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. 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 Acquisition Agreement Date, (ii) a Consolidated Leverage Ratio not to exceed 6.50:1.00 as of the Acquisition Agreement Date and (iii) a Senior Secured Leverage Ratio not to exceed 3.00:1.00 as of the Acquisition Agreement Date; (c) the representations and warranties of the Borrower and each other Loan Party contained in Sections 5.01(a), 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 shall be true and correct in all material respects as of the Joinder Agreement No. 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 (a) In a single Borrowing (which shall be on a Business Day) occurring on the obligation of the Funding Incremental First Amendment Effective Date, each First Amendment Term Loan Lender that has a First Amendment Term Loan Commitment agrees that it will make term loans (relative to fund such Lender, its “First Amendment Term Loans”) to the Tack-On Series A Incremental Borrower equal to such First Amendment Term Loan Lender’s First Amendment Term Loan Percentage multiplied by the aggregate amount of the Borrowing of First Amendment Term Loans hereunder are subject requested by the Borrower to be made on such day. The First Amendment Term Loan Commitment of each Term Loan Lender shall be automatically and permanently reduced to $0 on the First Amendment Effective Date (after giving effect to the satisfaction incurrence of the following conditions any First Amendment Term Loans on such day).
(b) On any Business Day (the date on which of each such conditions are satisfiedadvance, an “First Amendment DDTL Funding Date”) during, but not after, the First Amendment DDTL Availability Period, each First Amendment Term Loan Lender that has a First Amendment DDTL Commitment agrees that it will make delayed draw term loans (relative to such Lender, its “First Amendment DDTL” and, together with the First Amendment Term Loans, the “Joinder Agreement No. 2 Effective DateIncremental Term Loans”):
(a) no Default or Event of Default under Section 8.01(f) or Section 8.01(g) equal to such First Amendment Term Loan Lender’s First Amendment DDTL Percentage multiplied by the aggregate amount of the Credit Agreement shall exist immediately before or Borrowing of First Amendment DDTLs requested by the Borrower to be made on such day. Notwithstanding anything to the contrary contained herein, on each First Amendment DDTL Funding Date and 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 incurrence of the proceeds thereof;
(b) First Amendment DDTLs funded on such date 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 Acquisition Agreement Date, (ii) a Consolidated Leverage Ratio not to exceed 6.50:1.00 as of the Acquisition Agreement Date and (iii) a Senior Secured Leverage Ratio not to exceed 3.00:1.00 as of the Acquisition Agreement Date;
(c) the representations and warranties of the Borrower and each other Loan Party contained in Sections 5.01(a), 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 shall be true and correct in all material respects as of the Joinder Agreement No. 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 outstanding principal amount 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 First Amendment DDTLs of each case, payable to the Arrangers, the Administrative Agent and the Funding Incremental Term Loan Lender shall be automatically converted on the Increased Amount Date and invoiced prior to such date shall, upon the initial borrowing into a like principal amount of the Tack-On Series A Incremental additional First Amendment 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 Loans and 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 Partiesadded to, and (B) local or other counsel in each constitute a portion of, the outstanding principal balance 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 First Amendment Term Loans thereafter for all purposes of this Section 1(e)(ii)Agreement and the other applicable Loan Documents; it being understood and agreed that such funded First Amendment DDTLs shall be added to (and form a part of) each then outstanding Borrowing of First Amendment Term Loans on the First Amendment DDTL Funding Date. For the avoidance of doubt, a First Amendment Term Loan Lender holding First Amendment DDTL Commitments shall fund its First Amendment DDTL Commitment on a several basis, independent of any other First Amendment Term Loan Lender, and may amend or waive any condition to the secretary or assistant secretary funding 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 First Amendment DDTLs 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 applicableitself.
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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. 2 1 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 Acquisition Agreement 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 Acquisition Agreement Increased Amount Date and (iii) a Senior Secured Leverage Ratio not to exceed 3.00:1.00 as of the Acquisition Agreement Increased Amount Date;
(c) the representations and warranties of the Borrower and each other Loan Party contained in Sections 5.01(a)Section 10 of this Agreement, 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 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. 2 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) 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 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 Tack-On 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. 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 limitations set forth in pro forma compliance with (i) the covenant set forth in Section 7.11 2.7 of the Credit Agreement as of the Acquisition Agreement Loan Agreement, on an Additional Incremental Advance Date, (ii) a Consolidated Leverage Ratio not to exceed 6.50:1.00 as of the Acquisition Agreement Date and (iii) a Senior Secured Leverage Ratio not to exceed 3.00:1.00 as of the Acquisition Agreement Date;
(c) the representations and warranties of the Borrower and each other Loan Party contained in Sections 5.01(a), 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 shall be true and correct in all material respects as of the Joinder Agreement No. 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 additional Incremental Term Loan Lender on the Increased Amount Date and invoiced prior to such date shall(each, upon the initial borrowing of the Tack-On Series A an “Additional Incremental Term LoansLoan”) to Borrower in an aggregate principal amount of not less than Ten Million and No/100 Dollars ($10,000,000); provided, have beenthat, or will be substantially simultaneously, paid (which amounts may be offset against the proceeds aggregate principal amount of the Tack-On Series A all Additional Incremental Term LoansLoans shall not exceed Fifty Million and No/100 Dollars ($50,000,000.00); and
(e) the Administrative Agentprovided, that, that Lead Borrower’s receipt delivery 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) Advance Request in connection with this Agreement;
(iii) any Additional Incremental Term Loan shall be deemed a certificate executed 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 to the solvency of the applicable Additional Incremental Advance Date, all conditions set forth in each of Section 2.7(a) and Section 4 of the Loan Agreement have been satisfied with respect to such Additional Incremental Term Loan. Borrower and its Subsidiaries (taken as a whole) on Lender hereby agree that the Increased Amount Date after giving effect certification set forth herein is intended to fulfill, and once such Advance Request is executed and delivered by the transactions contemplated hereby;
(iv) a Committed Loan Notice executed by a Responsible Chief Financial Officer of Lead Borrower does fulfill, the Borrower requirement set forth in Section 2.7(c)(ii) with respect of the Tack-On Series A to each Additional Incremental Term Loan.
▇. ▇▇ each case, such Incremental Term Loans shall be on the terms set forth herein and in accordance with Section 2.02 the Loan Agreement (as amended hereby), and subject to the conditions set forth herein and therein. Each of the Credit Agreement;
(v) the Borrower shall have paid all accrued Primary Incremental Advance and unpaid interest on the Existing Series A each Additional Incremental Term Loans up Loan is, and shall be deemed to but not including the Joinder No. 2 Effective Date;
(vi) be, an “Incremental Term Loan” and a certificate executed by a Responsible Officer (including, solely “Term Loan” for all purposes of this Section 1(e)(vi), the secretary of the Borrower) of the Borrower as to the compliance with clauses (a), (b) Loan Documents having terms and (c) of this Section 1 on the respective dates conditions as set forth therein; and
in the Loan Documents (vii) for each Mortgaged Property, a Flood Determination Form, Borrower Notice and Evidence of Flood Insuranceincluding but not limited to this Amendment), as applicableamended hereby, identical to those applicable to the Term Loans outstanding immediately prior to the Fifth Amendment Effective Date.
Appears in 1 contract
Incremental Term Loan Commitment. The effectiveness of this Agreement and the obligation of the Funding Incremental Term Loan Lender Lenders 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. 2 Effective Date”):
(a) no Default or Event of Default under Section 8.01(f8.1(a), (f) or Section 8.01(g(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 Acquisition Agreement Date, (ii) a Consolidated Leverage Ratio not to exceed 6.50:1.00 as of the Acquisition Agreement Date and (iii) a Senior Secured Leverage Ratio not to exceed 3.00:1.00 as of the Acquisition Agreement Date;
(c) the representations and warranties of the Borrower and each other Loan Party contained in Sections 5.01(a), 5.01(b), 5.02(a), 5.02(b)(i)5.13, 5.145.17, 5.195.18, 5.20, 5.21, 5.22 5.19 (other than the first or second sentence thereof) and 5.23 5.20 of the Existing Credit Agreement shall be true and correct in all material respects as of the Joinder Agreement No. 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) 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;
(dc) all costs, fees, expenses (including, without limitation, fees and reasonable and invoiced out-of-pocket legal fees expenses due and expenses and recording taxes and feespayable to the Lenders, the Arrangers (as defined below) and other compensation contemplated by 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 Letterengagement letter, dated May 10June 28, 20172022, by and among the Borrower and the Arrangers and that certain Fee (the “Engagement Letter, dated May 10, 2017, between ”) shall have been paid or shall have been authorized to be deducted from 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 proceeds of the Tack-On Series A Incremental Term Loans, so long as any such fees or expenses not expressly set forth in the Engagement Letter have been, or will be substantially simultaneously, paid been invoiced not less than three (which amounts may be offset against 3) business days prior to the proceeds Joinder Agreement No. 2 Effective Date;
(d) the aggregate principal amount of the Tack-On Series A Incremental Term Loans)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, counsel to the Loan Parties, LLC and (B) local or other ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Green P.C. (New York counsel in each of to the jurisdictions listed on Schedule B heretoBorrower), 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 Series A Incremental Administrative Agent;
(ii) (x) such certificates of resolutions or other action, incumbency certificates and/or other certificates, each properly executed by certificates of Responsible Officers (including, solely for purposes of this Section 1(e)(ii), the secretary or assistant secretary of a Loan Party) of each Loan PartyBorrower, as the Series A Incremental Administrative Agent may reasonably require evidencing require, (A) certifying that attached thereto is a true and complete copy of the identityresolutions or written consents of the governing body of the Borrower authorizing the execution, authority delivery and capacity of each Responsible Officer (including, solely for purposes performance of this Section 1(e)(ii)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 secretary signatures of the officers or assistant secretary 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 Loan Party) thereof authorized to act as a Responsible Officer (includingrecent date for the Borrower, solely for purposes from the relevant authority of this Section 1(e)(ii), the secretary or assistant secretary its jurisdiction of a Loan Party) in connection with this Agreementorganization;
(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 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) 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 attesting to the compliance with clauses (a), (b) and (cb) 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 applicableIncreased Amount Date.
Appears in 1 contract
Incremental Term Loan Commitment. The effectiveness of this Agreement and the obligation of the Funding Incremental Term Loan Lender Lenders to fund the Tack-On 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. 2 4 Effective Date”):
(a) no Default or Event of Default under Section 8.01(f) or Section 8.01(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 Acquisition Agreement Date, (ii) a Consolidated Leverage Ratio not to exceed 6.50:1.00 as of the Acquisition Agreement Date and (iii) a Senior Secured Leverage Ratio not to exceed 3.00:1.00 as of the Acquisition Agreement Date;
(c) the representations and warranties of the Borrower and each other Loan Party contained in Sections 5.01(a)Section 9 of this Agreement, 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 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. 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) 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;
(dc) all costs, fees, expenses (including, without limitation, fees and reasonable and invoiced out-of-pocket legal fees expenses due 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 Lenders, the Arrangers (as defined below) and the Administrative Agent required to be paid on the Increased Amount Date and invoiced or prior to such date shallthe Joinder Agreement No. 4 Effective Date pursuant to (i) that certain engagement letter, upon dated April 10, 2023 (the initial borrowing “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 Tack-On Series A 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, or will be substantially simultaneously, paid been invoiced not less than three (which amounts may be offset against 3) business days prior to the proceeds of the Tack-On Series A Incremental Term Loans)Joinder Agreement No. 4 Effective Date; and
(ed) 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 (A) ▇▇▇▇▇ ▇▇▇▇ LLC, (B) an opinion from ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ P.C. (New York counsel to the Loan Parties, Borrower) and (BC) opinions of local or other counsel in each of the jurisdictions listed on Schedule B heretofollowing 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, in the case of each of clauses (A) and (B), in form and substance reasonably satisfactory to the Administrative Agent;
(ii) (x) such certificates of resolutions or other action, incumbency certificates and/or other certificates, each properly executed by certificates of 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, Party as the Administrative Agent may reasonably require evidencing (A) certifying that attached thereto is a true and complete copy of the identityresolutions or written consents of the governing body of such Loan Party authorizing the execution, authority delivery and capacity 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 Responsible Officer Loan Party authorized to sign this Agreement and (including, solely for purposes C) certifying (I) that attached thereto is a true and complete copy of this Section 1(e)(iithe certificate or articles of incorporation or organization (or memorandum of association or other equivalent), of each Loan Party, certified by the secretary relevant authority of the jurisdiction of organization of such Loan Party, and a true and correct copy of its bylaws or assistant secretary 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) thereof authorized to act as a Responsible Officer (including, solely for purposes from the relevant authority of this Section 1(e)(ii), the secretary or assistant secretary its jurisdiction of a Loan Party) in connection with this Agreementorganization;
(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 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) 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 attesting to the compliance with clauses (a), (b) and (cb) 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 applicableIncreased 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 Tack-On 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. 2 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 under Section 8.01(f) shall have occurred and be continuing or Section 8.01(g) of would result from the Credit Agreement shall exist immediately before or immediately after giving effect to the proposed Borrowing contemplated hereby, the extensions of credit borrowings to be made on the Increased Amount Date and the application of the proceeds thereofIncrease Effective Date;
(b3) after giving pro forma effect to the Borrower 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 pro forma compliance with (i) each of the covenant covenants set forth in Section 7.11 of the Credit Agreement as of the Acquisition Agreement Date, (ii) a Consolidated Leverage Ratio not to exceed 6.50:1.00 as of the Acquisition Agreement Date 6.17 and (iii) a Senior Secured Leverage Ratio not to exceed 3.00:1.00 as of the Acquisition Agreement Date;
(c) the representations and warranties of the Borrower and each other Loan Party contained in Sections 5.01(a), 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 shall be true and correct in all material respects as of the Joinder Agreement No. 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)Section 6.18; and
(e4) the Administrative Agent’s receipt of the following, each of which Borrowers shall deliver or cause to be originals, facsimiles or “pdf” or delivered any legal opinions (in form and substance substantially similar electronic format (followed promptly by originals) unless otherwise specified:
(i) an opinion from (A) ▇▇▇▇▇ ▇▇▇▇ LLC, counsel to the Loan Parties, and (Blegal opinion delivered pursuant to Section 3.1(b)) local or other counsel in each of the jurisdictions listed on Schedule B hereto, in each case as documents reasonably requested by the Administrative 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, in and the case 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 of clauses (A) and (B)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 Administrative 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;
(ii) such certificates of resolutions or other action, incumbency certificates and/or other certificates, each properly executed by Responsible Officers (including, solely for purposes to give effect to the provisions of this Section 1(e)(ii2.13(b).
d) On any Increase Effective Date on which new Commitments for Incremental Term Loans are effective, subject to the secretary or assistant secretary satisfaction of a the foregoing terms and conditions, each Bank with an Incremental Term Loan PartyCommitment shall make an Incremental Term Loan to the Borrowers in an amount equal to its Incremental Term Loan Commitment Amount.
e) of each The Incremental Term Loans and Incremental Term Loan Party, as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer (including, solely for purposes of Commitments established pursuant to this Section 1(e)(ii)2.13(b) shall constitute Term Loans and Term Loan Commitments under, and shall be entitled to all the secretary or assistant secretary of a benefits afforded by, this Agreement and the other Loan Party) thereof authorized to act as a Responsible Officer (includingDocuments, solely for purposes of this Section 1(e)(ii)and shall, without limiting the secretary or assistant secretary of a Loan Party) in connection with this Agreement;
(iii) a certificate executed foregoing, benefit equally and ratably from the security interests created by the Chief Financial Officer of Security Documents. The Borrowers shall take any actions reasonably required by the Borrower 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 to defined in the solvency of the Borrower and its Subsidiaries (taken as a wholeSecurity Documents) on the Increased Amount Date or otherwise after giving effect to the transactions contemplated hereby;
(iv) a Committed Loan Notice executed by a Responsible Officer establishment of the Borrower in respect such class 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 applicableor any such new Commitments.
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Sources: Credit Agreement (Dolan Media CO)
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. 2 1 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 Acquisition Agreement 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 Acquisition Agreement Increased Amount Date and (iii) a Senior Secured Leverage Ratio not to exceed 3.00:1.00 as of the Acquisition Agreement Increased Amount Date;
(c) the representations and warranties of the Borrower and each other Loan Party contained in Sections 5.01(a)Section 10 of this Agreement, 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 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. 2 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 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
(ef) 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)(ii1(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(e)(ii1(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(e)(ii1(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 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)(vi1(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 respective dates as set forth thereinIncreased Amount Date; and
(viivi) for each Mortgaged Property, a Flood Determination Form, Borrower Notice and Evidence of Flood Insurance, as applicable.
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