts incurred at or prior to such time pursuant to Section 7.03(q)) shall not exceed the greater of (A) $300,000,000 and (B) an unlimited amount so long as the Incremental Availability Amount”Loan-to-Value Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period, as if any Incremental Loans available under such Incremental Commitments had been outstanding on the last day of such period, and, in each case, without netting the cash proceeds of any such Incremental Loans, does not exceed 5.0%; and
(vi) incurred in connection with a Permitted Expansion shall reflect the maximum amount of Incremental Term Loans that, after giving pro forma effect to the incurrence extent reasonably requested by the Lender, the Lender shall have received customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the ClosingFirst Amendment Effective Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of such Incremental Term Loans (taking into account any prepayments of the Facilities in connection therewith), can be supported based on an Adjusted Base Case Model opinion reasonably satisfactory to the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), and the Administrative Agent shall have received such Adjusted Base Case Model in a form reasonably satisfactory to the Administrative Agent; (vii) if entered into in connection with a Permitted Expansion, the applicable Permitted Expansion and the agreements entered into in connection therewith would not reasonably be expected to have a Material Adverse Effect; (viii) if entered into in connection with a Permitted Expansion, the Borrower shall have delivered a certificate of the Independent Engineer certifying that (A) the applicable Permitted Expansion should not materially and adversely affect the Double E Joint Venture’s ability to perform its obligations under the Material Contracts to which it is a party and (B) the applicable Permitted Expansion will not diminish the value or compromise the operations of the Project; 34 KE 73718588.20 US-DOCS\142539518.2141222994.8Lender.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions: :
(i) the Double E Joint Venture shall have entered into (A) one or more Additional Material Contracts, each for a minimum three (3) year term and having contracted take-or-pay cash flow which, in the aggregate and on a pro forma basis, increases the maximum amount of Term Loans or Incremental Term Loans that would be permitted under the Base Case Model by at least $10,000,000, (B) the Compression Addition or (C) a Permitted Expansion approved pursuant to Section 6.8 of the JV LLC Agreement; ;
(ii) the proceeds of the applicable Incremental Term Loans shall be used (A) to fund the Borrower’s Required Contribution in respect of the Project, a Permitted Expansion, or a Compression Addition and transaction fees and expenses incurred in connection with such Permitted Expansion, (B) if (1) permitted by the applicable Incremental Lenders, (2) the Restricted Payment Conditions are satisfied, and (3) the Restricted Payment amount does not exceed the amount of Equity Contributions made to Borrower to date in connection with the applicable Permitted Expansion, to make a Restricted Payment on the date of the funding of such Incremental Term Loans in connection with such Permitted Expansion, (C) to pay fees and expenses incurred in connection with the Incremental Term Loans, (D) to reimburse the Borrower’s Required Contributions or fees and expenses, or (E) to pay Debt Service prior to the Term Conversion Date, the Compression Addition or a Permitted Expansion and to fund the DSR Requirement; (iii) the proceeds of the applicable Incremental Revolving Credit Loans shall be used to fund the DSR Requirement associated with a Facility of Incremental Term Loans in an amount no greater (when taken together with such Facility) than the Incremental Availability Amount; (iv) after giving effect to such Incremental Commitments, the following conditions shall be satisfied (it being understood that all references to “the date of such Borrowing” or similar language shall be deemed to refer to the effective date of such Incremental Amendment): 33 KE 73718588.20 US-DOCS\142539518.2141222994.8
(A) the representations and warranties of the Borrower (with respect to the Borrower and, to the extent applicable, the Double E Joint Venture) and Pledgor set forth in Article V, other than Sections 5.07 (except clause (c) thereof), 5.14 (regarding projected and pro forma financial information), 5.12(c) and 5.02, shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on and as of the effective date of such Incremental Amendment with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; and (B) no Default or Event of Default shall exist and be continuing or would immediately result from such proposed Incremental Commitment or from the application of the proceeds therefrom; (v) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $500,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence); (vi) the aggregate principal amount of the Incremental Term Loans (the “Incremental Availability Amount”) incurred in connection with a Permitted Expansion shall reflect the maximum amount of Incremental Term Loans that, after giving pro forma effect to the incurrence of such Incremental Term Loans (taking into account any prepayments of the Facilities in connection therewith), can be supported based on an Adjusted Base Case Model reasonably satisfactory to the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), and the Administrative Agent shall have received such Adjusted Base Case Model in a form reasonably satisfactory to the Administrative Agent; (vii) if entered into in connection with a Permitted Expansion, the applicable Permitted Expansion and the agreements entered into in connection therewith would not reasonably be expected to have a Material Adverse Effect; (viii) if entered into in connection with a Permitted Expansion, the Borrower shall have delivered a certificate of the Independent Engineer certifying that (A) the applicable Permitted Expansion should not materially and adversely affect the Double E Joint Venture’s ability to perform its obligations under the Material Contracts to which it is a party and (B) the applicable Permitted Expansion will not diminish the value or compromise the operations of the Project; 34 KE 73718588.20 US-DOCS\142539518.2141222994.8,
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, Amendment shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions: , together with any other conditions set forth in the Incremental Amendment:
(i) the Double E Joint Venture shall have entered into (A) one or more Additional Material Contracts, each for a minimum three (3) year term and having contracted take-or-pay cash flow which, in the aggregate and on a pro forma basis, increases the maximum amount of Term Loans or Incremental Term Loans that would be permitted under the Base Case Model by at least $10,000,000, (B) the Compression Addition or (C) a Permitted Expansion approved pursuant to Section 6.8 of the JV LLC Agreement; (ii) the proceeds of the applicable Incremental Term Loans shall be used (A) to fund the Borrower’s Required Contribution in respect of the Project, a Permitted Expansion, or a Compression Addition and transaction fees and expenses incurred in connection with such Permitted Expansion, (B) if (1) permitted by the applicable Incremental Lenders, (2) the Restricted Payment Conditions are satisfied, and (3) the Restricted Payment amount does not exceed the amount of Equity Contributions made to Borrower to date in connection with the applicable Permitted Expansion, to make a Restricted Payment on the date of the funding of such Incremental Term Loans in connection with such Permitted Expansion, (C) to pay fees and expenses incurred in connection with the Incremental Term Loans, (D) to reimburse the Borrower’s Required Contributions or fees and expenses, or (E) to pay Debt Service prior to the Term Conversion Date, the Compression Addition or a Permitted Expansion and to fund the DSR Requirement; (iii) the proceeds of the applicable Incremental Revolving Credit Loans shall be used to fund the DSR Requirement associated with a Facility of Incremental Term Loans in an amount no greater (when taken together with such Facility) than the Incremental Availability Amount; (iv) after giving effect to such Incremental Commitments, the following conditions of Section 4.03 shall be satisfied (it being understood that all references to “the date of such BorrowingCredit Extension” or similar language in such Section 4.03 shall be deemed to refer to the effective date of such Incremental Amendment): 33 KE 73718588.20 US-DOCS\142539518.2141222994.8
(A) ); provided, that, such Incremental Amendment may include a waiver by the representations and warranties Incremental Lenders party thereto of the Borrower condition set forth in Section 4.03(a) and, in connection with any Incremental Commitment, the primary purpose of which is to finance a Permitted Acquisition or other acquisition that is a permitted Investment under this Agreement, a waiver in full or in part of the conditions set forth in Section 4.03(b) (other than any Event of Default under Section 8.01(a), (b), (g) or (h)) and Section 4.03(c) (other than with respect to the Borrower and, Specified Representations (conformed as reasonably necessary for such Permitted Acquisition or such other acquisition to provide for certainty of funding in connection with such transaction) which may only be waived with the extent applicableconsent of the Required Lenders);
(ii) (A) after giving Pro Forma Effect to both (x) the making of the Incremental Loans under such Incremental Amendment and (y) any Specified Transactions consummated in connection therewith, the Double E Joint VentureTotal Net Leverage Ratio shall not exceed the Total Net Leverage Ratio (calculated, without taking into account for cash netting purposes, any proceeds of Incremental Loans retained by the Borrower) and Pledgor as of the Closing Date or (B) alternatively if the condition set forth in Article V, other than Sections 5.07 (except clause (cii)(A) thereof)is not able to be satisfied, 5.14 (regarding projected and pro forma financial information), 5.12(c) and 5.02, shall be true and correct the aggregate principal amount of Incremental Loans made in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on and as reliance of the effective date of such Incremental Amendment with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; and this clause (B) no Default or Event of Default (including the Incremental Loans made under such Incremental Amendment) shall exist and be continuing or would immediately result from such proposed not exceed $40,000,000;
(iii) Each Incremental Commitment or from the application of the proceeds therefrom; (v) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 5,000,000 and shall be in an increment of $500,000 1,000,000 (provided that such amount may be less than $10,000,000 5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceSection 2.17(b)); and
(viiv) the aggregate principal amount of the Incremental Term Loans (the “Incremental Availability Amount”) incurred in connection with a Permitted Expansion shall reflect the maximum amount of Incremental Term Loans that, after giving pro forma effect to the incurrence extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Effective Date (conformed as appropriate) other than changes to such Incremental Term Loans (taking into account any prepayments legal opinions resulting from a change in law, change in fact or change to counsel’s form of the Facilities in connection therewith), can be supported based on an Adjusted Base Case Model opinion reasonably satisfactory to the Administrative Agent and (ii) reaffirmation agreements and/or such consent not amendments to the Security Documents as may be unreasonably withheld, conditioned or delayed), and reasonably requested by the Administrative Agent shall have received in order to ensure that such Adjusted Base Case Model in a form reasonably satisfactory to Incremental Lenders are provided with the Administrative Agent; (vii) if entered into in connection with a Permitted Expansion, benefit of the applicable Permitted Expansion and the agreements entered into in connection therewith would not reasonably be expected to have a Material Adverse Effect; (viii) if entered into in connection with a Permitted Expansion, the Borrower shall have delivered a certificate of the Independent Engineer certifying that (A) the applicable Permitted Expansion should not materially and adversely affect the Double E Joint Venture’s ability to perform its obligations under the Material Contracts to which it is a party and (B) the applicable Permitted Expansion will not diminish the value or compromise the operations of the Project; 34 KE 73718588.20 US-DOCS\142539518.2141222994.8Loan Documents.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, Amendment and the Incremental Commitments thereunder, availability of any initial credit extensions thereunder shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions: :
(ia) (x) no Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the Double E Joint Venture shall have entered into (A) one primary purpose of which is to finance an acquisition or more Additional Material Contractsother Investment permitted by this Agreement that is not conditioned upon obtaining third- party financing, each for a minimum three (3) year term and having contracted take-or-pay cash flow which, in the aggregate and on a pro forma basis, increases the maximum amount of Term Loans or Incremental Term Loans that would be permitted under the Base Case Model by at least $10,000,000, (B) the Compression Addition or (C) a Permitted Expansion approved requirement pursuant to Section 6.8 of the JV LLC Agreement; this clause (ii4)(a)(x) the proceeds of the applicable Incremental Term Loans shall be used (Athat no Event of Default under Section 8.01(1) to fund the Borrower’s Required Contribution in respect of the Project, a Permitted Expansion, or a Compression Addition and transaction fees and expenses incurred in connection with such Permitted Expansion, (BSection 8.01(6) if (1) permitted by the applicable Incremental Lenders, (2) the Restricted Payment Conditions are satisfied, and (3) the Restricted Payment amount does not exceed the amount of Equity Contributions made to Borrower to date in connection with the applicable Permitted Expansion, to make a Restricted Payment on the date of the funding of such Incremental Term Loans in connection with such Permitted Expansion, (C) to pay fees and expenses incurred in connection with the Incremental Term Loans, (D) to reimburse the Borrower’s Required Contributions or fees and expenses, or (E) to pay Debt Service prior to the Term Conversion Date, the Compression Addition or a Permitted Expansion and to fund the DSR Requirement; (iii) the proceeds of the applicable Incremental Revolving Credit Loans shall be used to fund the DSR Requirement associated with a Facility of Incremental Term Loans in an amount no greater (when taken together with such Facility) than the Incremental Availability Amount; (iv) exist after giving effect to such Incremental Commitments, the following conditions shall be satisfied and (it being understood that all references to “the date of such Borrowing” or similar language shall be deemed to refer to the effective date of such Incremental Amendment): 33 KE 73718588.20 US-DOCS\142539518.2141222994.8
(Ay) the representations and warranties of the Borrower (with respect to the Borrower and, to the extent applicable, the Double E Joint Venture) and Pledgor set forth contained in Article V, V or any other than Sections 5.07 (except clause (c) thereof), 5.14 (regarding projected and pro forma financial information), 5.12(c) and 5.02, Loan Document shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on and as of the effective date of such Incremental Amendment with the same effect as though made on and as of such date(provided that, except to the extent that such representations and warranties expressly relate specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (Bafter giving effect to any qualification therein) in all respects on such respective dates); provided that, in connection with an acquisition or other Investment permitted hereunder that is not conditioned upon obtaining third-party financing, the conditions in the proviso to clause (x) and in clause (y) shall only be required to the extent requested by the Persons holding more than 50% of the applicable Incremental Term Loans and Incremental Term Commitments (provided, further, that, in the case of any such acquisition or other Investment with a purchase price in excess of $20.0 million, the conditions contained in the proviso to clause (x) with respect to no Default or Event of Default under Section 8.01(1) or Section 8.01(6) and in clause (y) with respect to Specified Representations, in each case, shall exist and be continuing required whether or would immediately result from not requested by such proposed Incremental Commitment or from the application of the proceeds therefrom; Persons, unless waived in accordance with Section 10.01);
(vb) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $500,000 5.0 million (provided that such amount may be less than $10,000,000 5.0 million if such amount represents all remaining availability under the limit set forth in the next sentenceclause (c) of this Section 2.14(4)); and
(vic) the aggregate principal amount of the Incremental Term Loans (the “Incremental Availability Amount”) incurred in connection with a Permitted Expansion shall reflect not exceed the maximum amount of Incremental Term Loans that, Indebtedness that can be incurred such that the First Lien Net Leverage Ratio for the Test Period most recently ended calculated on a pro forma basis after giving effect to any such incurrence does not exceed 2.00 to 1.00 (the “Available Incremental Amount”); provided that for the avoidance of doubt, to the extent the proceeds of any Incremental Loans are being utilized to repay Indebtedness (including any repayment, repurchase or refinancing of Indebtedness for which an irrevocable notice of repayment (or similar notice of repayment) has been delivered), such calculations shall give pro forma effect to the incurrence of such Incremental Term Loans (taking into account any prepayments of the Facilities in connection therewith), can be supported based on an Adjusted Base Case Model reasonably satisfactory to the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), and the Administrative Agent shall have received such Adjusted Base Case Model in a form reasonably satisfactory to the Administrative Agent; (vii) if entered into in connection with a Permitted Expansion, the applicable Permitted Expansion and the agreements entered into in connection therewith would not reasonably be expected to have a Material Adverse Effect; (viii) if entered into in connection with a Permitted Expansion, the Borrower shall have delivered a certificate of the Independent Engineer certifying that (A) the applicable Permitted Expansion should not materially and adversely affect the Double E Joint Venture’s ability to perform its obligations under the Material Contracts to which it is a party and (B) the applicable Permitted Expansion will not diminish the value or compromise the operations of the Project; 34 KE 73718588.20 US-DOCS\142539518.2141222994.8repayments.
Appears in 1 contract
Sources: Credit Agreement (Superior Industries International Inc)
Effectiveness of Incremental Amendment. The obtaining of Other Commitments, the making of Other Term Loans, the effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof of such Incremental Amendment (or, in the case of Other Commitments and Other Term Loans, on the date of the extension of such commitments or the incurrence or issuance of such Other Term Loans, as applicable) (the “Incremental Facility Closing Date”) of each of the following conditions: :
(i) the Double E Joint Venture shall have entered into with respect to any Incremental Commitments, (A) one or more Additional Material Contracts, each for a minimum three (3) year term and having contracted take-or-pay cash flow which, in the aggregate and on a pro forma basis, increases the maximum amount no Event of Term Loans or Incremental Term Loans that would be permitted under the Base Case Model by at least $10,000,000, (B) the Compression Addition or (C) a Permitted Expansion approved pursuant to Section 6.8 of the JV LLC Agreement; (ii) the proceeds of the applicable Incremental Term Loans Default shall be used (A) to fund the Borrower’s Required Contribution in respect of the Project, a Permitted Expansion, or a Compression Addition and transaction fees and expenses incurred in connection with such Permitted Expansion, (B) if (1) permitted by the applicable Incremental Lenders, (2) the Restricted Payment Conditions are satisfied, and (3) the Restricted Payment amount does not exceed the amount of Equity Contributions made to Borrower to date in connection with the applicable Permitted Expansion, to make a Restricted Payment on the date of the funding of such Incremental Term Loans in connection with such Permitted Expansion, (C) to pay fees and expenses incurred in connection with the Incremental Term Loans, (D) to reimburse the Borrower’s Required Contributions or fees and expenses, or (E) to pay Debt Service prior to the Term Conversion Date, the Compression Addition or a Permitted Expansion and to fund the DSR Requirement; (iii) the proceeds of the applicable Incremental Revolving Credit Loans shall be used to fund the DSR Requirement associated with a Facility of Incremental Term Loans in an amount no greater (when taken together with such Facility) than the Incremental Availability Amount; (iv) exist after giving effect to such Incremental Commitments; provided, that in the following conditions case of Incremental Commitments incurred to finance a permitted acquisition or other permitted Investments (including in any event a Limited Condition Acquisition) no Event of Default (in the case of Limited Condition Acquisitions, as determined in accordance with Section 1.7) under Section 8.1(a), (b), (h) and (i) shall be satisfied exist on (it being understood that all references to “i) the date that the Borrower or the applicable Restricted Subsidiary consummates such permitted acquisition or other permitted Investments, or, (ii) in the case of Incremental Commitments incurred to finance a Limited Condition Acquisition, on the LCA Test Date; provided, that the applicable Incremental Lenders may waive, in each case of clauses (i) or (ii), such condition regarding an absence of such Borrowing” or similar language shall be deemed to refer to an Event of Default and the effective date of such Incremental Amendment): 33 KE 73718588.20 US-DOCS\142539518.2141222994.8
(A) requirement that the representations and warranties of the Borrower (with respect have to the Borrower and, to the extent applicable, the Double E Joint Venture) be made and Pledgor set forth in Article V, other than Sections 5.07 (except clause (c) thereof), 5.14 (regarding projected and pro forma financial information), 5.12(c) and 5.02, shall be true and correct accurate in all material respects (except that any representation and warranty that is qualified as shall be subject to customary “materialitySungard” or “Material Adverse Effectcertain funds” shall be true and correct in all respects as so qualified) on and as of the effective date of such Incremental Amendment with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; and limitations;
(B) no Default or Event of Default shall exist and be continuing or would immediately result from such proposed Incremental Commitment or from the application of the proceeds therefrom; (vii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 5,000,000 and shall be in an increment of $500,000 1,000,000 (provided that such amount may be less than $10,000,000 5,000,000 if such amount represents all remaining availability under the limit set forth in clause (iii) below) and each Incremental Revolving Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the next sentencelimit set forth in clause (iii) below);
(iii) the aggregate amount of the Incremental Term Loans, the Incremental Revolving Commitments and Other Term Loans shall not exceed (A) an amount equal to the greater of (x) $140,000,000 and (y) 100% of LTM Consolidated EBITDA of the Borrower and its Restricted Subsidiaries, plus (B) up to an additional amount of Incremental Term Loans, Incremental Revolving Commitments, Other Commitments and/or Other Term Loans, (i) so long as the Consolidated First Lien Leverage Ratio (determined on a Pro Forma Basis) is equal to or less than 4.50:1.00, (ii) to the extent such Indebtedness consists of Other Term Loans that are secured on a junior lien basis and not subordinated in right of payment to the Term Loans and the Revolving Loans, (x) so long as the Consolidated Senior Secured Leverage Ratio (determined on a Pro Forma Basis) is equal to or less than 5.50:1.00 as of the last day of the most recently ended period of four Fiscal Quarters of the Borrower for which financial statements are available and (y) in the case of any Incremental Term Loans, Incremental Revolving Loans, Other Commitments and/or Other Term Loans incurred to finance any permitted acquisition or other Investment that is secured only by Liens permitted under Section 7.2, so long as, after giving effect to such incurrence, the Consolidated Senior Secured Leverage Ratio does not exceed the greater of (I) 5.50:1.00 as of the last day of the most recently ended period of four Fiscal Quarters of the Borrower for which financial statements are available and (II) the Consolidated Senior Secured Leverage Ratio immediately prior to such acquisition or other Investment or (iii) to the extent such Indebtedness consists of Other Term Loans that are unsecured or secured on a junior lien basis and subordinated in right of payment to the Term Loans and the Revolving Loans, (x) so long as the Consolidated Leverage Ratio (determined on a Pro Forma Basis) is equal to or less than 6.00:1.00 as of the last day of the most recently ended period of four Fiscal Quarters of the Borrower for which financial statements are available and (y) in the case of any Incremental Term Loans, Incremental Revolving Loans, Other Commitments and/or Other Term Loans incurred to finance any permitted acquisition or other Investment that is secured only by Liens permitted under Section 7.2, so long as, after giving effect to such incurrence, the Consolidated Leverage Ratio does not exceed the greater of (I) 6.00:1.00 as of the last day of the most recently ended period of four Fiscal Quarters of the Borrower for which financial statements are available and (II) the Consolidated Leverage Ratio immediately prior to such acquisition or other Investment, in each case determined on the applicable Incremental Facility Closing Date, after giving effect to any such incurrence or issuance on a Pro Forma Basis, and, in each case, with respect to any Incremental Revolving Commitment or Incremental Term Commitment established at such time, assuming a borrowing of the maximum amount of Loans available thereunder, and excluding the cash proceeds of any such Incremental Term Loans, Incremental Revolving Commitments, Other Commitments and/or Other Term Loans that are being incurred for the purposes of netting; provided that to the extent the proceeds thereof are used to repay Indebtedness, such repayment of Indebtedness shall be calculated on a Pro Forma Basis and subject to other customary pro forma adjustments, including, in connection with an investment, plus (C) (1) the amount of all debt buybacks conducted under this Agreement, but limited to the actual cash amount paid by Borrower or its Restricted Subsidiaries in connection with such buyback plus (2) an amount equal to all voluntary prepayments of, in each case, without duplication, (x) the Loans and (y) any Incremental Term Loans, Other Term Loans, Incremental Equivalent Debt and permanent voluntary commitment reductions of the Revolving Commitments, including any Incremental Revolving Commitments (less all such reductions applied to increase the corresponding incremental facility basket under any Incremental Equivalent Debt), other than voluntary prepayments and voluntary commitment reductions to the extent funded or replaced by a substantially contemporaneous refinancing with long-term indebtedness (in each case, to the extent originally incurred under the “free and clear” prong); (viit being understood that (x) amounts under clause (B) (to the extent compliant therewith) shall be deemed to have used prior to utilization of amounts under clause (A) or (C), (y) loans may be incurred under both clauses (A), (B) and (C) above, and proceeds from any such incurrence under such clauses (A), (B) and (C) above, may be utilized in a single transaction by first calculating the incurrence under clause (B) above and then calculating the incurrence under clause (A) or (C) above and, for the avoidance of doubt, any such incurrence under clause (A) or (C) shall not be given pro forma effect for purposes of determining the Consolidated First Lien Leverage Ratio, Consolidated Senior Secured Leverage Ratio and/or Consolidated Leverage Ratio, as applicable, for purposes of effectuating the incurrence under clause (B) in such single transaction and (z) the Borrower may redesignate any such Indebtedness originally incurred pursuant to clause (A) or (C) as incurred pursuant to clause (B) if, at the time of such redesignation, the Borrower would be permitted to incur the aggregate principal amount of the Incremental Term Loans Indebtedness being so redesignated); and
(the “Incremental Availability Amount”iv) incurred in connection with a Permitted Expansion shall reflect the maximum amount of Incremental Term Loans that, after giving pro forma effect to the incurrence of such Incremental Term Loans (taking into account any prepayments of extent reasonably requested by the Facilities in connection therewith)Administrative Agent, can be supported based on an Adjusted Base Case Model reasonably satisfactory to receipt by the Administrative Agent (of customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Restatement Effective Date other than changes to such consent not legal opinion resulting from a change in law, change in fact or change to be unreasonably withheld, conditioned or delayed), and the Administrative Agent shall have received such Adjusted Base Case Model in a counsel’s form of opinion reasonably satisfactory to the Administrative Agent; (vii) if entered into in connection with a Permitted Expansion, the applicable Permitted Expansion and the agreements entered into in connection therewith would not reasonably be expected to have a Material Adverse Effect; (viii) if entered into in connection with a Permitted Expansion, the Borrower shall have delivered a certificate of the Independent Engineer certifying that (A) the applicable Permitted Expansion should not materially and adversely affect the Double E Joint Venture’s ability to perform its obligations under the Material Contracts to which it is a party and (B) the applicable Permitted Expansion will not diminish the value or compromise the operations of the Project; 34 KE 73718588.20 US-DOCS\142539518.2141222994.8.
Appears in 1 contract