Incremental Term Loan Commitment. The effectiveness of this Agreement and the obligation of the Funding Incremental Term Loan Lender to fund the Series A Incremental Term Loans hereunder are subject to the satisfaction of the following conditions (the date on which such conditions are satisfied, the “Joinder Agreement No. 1 Effective Date”): (a) no Default or Event of Default shall exist immediately before or immediately after giving effect to the proposed Borrowing contemplated hereby, the extensions of credit to be made on the Increased Amount Date and the application of the proceeds thereof; (b) the Borrower shall be in pro forma compliance with (i) the covenant set forth in Section 7.11 of the Credit Agreement as of the last day of the most recently completed Measurement Period and as of the Increased Amount Date, (ii) a Consolidated Leverage Ratio not to exceed 6.50:1.00 as of the Increased Amount Date and (iii) a Senior Secured Leverage Ratio not to exceed 3.00:1.00 as of the Increased Amount Date; (c) the representations and warranties of the Borrower and each other Loan Party contained in Section 10 of this Agreement, Article 5 of the Credit Agreement and each other Loan Document shall be true and correct in all material respects as of the Joinder Agreement No. 1 Effective Date to the same extent as though made as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects;
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Incremental Term Loan Commitment. The effectiveness of this Agreement and the obligation of the Funding Incremental Term Loan Lender to fund the Series A Incremental Term Loans hereunder are subject to the satisfaction of the following conditions (the date on which such conditions are satisfied, the “Joinder Agreement No. 1 Effective Date”):
(a) no Default or Event of Default shall exist immediately before or immediately after giving effect to the proposed Borrowing contemplated hereby, the extensions of credit to be made on the Increased Amount Date and the application of the proceeds thereof;
(b) the Borrower shall be in pro forma compliance with (i) the covenant set forth in Section 7.11 of the Credit Agreement as of the last day of the most recently completed Measurement Period and as of the Increased Amount Date, (ii) a Consolidated Leverage Ratio not to exceed 6.50:1.00 as of the Increased Amount Date and (iii) a Senior Secured Leverage Ratio not to exceed 3.00:1.00 as of the Increased Amount Date;
(c) the representations and warranties of the Borrower and each other Loan Party contained in Section 10 of this Agreement, Article 5 of the Credit Agreement and each other Loan Document shall be true and correct in all material respects as of the Joinder Agreement No. 1 Effective Date to the same extent as though made as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects;
(d) substantially simultaneously with the funding of the Series A Incremental Term Loans under this Agreement, a portion of the proceeds thereof shall be used to repurchase (i) any and all of the Borrower’s outstanding 2024 Senior Notes and/or (ii) any and all of the Borrower’s outstanding 2025 8.00% Senior Notes, in each case which are validly tendered pursuant to tender offers previously initiated by the Borrower;
(e) all costs, fees, expenses (including, without limitation, reasonable and invoiced out-of-pocket legal fees and expenses and recording taxes and fees) and other compensation contemplated by that certain Engagement Letter, dated May 10, 2017, among the Borrower and the Arrangers and that certain Fee Letter, dated May 10, 2017, between the Borrower and Credit Suisse Securities (USA) LLC, in each case, payable to the Arrangers, the Administrative Agent and the Funding Incremental Term Loan Lender on the Increased Amount Date and invoiced prior to such date shall, upon the initial borrowing of the Series A Incremental Term Loans, have been, or will be substantially simultaneously, paid (which amounts may be offset against the proceeds of the Series A Incremental Term Loans); and
(f) the Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified:
(i) an opinion from (A) ▇▇▇▇▇ ▇▇▇▇ LLC, counsel to the Loan Parties, and (B) local or other counsel in each of the jurisdictions listed on Schedule B hereto, in each case as reasonably requested by the Administrative Agent, in the case of each of clauses (A) and (B), in form and substance reasonably satisfactory to the Administrative Agent;
(ii) such certificates of resolutions or other action, incumbency certificates and/or other certificates, each properly executed by Responsible Officers (including, solely for purposes of this Section 1(f)(ii), the secretary or assistant secretary of a Loan Party) of each Loan Party, as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer (including, solely for purposes of this Section 1(f)(ii), the secretary or assistant secretary of a Loan Party) thereof authorized to act as a Responsible Officer (including, solely for purposes of this Section 1(f)(ii), the secretary or assistant secretary of a Loan Party) in connection with this Agreement;
(iii) a certificate executed by the Chief Financial Officer of the Borrower as to the solvency of the Borrower and its Subsidiaries (taken as a whole) on the Increased Amount Date after giving effect to the transactions contemplated hereby;
(iv) a Committed Loan Notice executed by a Responsible Officer of the Borrower in respect of the Series A Incremental Term Loans in accordance with Section 2.02 of the Credit Agreement;
(v) a certificate executed by a Responsible Officer (including, solely for purposes of this Section 1(f)(v), the secretary of the Borrower) of the Borrower as to the compliance with clauses (a), (b) and (c) of this Section 1 on the Increased Amount Date; and
(vi) for each Mortgaged Property, a Flood Determination Form, Borrower Notice and Evidence of Flood Insurance, as applicable.
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Incremental Term Loan Commitment. The effectiveness of this Agreement and the obligation of the Funding Incremental Term Loan Lender Lenders to fund the Series A Incremental Term Loans hereunder are subject to the satisfaction of the following conditions (the date on which such conditions are satisfied, the “Joinder Agreement No. 1 2 Effective Date”):
(a) no Default or Event of Default under Section 8.1(a), (f) or (g) of the Existing Credit Agreement shall exist immediately before or immediately after giving effect to the proposed Borrowing contemplated hereby, hereby and the extensions of credit to be made on the Increased Amount Date and the application of the proceeds thereofDate;
(b) the Borrower shall be in pro forma compliance with (i) the covenant set forth in Section 7.11 of the Credit Agreement as of the last day of the most recently completed Measurement Period and as of the Increased Amount Date, (ii) a Consolidated Leverage Ratio not to exceed 6.50:1.00 as of the Increased Amount Date and (iii) a Senior Secured Leverage Ratio not to exceed 3.00:1.00 as of the Increased Amount Date;
(c) the representations and warranties of the Borrower and each other Loan Party contained in Section 10 of this AgreementSections 5.01(a), Article 5 5.01(b), 5.02(a), 5.13, 5.17, 5.18, 5.19 (other than the first or second sentence thereof) and 5.20 of the Existing Credit Agreement and each other Loan Document shall be true and correct in all material respects as of the Joinder Agreement No. 1 Effective Date to the same extent as though made as of that date, (except to the extent such representations and warranties specifically relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that any representation and warranty that is qualified as to “materiality”, ,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects) on and as of the Joinder Agreement No. 2 Effective Date, except in each case to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects) as of such earlier date;
(c) all fees and reasonable out-of-pocket expenses due and payable to the Lenders, the Arrangers (as defined below) and the Series A Incremental Administrative Agent required to be paid on or prior to the Joinder Agreement No. 2 Effective Date pursuant to that certain engagement letter, dated June 28, 2022, by and among the Borrower and the Arrangers (the “Engagement Letter”) shall have been paid or shall have been authorized to be deducted from the proceeds of the Series A Incremental Term Loans, so long as any such fees or expenses not expressly set forth in the Engagement Letter have been invoiced not less than three (3) business days prior to the Joinder Agreement No. 2 Effective Date;
(d) the aggregate principal amount of the Series A Incremental Term Loans incurred on the Joinder Agreement No. 2 Effective Date shall not exceed $450,000,000; and
(e) the Series A Incremental Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower (other than opinions of counsel) and each in form and substance reasonably satisfactory to the Series A Incremental Administrative Agent:
(i) an opinion from (A) ▇▇▇▇▇ ▇▇▇▇ LLC and (B) ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Green P.C. (New York counsel to the Borrower), in each case as reasonably requested by the Series A Incremental Administrative Agent;
(ii) (x) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower, as the Series A Incremental Administrative Agent may reasonably require, (A) certifying that attached thereto is a true and complete copy of the resolutions or written consents of the governing body of the Borrower authorizing the execution, delivery and performance of this Agreement, and that such resolutions or written consents have not been modified, rescinded or amended (other than as attached thereto) and are in full force and effect, (B) identifying by name and title and bearing the signatures of the officers or authorized signatories of the Borrower authorized to sign this Agreement and (C) certifying (I) that attached thereto is a true and complete copy of the articles of incorporation of the Borrower, certified by the relevant authority of the jurisdiction of organization of the Borrower, and a true and correct copy of its bylaws and (II) that such documents or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date) and (y) a good standing (or equivalent) certificate as of a recent date for the Borrower, from the relevant authority of its jurisdiction of organization;
(iii) a certificate executed by the Chief Financial Officer of the Borrower as to the solvency of the Borrower and its Subsidiaries (taken as a whole) on the Increased Amount Date after giving effect to the transactions contemplated hereby;
(iv) a Committed Loan Notice in accordance with Section 2.02 of the Existing Credit Agreement (except that the Administrative Agent, the Series A Incremental Administrative Agent and the Funding Incremental Term Loan Lenders hereby agree that such Committed Loan Notice may be delivered one (1) Business Day prior to the date of this Agreement); and
(v) a certificate attesting to compliance with clauses (a) and (b) of this Section 1 on the Increased Amount Date.
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Incremental Term Loan Commitment. The effectiveness of this Agreement and a. Lender hereby agrees to make,
i. on the obligation of the Funding Fifth Amendment Effective Date, an Incremental Term Loan Lender to fund Borrower in an aggregate principal amount of Fifty Million and No/100 Dollars ($50,000,000.00) (the Series A “Primary Incremental Term Loans hereunder are Advance”), and
ii. from time to time, and subject to the satisfaction of the following conditions (the date on which such conditions are satisfied, the “Joinder Agreement No. 1 Effective Date”):
(a) no Default or Event of Default shall exist immediately before or immediately after giving effect to the proposed Borrowing contemplated hereby, the extensions of credit to be made on the Increased Amount Date and the application of the proceeds thereof;
(b) the Borrower shall be limitations set forth in pro forma compliance with (i) the covenant set forth in Section 7.11 2.7 of the Credit Agreement Loan Agreement, on an Additional Incremental Advance Date, an additional Incremental Term Loan (each, an “Additional Incremental Term Loan”) to Borrower in an aggregate principal amount of not less than Ten Million and No/100 Dollars ($10,000,000); provided, that, the aggregate principal amount of all Additional Incremental Term Loans shall not exceed Fifty Million and No/100 Dollars ($50,000,000.00); provided, that, that Lead Borrower’s delivery of an Advance Request in connection with any Additional Incremental Term Loan shall be deemed a certification by the Chief Financial Officer of Lead Borrower, solely in his capacity as Chief Financial Officer of Lead Borrower, and not in any individual capacity, and without personal liability, in the name and on behalf of Lead Borrower that, as of the last day applicable Additional Incremental Advance Date, all conditions set forth in each of Section 2.7(a) and Section 4 of the most recently completed Measurement Period Loan Agreement have been satisfied with respect to such Additional Incremental Term Loan. Borrower and Lender hereby agree that the certification set forth herein is intended to fulfill, and once such Advance Request is executed and delivered by the Chief Financial Officer of Lead Borrower does fulfill, the requirement set forth in Section 2.7(c)(ii) with respect to each Additional Incremental Term Loan.
▇. ▇▇ each case, such Incremental Term Loans shall be on the terms set forth herein and in the Loan Agreement (as amended hereby), and subject to the conditions set forth herein and therein. Each of the Increased Amount DatePrimary Incremental Advance and each Additional Incremental Term Loan is, (ii) and shall be deemed to be, an “Incremental Term Loan” and a Consolidated Leverage Ratio not to exceed 6.50:1.00 as “Term Loan” for all purposes of the Increased Amount Date Loan Documents having terms and conditions as set forth in the Loan Documents (iii) a Senior Secured Leverage Ratio including but not limited to exceed 3.00:1.00 this Amendment), as of the Increased Amount Date;
(c) the representations and warranties of the Borrower and each other Loan Party contained in Section 10 of this Agreementamended hereby, Article 5 of the Credit Agreement and each other Loan Document shall be true and correct in all material respects as of the Joinder Agreement No. 1 Effective Date identical to those applicable to the same extent as though made as of that date, except Term Loans outstanding immediately prior to the extent such representations and warranties specifically relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects;Fifth Amendment Effective Date.
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Incremental Term Loan Commitment. The effectiveness of this Agreement and the obligation of the Funding Incremental Term Loan Lender to fund the Tack-On Series A Incremental Term Loans hereunder are subject to the satisfaction of the following conditions (the date on which such conditions are satisfied, the “Joinder Agreement No. 1 2 Effective Date”):
(a) no Default or Event of Default under Section 8.01(f) or Section 8.01(g) of the Credit Agreement shall exist immediately before or immediately after giving effect to the proposed Borrowing contemplated hereby, the extensions of credit to be made on the Increased Amount Date and the application of the proceeds thereof;
(b) the Borrower shall be in pro forma compliance with (i) the covenant set forth in Section 7.11 of the Credit Agreement as of the last day of the most recently completed Measurement Period and as of the Increased Amount Acquisition Agreement Date, (ii) a Consolidated Leverage Ratio not to exceed 6.50:1.00 as of the Increased Amount Acquisition Agreement Date and (iii) a Senior Secured Leverage Ratio not to exceed 3.00:1.00 as of the Increased Amount Acquisition Agreement Date;
(c) the representations and warranties of the Borrower and each other Loan Party contained in Section 10 of this AgreementSections 5.01(a), Article 5 5.01(b), 5.02(a), 5.02(b)(i), 5.14, 5.19, 5.20, 5.21, 5.22 (other than the first or second sentence thereof) and 5.23 of the Credit Agreement and each other Loan Document shall be true and correct in all material respects as of the Joinder Agreement No. 1 2 Effective Date to the same extent as though made as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects;
(d) all costs, fees, expenses (including, without limitation, reasonable and invoiced out-of-pocket legal fees and expenses and recording taxes and fees) and other compensation contemplated by that certain Engagement Letter, dated May 10, 2017, among the Borrower and the Arrangers and that certain Fee Letter, dated May 10, 2017, between the Borrower and Credit Suisse Securities (USA) LLC, in each case, payable to the Arrangers, the Administrative Agent and the Funding Incremental Term Loan Lender on the Increased Amount Date and invoiced prior to such date shall, upon the initial borrowing of the Tack-On Series A Incremental Term Loans, have been, or will be substantially simultaneously, paid (which amounts may be offset against the proceeds of the Tack-On Series A Incremental Term Loans); and
(e) the Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified:
(i) an opinion from (A) ▇▇▇▇▇ ▇▇▇▇ LLC, counsel to the Loan Parties, and (B) local or other counsel in each of the jurisdictions listed on Schedule B hereto, in each case as reasonably requested by the Administrative Agent, in the case of each of clauses (A) and (B), in form and substance reasonably satisfactory to the Administrative Agent;
(ii) such certificates of resolutions or other action, incumbency certificates and/or other certificates, each properly executed by Responsible Officers (including, solely for purposes of this Section 1(e)(ii), the secretary or assistant secretary of a Loan Party) of each Loan Party, as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer (including, solely for purposes of this Section 1(e)(ii), the secretary or assistant secretary of a Loan Party) thereof authorized to act as a Responsible Officer (including, solely for purposes of this Section 1(e)(ii), the secretary or assistant secretary of a Loan Party) in connection with this Agreement;
(iii) a certificate executed by the Chief Financial Officer of the Borrower as to the solvency of the Borrower and its Subsidiaries (taken as a whole) on the Increased Amount Date after giving effect to the transactions contemplated hereby;
(iv) a Committed Loan Notice executed by a Responsible Officer of the Borrower in respect of the Tack-On Series A Incremental Term Loans in accordance with Section 2.02 of the Credit Agreement;
(v) the Borrower shall have paid all accrued and unpaid interest on the Existing Series A Incremental Term Loans up to but not including the Joinder No. 2 Effective Date;
(vi) a certificate executed by a Responsible Officer (including, solely for purposes of this Section 1(e)(vi), the secretary of the Borrower) of the Borrower as to the compliance with clauses (a), (b) and (c) of this Section 1 on the respective dates as set forth therein; and
(vii) for each Mortgaged Property, a Flood Determination Form, Borrower Notice and Evidence of Flood Insurance, as applicable.
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Incremental Term Loan Commitment. The effectiveness of this Agreement and the obligation of the Funding Incremental Term Loan Lender Lenders to fund the Series A B Incremental Term Loans hereunder are subject to the satisfaction of the following conditions (the date on which such conditions are satisfied, the “Joinder Agreement No. 1 4 Effective Date”):
(a) no Default or Event of Default under the Existing Credit Agreement shall exist immediately before or immediately after giving effect to the proposed Borrowing contemplated hereby, hereby and the extensions of credit to be made on the Increased Amount Date and the application of the proceeds thereofDate;
(b) the Borrower shall be in pro forma compliance with (i) the covenant set forth in Section 7.11 of the Credit Agreement as of the last day of the most recently completed Measurement Period and as of the Increased Amount Date, (ii) a Consolidated Leverage Ratio not to exceed 6.50:1.00 as of the Increased Amount Date and (iii) a Senior Secured Leverage Ratio not to exceed 3.00:1.00 as of the Increased Amount Date;
(c) the representations and warranties of the Borrower and each other Loan Party contained in Section 10 9 of this Agreement, Article 5 of the Existing Credit Agreement and each other Loan Document shall be true and correct in all material respects as of the Joinder Agreement No. 1 Effective Date to the same extent as though made as of that date, (except to the extent such representations and warranties specifically relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that any representation and warranty that is qualified as to “materiality”, ,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects) on and as of the Joinder Agreement No. 4 Effective Date, except in each case to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects) as of such earlier date;
(c) all fees and reasonable out-of-pocket expenses due and payable to the Funding Incremental Term Loan Lenders, the Arrangers (as defined below) and the Administrative Agent required to be paid on or prior to the Joinder Agreement No. 4 Effective Date pursuant to (i) that certain engagement letter, dated April 10, 2023 (the “Engagement Letter”), by and between the Borrower and JPMorgan Chase Bank, N.A. and (ii) that certain fee letter, dated April 10, 2023 (the “Fee Letter”), by and between the Borrower and JPMorgan Chase Bank, N.A., shall have been paid or shall have been authorized to be deducted from the proceeds of the Series B Incremental Term Loans, so long as any such fees or expenses not expressly set forth in the Fee Letter or the Engagement Letter have been invoiced not less than three (3) business days prior to the Joinder Agreement No. 4 Effective Date; and
(d) the Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower (other than opinions of counsel) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) (A) an opinion from ▇▇▇▇▇ ▇▇▇▇ LLC, (B) an opinion from ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ P.C. (New York counsel to the Borrower) and (C) opinions of local counsel in each of the following jurisdictions: Delaware, Illinois, Minnesota, Nebraska and Ohio, with respect to the Loan Parties formed in such states, in each case as reasonably requested by the Administrative Agent;
(ii) (x) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require (A) certifying that attached thereto is a true and complete copy of the resolutions or written consents of the governing body of such Loan Party authorizing the execution, delivery and performance of this Agreement, and that such resolutions or written consents have not been modified, rescinded or amended (other than as attached thereto) and are in full force and effect, (B) identifying by name and title and bearing the signatures of the officers or authorized signatories of each Loan Party authorized to sign this Agreement and (C) certifying (I) that attached thereto is a true and complete copy of the certificate or articles of incorporation or organization (or memorandum of association or other equivalent), of each Loan Party, certified by the relevant authority of the jurisdiction of organization of such Loan Party, and a true and correct copy of its bylaws or operating agreement and (II) that such documents or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date) and (y) a good standing (or equivalent) certificate as of a recent date for each Loan Party, from the relevant authority of its jurisdiction of organization;
(iii) a certificate executed by the Chief Financial Officer of the Borrower as to the solvency of the Borrower and its Subsidiaries (taken as a whole) on the Increased Amount Date after giving effect to the transactions contemplated hereby;
(iv) a Committed Loan Notice in accordance with Section 2.02 of the Existing Credit Agreement (except that the Administrative Agent and the Funding Incremental Term Loan Lenders hereby agree that such Committed Loan Notice may be delivered prior to 11:00 a.m. New York City time on the date that is one (1) Business Day prior to the date of this Agreement); and
(v) a certificate attesting to compliance with clauses (a) and (b) of this Section 1 on the Increased Amount Date.
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Incremental Term Loan Commitment. a) The effectiveness of this Agreement and Borrowers may by written notice from the obligation Borrowers’ Agent to the Agent (who shall promptly notify each of the Funding Banks) elect to request the establishment of one or more new Term Loan Commitments (each, an “Incremental Term Loan Lender to fund Commitment”) by an amount not in excess of $25,000,000 in the Series A Incremental aggregate and not less than $10,000,000 individually for the purposes of financing any Permitted Acquisition. The new Term Loans hereunder are subject to Loan Commitments may be of an existing or a new class of Term Loans. Each such notice shall specify (i) the satisfaction of date (each, an “Increase Effective Date”) on which the following conditions (Borrowers’ Agent proposes that the increased or new Term Loan Commitments shall be effective, which shall be a date not fewer than 10 Business Days after the date on which such conditions are satisfiednotice is delivered to the Agent and (ii) the identity of each Bank and each New Bank (which New Bank shall be reasonably acceptable to the Agent) to whom the Borrower proposes any portion of such increased or new Term Loan Commitments be allocated and the amounts of such allocations; provided that any existing Bank approached to provide all or a portion of the increased or new Term Loan Commitments may elect or decline, the “Joinder Agreement No. 1 in its sole discretion, to provide such increased or new Term Loan Commitment.
b) Each Incremental Term Loan Commitment shall become effective, as of such Increase Effective Date”):; provided that:
(a1) each of the conditions set forth in Section 3.2 shall be satisfied;
(2) no Default or Event of Default shall exist immediately before have occurred and be continuing or immediately would result from the borrowings to be made on the Increase Effective Date;
(3) after giving pro forma effect to the borrowings to be made on the Increase Effective Date and to any change in EBITDA of the Borrowers and any increase in Total Liabilities resulting from the consummation of any Permitted Acquisition as of the date of the most recent financial statements delivered pursuant to Section 5.1(c), the Borrowers shall be in compliance with each of the covenants set forth in Section 6.17 and Section 6.18; and
(4) the Borrowers shall deliver or cause to be delivered any legal opinions (in form and substance substantially similar to the legal opinion delivered pursuant to Section 3.1(b)) or other documents reasonably requested by the Agent in connection with any such transaction, which opinions and documents shall be in form and substance reasonably satisfactory to the Agent.
c) Certain terms and provisions of Term Loans made pursuant to Incremental Term Loan Commitments (“Incremental Term Loans”) shall be as follows:
(1) amortization payments shall be no more than ratable with the amortization payments under any existing tranche of the Term Loans, and the Incremental Term Loans shall otherwise be no more than pari passu with the existing Term Loans with respect to mandatory prepayments and other payment rights;
(2) the maturity date of Incremental Term Loans shall not be earlier than the maturity of any other class of Term Loans outstanding under this Agreement; and
(3) the applicable margins for the Incremental Term Loans shall be determined by the Borrowers’ Agent and the New Banks but shall not be greater than the existing Applicable Margins; Each Incremental Term Loan Commitment shall be effected by a joinder agreement (the “Increase Joinder”) executed by the Borrowers, the Agent and each Bank or New Bank making such Incremental Term Loan Commitment, in form and substance reasonably satisfactory to each of them. The Increase Joinder may, without the consent of any other Banks, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Agent, to give effect to the provisions of this Section 2.13(b).
d) On any Increase Effective Date on which new Commitments for Incremental Term Loans are effective, subject to the satisfaction of the foregoing terms and conditions, each Bank with an Incremental Term Loan Commitment shall make an Incremental Term Loan to the Borrowers in an amount equal to its Incremental Term Loan Commitment Amount.
e) The Incremental Term Loans and Incremental Term Loan Commitments established pursuant to this Section 2.13(b) shall constitute Term Loans and Term Loan Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the security interests created by the Security Documents. The Borrowers shall take any actions reasonably required by the Agent to ensure and/or demonstrate that the Liens and security interests granted by the Security Documents continue to be perfected under the UCC (as defined in the Security Documents) or otherwise after giving effect to the proposed Borrowing contemplated hereby, the extensions of credit to be made on the Increased Amount Date and the application of the proceeds thereof;
(b) the Borrower shall be in pro forma compliance with (i) the covenant set forth in Section 7.11 of the Credit Agreement as of the last day of the most recently completed Measurement Period and as of the Increased Amount Date, (ii) a Consolidated Leverage Ratio not to exceed 6.50:1.00 as of the Increased Amount Date and (iii) a Senior Secured Leverage Ratio not to exceed 3.00:1.00 as of the Increased Amount Date;
(c) the representations and warranties of the Borrower and each other Loan Party contained in Section 10 of this Agreement, Article 5 of the Credit Agreement and each other Loan Document shall be true and correct in all material respects as of the Joinder Agreement No. 1 Effective Date to the same extent as though made as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case they shall be true and correct in all material respects as establishment of such earlier date; provided that class of Term Loans or any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects;such new Commitments.
Appears in 1 contract
Sources: Credit Agreement (Dolan Media CO)