Incremental Facility. The Borrower may at any time on not more than four occasions after the Closing Date but prior to the Maturity Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments (such increase, the “Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving Loans”); provided that both at the time of any such request and upon the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments.
Appears in 2 contracts
Samples: Revolving Facility Credit Agreement (Fender Musical Instruments Corp), Revolving Facility Credit Agreement (Fender Musical Instruments Corp)
Incremental Facility. (a) The Borrower may at any from time on not more than four occasions after the Closing Date but prior to time amend this Agreement in order to provide to the Borrower additional revolving loan facilities (each, an “Incremental Revolving Facility”) and additional term loan facilities and/or increased term loan commitments in respect of the Term Facility or any other existing term loan facility hereunder (each, an “Incremental Term Facility”; together with any Incremental Revolving Facility, the “Incremental Facilities”), provided that (i) the aggregate principal amount of the Incremental Facilities and the Second Lien Incremental Facilities shall not exceed $500,000,000, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000 and (iii) the Consolidated Senior Secured Leverage Ratio as of such date (determined on a pro forma basis after giving effect to the provision of such Incremental Facility and assuming, if such Incremental Facility is an Incremental Revolving Facility, such Incremental Revolving Facility is fully drawn as of such date) is less than or equal to 5.0 to 1.0. Each Incremental Facility will be secured and guaranteed with the other Facilities on a pari passu basis. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility and a final maturity no earlier than the Term Loan Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Activation Notice specifies a lesser treatment. Each Incremental Revolving Facility shall have the same terms as the Revolving Credit Facility. Other than amortization, by notice pricing or maturity date, each Incremental Term Facility shall have the same terms as the Term Facility or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower, provided that if the Applicable Margin (whereupon the Administrative Agent which, for such purposes only, shall promptly deliver a copy be deemed to each of the Lenders)include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Term Facility and any Eurodollar or ABR floor applicable to such Incremental Term Facility but excluding any ticking fees, without having to seek consent from the Lenders, request an increase arrangement fees and other fees not paid to the existing Revolving Commitments makers of such loans generally) relating to any Incremental Term Facility exceeds the Applicable Margin (which, for such increasepurposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the “Incremental Revolving Commitments,” Term Facility, and any Eurodollar or ABR floor applicable to the loans thereunder, Term Facility) relating to the “Incremental Revolving Loans”); provided that both at the time of any such request and upon Term Facility immediately prior to the effectiveness of the applicable Incremental Term Facility by more than 0.25%, the Applicable Margin relating to the Term Facility shall be adjusted to be equal to the Applicable Margin (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Term Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Term Facility minus 0.25%. In the case of any Incremental Revolving Commitment referred Term Facility that increases the term loan commitments under the Term Facility or any other existing term loan facility, the manner in which such increase is implemented shall be reasonably satisfactory to belowthe Administrative Agent. An Incremental Facility may be made available under this Agreement only if, after giving effect thereto and the use of proceeds thereof no Default or Event of Default exists.
(b) An Incremental Facility shall exist and at be made available hereunder upon delivery to the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event Administrative Agent of Default shall existnotice thereof executed by the Borrower. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other Any additional bank, financial institution (such institution, existing Lender or other bank Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other financial institution providing an Incremental Revolving Commitment, Person being called an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitmentand, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional not already a Lender. Incremental Revolving Commitments , shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans a Lender under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryDocuments, executed by the Borrower, each such Additional Lender agreeing to provide such Commitment and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions and intent of this Section and subsection (including to provide for voting provisions applicable to the application of the proceeds thereofAdditional Lenders). The effectiveness of any Incremental Facility Amendment shall shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender subsection 6.2 (it being understood that all references to “Borrowing Date” in subsection 6.2 shall be obligated deemed to provide any refer to the Incremental Revolving Loans, unless it so agreesFacility Closing Date). The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitmentsused only for general corporate purposes (including acquisitions permitted under subsection 8.7).
Appears in 2 contracts
Samples: First Lien Credit Agreement (Cumulus Media Inc), First Lien Credit Agreement (Cumulus Media Inc)
Incremental Facility. The (a) So long as no Event of Default under subsection 8(a) or 8(f) exists or would arise therefrom, the Borrower may shall have the right, at any time on not more than four occasions and from time to time after the Closing Date but prior to the Maturity Restatement Effective Date, by notice (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders“Incremental Term Loan Commitments”), without having (ii) to seek consent from increase any then-existing Tranche of Term Loans by requesting new term loan commitments to be added to such existing Tranche of Term Loans (the Lenders“Supplemental Term Loan Commitments”), (iii) to request an increase new commitments under one or more new revolving facilities to the existing Revolving Commitments be included in this Agreement, which new revolving facilities may include one or more subfacilities for letters of credit or swing line loans (such increase, the “Incremental Revolving Commitments”), and (iv) to increase any then existing Tranche of revolving commitments by requesting new revolving loan commitments be added to such existing Tranche of revolving commitments (the “Supplemental Revolving Commitments,” and together with the loans thereunderIncremental Term Loan Commitments, Supplemental Term Loan Commitments and Incremental Revolving Commitments, the “Incremental Revolving LoansCommitments”); , provided that both that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this subsection 2.5 shall not exceed, at the time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such request Indebtedness, including to refinance other Indebtedness), an amount that could then be Incurred under this Agreement in compliance with subsection 7.1(b)(i)(II) or the definition of “Maximum Incremental Facilities Amount” and upon (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (i) of the effectiveness definition of “Maximum Incremental Facilities Amount”, the Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause. Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitment referred to below, no Default or Event of Default Commitments) shall exist and at the time that any Incremental Revolving Loan is be made by creating a new Tranche.
(and immediately after giving effect theretob) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice request from the Borrower pursuant to this Section subsection 2.5 shall set forth the requested amount and proposed terms of the relevant Incremental Revolving Commitments. The Incremental Revolving Commitments (or any portion thereof) may be provided made by any existing Lender or by any other bank or other financial institution (any such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitmentinstitution, an “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”), ; provided that if such Additional Incremental Lender shall be reasonably acceptable to is not already a Lender hereunder or any affiliate of a Lender hereunder or an Approved Fund, the Borrower and consent of the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to shall be required (it being understood that any such Additional Lender’s providing Incremental Lender that is an Affiliated Lender shall be subject to the provisions of subsections 10.6(h) and 10.6(i), mutatis mutandis, to the same extent as if such Incremental Revolving Commitment, if Commitments and related Obligations had been obtained by such consent would be required under Section 9.6 for an assignment Lender by way of assignment).
(c) Supplemental Term Loan Commitments to such Additional Lender. Incremental and Supplemental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans or revolving commitments to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Incremental Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. An Increase Supplement or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments (including to subsection 2.2(b)) to the Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this subsection 2.5. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall become a Revolving Lender and be a Lender with respect for all intents and purposes of this Agreement and the term loan made pursuant to the Additional such Supplemental Term Loan Commitment shall be a Term Loan or commitments made pursuant to such Supplemental Revolving Commitment shall be revolving commitments hereunder, as applicable.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments and all matters relating thereto Supplemental Revolving Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryDocuments, executed by the Borrower, Borrower and each Additional Lender agreeing to provide such Commitment and the Administrative Agentapplicable Incremental Lender. An Incremental Commitment Amendment may, without the consent of any other LendersLender, effect such amendments to this Agreement and the other any Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent Borrower and the BorrowerAdministrative Agent, (x) to effect the provisions and intent of this Section subsection 2.5 and/or (y) so long as such amendments are not materially adverse to the other Lenders, to maintain the fungibility of any such Incremental Term Loans with any tranche of then outstanding Term Loans, provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured by the same Collateral securing the Term Loan Facility Obligations or (at the Borrower’s option) will be unsecured, (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Term Loan Facility Obligations and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Loans and (II) so long as any Initial Term Loans, Incremental B-2019 Term Loans or Incremental B-2021 Term Loans are outstanding, any mandatory prepayment from the Net Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Loans provided pursuant to such Incremental Commitment Amendment and the application disposition of the proceeds thereof. The effectiveness which was contemplated by any definitive agreement in respect of any Incremental Amendment shall be subject such acquisition) or Recovery Event, to the satisfaction extent the Net Cash Proceeds of such Asset Disposition or Recovery Event are required to be applied to repay the Initial Term Loans, Incremental B-2019 Term Loans or Incremental B-2021 Term Loans pursuant to subsection 3.4(c), on more than a ratable basis with the date thereof Initial Term Loans, Incremental B-2019 Term Loans or Incremental B-2021 Term Loans (each, an “Incremental Facility Closing Date”after giving effect to any amendment in accordance with subsection 10.1(d)(v)); (ii) of each of the conditions set forth in Section 4.2. No no Lender shall will be obligated required to provide any such Incremental Revolving Loans, Commitment unless it so agrees. The Borrower may use ; (iii) the proceeds maturity date and the weighted average life to maturity of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions (as determined by the satisfaction Borrower in good faith), would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the foregoing Initial Term Loans, as applicable); (iv) the interest rate margins and (subject to clause (iii) above) amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Incremental Lenders; (v) such Incremental Commitment Amendment may provide for (1) the inclusion, as appropriate, of Additional Incremental Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) class voting and other class protections for any additional credit facilities, (3) the amendment of the definitions of “Disqualified Stock”, “Junior Capital” and “Refinancing Indebtedness”, in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Initial Term Loan Maturity Date and remaining weighted average life to maturity of the Initial Term Loans to the extended maturity date and the remaining weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and conditionsdocumentation in respect thereof, each of to the Revolving Lenders shall assign extent not consistent with this Agreement as in effect prior to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments Commitment Amendment, shall otherwise be reasonably satisfactory to the Revolving CommitmentsBorrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Initial Term Loans (except to the extent permitted by clause (iii), (iv), (v) or (vi) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (US Foods Holding Corp.), Term Loan Credit Agreement (US Foods Holding Corp.)
Incremental Facility. The (a) So long as no Event of Default under Section 9(a) or (f) exists or would arise therefrom, the Parent Borrower may shall have the right, at any time on not more than four occasions and from time to time after the Closing Date but prior to the Maturity Date, by notice (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders“Incremental Term Loan Commitments”), without having (ii) to seek consent from the Lenders, request an increase new commitments under one or more new revolving facilities to the existing Revolving Commitments be included in this Agreement (such increase, the “Incremental Revolving Commitments,” ”), and (iii) to request new synthetic or other letter of credit facility commitments under one or more new synthetic or other letter of credit facilities to be included in this Agreement (together with the Incremental Term Loan Commitments and the loans thereunderIncremental Revolving Commitments, the “Incremental Revolving LoansCommitments”); , provided that, either (i) after giving pro forma effect to any Incurrence or Discharge of Indebtedness on the date the applicable Incremental Commitment Amendment (as defined below) becomes effective, (x) the Parent Borrower is in Pro Forma Senior Secured Compliance (and the Parent Borrower shall deliver a certificate, no later than two Business Days (or such shorter period as agreed between the Parent Borrower and the Administrative Agent) prior to the date on which such Incremental Commitment shall become effective to the Administrative Agent certifying that both the Parent Borrower is in Pro Forma Senior Secured Compliance) and (y) the Parent Borrower could Incur at least $1.00 of additional Indebtedness pursuant to Section 8.1(a) or (ii) the time aggregate then outstanding principal amount of the sum of all unutilized Incremental Commitments, Incremental Loans and Additional Notes does not exceed $1,000,000,000. Any loans made in respect of any such Incremental Commitment shall be made by creating a new Tranche.
(b) Each request and upon the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Parent Borrower pursuant to this Section 2.9 shall set forth the requested amount and proposed terms of the relevant Incremental Revolving Commitments. The Incremental Revolving Commitments (or any portion thereof) may be provided made by any existing Lender or by any other bank or other financial institution (any such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitmentinstitution, an “Additional Lender”)) subject, provided that in the case of any Incremental Revolving Commitments (if such Additional Lender shall be reasonably acceptable is not already a Lender hereunder or any affiliate of a Lender hereunder) to the Borrower and consent of the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed).
(c) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans commitments under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryDocuments, executed by the Borrower, Parent Borrower and each Additional Lender agreeing to provide such Commitment and the Administrative AgentLender. An Incremental Commitment Amendment may, without the consent of any other LendersLender, effect such amendments to this Agreement and the other any Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent Parent Borrower and the BorrowerAdministrative Agent, to effect the provisions and intent of this Section and 2.9, provided, however, that (i) (A) the application Incremental Commitments will not be guaranteed by any Subsidiary of the proceeds thereof. The effectiveness Parent Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Parent Borrower’s option) junior basis by the same collateral securing the Loans, (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Parent Borrower’s option) junior to the Tranche B Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Loans and (II) so long as any Loans (other than Incremental Amendment shall be subject Loans) are outstanding, any mandatory prepayment provisions that do not also apply to the satisfaction Loans on a pro rata basis following the date thereof (each, occurrence of an “Incremental Facility Closing Date”) of each acceleration of the conditions set forth in Section 4.2. No Loans; (ii) no Lender shall will be obligated required to provide any such Incremental Revolving Loans, Commitment unless it so agrees. The ; (iii) the maturity date of such Incremental Commitments shall be no earlier than the Termination Date; (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Parent Borrower may use and the proceeds of Incremental Revolving Loans applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any purpose not prohibited term loans incurred by this Agreement unless otherwise agreed the Parent Borrower under any Incremental Term Loan Commitment are higher than the applicable interest rate margin for the Tranche B Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche B Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for the Tranche B Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided further that, in determining the applicable interest rate margins for the Tranche B Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Parent Borrower to the Lenders under the Tranche B Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity); (B) customary arrangement or commitment fees payable to any of the Arrangers (or their respective affiliates) in connection with the Tranche B Term Loans or to one or more arrangers (or their respective affiliates) in connection with the Incremental Term Loans (and any fee payable to any Additional Lender in lieu of any portion of any such fee payable to any such arranger or affiliate thereof) shall be excluded; and (C) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche B Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche B Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche B Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Term Loans shall be increased by such amount; (v) such Incremental Revolving Loans. On Commitment Amendment may provide for the inclusion, as appropriate, of Additional Lenders in any Incremental required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder and may provide class protection for any additional credit facilities in a manner consistent with those provided the original Facility Closing Date on which Incremental Revolving Commitments are effected, subject pursuant to the satisfaction provisions of Section 11.1(a) as originally in effect; and (vi) the foregoing other terms and conditionsdocumentation in respect thereof, each of to the Revolving Lenders shall assign extent not consistent with this Agreement as in effect prior to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments Commitment Amendment, shall otherwise be reasonably satisfactory to the Revolving CommitmentsParent Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Hertz Global Holdings Inc), Credit Agreement (Hertz Global Holdings Inc)
Incremental Facility. The Subject to the terms and conditions set forth herein, the Borrower may shall have the right, at any time and from time to time, to incur additional Indebtedness under this Credit Agreement in the form of one or more additional term loan facilities (each an “Incremental Facility”) by an aggregate amount of up to $100,000,000. The following terms and conditions shall apply to each Incremental Facility: (a) the loans made under any such Incremental Facility (each an “Additional Loan”) shall constitute Credit Party Obligations and will be secured and guaranteed with the other Loans on not more a pari passu basis, (b) the interest rate margin applicable to such Incremental Facility shall be the Applicable Percentage for the Tranche B Term Loan (c) the weighted average life and final maturity applicable to any such Incremental Facility shall be determined at the time such Incremental Facility is made available (provided that (i) such Incremental Facility shall mature no earlier than four occasions after the Closing Tranche B Term Loan Maturity Date but and (ii) no greater than 5% of the Incremental Facility shall amortize prior to the date that is one year before the Tranche B Term Loan Maturity Date), by notice (d) any such Incremental Facility shall be entitled to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request an increase to same voting rights as the existing Revolving Commitments Loans and shall be entitled to receive proceeds of prepayments on the same basis as comparable Loans, (e) any such increaseIncremental Facility shall be obtained from existing Lenders or from other banks, financial institutions or investment funds, in each case in accordance with the “terms set forth below, (f) any such Incremental Revolving Commitments,” Facility shall be in a minimum principal amount of $25,000,000 and integral multiples of $1,000,000 in excess thereof, (g) the loans thereunder, the “Incremental Revolving Loans”); provided that both at the time proceeds of any such request Additional Loan will be used to finance capital expenditures and upon working capital and other general corporate purposes, including Permitted Acquisitions, (h) the effectiveness conditions to Extensions of any Incremental Revolving Commitment referred to below, no Default or Event of Default Credit in Section 4.2 shall exist have been satisfied and at the time that any Incremental Revolving Loan is made (and immediately after giving effect theretoi) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not received from the Borrower updated financial projections and an officer’s certificate, in each case in form and substance satisfactory to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order demonstrating that, after giving effect to all any such assignments and purchasesIncremental Facility, such Revolving Loans the Borrower will be held by in compliance with the financial covenants set forth in Section 5.9. Participation in any such Incremental Facility hereunder shall be offered first to each of the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect Lenders, but each such Lender shall have no obligation to the addition provide all or any portion of such Incremental Revolving Commitments Facility. If the amount of the Incremental Facility requested by the Borrower shall exceed the commitments which the existing Lenders are willing to provide with respect to such Incremental Facility, then the Borrower may invite other banks, financial institutions and investment funds reasonably acceptable to the Revolving CommitmentsAdministrative Agent to join this Credit Agreement as Lenders hereunder for the portion of such Incremental Facility not taken by existing Lenders, provided that such other banks, financial institutions and investment funds shall enter into such joinder agreements to give effect thereto as the Administrative Agent and the Borrower may reasonably request. The Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Credit Agreement or any other Credit Document as may be necessary to incorporate the terms of any new Incremental Facility therein.
Appears in 2 contracts
Samples: Credit Agreement (Nci Building Systems Inc), Credit Agreement (Nci Building Systems Inc)
Incremental Facility. The (a) So long as no Specified Default exists or would arise therefrom, the Borrower may Representative shall have the right, at any time on not more than four occasions and from time to time after the Closing Date but prior (i) to increase the Maturity Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each aggregate amount of the Lendersthen outstanding Commitments by requesting new Commitments to be added to an existing Tranche of existing Commitments (the “Supplemental Commitments”), without having (ii) to seek consent from the Lenders, request an increase new Commitments under one or more new revolving facilities to the existing Revolving Commitments be included in this Agreement (such increase, the “Incremental Revolving Commitments,”) or (iii) to request one or more term loans (the “Incremental ABL Term Loans” and together with the loans thereunderSupplemental Commitments and Incremental Revolving Commitments, collectively, the “Incremental Revolving LoansFacilities” and each, an “Incremental Facility”); provided that both . Notwithstanding anything to contrary herein, the principal amount of any Incremental Facility at the time of any such request and upon the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments Facility becomes effective shall not exceed $50,000,000the Available Incremental Amount at such time. Each notice The Borrower Representative may seek to obtain Incremental Facilities from the Borrower pursuant to this Section shall set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank Lenders or other financial institution Persons, as applicable (such existing each an “Incremental Facility Increase,” and each Person extending, or Lender or other bank or other financial institution providing an extending, Incremental Revolving CommitmentFacilities, an “Additional Lender”), provided provided, however, that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayedi) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No no Lender shall be obligated to provide an Incremental Facility Increase as a result of any such request by the Borrower Representative and (ii) any Additional Lender that is not an existing Lender shall be subject to the approval of the Administrative Agent and, in the case of any Incremental Revolving LoansCommitments or Supplemental Commitments, unless it so agreesthe Swingline Lender and the Borrowers (each such approval not to be unreasonably withheld, conditioned or delayed). The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Each Incremental Facility Closing Date on which Increase shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $5,000,000 in excess thereof (or, in each case, in such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion). Any Incremental Revolving Commitments are effected, subject to the satisfaction Facility Increase may be denominated in Dollars.
(b) (i) Any Incremental ABL Term Loans (A) may not be guaranteed by any Subsidiaries of the foregoing terms Parent Borrower other than the Guarantors and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lendersrank pari passu (or, at the principal amount thereof option of the Borrower Representative, junior) in right of (together x) priority with accrued interest)respect to the Collateral and (y) payment with respect to the Obligations in respect of the Commitments and any existing Incremental ABL Term Loans, such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as (B) shall be necessary in order thatpart of, after giving effect to all such assignments and purchasescount against, such Revolving the Borrowing Base, (C) shall not have a final maturity that is earlier than the Termination Date, (D) shall not amortize at a rate greater than 1.0% per annum, (E) for purposes of prepayments, shall be treated no more favorably than the Loans, (F) may not be secured by any Collateral or other assets of any Loan Party that do not also secure the Loans will and (G) shall otherwise be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect on terms as are reasonably satisfactory to the addition of such Incremental Revolving Commitments to the Revolving CommitmentsAdministrative Agent.
Appears in 2 contracts
Samples: Abl Credit Agreement (Core & Main, Inc.), Abl Credit Agreement (Core & Main, Inc.)
Incremental Facility. The (a) So long as no Specified Default exists or would arise therefrom, the Borrower may Representative shall have the right, at any time on not more than four occasions and from time to time after the Closing Date but prior (i) to increase the Maturity Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each existingaggregate amount of the Lendersthen outstanding Commitments by requesting new Commitments to be added to an Existingexisting Tranche of existing Commitments (the “Supplemental Commitments”), without having (ii) to seek consent from the Lenders, request an increase new Commitments under one or more new revolving facilities to the existing Revolving Commitments be included in this Agreement (such increase, the “Incremental Revolving Commitments,”) or (iii) to request one or more term loans (the “Incremental ABL Term Loans” and together with the loans thereunderSupplemental Commitments and Incremental Revolving Commitments, collectively, the “Incremental Revolving LoansFacilities” and each, an “Incremental Facility”); provided that both . Notwithstanding anything to contrary herein, the principal amount of any Incremental Facility at the time of any such request and upon the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments Facility becomes effective shall not exceed $50,000,000the Available Incremental Amount at such time. Each notice The Borrower Representative may seek to obtain Incremental Facilities from the Borrower pursuant to this Section shall set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank Lenders or other financial institution Persons, as applicable (such existing each an “Incremental Facility Increase,” and each Person extending, or Lender or other bank or other financial institution providing an extending, Incremental Revolving CommitmentFacilities, an “Additional Lender”), provided provided, however, that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayedi) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No no Lender shall be obligated to provide an Incremental Facility Increase as a result of any such request by the Borrower Representative and (ii) any Additional Lender that is not an existing Lender shall be subject to the approval of the Administrative Agent and, in the case of any Incremental Revolving LoansCommitments or Supplemental Commitments, unless it so agreesthe Swingline Lender and the Borrowers (each such approval not to be unreasonably withheld, conditioned or delayed). The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Each Incremental Facility Closing Date on which Increase shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $5,000,000 in excess thereof (or, in each case, in such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion). Any Incremental Revolving Commitments are effected, subject to the satisfaction Facility Increase may be denominated in Dollars.
(b) (i) Any Incremental ABL Term Loans (A) may not be guaranteed by any Subsidiaries of the foregoing terms Parent Borrower other than the Guarantors and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lendersrank pari passu (or, at the principal amount thereof option of the Borrower Representative, junior) in right of (together x) priority with accrued interest)respect to the Collateral and (y) payment with respect to the Obligations in respect of the Commitments and any existing Incremental ABL Term Loans, such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as (B) shall be necessary in order thatpart of, after giving effect to all such assignments and purchasescount against, such Revolving the Borrowing Base, (C) shall not have a final maturity that is earlier than the Termination Date, (D) shall not amortize at a rate greater than 1.0% per annum, (E) for purposes of prepayments, shall be treated no more favorably than the Loans, (F) may not be secured by any Collateral or other assets of any Loan Party that do not also secure the Loans will and (G) shall otherwise be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect on terms as are reasonably satisfactory to the addition of such Incremental Revolving Commitments to the Revolving CommitmentsAdministrative Agent.
Appears in 2 contracts
Samples: Abl Credit Agreement (Core & Main, Inc.), Abl Credit Agreement (Core & Main, Inc.)
Incremental Facility. The (a) Subject to Clause 2.3 (Incremental Facility Conditions), a Borrower may at any by written notice to the Facility Agent establish from time on not more than four occasions to time after the Closing Date but prior one or more additional term loans or revolving loans (an “Incremental Loan”) from one or more existing Lenders and/or another bank or financial institution (a “Further Lender”) that in each case agrees to make such loans to the Maturity Date, by Borrower. Such notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments (such increase, the “Incremental Revolving Commitments,” and Commitment Notice”) shall include:
(i) the loans thereunder, the “Incremental Revolving Loans”); provided that both at the time of any such request and upon the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested principal amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by Loan it wishes to establish;
(ii) that such principal amount, when aggregated with any existing Lender or by any other bank or other financial institution Incremental Loans is less than the Maximum Incremental Facility Amount;
(iii) the terms and conditions (including the name and jurisdiction of incorporation of the proposed borrower) of the proposed Incremental Loan;
(iv) the date on which the proposed Incremental Loan shall become effective and the purpose for which the proceeds of such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender Loan shall be reasonably acceptable applied;
(v) an invitation to each Lender to participate in the Incremental Loan (the amount of such participation to be pro-rata to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional proportion that Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect bear to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment Total Commitments);
(an “Incremental Amendment”vi) to this Agreement and such other Loan Documents as are confirmation (with supporting calculations where necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of that each of the conditions set forth out in Section 4.2. No Lender Clause 2.3 (Incremental Facility Conditions) have or will be met at the date such Incremental Loan becomes effective, the Incremental Commitment Notice shall be obligated signed by a director of the Company.
(b) As soon as reasonably practicable following receipt of an Incremental Commitment Notice, the Facility Agent shall forward such Incremental Commitment Notice to provide the Lenders requesting that each Lender confirms in writing within 10 Business Days of the date of the Incremental Commitment Notice whether they accept or decline to participate in the relevant Incremental Loan.
(c) If any Lender does not wish to participate in an Incremental Revolving LoansLoan or fails to respond to the invitation set out in the relevant Incremental Commitment Notice within 10 Business Days of the date of such Incremental Commitment Notice, unless the portion of the Incremental Loan offered to it so agreespursuant to such Incremental Commitment Notice shall be offered to other existing Lenders pro-rata to the proportion that each Lender’s Commitments bear to the Total Commitments for the purpose of this paragraph the definition of which shall be amended to exclude the Commitments of any declining Lenders.
(d) To the extent the existing Lenders decline or fail to accept the invitation to participate in Incremental Loan in an amount equal to the amount offered to the Lenders pursuant to sub-paragraphs (a)(v) and paragraph (c) above (the “Declined Amount”) within 10 Business Days of the date of the relevant Incremental Commitment Notice, the Company may nominate a Further Lender to participate in the relevant Incremental Loan in an amount not exceeding the Declined Amount. The Borrower Company shall arrange for each Further Lender to confirm to the Facility Agent in writing that it has agreed to participate in an Incremental Loan up to the Declined Amount on the terms set out in the relevant Incremental Commitment Notice within 20 Business Days of the date of such notice or such other shorter period requested by the Company.
(e) A Further Lender may use the proceeds of only participate in a Incremental Revolving Loans for any purpose not prohibited by Loan if it has acceded to this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, as a Lender and each of the Additional Lenders conditions set out in Clause 2.3 (Incremental Facility Conditions) have or will be satisfied on the date the Incremental Facility Commitment in established).
(f) Commitments in respect of Incremental Loans shall purchase from become Commitments under this Agreement pursuant to an amendment to this Agreement, executed by the relevant Borrower, each Lender and each Further Lender that agrees to participate in the relevant Incremental Loan and the Facility Agent. For the avoidance of doubt the Facility Agent shall be authorised without the consent of the Revolving Lenders, at Majority Lenders to execute such amendment which shall include such technical amendments to the principal amount thereof terms of this Agreement as are required to enable the operation of the relevant Incremental Facilities provided only that the conditions in Clause 2.3 (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving CommitmentsConditions) are met.
Appears in 2 contracts
Samples: Senior Facilities Agreement (Sirona Dental Systems, Inc.), Senior Facilities Agreement (Sirona Dental Systems, Inc.)
Incremental Facility. (a) The Borrower may at any may, from time on not more than four occasions to time after the Closing Date but prior to the Maturity Date, upon notice by notice the Borrower to the Administrative Agent and the Person appointed by the Borrower to arrange an incremental Facility (whereupon such Person (other than any Loan Party or any Subsidiary or any direct parent thereof) appointed by the Borrower after consultation with the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments (such increaseAgent, the “Incremental Revolving Commitments,” Arranger”) specifying the proposed amount thereof, request the addition of one or more new term loan facilities, in each case (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the loans thereundercommitments thereof, the “Incremental Revolving LoansNew Term Commitment” or “New Loan Commitment”); provided that both at the time of any such request and upon the effectiveness of any Incremental Revolving Commitment referred ) by an amount not to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from The Borrower may designate any Incremental Arranger of any New Loan Commitment with such titles under the New Loan Commitment as Borrower may deem appropriate.
(b) Any Lender approached to participate in any New Loan Commitment may elect or decline, in its sole discretion, to participate in such new facility. The Borrower may also invite additional Eligible Assignees reasonably satisfactory to the Incremental Arranger to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall set forth the requested amount not be required for any such joinder agreement to be effective (but a copy of the Incremental Revolving Commitments. Incremental Revolving Commitments may such joinder shall be provided by to the Administrative Agent); provided that, with respect to any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving New Loan Commitment, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable the Borrower must provide to the Administrative Agent the documentation providing for such New Loan Commitment.
(c) If a New Term Facility is added in accordance with this Section 2.14, the Administrative Agent and the Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase or New Term Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders and the Administrative Agent shall have consented (of the final allocation of such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving CommitmentNew Term Facility and the Increase Effective Date. In connection with any addition of a New Term Facility, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessarySection 2.14, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessaryamended in a writing (which may be executed and delivered by the Borrower, in the reasonable opinion of the Administrative Agent and the Borrower, Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger and the Administrative Agent to execute and deliver any such documentation)) in order to establish the New Term Facility and to reflect any technical changes necessary or appropriate to give effect the provisions and intent to such increase or new facility in accordance with its terms as set forth herein.
(d) With respect to any addition of New Term Facility pursuant to this Section and the application 2.14, (i) no Event of the proceeds thereof. The effectiveness of any Incremental Amendment shall be Default (subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”Section 1.02(i)) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, would exist after giving effect to all such assignments and purchasesincrease (except in connection with any acquisition or similar investment transaction permitted under this Agreement, where no Event of Default under Section 8.01(a), (f) or (g) shall be the standard at the time of funding even in the case of the applicability of Section 1.02(i)); (ii) in the case of any New Term Facility, such Revolving Loans will be held New Term Facility shall have a final maturity no earlier than the Maturity Date; (iii) any such New Term Facility shall have the same terms as the Term Facility(excluding the applicable interest rate) , and (iv) to the extent reasonably requested by the existing Revolving Lenders and Additional Lenders ratably in accordance Incremental Arranger or the Administrative Agent, the Incremental Arranger shall have received legal opinions, resolutions, officers’ certificates and/or reaffirmation agreements consistent with their Revolving Commitments after giving effect those delivered on the Closing Date under Section 4.01 or delivered from time to time pursuant to Section 6.12, Section 6.14 and/or Section 6.16 with respect to the addition of such Incremental Revolving Commitments Borrower and each material Guarantor that is organized in a jurisdiction for which counsel to the Revolving CommitmentsAdministrative Agent advises that such deliveries are reasonably necessary to preserve the Collateral in such jurisdiction (other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Incremental Arranger). Subject to the foregoing, the conditions precedent to each such increase or New Loan Commitment shall be agreed to by the Lenders providing such increase or New Loan Commitment, as applicable, and the Borrower.
Appears in 2 contracts
Samples: Subordination Agreement (KLDiscovery Inc.), Subordination Agreement (KLDiscovery Inc.)
Incremental Facility. The On or before the final maturity date of each the Senior Facilities, the Borrower may at any time on will have the right, but not more than four occasions after the Closing Date but prior obligation, to increase the Maturity Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each amount of the Lenders), without having to seek consent from the Lenders, request Term B Facility by incurring an increase to the existing Revolving Commitments incremental term loan facility (such increase, the “Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving LoansFacility”)) in an aggregate principal amount not to exceed $250.0 million; provided that both at the time (i) no event of any such request and upon the effectiveness of any Incremental Revolving Commitment referred to below, no Default default or Event of Default shall default exists or would exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto, (ii) no Default or Event all financial covenants would be satisfied on a pro forma basis on the date of Default shall exist. The aggregate incurrence and for the most recent determination period, after giving effect to such Incremental Facility and (iii) (a) the yield applicable to the Incremental Facility will not be more than 0.25% higher than the corresponding interest rate for the existing Term B Facility, unless the interest rate margins with respect to the Term B Facility is increased by an amount equal to the difference between the yield with respect to the Incremental Facility and the corresponding interest rate on the Term B Facility, minus 0.25%, (b) the maturity date applicable to the Incremental Facility will not be earlier than the maturity date of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant Term B Facility, (c) the weighted average life to this Section shall set forth the requested amount maturity of the Incremental Revolving Commitments. Facility will not be shorter than the then remaining weighted average life to maturity of the Term B Facility and (d) all other terms (other than pricing and amortization) of the Incremental Revolving Commitments may be provided Facility, if not consistent with the terms of the existing Term B Facility (except as permitted by any existing Lender or by any other bank or other financial institution subclauses (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”a), provided that such Additional Lender shall (b) and (c) of this clause (iii), must be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any Such increased amounts will be provided by existing Lenders or other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, persons who become Lenders in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No connection therewith; provided that no existing Lender shall will be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction increased portion of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving CommitmentsSenior Facilities.
Appears in 2 contracts
Samples: Merger Agreement (BIOVAIL Corp), Merger Agreement (Valeant Pharmaceuticals International)
Incremental Facility. (a) The Borrower may at any from time on not more than four occasions after the Closing Date but prior to time amend this Agreement in order to provide to the Maturity DateBorrower additional revolving loan facilities and/or increased revolving commitments in respect of the Revolving Facility or any other existing revolving facility hereunder (each, by notice an “Incremental Revolving Facility”) and additional term loan facilities hereunder (each, an “Incremental Term Facility”; together with any Incremental Revolving Facility, the “Incremental Facilities”), provided that (i) the aggregate principal amount of the Incremental Facilities shall not exceed $100,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming, if such Incremental Facility is an Incremental Revolving Facility, such Incremental Revolving Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (whereupon b) is less than 3.75:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent shall promptly deliver a copy and the Lenders pursuant to each Section 6.1(a) or (b) as though such incurrence had been consummated as of the Lenders)first day of the fiscal period covered thereby, without having to seek consent from the Lenders(y) assuming, request if such Incremental Facility is an increase to the existing Revolving Commitments (such increase, the “Incremental Revolving Commitments,” and the loans thereunderFacility, the “such Incremental Revolving Loans”); provided that both Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such financial covenant and (iv) at the time of any such request and upon after giving effect to the effectiveness incurrence of any Incremental Revolving Commitment referred to belowFacility and the use of proceeds thereof, no Default or Event of Default shall exist have occurred and at be continuing. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the time other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower, (ii) no Incremental Revolving Facility shall have any amortization and (iii) if, for any Incremental Facility, the Applicable Margin (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (equated to interest based on an assumed four-year life to maturity) payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility but excluding any ticking fees, arrangement fees and other fees not paid to the makers of such loans generally) relating to such Incremental Facility exceeds the Applicable Margin (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (equated to interest based on an assumed four-year life to maturity) payable to all Lenders providing the Term Facility or the Revolving Facility, as applicable, and any Eurodollar or ABR floor applicable to the Term Facility or the Revolving Facility, as applicable) relating to the Term Facility or the Revolving Facility, as applicable, immediately prior to the effectiveness of such Incremental Facility by more than 0.50%, the Applicable Margin (as calculated above) relating to the Term Facility or the Revolving Facility, as applicable, shall be adjusted to be equal to the Applicable Margin (as calculated above) relating to such Incremental Facility minus 0.50% (it being understood that differences in any Eurodollar or ABR floor, if required to be adjusted pursuant to the foregoing, shall be added to the Eurodollar or ABR floor to the extent required and not to the Applicable Margin). In the case of any Incremental Revolving Loan Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is made implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (and immediately after giving effect thereto) no Default or Event including revolving commitments in respect of Default shall exist. The aggregate amount of all any Incremental Revolving Facility, Extended Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the Incremental and any original Revolving Commitments) that have more than four different maturity dates.
(b) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other Any additional bank, financial institution (such institution, existing Lender or other bank Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other financial institution providing an Incremental Revolving Commitment, Person being called an “Additional Lender”)) and, provided that such Additional Lender if not already a Lender, shall (i) be reasonably acceptable subject to the Borrower and the Administrative Agent shall have consented consent (such consent not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender and/or the Swingline Lender (to such Additional Lender’s providing such Incremental Revolving Commitment, if the extent such consent would be required under Section 9.6 for with respect to an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall Lender pursuant to Section 10.6) and (ii) become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans a Lender under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryDocuments, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions and intent of this Section and (including to provide for voting provisions applicable to the application of the proceeds thereofAdditional Lenders). The effectiveness of any Incremental Facility Amendment shall shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees5.2. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by used only for general corporate purposes (including, for the existing Revolving Lenders avoidance of doubt, Permitted Acquisitions and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitmentsother Investments and Restricted Payments) .
Appears in 2 contracts
Samples: First Lien Credit Agreement (WEB.COM Group, Inc.), First Lien Credit Agreement (WEB.COM Group, Inc.)
Incremental Facility. The (a) So long as no Specified Default exists or would arise therefrom, each Borrower may shall have the right, at any time on not more than four occasions and from time to time after the Closing Date but prior to the Maturity Date, by notice to the Administrative Agent request (whereupon the Administrative Agent shall promptly deliver a copy to each i) an increase of the Lenders), without having to seek consent from aggregate amount of the Lenders, request an increase to the existing then outstanding Revolving Credit Commitments (such increase, the “Incremental Revolving Commitments,”) or (ii) one or more term loans to be obtained hereunder (the “Incremental ABL Term Loans” and together with the loans thereunderIncremental Revolving Commitments, collectively, the “Incremental Revolving LoansFacilities” and each, an “Incremental Facility”); provided that both at . Any request under this Section 2.5 shall specify, in the time case of a request for Incremental ABL Term Loans, (x) whether such loans will be made to a U.S. Borrower and/or a Canadian Borrower (including in each case any Additional Borrower) and (y) the currency in which such request loans will be denominated, which shall be Dollars (to the extent made to a U.S. Borrower), or Cdn. Dollars or Dollars (to the extent made to a Canadian Borrower). Incremental ABL Term Loans will count as U.S. Revolving Loans (to the extent made to a U.S. Borrower), or Multicurrency Canadian Revolving Loans (to the extent made to a Canadian Borrower) for purposes of determining the Aggregate U.S. Revolver Outstandings and upon the effectiveness Aggregate Multicurrency Revolver Outstandings, as applicable. Notwithstanding anything to the contrary herein, after giving effect to any new Incremental Facility, the Equivalent Amount in Dollars of the aggregate principal amount of any Incremental Revolving Commitment referred to below, no Default ABL Term Loans or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000the Available Incremental Amount at such time. Each notice from the Borrower pursuant The Borrowers may seek to this Section shall set forth the requested amount of the Incremental Revolving Commitments. obtain Incremental Revolving Commitments may be provided by or Incremental ABL Term Loans from existing Lenders or any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing Person that qualifies as an Incremental Revolving CommitmentEligible Assignee, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof applicable (each, an “Incremental Facility Closing DateIncrease”); provided that (A) of each of the conditions set forth in Section 4.2. No no Lender shall be obligated to provide an Incremental Facility Increase as a result of any such request by any of the Borrowers, and (B) any Additional Lender which is not an existing Lender shall be subject to the approval of the Agent and the Borrowers’ Agent and, in the case of Incremental Revolving Commitments, the Swingline Lenders and the Letter of Credit Issuers (each such approval not to be unreasonably withheld).
(b) Any Incremental ABL Term Loans (i) may not be guaranteed by any Subsidiaries of the Company other than the Guarantors and shall rank pari passu or junior in right of (x) priority with respect to the Collateral and (y) payment with respect to the Obligations in respect of the Revolving Credit Commitments and any corresponding existing Incremental ABL Term Loans, (ii) shall count against the applicable Borrowing Base, (iii) shall not have a final maturity that is earlier than the Maturity Date (or, if later, the latest final maturity of any Extended Loans or any then-existing Incremental Facility), (iv) may not be secured by any Collateral or other assets of any Borrower or any Guarantor that do not also secure the Loans (other than, in the case of Incremental ABL Term Loans incurred to finance a Permitted Acquisition or other permitted Investment, proceeds of such Incremental ABL Term Loans that are subject to customary escrow or similar arrangements pending consummation of such Permitted Acquisition or other Investment), (v) may provide for commitment, arrangement, upfront or similar fees and margins and interest rates that may be agreed among the applicable Borrower and the Lenders providing such Incremental ABL Term Loans and (vi) shall otherwise be on terms as are reasonably acceptable to the Agent; provided that terms that are substantially consistent with, or not materially less favorable, taken as a whole, to the Lenders than, the terms of this Agreement shall be deemed to be reasonably acceptable to the Agent.
(c) Any Incremental Revolving Commitments (i) shall be guaranteed by the Guarantors and shall rank pari passu or junior in right of (x) priority with respect to the Collateral and (y) payment with respect to the Obligations in respect of the Revolving Credit Commitments in effect prior to the Incremental Revolving Commitment Effective Date, (ii) may not be secured by any Collateral or other assets of any Borrower or any Guarantor that do not also secure the Loans, (iii) may provide for commitment, arrangement, upfront or similar fees and margins and interest rates that may be agreed among the applicable Borrower and the Lenders providing such Incremental Revolving Commitments and (iv) shall otherwise be on terms and pursuant to the documentation applicable to the existing relevant Revolving Credit Commitments.
(d) No Incremental Facility Increase shall become effective unless and until each of the following conditions has been satisfied:
(i) The applicable Borrowers, the Agent, and any Additional Lender shall have executed and delivered a joinder to the Loan Documents (“Lender Joinder Agreement”) in substantially the form of Exhibit I;
(ii) The applicable Borrowers shall have paid such fees and other compensation to the Additional Lenders and to the Agent as the applicable Borrowers, the Agent and such Additional Lenders shall agree;
(iii) To the extent reasonably required by the Lenders providing the Incremental Facility Increase, the applicable Borrowers shall deliver to the Agent and the Lenders participating in the Incremental Facility Increase customary legal opinion(s) from counsel to the applicable Borrowers and dated such date;
(iv) The Company shall deliver on the closing date of any Incremental Facility Increase a certificate certifying that (x) (other than with respect to an Incremental Facility Increase in connection with a Permitted Acquisition permitted hereunder or any other Investment not prohibited by the terms of this Agreement, unless required by the Lenders providing such Incremental Facility Increase) the representations and warranties made by the Company, each Borrower and each Guarantor contained herein and in the other Loan Documents are true and correct in all material respects on and as of such closing date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and (y) no Specified Default has occurred and is continuing; and
(v) The applicable Borrowers and Additional Lenders shall have delivered such other instruments, documents and agreements as the Agent may reasonably have requested in order to effectuate the documentation of the foregoing.
(vi) In the case of any Incremental Facility Increase constituting Incremental Revolving Commitments, the Agent shall promptly notify each Lender as to the effectiveness of such Incremental Facility Increase (with each date of such effectiveness being referred to herein as an “Incremental Revolving Commitment Effective Date”), and at such time (x) the Revolving Credit Commitments under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Revolving Commitments, (y) Schedule 1.1 shall be deemed modified, without further action, to reflect the revised Commitments of the Lenders and (z) this Agreement shall be deemed amended, without further action, to the extent necessary to reflect any such Incremental Revolving Commitments.
(vii) In the case of any Incremental Facility Increase, the Agent, the Additional Lenders and the Borrowers agree to enter into any amendment required to incorporate the addition of the Incremental Revolving Commitments and the Incremental ABL Term Loans, the pricing of the Incremental Revolving Commitments and the Incremental ABL Term Loans, the maturity date of the Incremental Revolving Commitments and the Incremental ABL Term Loans and such other amendments as may be necessary or appropriate in the reasonable opinion of the Agent and the applicable Borrowers in connection therewith, including amendments to provide for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or the Supermajority Lenders, amendments to permit purchases of Incremental ABL Term Loans by the Company or any of its Affiliates (which shall be cancelled upon purchase by the Company or any Subsidiary) (provided that such purchases by an Affiliate of the Company other than a Subsidiary shall be subject to customary restrictions to be agreed with the Additional Lenders providing such Incremental ABL Term Loans and the Agent), and amendments to properly reflect the pari passu or junior right of payment or priority with respect to the Collateral (each an “Incremental Commitment Amendment”). The Lenders hereby irrevocably authorize the Agent to enter into such amendments.
(e) In connection with the Incremental Facility Increases hereunder, the Lenders and the Borrowers agree that, notwithstanding anything to the contrary in this Agreement, (i) the applicable Borrowers shall, in coordination with the Agent, (x) repay applicable outstanding Revolving Loans of certain Lenders, and obtain applicable Revolving Loans from certain other Lenders (including the Additional Lenders), or (y) take such other actions as reasonably may be required by the Agent to the extent necessary so that the Lenders effectively participate in each of the outstanding Revolving Loans, unless it so agrees. The Borrower may use as applicable, pro rata on the proceeds basis of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving their respective applicable Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, determined after giving effect to all any increase in such assignments applicable Commitments pursuant to this Section 2.5), and purchases, such Revolving Loans will be held by (ii) the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect applicable Borrowers shall pay to the addition applicable Lenders any costs of such Incremental Revolving Commitments the type referred to in Section 5.4 in connection with any repayment required pursuant to the Revolving preceding clause (i). Without limiting the obligations of the Borrowers provided for in this Section 2.5, the Agent and the Lenders agree that they will use commercially reasonable efforts to attempt to minimize the costs of the type referred to in Section 5.4 that the Borrowers would otherwise incur in connection with the implementation of an increase in the applicable Commitments.
Appears in 2 contracts
Samples: Credit Agreement (Herc Holdings Inc), Credit Agreement (Herc Holdings Inc)
Incremental Facility. The Subject to the terms and conditions set forth herein, the Borrower may shall have the right, at any time on and from time to time (but not more than to exceed four occasions after (4) increases in the Closing Date but prior aggregate) during the Commitment Period, to incur additional Indebtedness under this Credit Agreement in the form of term loans (each an “Incremental Term Loan”) and/or increases to the Revolving Committed Amount (each, an “Incremental Revolver”; each Incremental Term Loan and Incremental Revolver, an “Incremental Facility”) by an aggregate amount of up to $150,000,000. The following terms and conditions shall apply to each Incremental Facility: (i) the loans made under any such Incremental Facility (each an “Additional Loan”) shall constitute Credit Party Obligations and will be secured and guaranteed with the other Credit Party Obligations on a pari passu basis, (ii) any such Additional Loans (1) made pursuant to an Incremental Revolver shall have the same terms as the existing Revolving Loans and shall be considered Revolving Loans hereunder and (2) made pursuant to an Incremental Term Loan shall have a maturity date no sooner than the Term Loan Maturity Date, by notice a weighted average life to maturity no shorter than the weighted average life to maturity of the Term Loan and such other terms and documentation that, to the extent not consistent with the Term Loan, will be reasonably satisfactory to the Administrative Agent at the time of such Incremental Term Loan, (whereupon iii) any such Incremental Facility shall be in a minimum principal amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof, (iv) the proceeds of any Additional Loan will be used for the purposes set forth in Section 3.11, (v) the Borrower shall execute such promissory notes as are necessary to reflect the Additional Loans under any such Incremental Facility, (vi) the conditions to Extensions of Credit in Section 4.2 shall have been satisfied, (vii) the Administrative Agent shall promptly deliver a copy have received an opinion or opinions (including, if reasonably requested by the Administrative Agent, local counsel opinions) of counsel for the Credit Parties, addressed to each of the Lenders), without having to seek consent from Administrative Agent and the Lenders, request an increase in form and substance acceptable to the existing Revolving Commitments Administrative Agent, (such increase, viii) the “Incremental Revolving Commitments,” Credit Parties and the loans thereunderMortgage Trustee shall enter into contemporaneously with such Incremental Facility becoming effective an amendment to the Vessel Fleet Mortgage to increase the amount of Credit Party Obligations secured thereby by the amount of the Incremental Facility and (ix) the Administrative Agent shall have received from the Borrower updated financial projections and an officer’s certificate, in each case in form and substance reasonably satisfactory to the “Incremental Revolving Loans”); provided that both at the time of any such request and upon the effectiveness of any Incremental Revolving Commitment referred to belowAdministrative Agent, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately demonstrating that, after giving effect thereto) to any such Incremental Facility and the borrowings thereunder on a Pro Forma Basis, the Borrower will be in compliance with the financial covenants set forth in Article VI, and no Default or Event of Default shall exist. The aggregate amount Participation in the Incremental Facility shall be offered first to each of the existing Lenders, but each such Lender shall have no obligation to provide all or any portion of the Incremental Revolving Commitments Facility and the failure of a Lender to respond to such offer within the specified period of time shall not exceed $50,000,000be deemed a rejection of such offer by such Lender. Each notice from If the Borrower pursuant to this Section shall set forth the requested amount of the Incremental Revolving Commitments. Facility requested by the Borrower shall exceed the commitments which the existing Lenders are willing to provide with respect to such Incremental Revolving Commitments Facility, then the Borrower may be provided invite other banks, financial institutions and investment funds reasonably acceptable to the Administrative Agent to join this Credit Agreement as Lenders hereunder for the portion of such Incremental Facility not taken by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”)Lenders, provided that such Additional Lender other banks, financial institutions and investment funds shall be reasonably acceptable enter into such joinder agreements to the Borrower and give effect thereto as the Administrative Agent shall have consented (such consent not may reasonably request. The Administrative Agent is authorized to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitmententer into, if such consent would be required under Section 9.6 for an assignment on behalf of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreementthe Lenders, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an any amendment (an “Incremental Amendment”) to this Credit Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of or any other Lenders, effect such amendments to this Agreement and the other Loan Documents Credit Document as may be necessary, in necessary to incorporate the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness terms of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “new Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitmentstherein.
Appears in 1 contract
Incremental Facility. (a) The Borrower may at any from time on not more than four occasions after the Closing Date but prior to time amend this Agreement in order to provide to the Maturity Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each Borrower additional revolving loan facilities and/or increased revolving commitments in respect of the Lenders)Revolving Facility or any other existing revolving facility hereunder (each, without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments (such increase, the “Incremental Revolving Commitments,Facility” and the loans thereunder, the pursuant thereto “Incremental Revolving Loans”) and additional term loan facilities hereunder (each, an “Incremental Term Facility” and loans pursuant thereto “Incremental Term Loans”; together with any Incremental Revolving Facility, the “Incremental Facilities”), provided that (i) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) is less than 2.50:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (b) as though such incurrence had been consummated as of the first day of the fiscal period covered thereby, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that both any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement or other similar document having similar effect related to such Limited Conditionality Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such request that it is fungible with the Term Loan Facility) and upon a final maturity no earlier than the effectiveness Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Commitment referred Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to below, the Administrative Agent. At no Default or Event time shall there be Revolving Commitments hereunder (including revolving commitments in respect of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Facility, Extended Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the Incremental and any original Revolving Commitments) that have more than four different maturity dates.
(a) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other Any additional bank, financial institution (such institution, existing Lender or other bank Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other financial institution providing an Incremental Revolving Commitment, Person being called an “Additional Lender”)) and, provided that such Additional Lender if not already a Lender, shall (i) be reasonably acceptable subject to the Borrower and the Administrative Agent shall have consented consent (such consent not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to such Additional Lender’s providing such Incremental Revolving Commitment, if the extent such consent would be required under Section 9.6 for with respect to an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall Lender pursuant to Section 10.6) and (ii) become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans a Lender under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryDocuments, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions and intent of this Section and (including to provide for voting provisions applicable to the application of the proceeds thereofAdditional Lenders). The effectiveness of any Incremental Facility Amendment shall shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, that at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments time and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such Incremental Revolving Commitments date as if made on and as of such date, except to the Revolving Commitmentsextent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Limited Conditionality Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement or other document having similar effect related to such Limited Conditionality Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments).
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Incremental Facility. (a) The Borrower Company may at any from time on not more than four occasions after to time prior to the third anniversary of the Closing Date but prior amend this Agreement in order to provide to the Maturity DateCompany additional revolving loan facilities (each, by notice to an "INCREMENTAL REVOLVING LOAN FACILITY") and additional term loan facilities (each, an "INCREMENTAL TERM LOAN FACILITY"), provided that (i) the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each aggregate principal amount of the Lenders)Incremental Facilities shall not exceed $400,000,000 and (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $50,000,000. Each Incremental Facility will be secured and guaranteed with the other Facilities on a pari passu basis. Each Incremental Facility must have an average life which is longer than the average life of the Revolving Credit Facility, without having Tranche A Term Loan Facility and Tranche B Term Loan Facility taken as a whole and a final maturity of at least six months longer than the final maturity date of the Tranche B Term Loan Facility. Incremental Facilities will be entitled to seek consent from prepayments and voting rights on the Lenderssame basis as comparable Facilities unless the applicable Incremental Facility Activation Notice specifies a lesser treatment. An Incremental Facility may be made available under this Agreement only if, request an increase to the existing Revolving Commitments (such increase, the “Incremental Revolving Commitments,” after giving effect thereto and the loans thereunder, the “Incremental Revolving Loans”); provided that both at the time use of any such request and upon the effectiveness of any Incremental Revolving Commitment referred to belowproceeds thereof, no Default or Event of Default shall exist exists and at the time that any Incremental Revolving Loan is Company would be in compliance with the covenants set forth in subsection 13.1 for the most recently ended fiscal quarter (calculated on a PRO FORMA basis, as reasonably determined by the Company after consultation with the Administrative Agent, to give effect to the Loans to be made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth such Incremental Facility and the requested amount Permitted Acquisition and other permitted uses made with the proceeds thereof). Proceeds of the Incremental Revolving Commitments. Incremental Revolving Commitments Facilities may be provided by any existing Lender or by any other bank or other financial institution used only for the purposes specified in subsections 4.3 and 7.
(such existing Lender or other bank or other financial institution providing b) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall Facility Activation Notice executed by the Company and the financial institutions (who must be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment Company and the Administrative Agent) identified as "Incremental Lenders" therein who have executed such Incremental Facility Activation Notice. An Upon the Incremental Amendment mayFacility Effective Date specified in an Incremental Facility Activation Notice, without the consent Incremental Lenders specified therein shall become Lenders under this Agreement with respect to such Incremental Facility. Each Incremental Facility Activation Notice shall specify (i) the respective Incremental Facility Amount of any other such Incremental Lenders, effect (ii) the applicable Incremental Facility Effective Date, (iii) the applicable Incremental Facility Maturity Date, (iv) the amortization schedule or revolving credit period, as applicable, applicable to such amendments Incremental Facility, (v) whether such Incremental Lenders may elect to decline prepayments as specified in subsection 8.6 and are entitled to share in mandatory prepayments as specified in subsection 8.6 and (vi) the Applicable Margin for the Incremental Loans to be made pursuant to such Incremental Facility Activation Notice and, if such Incremental Facility is an Incremental Revolving Credit Facility, the commitment fee therefor, and shall be otherwise duly completed. Each Incremental Lender that is a signatory to an Incremental Facility Activation Notice severally agrees, on the terms and conditions of this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the BorrowerAgreement, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any make Incremental Amendment shall be subject Loans to the satisfaction Company on the date thereof (each, an “Incremental Facility Closing Date”) of each of or during the conditions set forth periods specified in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as Activation Notice. Nothing in this subsection 16.13 shall be necessary in order that, after giving effect construed to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect obligate any Lender not party to the addition of such Incremental Revolving Commitments Facility Activation Notice to the Revolving Commitmentsexecute an Incremental Term Loan Activation Notice or to make Incremental Loans.
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Incremental Facility. The Borrower may (a) So long as no Specified Default exists or would arise therefrom, the Borrowers shall have the right, at any time on not more than four occasions and from time to time after the Closing Date but prior to the Maturity Third Amendment Effective Date, by notice to the Administrative Agent request (whereupon the Administrative Agent shall promptly deliver a copy to each i) an increase of the Lenders), without having to seek consent from aggregate amount of the Lenders, request an increase to the existing Revolving then outstanding Commitments (such increase, the “Incremental Revolving Commitments,”) or (ii) one or more term loans (the “Incremental ABL Term Loans” and together with the loans thereunderIncremental Revolving Commitments, collectively, the “Incremental Revolving LoansFacilities” and each, an “Incremental Facility”); provided that both at . Notwithstanding anything to contrary herein, the time of any such request and upon the effectiveness principal amount of any Incremental Revolving Commitment referred to below, no Default ABL Term Loans or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000the Available Incremental Amount at such time. Each notice from the The Parent Borrower pursuant may seek to this Section shall set forth the requested amount of the Incremental Revolving Commitments. obtain Incremental Revolving Commitments may be provided by any or Incremental ABL Term Loans from existing Lender or by any other bank Lenders or other financial institution Persons, as applicable (such existing each an “Incremental Facility Increase,” and each Person extending, or Lender or other bank or other financial institution providing an extending, Incremental Revolving CommitmentCommitments or Incremental ABL Term Loans, an “Additional Lender”), provided provided, however, that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayedi) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No no Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any an Incremental Facility Closing Date on Increase as a result of any such request by the Borrowers, and (ii) any Additional Lender which Incremental Revolving Commitments are effected, is not an existing Lender shall be subject to the satisfaction approval of, the Administrative Agent, the Swingline Lender, each Issuing Lender and the Borrowers (each such approval not to be unreasonably withheld, conditioned or delayed). Each Incremental Facility Increase shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $5,000,000 in excess thereof. Any Incremental Facility Increase may be denominated in Dollars.
(b) (i) Any Incremental ABL Term Loans (A) may not be guaranteed by any Subsidiaries of the foregoing terms Parent Borrower other than the Guarantors and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lendersrank pari passu (or, at the principal amount thereof option of the Parent Borrower, junior) in right of (together x) priority with accrued interest)respect to the Collateral and (y) payment with respect to the Obligations in respect of the Commitments and any existing Incremental ABL Term Loans, such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as (B) shall be necessary in order thatpart of, after giving effect to all such assignments and purchasescount against, such Revolving the Borrowing Base, (C) shall not have a final maturity that is earlier than the Termination Date, (D) shall not amortize at a rate greater than 1.0% per annum, (E) for purposes of prepayments, shall be treated no more favorably than the Loans, (F) may not be secured by any Collateral or other assets of any Loan Party that do not also secure the Loans will and (G) shall otherwise be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect on terms as are reasonably satisfactory to the addition of such Incremental Revolving Commitments to the Revolving CommitmentsAdministrative Agent.
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Incremental Facility. The Borrower may Subject to the terms and conditions set forth herein, the Borrowers shall have the right, at any time on not more than four occasions up to two years after the Closing Date but prior to the Maturity Date, by notice to incur additional Indebtedness under this Credit Agreement in the Administrative Agent form of one or more additional term loan facilities (whereupon the Administrative Agent each an “Incremental Facility”) in an aggregate amount of up to $75,000,000. The following terms and conditions shall promptly deliver a copy apply to each of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments Incremental Facility:
(such increase, the “Incremental Revolving Commitments,” and a) the loans thereunder, made under any such Incremental Facility (each an “Additional Loan”) shall constitute Borrowers’ Obligations and will be secured and guaranteed with the “other Loans on a pari passu basis;
(b) the weighted average life and final maturity applicable to any such Incremental Revolving Loans”)Facility shall be determined at the time such Incremental Facility is made available; provided that both at (i) such Incremental Facility shall mature no earlier than the time of any such request Term Loan Maturity Date and upon (ii) the effectiveness of any Incremental Revolving Commitment referred weighted average life to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount maturity of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender Facility shall be reasonably acceptable longer than or substantially similar to the Borrower weighted average life to maturity of the Term Loan;
(c) the interest rate margin applicable to any such Incremental Facility shall be the same as the interest rate margin for the Term Loan;
(d) any such Incremental Facility shall be entitled to the same voting rights as the existing Loans and shall be entitled to receive proceeds of prepayments on the same basis as the Term Loans;
(e) any such Incremental Facility shall be obtained from existing Lenders or from other banks, financial institutions or investment funds, in each case in accordance with the terms set forth below;
(f) the Borrowers may borrow up to three Incremental Facilities and each Incremental Facility shall be in a minimum principal amount of $25,000,000;
(g) the proceeds of any Additional Loan will be used to finance capital expenditures and working capital and other general corporate purposes, including Permitted Acquisitions;
(h) the conditions to Extensions of Credit in Section 4.2 shall have been satisfied; and
(i) the Administrative Agent shall have consented (such consent not received from the Borrower updated financial projections and an officer’s certificate, in each case in form and substance satisfactory to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order demonstrating that, after giving effect to all any such assignments and purchasesIncremental Facility, such Revolving Loans the Borrower will be held by in compliance with the financial covenants set forth in Section 5.9. Participation in any such Incremental Facility hereunder shall be offered first to each of the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect Lenders, but each such Lender shall have no obligation to the addition provide all or any portion of such Incremental Revolving Commitments Facility. If the amount of the Incremental Facility requested by the Borrower shall exceed the commitments that the existing Lenders are willing to provide with respect to such Incremental Facility, then the Borrower may invite other banks, financial institutions and investment funds reasonably acceptable to the Revolving CommitmentsAdministrative Agent to join this Credit Agreement as Lenders hereunder for the portion of such Incremental Facility not taken by existing Lenders; provided that such other banks, financial institutions and investment funds shall enter into such joinder agreements to give effect thereto as the Administrative Agent and the Borrower may reasonably request. The Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Credit Agreement or any other Credit Document as may be reasonably necessary to incorporate the terms of any new Incremental Facility therein.
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Incremental Facility. The Borrower (a) Any THCP Entity (or, subject to paragraph (c) below, an Ares Noteholder) may at any time on not more than four occasions after the Closing Date but prior in its absolute discretion, agree to make Incremental Facility Commitments available to the Maturity Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments (such increase, the “Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving Loans”); provided that both at the time of any such request and upon the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower Issuer pursuant to this Section Clause from time to time if:
(i) the availability of such Incremental Facility Commitments has been agreed between the relevant THCP Entity and the Issuer; or
(ii) subject to Clause 6.2 (Emergency Facility), if a THCP Entity has determined that a Funding Event has occurred it may provide an Emergency Facility to the Issuer in accordance with Clause 6.2 (Emergency Facility),
(b) If, pursuant to paragraph (a) above, a THCP Entity has decided to make Incremental Facility Commitments available to the Issuer under an Incremental Facility, it shall set forth provide each Ares Noteholder with notice of such determination (in the requested amount case of an Emergency Facility, on the Emergency Facility Notification Date) (the “Ares Notification Date”) together with the details specified in paragraph (e) below in relation to that Incremental Facility, and each Ares Noteholder will benefit from a right of first refusal pursuant to which the Ares Noteholder will be offered a right to participate in the Incremental Revolving Commitments. Facility in an aggregate amount equal to the proportion borne by its Commitments to the Total Commitments (the “Ares Proportion”) for:
(i) in respect of an Incremental Revolving Commitments may Facility referred to in paragraph (a)(i) of this Clause, a period of 10 Business Days from the Ares Notification Date; and
(ii) in respect of an Incremental Facility referred to in paragraph (a)(ii) of this Clause, a period of 5 Business Days from the Ares Notification Date, and, in the event an Ares Noteholder (or any Ares Noteholders together) do not agree to make available the Ares Proportion by the end of such period, the Incremental Facility shall be provided by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, relevant THCP Entity in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitmentsfull.
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Incremental Facility. (a) The Borrower Company may at any from time on not more than four occasions after the Closing Date but prior to time amend this Agreement in order to provide to the Maturity DateCompany additional revolving loan facilities (each, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments (such increase, the “Incremental Revolving Commitments,” Loan Facility”) and the loans thereunderadditional term loan facilities (each, the an “Incremental Revolving LoansTerm Loan Facility”); , provided that both at (i) the time aggregate principal amount of any such request the Incremental Facilities shall not exceed $750,000,000 and upon (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000. Each Incremental Facility will be secured and guaranteed with the effectiveness other Facilities on a pari passu basis. Each Incremental Facility must have an average life which is longer than the then remaining average life of any the original comparable Facility taken as a whole and a final maturity no earlier than the comparable Facility. Incremental Revolving Commitment referred Facilities will be entitled to belowprepayments and voting rights on the same basis as comparable Facilities unless the applicable Incremental Facility Activation Notice specifies a lesser treatment. An Incremental Facility may be made available under this Agreement only if, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect theretothereto and the use of proceeds thereof (x) no Default or Event of Default exists and (y) the Consolidated Total Net Leverage Ratio for the most recently ended fiscal quarter (calculated on a pro forma basis, as reasonably determined by the Company after consultation with the Administrative Agent, to give effect to the Loans to be made pursuant to such Incremental Facility and the Permitted Acquisition and other permitted uses made with the proceeds thereof) shall exist. The aggregate amount of all Incremental Revolving Commitments be equal to or less than the then applicable Consolidated Total Net Leverage Ratio Level, provided that the requirement under clause (y) shall not exceed $50,000,000. Each notice from apply if the Borrower pursuant to this Section shall set forth the requested amount proceeds of the Incremental Revolving CommitmentsFacility are used to repay all or a portion of the Existing Convertible Subordinated Notes. Proceeds of Incremental Revolving Commitments Facilities may be provided by any existing Lender or by any other bank or other financial institution used only for the purposes specified in subsections 4.3 and 7.3.
(such existing Lender or other bank or other financial institution providing b) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall Facility Activation Notice executed by the Company and the financial institutions (who must be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment Company and the Administrative Agent) identified as “Incremental Lenders” therein who have executed such Incremental Facility Activation Notice. An Upon the Incremental Amendment mayFacility Effective Date specified in an Incremental Facility Activation Notice, without the consent Incremental Lenders specified therein shall become Lenders under this Agreement with respect to such Incremental Facility. Each Incremental Facility Activation Notice shall specify (i) the respective Incremental Facility Amount of any other such Incremental Lenders, effect (ii) the applicable Incremental Facility Effective Date, (iii) the applicable maturity date for the Incremental Facility, (iv) the amortization schedule or revolving credit period, as applicable, applicable to such amendments Incremental Facility, (v) whether such Incremental Lenders are entitled to share in mandatory prepayments as specified in subsection 8.6 and (vi) the Applicable Margin for the Incremental Loans to be made pursuant to such Incremental Facility Activation Notice and, if such Incremental Facility is an Incremental Revolving Loan Facility, the commitment fee therefor, and shall be otherwise duly completed. Each Incremental Lender that is a signatory to an Incremental Facility Activation Notice severally agrees, on the terms and conditions of this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the BorrowerAgreement, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any make Incremental Amendment shall be subject Loans to the satisfaction Company on the date thereof (each, an “Incremental Facility Closing Date”) of each of or during the conditions set forth periods specified in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as Activation Notice. Nothing in this subsection 16.13 shall be necessary in order that, after giving effect construed to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect obligate any Lender not party to the addition of such Incremental Revolving Commitments Facility Activation Notice to the Revolving Commitmentsexecute an Incremental Term Loan Activation Notice or to make Incremental Loans.
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Incremental Facility. The (a) At any time during the Revolving Commitment Period, the Borrower may at any request from time on not to time from one or more than four occasions after the Closing Date but prior to the Maturity Date, by notice existing Lenders or from other Eligible Assignees reasonably acceptable to the Administrative Agent Agent, the Issuing Lender, the Swingline Lender and the Borrower (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request an increase but subject to the existing conditions set forth in clause (b) below) that the Total Revolving Commitments be increased by an aggregate amount not to exceed the Available Revolving Increase Amount (each such increase, the an “Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving LoansIncrease”); provided that both the Borrower may not request an Increase on more than five (5) occasions during the Revolving Commitment Period. No Lender shall be obligated to increase its Revolving Commitments in connection with a proposed Increase. The Administrative Agent shall invite each Lender to provide a portion of the Increase ratably in accordance with its Revolving Percentage of each requested Increase (it being agreed that no Lender shall be obligated to provide an Increase and that any Lender may elect to participate in such Increase in an amount that is less than its Revolving Percentage of such requested Increase or more than its Revolving Percentage of such requested Increase if other Lenders have elected not to participate in any applicable requested Increase in accordance with their Revolving Percentage) and to the extent, seven (7) Business Days after receipt of invitation,
(b) Each of the following shall be conditions precedent to any Increase of the Revolving Commitments in connection therewith: (i) any Increase shall be on the same terms (including the interest rate, and maturity date but excluding any fees payable in connection therewith), as applicable, as, and pursuant to documentation applicable to, the Revolving Facility then in effect; provided that any such Increase may provide for terms (including interest rate) more favorable to such Increase lenders, if any existing Revolving Loans or Revolving Commitments at the time of any such request Increase are also provided the benefit of such more favorable terms (and upon the effectiveness consent of any Incremental existing Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments Lender shall not exceed $50,000,000. Each notice from be required to implement such terms); (ii) the Administrative Borrower pursuant shall have delivered a written request for such Increase at least ten (10) Business Days prior to this Section the requested establishment of such Increase (or such later date as may be reasonably approved by the Administrative Agent), which request shall set forth the requested amount and proposed terms of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution Increase; (iii) each lender agreeing to such existing Lender or other bank or other financial institution providing an Incremental Revolving CommitmentIncrease, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented signed an Increase Joinder (such any Increase Joinder may, with the consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other LendersBorrower and the lenders agreeing to such Increase, effect such amendments to this Agreement and the other Loan Documents as may be necessarynecessary or appropriate to effectuate the provisions of this Section 2.21 (including the preceding clause (ii)) and the Borrower shall have executed any Notes requested by any Lender in connection with the making of the Increase. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, an Increase Joinder reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby, shall not require the consent of any Lender other than the Lender(s) agreeing to establish such Increase; (iv) immediately after giving effect to such Increase, each of the conditions precedent in Section 5.2(a) and (d) are satisfied; and (v) in connection with such Increase, the reasonable opinion Borrower shall pay to the Administrative Agent, for the benefit of the Administrative Agent and or the BorrowerLenders or other entities providing such Increase, as applicable, all fees that the Borrower has agreed to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed pay in connection with such Incremental Revolving LoansIncrease. On (c) upon the effectiveness of any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably Increase in accordance with their this Section 2.21, all outstanding Loans, participations hereunder in Letters of Credit and participations hereunder in Swingline Loans held by each Lender shall be reallocated among the Lenders (including any newly added Lenders) in accordance with the Lenders’ respective revised Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments.Percentages and L/C
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Incremental Facility. The Subject to all the terms of this Agreement, provided that (x) no Default exists and is then continuing and (y) the Borrower shall be in pro forma compliance (giving effect to the incurrence of the Funded Debt resulting from the Borrowing of the Incremental Facility Loans) with Section 7.18, the Borrower may at any time on not more than four occasions after incur additional Debt hereunder in the Closing Date but prior to the Maturity Date, by notice to the Administrative Agent form of term loans (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments (such increase, the “Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving LoansFacility”); provided ) in an aggregate principal amount that both at the time of any such request and upon the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall does not exceed $50,000,000. Each notice from The Borrower may request up to three Borrowings under the Borrower pursuant Incremental Facility prior to this Section shall set forth the requested amount termination of the Incremental Revolving CommitmentsFacility in an aggregate minimum principal amount of $10,000,000. The Incremental Revolving Commitments may Facility shall, among other things, (a) share in the Collateral to the same extent as the other Loans, (b) be provided entitled to prepayments pursuant to Section 3.03 to the same extent as the other Term Loans, (c) not be secured by any existing Lender collateral other than the Collateral that secures the Loans or guaranteed by any Person other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable than pursuant to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender Credit Documents with respect to the Additional Revolving Commitment Loans, and (d) be documented on other terms and conditions that are reasonably satisfactory to the Administrative Agent. The interest rate, commitment fee rate, amortization schedule and maturity date for the Incremental Facility shall be as agreed upon between any Lenders agreeing to provide the Incremental Facility and the Borrower; provided that (i) the final maturity date of the Incremental Facility shall not be earlier than the Tranche B Term Loan Maturity Date or later than May 1, 2011 if any Discount Notes are outstanding on such date, (ii) the interest earned on the Incremental Facility Loans shall be less than or equal to the interest earned on the Tranche B Term Loans and (iii) the Incremental Facility Loans shall have a weighted average life to maturity greater than the weighted average life to maturity of the Tranche B Term Loans. The lenders and the loans under the Incremental Facility will be “Lenders” and “Term Loans” for all matters relating thereto purposes of this Agreement and the other Credit Documents, and shall be treated as such, in terms of sharing of payments and other appropriate provisions. The Incremental Facility will be documented pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryCredit Documents, executed by the Borrower, each Additional Lender agreeing Person providing a commitment to provide such Commitment the Incremental Facility and the Administrative Agent. An Incremental Amendment Such amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.07. The Incremental Facility may be established at any time at the request of the Borrower, upon notice to the Administrative Agent and the Lenders, and subject only to the agreement of Persons who, in their sole discretion, choose to participate in the Incremental Facility. No Lender shall have any obligation to participate in the Incremental Facility unless and until it commits to do so. The Administrative Agent and the Borrower shall provide all then existing Lenders with an opportunity to commit to the Incremental Facility on a ratable basis (the period in which any Lender shall be required to make a decision on its participation in the Incremental Facility being in any event no less than ten Business Days from the date of delivery by the Borrower of a notice inviting such participation), and if sufficient commitments cannot be obtained in such manner, shall provide other lenders with such opportunity (and for existing Lenders with the ability to commit for more than their ratable portion), and such other lenders shall become Lenders hereunder pursuant to a joinder agreement reasonably satisfactory to the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments.
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Incremental Facility. The Borrower may at any time on not more than four occasions after the Closing Date but prior (a) Subject to the Maturity Dateterms of this Agreement and so long as no Default has occurred and is continuing, the Borrowers may request, by written notice to the Administrative Agent delivered not more than twice over the term of this Agreement, that a revolving credit and/or term loan facility (whereupon the Administrative Agent "Incremental Facility") in a specified principal amount which (when aggregated with the outstanding principal amount of Loans and unused amount of commitments under all other Incremental Facilities provided pursuant to this Section) shall promptly deliver a copy not exceed $100,000,000 pursuant to each of which revolving loans and/or term loans will be made to the Lenders), without having Borrowers pursuant to seek consent from this Agreement. Revolving loans under the Lenders, request Incremental Facility will be instituted as an increase to the then existing Revolving Commitments Loan Commitment Amount (and having a maturity date the same as the Stated Maturity Date), and loans made thereunder being "Revolving Loans" hereunder and otherwise treated pari passu (including as to repayments, prepayments, interest rate, commitment fees, mandatory commitment reductions, risk participations in Letters of Credit and collateral) pro rata with all other Revolving Loans. Term loans under the Incremental Facility will be instituted as an increase to the aggregate outstanding principal amount of the Tranche B Term Loans (and having a maturity date the same as the Stated Maturity Date), and loans made thereunder being "Tranche B Term Loans" hereunder and otherwise treated pari passu (as to repayments, prepayments, mandatory commitment reductions and collateral) pro rata with all other Tranche B Term Loans, provided that the Weighted Average Life to Maturity of such increaseIncremental Facility term loans shall in no event be shorter than the Weighted Average Life to Maturity of the then outstanding Tranche B Term Loans.
(b) Upon receipt of such request, the “Incremental Revolving Commitments,” Administrative Agent will promptly notify, and the loans thereunder, the “Incremental Revolving Loans”); provided that both at the time deliver a copy of any such request and upon related materials to, each Lender (by telephone or otherwise). Within 15 Business Days after receipt by the Lenders of such request, each Lender interested in participating in the requested Incremental Facility shall notify the Administrative Agent and the Borrowers of its election to participate and the maximum amount of its proposed Commitment with respect to such Incremental Facility (a "Commitment Notice"); provided, however, that each Lender may elect to participate or not participate in the Incremental Facility in its sole discretion, and unless a Lender shall so elect to participate, no such Lender shall be deemed to have committed to participate in any Incremental Facility as a result of being a signatory to this Agreement prior to the effectiveness of the Incremental Facility, nor shall any Lender have any obligation to participate in any Incremental Revolving Facility unless and until it commits to do so as provided in this Section. Following receipt of such Commitment referred to belowNotices, no Default or Event of Default the Borrowers (i) shall exist and allocate the Incremental Facility, which allocations may be made, at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default Borrowers' option, in whole or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant in part to this Section shall set forth the requested amount one or more of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank Lenders or other financial institution lenders (such existing Lender Lenders or other bank or other financial institution providing an Incremental Revolving Commitmentlenders, an “Additional Lender”)the "Supplemental Lenders") selected by the Borrowers with, provided that such Additional as to any Supplemental Lender shall be reasonably acceptable to which is not a Lender hereunder, the Borrower and consent of the Administrative Agent shall have consented and the Issuer (such consent not to be unreasonably withheld or delayedwithheld), (ii) to shall advise each Lender of the amount of such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender 's commitment with respect to the Additional Revolving Incremental Facility; provided, however, that the existing Lenders providing a Commitment Notice with respect to such Incremental Facility shall be entitled to participate in the Incremental Facility on the same terms and all matters relating thereto conditions applicable to the Supplemental Lenders with respect to such Incremental Facility (subject, however, to the allocations made by the Borrowers pursuant to an amendment clause (an “Incremental Amendment”i) to this Agreement and such other Loan Documents as are necessary, executed by above).
(c) Each Lender hereby authorizes the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment mayArranging Agents, without the consent requirement to obtain any further consents of the Lenders or the Issuer (but subject to the provisions of clauses (a) through (e) of Section 10.1), to enter into any amendments or supplements (including an amendment and restatement of the Agreement) with the Borrowers to this and any other LendersLoan Document to the extent necessary to implement the foregoing and include the Incremental Facility hereunder. By way of example, effect such amendments and not in limitation, the following items and sections hereof would be revised in order to this Agreement implement the Incremental Facility: (a) the definitions of the terms "Commitment", "Commitment Amount", "Commitment Termination Date", "Loans", "Note", "Percentage", "Revolving Loan Commitment Amount","Tranche B Term Loan Commitment Amount" and the other Loan Documents as may be necessary"Termination Date"; (b) Sections 2.1.1, in the reasonable opinion of 2.1.3, 2.1.4, 2.2, 2.6.1, 3.1.1, and 3.1.2; and (c) Supplemental Lenders not otherwise Lenders hereunder shall become Lenders hereunder pursuant to a joinder agreement reasonably satisfactory to the Administrative Agent and the Borrower, Borrowers. Prior to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness making of any Loans under the Incremental Amendment shall be subject Facility, the Borrowers will satisfy conditions and provide to the satisfaction Arranging Agents (with counterparts for each Lender) similar documents as those executed and provided on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Effective Date on which Incremental Revolving Commitments are effected, subject to the including satisfaction of the foregoing terms conditions similar to those contained in Sections 5.1.1, 5.1.2, 5.1.3, 5.1.5, 5.1.6, 5.1.7, 5.1.8, 5.1.9, 5.1.10, 5.1.11, 5.1.12, 5.1.13, 5.1.14, 5.1.15, 5.1.16, 5.1.17 and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders5.2, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date others as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held reasonably requested by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving CommitmentsArranging Agents.
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Incremental Facility. (a) The Borrower and any one or more Banks (including any New Bank (as defined below)) may at any from time on not more than four occasions after the Closing Date but prior to time before the Maturity DateDate agree that such Banks shall make, obtain or increase the amount of their Incremental Term Loans by notice executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying (whereupon i) the amount of such increase, (ii) the applicable Increased Facility Closing Date, (iii) the applicable maturity date and the amortization schedule for such Incremental Term Loans, in each case, which shall comply with Section 2.1(d), and (iv) the Applicable Margin for such Incremental Term Loans; provided, that if the total yield (calculated for both the Incremental Term Loans and the existing Loans, including the upfront fees, any interest rate floors and any OID (as defined below but excluding any arrangement, underwriting or similar fee paid by the Borrower)) in respect of any Incremental Term Loans exceeds the total yield for the existing Loans (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner determined by the Administrative Agent based on an assumed four-year life to maturity), the Applicable Margin for the existing Loans shall be increased so that the total yield in respect of such Incremental Term Loans is not greater than 50 basis points higher than the total yield for the existing Loans. Notwithstanding the foregoing, (i) the Administrative Agent shall promptly deliver a copy to each have received (A) additional new assets as Collateral and Covered Assets, consisting of assets that are of the Lenders)type included in the Collateral and Covered Assets, without having and in the manner and pursuant to seek consent from such documentation provided, on the Lenders, request an increase Closing Date and otherwise reasonably acceptable to the existing Revolving Commitments (such increase, the “Incremental Revolving Commitments,” Administrative Agent and the loans thereunderincreasing Bank or New Bank, as applicable, such that the “Incremental Revolving Loans”); provided that both at Collateral Coverage Ratio as of the time of any such request and upon the effectiveness of any Incremental Revolving Commitment referred to belowIncreased Facility Closing Date, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving pro forma effect theretoto such addition, shall be equal to or greater than the Collateral Coverage Ratio as of the last Collateral Report, which shall have been in all cases equal to or greater than 1.25 to 1.00 and (B) no Default or Event an updated Collateral and Covered Asset List to reflect such additional new assets, and (ii) without the consent of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower Administrative Agent, each increase effected pursuant to this Section paragraph shall set forth the requested be in a minimum amount of the Incremental Revolving Commitmentsat least $10,000,000. Incremental Revolving Commitments may be provided by No Bank shall have any existing Lender or by obligation to participate in any other bank increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitmententity which, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to with the consent of the Borrower and the Administrative Agent, elects to become a “Bank” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Bank Supplement (each, a “New Bank Supplement”), substantially in the form of Exhibit M-2, whereupon such bank, financial institution or other entity (a “New Bank”) shall become a Bank for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Activation Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans evidenced thereby. Any such deemed amendment may be effected in writing by the Administrative Agent shall have consented with the Borrower’s consent (such consent not to be unreasonably withheld or delayedwithheld) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect furnished to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitmentsparties hereto.
Appears in 1 contract
Samples: Credit Agreement (Istar Inc.)
Incremental Facility. The Borrower Representative may at any time on not more than four occasions after the Closing Date but prior to the Maturity Date, by written notice to the Administrative Agent (whereupon elect to request, prior to the Administrative Agent shall promptly deliver a copy to each of the Lenders)Revolving Commitment Termination Date, without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments (any such increase, the “Incremental Revolving Commitments,” ”), by an amount not in excess of $50,000,000 in the aggregate so long as the Secured Leverage Ratio (calculated on a pro forma basis) is no more than 3.00:1.00, in each case, with respect to any Incremental Revolving Commitments, assuming a borrowing of the maximum amount of Loans available thereunder. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower Representative proposes that the Incremental Revolving Commitments shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent and (B) the loans thereunder, the identity of each Lender or other Person that is an Eligible Assignee (an “Incremental Revolving LoansLoan Lender”)) to whom the Borrower Representative proposes any portion of such Incremental Revolving Commitments be allocated and the amounts of such allocations and any Lender approached to provide all or a portion of the Incremental Revolving Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Commitment. Such Incremental Revolving Commitments shall become effective as of such Increased Amount Date; provided that both at the time of any such request and upon the effectiveness of any Incremental Revolving Commitment referred to below, (1) no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately on such Increased Amount Date before or after giving effect theretoto such Incremental Revolving Commitments; (2) no Default or Event the Borrowers shall be in compliance with the financial covenant set forth in Section 6.07 (assuming for this purpose that such financial covenant is in effect) as of Default shall exist. The aggregate amount the last day of all the most recently ended four Fiscal Quarter period for which financial statements are available), after giving effect to such Incremental Revolving Commitments; (3) the Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower pursuant to this Section shall set forth the requested amount of Representative, the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Loan Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent and each of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may which shall be necessary, recorded in the reasonable opinion of the Administrative Agent Revolving Commitment Register, and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any each Incremental Amendment Revolving Loan Lender shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions requirements set forth in Section 4.22.32(c); (4) the Borrower Representative shall make (or cause to be made) any payments required pursuant to Section 2.32(c) in connection with the Incremental Revolving Commitments; and (5) the Borrower Representative shall deliver or cause to be delivered any legal opinions or other documents (including modifications of Mortgages and title insurance endorsements or policies) reasonably requested by the Administrative Agent in connection with any such transaction. No Lender shall be obligated Notwithstanding anything to provide the contrary in this Section 2.34 or in any other provision of any Loan Document, if the proceeds of any Incremental Revolving Loans, unless it so agrees. The Borrower may use Commitments are intended to be applied to finance an acquisition or other Investment and the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with Lenders providing such Incremental Revolving LoansCommitments so agree, the availability thereof shall (x) not be subject to the requirements set forth in clauses (1) or (2) above or clauses (ii) or (iii) of Section 3.02(a) and/or (y) be subject to customary “SunGard” or “certain funds” conditionality. On any Incremental Facility Closing Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the applicable Revolving Lenders shall assign to each of the Additional Incremental Revolving Loan Lenders, and each of the Additional Incremental Revolving Loan Lenders shall purchase from each of the applicable Revolving Loan Lenders, at the principal amount thereof (together with accrued interest), such interests in the applicable Revolving Loans outstanding on such Incremental Facility Closing Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing applicable Revolving Loan Lenders and Additional Incremental Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (c) each Incremental Revolving Loan Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower Representative’s notice of each Increased Amount Date and in respect thereof (y) the Incremental Revolving Commitments and the Incremental Revolving Loan Lenders and (z) in the case of each notice to any applicable Revolving Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section. The terms and provisions of the Incremental Revolving Loans shall be identical to the Revolving Loans; provided that if the Incremental Revolving Loan Lenders require an interest rate in excess of the interest rate or commitment fees in excess of the commitment fees then applicable to the Revolving Loans or Revolving Commitments, the interest rate on the Revolving Loans and the commitment fees on the Revolving Commitments shall be increased to equal such required rate without further consent of the affected Lenders. Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent to effect the provisions of this Section 2.34.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Fairmount Santrol Holdings Inc.)
Incremental Facility. (a) The Borrower may at any time on not more than four occasions after and the Closing Date but prior to the Maturity DateCo-Borrower may, by written notice to the Administrative Agent from time to time request Incremental Term Loans and/or Incremental Revolving Commitments in an aggregate amount not to exceed the Incremental Amount at such time from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (whereupon which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the case may be, in their own discretion; provided, that no Lender will be required to participate in any Incremental Facility without its consent and each Incremental Term Lender and/or Incremental Revolving Lender, if not already a Lender hereunder, shall be subject to the approval (which approval shall not be unreasonably withheld or delayed) of the Administrative Agent (solely to the extent the Administrative Agent’s consent would otherwise be required for an assignment to such Incremental Term Lender or Incremental Revolving Lender, as applicable, in accordance with Section 10.6 hereof) and, in the case of Incremental Revolving Lenders only, the Issuing Lender. Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (1) with respect to Incremental Term Loans, in minimum increments of $10,000,000, (2) with respect to Incremental Revolving Commitments, in minimum increments of $5,000,000 or (3) equal to the remaining Incremental Amount at such time), (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested to become effective (the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice, (iii) in the case of Incremental Term Loans, whether such Incremental Term Loans are to be on the same terms as the outstanding Term Loans or with terms different from the outstanding Term Loans, (iv) the use of proceeds for such Incremental Term Loan and/or Incremental Revolving Commitment and (v) pro forma financial calculations demonstrating compliance with the requirements under clause (iii) of Section 2.24(c).
(b) The Borrower, the Co-Borrower and each Incremental Term Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall promptly deliver a copy reasonably specify to each evidence the Incremental Term Loans of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments (such increase, the “Incremental Term Lender and/or Incremental Revolving Commitments,” and the loans thereunder, the “Commitment of such Incremental Revolving Loans”); provided that both Lender. If at the time of any Incremental Revolving Commitments the Revolving Commitments are still in effect, the Incremental Revolving Commitment shall be on terms and pursuant to documentation applicable to the Revolving Commitments. Each Incremental Assumption Agreement relating to Incremental Term Loans shall specify the terms of the Incremental Term Loans to be made thereunder (including any “most favored nation” pricing provisions applicable to such request Incremental Term Loans); provided that (i) the maturity date of any Incremental Term Loan shall be no earlier than the maturity date for the existing Term Loans, (ii) the weighted average life to maturity of any Incremental Term Loan shall be no shorter than the remaining weighted average life to maturity of the existing Term Loans (other than as necessary, if applicable, to make such Incremental Term Loan fungible with the existing Term Loans), (iii) if the total yield in respect of any Incremental Term Loans that would be considered tranche A term loans under then-existing customary market convention exceeds the total yield for the existing Term Loans by more than ½ of 1% (it being understood that any such excess may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed four-year life to maturity), the Applicable Margin for the existing Term Loans shall be increased so that the total yield in respect of such Incremental Term Loans is no more than ½ of 1% higher than the total yield for the existing Term Loans; provided that, in determining the interest rate margins applicable to any Incremental Term Loans and the existing Term Loans (x) any OID and upfront fees (which shall be deemed to constitute like amounts of OID) but excluding any arrangement, underwriting or similar fee paid to the Administrative Agent or the arrangers under any Incremental Term Loans and the existing Term Loans in the initial primary syndication thereof shall be included and equated to interest rate and (y) the excess of any Eurodollar Rate “floor” over three-month Eurodollar Rate and the excess of any ABR “floor” over the ABR, in each case without duplication as of the date of drawing of such Incremental Term Loans (disregarding such “floors” in determining the three-month Eurodollar Rate and ABR on such date), shall be equated to interest margin on the Incremental Term Loans, (iv) the Incremental Term Loans will rank pari passu in right of payment and security with the existing Term Loans, (v) the Incremental Term Loans shall share ratably in any optional or mandatory prepayments of the Term Facility unless the lenders with respect to the applicable Incremental Term Loans and the Borrower agree to a less than ratable share of such prepayments and (vi) to the extent the terms or documentation for Incremental Term Loans are not consistent with the terms of the existing Term Loans (except to the extent permitted by the foregoing clauses (i) through (iii) and clause (v)) they shall be reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans and/or Incremental Revolving Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto without their consent.
(c) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at become effective under this Section 2.24 unless (i) on the time that any Incremental Revolving date on which such Loan is made (or the date of such effectiveness and immediately after giving effect theretoto the Incremental Term Loans and/or Incremental Revolving Loans requested to be made on such date, the conditions set forth in Section 5.2 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received board resolutions and other closing certificates and documentation as may be required by the relevant Incremental Assumption Agreement which, to the extent required, shall be consistent with the related documentation delivered on the Restatement Date and such additional documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bring downs) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Incremental Revolving Loans are secured by the Collateral ratably with the existing Term Loans and Revolving Loans, and (iii) the Borrower and its Subsidiaries would be in compliance on a pro forma basis with the financial covenants set forth in Section 7.1 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available, after giving effect to such Incremental Term Loans and/or Loans to be made as of such date under the Incremental Revolving Commitment (and assuming such Incremental Revolving Commitments are fully drawn) and the application of the proceeds therefrom as if made and applied on such date; provided that in the case of any Incremental Term Loans the proceeds of which shall be used to consummate an acquisition permitted by this Agreement for which the Borrower has determined, in good faith, that limited conditionality is required (any such acquisition, a “Limited Conditionality Acquisition”), in lieu of satisfying clauses (i) and (iii) above, such Incremental Term Loans may be made if (x) as of the date of entry into the definitive documentation in respect of such Limited Conditionality Acquisition (the “Limited Conditionality Acquisition Agreement”), (1) no Default or Event of Default shall exist. The aggregate amount have occurred and be continuing or would arise after giving effect thereto, (2) the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date and (3) the Borrower and its Subsidiaries would be in compliance on a pro forma basis with the financial covenants set forth in Section 7.1 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available, after giving effect to such Incremental Term Loans and any Incremental Revolving Commitment to be made on the applicable Increased Amount Date (and assuming any such Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayedare fully drawn) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness therefrom as if made and applied on such date and (y) as of any Incremental Amendment the applicable Increased Amount Date, (1) no Event of Default under Section 8(a) or (f) shall have occurred and be subject to continuing and (2) the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) representations and warranties of each of the conditions Loan Party set forth in Section 4.2. No Lender the Loan Documents that are those customarily made in connection with acquisition financings (as determined by the Borrower and the Lenders in respect of such Incremental Term Loans) shall be obligated true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to provide any ensure that all Incremental Term Loans and/or Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds when originally made, are included in each borrowing of outstanding Term Loans or Revolving Loans on a pro rata basis, that each Incremental Term Lender and each Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed Lender shall be included in connection with such Incremental Revolving Loans. On any Incremental the definitions of Required Lenders and Majority Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each the Borrower agrees that Section 2.12 shall apply to any conversion of Eurodollar Loans to ABR Loans reasonably required by the Additional Lenders shall purchase from each Administrative Agent to effect the foregoing. For the avoidance of doubt, it is understood that the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary increased in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect an amount equal to the addition of such aggregate Incremental Revolving Commitments to the Revolving Commitments.
Appears in 1 contract
Samples: Credit Agreement (Allscripts Healthcare Solutions, Inc.)
Incremental Facility. The Subject to the terms and conditions set forth herein, the Borrower may shall have the right, at any time on not more than four occasions from time to time during the Commitment Period and after the Closing Date but prior Second Amendment Effective Date, to incur additional Indebtedness under this Credit Agreement in the form of term loans (each, an “Incremental Term Loan”) and/or increases to the Maturity DateRevolving Committed Amount (each, an “Incremental Revolver”; each Incremental Term Loan and Incremental Revolver, an “Incremental Facility”) by notice an aggregate amount of up to $150,000,000. The following terms and conditions shall apply to each Incremental Facility: (a) the loans made under any such Incremental Facility (each an “Additional Loan”) shall constitute Credit Party Obligations and will be secured and guaranteed with the other Credit Party Obligations on a pari passu basis, (b) any such Additional Loans (1) made pursuant to an Incremental Revolver shall have the same terms (including interest rate, maturity date, voting rights and rights to receive the proceeds of prepayments) as the existing Revolving Loans and shall be considered Revolving Loans hereunder and (2) made pursuant to an Incremental Term Loan shall have terms (including interest rate, maturity date, voting rights, rights to receive the proceeds of prepayments and amortization) to be agreed upon by the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments (such increase, the “Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving Loans”); provided that both Borrower at the time of such Incremental Term Loan, (c) each Incremental Facility shall be in a minimum principal amount of $50,000,000 and integral multiples of $10,000,000 in excess thereof, (d) the proceeds of any Additional Loan will be used for the purposes set forth in Section 3.11, (e) the Borrower shall execute such promissory notes as are necessary to reflect the Additional Loans under any such request and upon Incremental Facility, (f) before any Additional Loans are made, the effectiveness conditions to Extensions of any Incremental Revolving Commitment referred to belowCredit in Section 4.2 shall have been satisfied, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect theretog) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender then exist or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments.would
Appears in 1 contract
Samples: Credit Agreement (Belden Inc.)
Incremental Facility. The Borrower may Subject to the terms and conditions set forth herein, the Borrowers shall have the right, at any time on not more than four occasions up to three (3) years after the Closing Date but prior Date, to incur additional Indebtedness under this Credit Agreement in the form of one or more increases to the Revolving Committed Amount and/or additional term loan facilities (each an “Incremental Facility”) in an aggregate amount of up to $100,000,000. The following terms and conditions shall apply to each Incremental Facility:
(a) the loans made under any such Incremental Facility (each an “Additional Loan”) shall constitute Borrowers’ Obligations and will be secured and guaranteed with the other Loans on a pari passu basis;
(b) the weighted average life and final maturity applicable to any such Incremental Facility shall be determined at the time such Incremental Facility is made available; provided that (i) if such Additional Loan is a Term Loan (an “Additional Term Loan”) (A) such Incremental Facility shall mature no earlier than the Term Loan Maturity Date, by notice Date and (B) the weighted average life to maturity of the Incremental Facility shall be longer than or substantially similar to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy weighted average life to each maturity of the Lenders)Term Loan and (ii) if such Incremental Facility is used to increase the Revolving Committed Amount, without having to seek consent from such Incremental Facility shall mature no earlier than the LendersRevolving Commitment Termination Date;
(c) should the interest rate margin on the then-current Term Loans or Revolving Loans, request an increase as applicable, be less than the interest rate margin on any Incremental Facility, the interest rate margin for the then-current Term Loans and Revolving Loans, as applicable, will be increased and/or additional fees will be paid to the existing Term Loan Lenders and/or Revolving Commitments Loan Lenders, as applicable, such that the interest rate margin on the then-current Term Loans or Revolving Loans will be 0.125% less than the interest rate margin on any Incremental Facility (taking into account upfront fees payable to the Lenders making any Incremental Facility);
(d) any such increase, Incremental Facility shall be entitled to the “Incremental Revolving Commitments,” same voting rights as the existing Loans and shall be entitled to receive proceeds of prepayments on the loans thereunder, same basis as the “Incremental Term Loans or the Revolving Loans”); provided that both at , as applicable;
(e) any such Incremental Facility shall be obtained from existing Lenders or from other banks, financial institutions or investment funds, in each case in accordance with the time terms set forth below;
(f) the Borrowers may borrow up to three Incremental Facilities and each Incremental Facility shall be in a minimum principal amount of $25,000,000;
(g) the proceeds of any such request Additional Loan will be used to finance capital expenditures and upon working capital and other general corporate purposes, including Permitted Acquisitions;
(h) the effectiveness conditions to Extensions of any Incremental Revolving Commitment referred to below, no Default or Event of Default Credit in Section 4.2 shall exist and at the time that any Incremental Revolving Loan is made have been satisfied; and
(and immediately after giving effect theretoi) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not received from the Borrower updated financial projections and an officer’s certificate, in each case in form and substance satisfactory to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order demonstrating that, after giving effect to all any such assignments and purchasesIncremental Facility, such Revolving Loans the Borrower will be held by in compliance with the financial covenants set forth in Section 5.9. Participation in any such Incremental Facility hereunder shall be offered first to each of the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect Lenders, but each such Lender shall have no obligation to the addition provide all or any portion of such Incremental Revolving Commitments Facility. If the amount of the Incremental Facility requested by the Borrower shall exceed the commitments that the existing Lenders are willing to provide with respect to such Incremental Facility, then the Borrower may invite other banks, financial institutions and investment funds reasonably acceptable to the Revolving CommitmentsAdministrative Agent to join this Credit Agreement as Lenders hereunder for the portion of such Incremental Facility not taken by existing Lenders; provided that such other banks, financial institutions and investment funds shall enter into such joinder agreements to give effect thereto as the Administrative Agent and the Borrower may reasonably request. The Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Credit Agreement or any other Credit Document as may be reasonably necessary to incorporate the terms of any new Incremental Facility therein.
Appears in 1 contract
Incremental Facility. The (a) So long as no Event of Default under subsection 8(a) or 8(f) exists or would arise therefrom, the Borrower may shall have the right, at any time on not more than four occasions and from time to time after the Closing Date but prior to the Maturity Restatement Effective Date, by notice (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders“Incremental Term Loan Commitments”), without having (ii) to seek consent from increase any then-existing Tranche of Term Loans by requesting new term loan commitments to be added to such existing Tranche of Term Loans (the Lenders“Supplemental Term Loan Commitments”), (iii) to request an increase new commitments under one or more new revolving facilities to the existing Revolving Commitments be included in this Agreement, which new revolving facilities may include one or more subfacilities for letters of credit or swing line loans (such increase, the “Incremental Revolving Commitments”), and (iv) to increase any then existing Tranche of revolving commitments by requesting new revolving loan commitments be added to such existing Tranche of revolving commitments (the “Supplemental Revolving Commitments,” and together with the loans thereunderIncremental Term Loan Commitments, Supplemental Term Loan Commitments and Incremental Revolving Commitments, the “Incremental Revolving LoansCommitments”); , provided that both that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this subsection 2.5 shall not exceed, at the time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such request Indebtedness, including to refinance other Indebtedness), an amount that could then be Incurred under this Agreement in compliance with subsection 7.1(b)(i)(II) or the definition of “Maximum Incremental Facilities Amount” and upon (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (i) of the effectiveness definition of “Maximum Incremental Facilities Amount”, the Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause. Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitment referred to below, no Default or Event of Default Commitments) shall exist and at the time that any Incremental Revolving Loan is be made by creating a new Tranche.
(and immediately after giving effect theretob) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice request from the Borrower pursuant to this Section subsection 2.5 shall set forth the requested amount and proposed terms of the relevant Incremental Revolving Commitments. The Incremental Revolving Commitments (or any portion thereof) may be provided made by any existing Lender or by any other bank or other financial institution (any such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitmentinstitution, an “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”), ; provided that if such Additional Incremental Lender shall be reasonably acceptable to is not already a Lender hereunder or any affiliate of a Lender hereunder or an Approved Fund, the Borrower and consent of the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to shall be required (it being understood that any such Additional Lender’s providing Incremental Lender that is an Affiliated Lender shall be subject to the provisions of subsections 10.6(h) and 10.6(i), mutatis mutandis, to the same extent as if such Incremental Revolving Commitment, if Commitments and related Obligations had been obtained by such consent would be required under Section 9.6 for an assignment Lender by way of assignment).
(c) Supplemental Term Loan Commitments to such Additional Lender. Incremental and Supplemental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans or revolving commitments to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Incremental Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. An Increase Supplement or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments (including to subsection 2.2(b)) to the Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this subsection 2.5. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall become a Revolving Lender and be a Lender with respect for all intents and purposes of this Agreement and the term loan made pursuant to the Additional such Supplemental Term Loan Commitment shall be a Term Loan or commitments made pursuant to such Supplemental Revolving Commitment shall be revolving commitments hereunder, as applicable.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments and all matters relating thereto Supplemental Revolving Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryDocuments, executed by the Borrower, Borrower and each Additional Lender agreeing to provide such Commitment and the Administrative Agentapplicable Incremental Lender. An Incremental Commitment Amendment may, without the consent of any other LendersLender, effect such amendments to this Agreement and the other any Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent Borrower and the BorrowerAdministrative Agent, (x) to effect the provisions and intent of this Section subsection 2.5 and/or (y) so long as such amendments are not materially adverse to the other Lenders, to maintain the fungibility of any such Incremental Term Loans with any tranche of then outstanding Term Loans, provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured by the same Collateral securing the Term Loan Facility Obligations or (at the Borrower’s option) will be unsecured, (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Term Loan Facility Obligations and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Loans and (II) so long as any Initial Term Loans, Incremental B-2019 Term Loans or Incremental B-2020 Term Loans are outstanding, any mandatory prepayment from the Net Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Loans provided pursuant to such Incremental Commitment Amendment and the application disposition of the proceeds thereof. The effectiveness which was contemplated by any definitive agreement in respect of any Incremental Amendment shall be subject such acquisition) or Recovery Event, to the satisfaction extent the Net Cash Proceeds of such Asset Disposition or Recovery Event are required to be applied to repay the Initial Term Loans, Incremental B-2019 Term Loans or Incremental B-2020 Term Loans pursuant to subsection 3.4(c), on more than a ratable basis with the date thereof Initial Term Loans, Incremental B-2019 Term Loans or Incremental B-2020 Term Loans (each, an “Incremental Facility Closing Date”after giving effect to any amendment in accordance with subsection 10.1(d)(v)); (ii) of each of the conditions set forth in Section 4.2. No no Lender shall will be obligated required to provide any such Incremental Revolving Loans, Commitment unless it so agrees. The ; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions (as determined by the Borrower may use in good faith), would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the proceeds Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable); (iv) the interest rate margins and (subject to clause (iii) above) amortization schedule applicable to the loans made pursuant to the Incremental Revolving Loans Commitments shall be determined by the Borrower and the applicable Incremental Lenders; provided that in the event that the applicable interest rate margins for any purpose term loans Incurred by the Borrower under any Incremental Term Loan Commitment made on or prior to the 12-month anniversary of the Restatement Effective Date are higher than the applicable interest rate margin for the Initial Term Loans by more than 50 basis points, then the Applicable Margin for the Initial Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for the Initial Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided further that, in determining the applicable interest rate margins for the Initial Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront fees payable generally to all participating Incremental Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Initial Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity) (provided that, if the Initial Term Loans are issued in a manner such that all Initial Term Loans were not prohibited by this Agreement unless otherwise agreed issued with a uniform amount of OID or upfront fees within the Tranche of Initial Term Loans, the amount of OID and upfront fees attributable to the entire Tranche of Initial Term Loans shall be determined on a weighted average basis); (B) any arrangement, structuring or fees payable in connection with the Incremental Term Loans that are not shared with all Additional Incremental Lenders providing such Incremental Revolving Loans. On any Term Loans shall be excluded; and (C) if the Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject Term Loans include an interest rate floor greater than the interest rate floor applicable to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest)Initial Term Loans, such interests increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Initial Term Loans shall be required, to the extent an increase in the Revolving interest rate floor for the Initial Term Loans outstanding on such Incremental Facility Closing Date as shall be necessary would cause an increase in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments.interest rate then in
Appears in 1 contract
Samples: Term Loan Credit Agreement (US Foods Holding Corp.)
Incremental Facility. The (a) So long as no Event of Default under subsection 8(a) or 8(f) exists or would arise therefrom, the Borrower may shall have the right, at any time on not more than four occasions and from time to time after the Closing Date but prior to the Maturity Restatement Effective Date, by notice (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders“Incremental Term Loan Commitments”), without having (ii) to seek consent from increase any then-existing Tranche of Term Loans by requesting new term loan commitments to be added to such existing Tranche of Term Loans (the Lenders“Supplemental Term Loan Commitments”), (iii) to request an increase new commitments under one or more new revolving facilities to the existing Revolving Commitments be included in this Agreement, which new revolving facilities may include one or more subfacilities for letters of credit or swing line loans (such increase, the “Incremental Revolving Commitments”), and (iv) to increase any then existing Tranche of revolving commitments by requesting new revolving loan commitments be added to such existing Tranche of revolving commitments (the “Supplemental Revolving Commitments,” and together with the loans thereunderIncremental Term Loan Commitments, Supplemental Term Loan Commitments and Incremental Revolving Commitments, the “Incremental Revolving LoansCommitments”); , provided that both that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this subsection 2.5 shall not exceed, at the time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such request Indebtedness, including to refinance other Indebtedness), an amount that could then be Incurred under this Agreement in compliance with subsection 7.1(b)(i)(II) or the definition of “Maximum Incremental Facilities Amount” and upon (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (i) of the effectiveness definition of “Maximum Incremental Facilities Amount”, the Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause. Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitment referred to below, no Default or Event of Default Commitments) shall exist and at the time that any Incremental Revolving Loan is be made by creating a new Tranche.
(and immediately after giving effect theretob) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice request from the Borrower pursuant to this Section subsection 2.5 shall set forth the requested amount and proposed terms of the relevant Incremental Revolving Commitments. The Incremental Revolving Commitments (or any portion thereof) may be provided made by any existing Lender or by any other bank or other financial institution (any such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitmentinstitution, an “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”), ; provided that if such Additional Incremental Lender shall be reasonably acceptable to is not already a Lender hereunder or any affiliate of a Lender hereunder or an Approved Fund, the Borrower and consent of the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to shall be required (it being understood that any such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for Lender that is an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Affiliated Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on provisions of subsections 10.6(h) and 10.6(i), mutatis mutandis, to the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with same extent as if such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction and related Obligations had been obtained by such Lender by way of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interestassignment), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments.
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Incremental Facility. The (a) Subject to the terms of this Agreement and so long as no Default has occurred and is continuing, the Borrower may at any time on not more than four occasions after the Closing Date but prior to the Maturity Daterequest, by written notice to the Administrative Agent delivered not more than twice over the term of this Agreement, that a revolving credit and/or term loan facility (whereupon the Administrative Agent shall promptly deliver "Incremental Facility") in a copy to each of specified principal amount which (when aggregated with the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments (such increase, the “Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving Loans”); provided that both at the time of any such request and upon the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate outstanding principal amount of Loans and unused amount of commitments under all other Incremental Revolving Commitments Facilities provided pursuant to this Section) shall not exceed $50,000,000. Each notice from 100,000,000 pursuant to which revolving loans and/or term loans will be made to the Borrower pursuant to this Section shall set forth Agreement. Loans made pursuant to the requested Incremental Facility will (subject to clause (c)), be on terms and conditions satisfactory to the Required Lenders, with (x) revolving loans under the Incremental Facility being instituted as an increase to the then existing Revolving Loan Commitment Amount (and having a maturity date the same as the Stated Maturity Date), and loans made thereunder being "Revolving Loans" hereunder and otherwise treated pari passu (including as to repayments, prepayments, interest rate, commitment fees, mandatory commitment reductions, risk participations in Letters of Credit and collateral) pro rata with all other Revolving Loans and (y) term loans under the Incremental Facility being instituted as an increase to the aggregate outstanding principal amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any Term Loans (and having a maturity date the same as the Stated Maturity Date), and loans made thereunder being "Term Loans" hereunder and otherwise treated pari passu (as to repayments, prepayments, mandatory commitment reductions and collateral) pro rata with all other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”)Term Loans, provided that the Weighted Average Life to Maturity of such Additional Incremental Facility term loans shall in no event be shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans.
(b) Upon receipt of such request, the Administrative Agent will promptly notify, and deliver a copy of such request and related materials to, each Lender (by telephone or otherwise). Within 15 Business Days after receipt by the Lenders of such request, each Lender interested in participating in the requested Incremental Facility shall notify the Administrative Agent and the Borrower of its desire to participate and the maximum amount of its proposed Commitment with respect to such Incremental Facility (a "Commitment Notice"); provided, however, that each Lender may participate or not participate in the Incremental Facility in its sole discretion, and no Lender shall be reasonably acceptable deemed to have committed to participate in any Incremental Facility as a result of being a signatory to this Agreement prior to the effectiveness of the Incremental Facility, nor shall any Lender have any obligation to participate in any Incremental Facility unless and until it commits to do so as provided in this Section. Following receipt of such Commitment Notices, the Borrower and (i) shall allocate the Incremental Facility, which allocations may be made, at the Borrower's option, in whole or in part to one or more of the Lenders or other lenders (such Lenders or other lenders, the "Supplemental Lenders") selected by the Borrower with, as to any Supplemental Lender which is not a Lender hereunder, the consent of the Administrative Agent shall have consented and each Issuer (such consent not to be unreasonably withheld or delayedwithheld), (ii) to shall advise each Lender of the amount of such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender 's commitment with respect to the Additional Revolving Incremental Facility; provided, however, that the existing Lenders providing a Commitment Notice with respect to such Incremental Facility shall be entitled to participate in the Incremental Facility on the same terms and all matters relating thereto conditions applicable to the Supplemental Lenders with respect to such Incremental Facility (subject, however, to the allocations made by the Borrower pursuant to an amendment clause (an “Incremental Amendment”i) to this Agreement and such other Loan Documents as are necessary, executed by above).
(c) Each Lender hereby authorizes the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment mayArranging Agents, without the consent requirement to obtain any further consents of the Lenders, the Issuers, the Managing Agents or the Co-Agents (but subject to the provisions of clauses (a) through (g) of Section 10.1), to enter into any amendments or supplements (including an amendment and restatement of the Agreement) with the Borrower to this and any other LendersLoan Document to the extent necessary to implement the foregoing and include the Incremental Facility hereunder. By way of example, effect such amendments and not in limitation, the following items and sections hereof would be revised in order to this Agreement implement the Incremental Facility: (a) the definitions of the terms "Commitment", "Commitment Amount", "Commitment Termination Date", "Loans", "Note", "Percentage", "Revolving Loan Commitment Amount","Term Loan Commitment Amount" and the other Loan Documents as may be necessary"Termination Date"; (b) Sections 2.1.1, in the reasonable opinion of 2.1.3, 2.1.4, 2.2, 2.6.1, 3.1.1, and 3.1.2; and (c) Supplemental Lenders not otherwise Lenders hereunder shall become Lenders hereunder pursuant to a joinder agreement reasonably satisfactory to the Administrative Agent and the Borrower, . Prior to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness making of any Loans under the Incremental Amendment shall be subject Facility, the Borrower will satisfy conditions and provide to the satisfaction Arranging Agents (with counterparts for each Lender) similar documents as those executed and provided on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Effective Date on which Incremental Revolving Commitments are effected, subject to the including satisfaction of the foregoing terms conditions similar to those contained in Sections 5.1.1, 5.1.2, 5.1.3, 5.1.5, 5.1.6, 5.1.7, 5.1.8, 5.1.9, 5.1.11, 5.1.13, 5.1.14, 5.1.15 and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders5.2, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date others as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held reasonably requested by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving CommitmentsArranging Agents.
Appears in 1 contract
Incremental Facility. The (a) So long as no Event of Default under Section 8.01(a) or 8.01(f) exists or would arise therefrom, the Borrower may shall have the right, at any time on not more than four occasions and from time to time after the Closing Date but prior to the Maturity Restatement Date, by notice (i) to the Administrative Agent request new commitments under one or more new revolving facilities to be included in this Agreement (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments (such increase, the “Incremental Revolving Commitments,” ”), (ii) to increase the Existing Tranche of Commitments by requesting new Commitments be added to an Existing Tranche of Commitments (the “Supplemental Revolving 1003651351v23 Commitments”), and (iii) to request new synthetic or other letter of credit facility commitments under one or more new synthetic or other letter of credit facilities to be included in this Agreement (together with the Incremental Revolving Commitments and the loans thereunderSupplemental Revolving Commitments, the “Incremental Revolving LoansCommitments”); , provided that both that, the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.24 shall not exceed, at the time the respective Incremental Commitment becomes effective (and after giving effect to the incurrence of Indebtedness in connection therewith and the application of proceeds of any such request and upon the effectiveness Indebtedness to refinance such other Indebtedness), an amount that could then be incurred under this Agreement in compliance with Section 7.01(b)(i). Any loans made in respect of any such Incremental Commitment (other than Supplemental Revolving Commitment referred to below, no Default or Event of Default Commitments) shall exist and at the time that any Incremental Revolving Loan is be made by creating a new Tranche.
(and immediately after giving effect theretob) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice request from the Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Revolving Commitments. The Incremental Revolving Commitments (or any portion thereof) may be provided made by any existing Lender or by any other bank or other financial institution (any such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitmentinstitution, an “Additional Lender”)) subject, provided that in the case of any Incremental Revolving Commitments and Supplemental Revolving Commitments (if such Additional Lender shall be reasonably acceptable is not already a Lender hereunder or any affiliate of a Lender hereunder) to the Borrower and consent of the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed).
(c) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Supplemental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans commitments under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) a supplement specifying the Tranche of Commitments to this Agreement and such other Loan Documents as are necessarybe increased, executed by the Borrower, Borrower and each increasing Lender substantially in the form attached hereto as Exhibit H-1 (the “Increase Supplement”) or by each Additional Lender agreeing substantially in the form attached hereto as Exhibit H-2 (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to provide such Commitment and the Administrative AgentAgent for recording in the Register. An Incremental Amendment Increase Supplement or Lender Joinder Agreement may, without the consent of any other LendersLender, effect such amendments to this Agreement and the other Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent Borrower and the BorrowerAdministrative Agent, to effect the provisions and intent of this Section and the application 2.24. Upon effectiveness of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (eachLender Joinder Agreement, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Additional Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds a Lender for all intents and purposes of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with and the commitments made pursuant to such Incremental Supplemental Revolving LoansCommitment shall be Commitments. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to Upon the satisfaction effectiveness of the foregoing terms and conditionsIncrease Supplement or the Lender Joinder Agreement, as the case may be, in each case with respect to any Supplemental Revolving Commitments, outstanding Loans and/or participations in outstanding L/C Exposure of the Revolving Lenders applicable Existing Tranche, as the case may be, shall assign to each be reallocated (and the increasing Lender or joining Additional Lender, as applicable, shall make appropriate payments representing principal, with the Borrower making any necessary payments of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, ) so that after giving effect to all such assignments thereto the increasing Lender or the joining Additional Lender, as the case may be, and purchases, such Revolving Loans will be held by the existing Revolving other Lenders and Additional Lenders of the applicable Existing Tranche share ratably in the total Aggregate Credit Exposure in accordance with their Revolving the applicable Commitments after giving effect to the addition (and notwithstanding Section 10.05, no Borrower shall be liable for any amounts under Section 10.05 as a result of such Incremental Revolving Commitments to the Revolving Commitmentsreallocation).
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Incremental Facility. The Borrower may at (a) At any time on not more than four occasions after the Closing Date but prior and from time to time, subject to the Maturity Dateterms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having request to seek consent from add one or more additional tranches of term loans (the Lenders, request an increase to “Incremental Term Loans”) or one or more increases in the existing Revolving Commitments (such increase, the “Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving Loans”); , provided that both at the time of any each such request and upon the effectiveness of any each Incremental Revolving Commitment referred to belowFacility Amendment, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect theretoA) no Default or Event of Default has occurred and is continuing or shall existresult therefrom, (B) in the case of Incremental Term Loans or Incremental Revolving Commitments incurred in reliance on clause (z) of the definition of Incremental Amount, after giving effect to any permanent repayment of Indebtedness by the Borrower or any of its Restricted Subsidiaries that has occurred during the most-recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or (b) but prior to or simultaneous with the making of such Incremental Term Loans or Incremental Revolving Commitments, the Borrower shall be in compliance on a Pro Forma Basis with the covenants contained in Sections 6.11 and 6.12, recomputed as of the last day of the most-recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or (b) (assuming, in the case of any Incremental Revolving Facility, that the commitments thereunder are fully drawn) and (C) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above. The aggregate Notwithstanding anything to contrary herein, the principal amount of all any Incremental Term Loans or Incremental Revolving Commitments shall not exceed the Incremental Amount at such time; provided that the Borrower shall be permitted a one-time additional incurrence of Incremental Revolving Commitments in principal amount not to exceed $50,000,00020,000,000 (the “Additional Revolving Commitment Incurrence”). Each tranche of Incremental Term Loans and Incremental Revolving Commitments shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $50,000,000 in case of Incremental Term Loans or $25,000,000 in case of Incremental Revolving Commitments (other than the Additional Revolving Commitment Incurrence), provided that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability under the Incremental Amount set forth above.
(b) Any Incremental Term Loans (i) shall rank pari passu or junior in right of payment in respect of the Collateral and with the Obligations in respect of the Revolving Commitments, the Tranche A Term Loans and the Tranche B Term Loans, (ii) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Tranche A Term Loans or Tranche B Term Loans, as applicable, and (iii) other than amortization, pricing or maturity date, shall have the same terms as (and documentation consistent with) the Tranche A Term Loans or Tranche B Term Loans, as applicable, or such terms (and documentation) as are reasonably satisfactory to the Administrative Agent, provided that (A) if the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Term Loans and any LIBO or ABR floor applicable to such Incremental Term Loans) relating to any Incremental Term Loan exceeds the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Tranche A Term Loans or Tranche B Term Loans, as applicable, and any LIBO or ABR floor applicable to the Tranche A Term Loans or Tranche B Term Loans, as applicable) relating to the Tranche A Term Loans or Tranche B Term Loans, as applicable, immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Rate relating to the Tranche A Term Loans or Tranche B Term Loans, as applicable, shall be adjusted to be equal to the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Term Loans and any LIBO or ABR floor applicable to such Incremental Term Loans) relating to such Incremental Term Loans minus 0.50%, (B) any Incremental Tranche A Term Loan shall have a maturity date and weighted average life customary for a tranche A term loan under then-existing market convention and any Incremental Tranche B Term Loan shall have a maturity date and weighted average life customary for a tranche B term loan under then-existing market convention, (C) any Incremental Tranche A Term Loan shall not have a final maturity date earlier than the Tranche A Maturity Date and any Incremental Tranche B Term Loan shall not have a final maturity date earlier than the Tranche B Maturity Date and (D) any Incremental Tranche A Term Loan shall not have a weighted average life that is shorter than the weighted average life of the then-remaining Tranche A Term Loans and any Incremental Tranche B Term Loan shall not have a weighted average life that is shorter than the weighted average life of the then-remaining Tranche B Term Loans. Any Incremental Revolving Commitment shall be on terms (other than pricing) and pursuant to the documentation applicable to the Revolving Commitments; provided that if the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Revolving Commitments and any LIBO or ABR floor applicable to such Incremental Revolving Commitments) relating to any Incremental Revolving Commitments exceeds the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Revolving Commitments) relating to the Revolving Commitments immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Rate relating to the Revolving Commitments shall be adjusted to be equal to the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Revolving Commitments and any LIBO or ABR floor applicable to such Incremental Revolving Commitments) relating to such Incremental Revolving Commitments minus 0.50%.
(c) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Revolving Commitments. Term Loans and/or Incremental Revolving Commitments may and, in the case of any Incremental Term Loans, shall designate whether such Incremental Term Loans shall be provided by any existing Lender Incremental Tranche A Term Loans or by any other bank or other Incremental Tranche B Term Loans. Any additional bank, financial institution (such institution, existing Lender or other bank Person that elects to extend Incremental Term Loans or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender Commitments shall be reasonably acceptable satisfactory to the Borrower and the Administrative Agent shall have consented (any such consent not to be unreasonably withheld bank, financial institution, existing Lender or delayed) to such other Person being called an “Additional Lender’s providing such Incremental Revolving Commitment”) and, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional not already a Lender. Incremental Revolving Commitments , shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans a Lender under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryDocuments, executed by Holdings, the Borrower, each such Additional Lender agreeing to provide such Commitment and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provided any Incremental Term Loans or Incremental Revolving Commitments, unless it so agrees (it being understood that any Lender failing to respond to a request for Incremental Term Loans or Incremental Revolving Commitments shall be deemed to have declined such request). Commitments in respect of any Incremental Term Loans or Incremental Revolving Commitments shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions and intent of this Section and (including to provide for voting provisions applicable to the application Additional Lenders comparable to the provisions of clause (B) of the proceeds thereofsecond proviso of Section 9.02(b)). The effectiveness of any Incremental Facility Amendment shall shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender 4.02 (it being understood that all references to “the date of such Borrowing” in Section 4.02 shall be obligated deemed to provide refer to the Incremental Facility Closing Date). The proceeds of any Incremental Term Loans will be used only for general corporate purposes (including Permitted Acquisitions). Upon each increase in the Revolving LoansCommitments pursuant to this Section, unless it so agrees. The Borrower may use each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed Commitment (each a “Incremental Revolving Lender”) in connection with respect of such increase, and each such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Commitments are effected, subject to the satisfaction Lender’s participations hereunder in outstanding Letters of the foregoing terms Credit and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), Swingline Loans such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all each such assignments deemed assignment and purchasesassumption of participations, such Revolving the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans will be held by the existing each Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of Lender (including each such Incremental Revolving Lender) will equal the percentage of the aggregate Revolving Commitments of all Revolving Lenders represented by such Revolving Lender’s Revolving Commitment. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the Revolving Commitmentstransactions effected pursuant to the immediately preceding sentence.
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Incremental Facility. The Borrower may (a) From time to time upon at any time on not more than four occasions after the Closing Date but least 30 days’ prior to the Maturity Date, by written notice to the Administrative Facility Agent (whereupon which notice shall be promptly transmitted by the Administrative Facility Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the LendersBorrower shall have the right, request an increase subject to the existing Revolving Commitments terms and conditions set forth below, to increase the aggregate amount of the Energy Hedging Commitment (any such increaseincrease referred to herein, the as 45 Puget Opco Credit Agreement an “Energy Hedging Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving LoansLoan”); provided that both that, (i) at the time of any such request and upon the effectiveness of any such Energy Hedging Incremental Revolving Commitment referred to belowLoan, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately or would exist after giving effect thereto, (ii) such increase must be in a minimum amount of $50,000,000 and in integral multiples of $5,000,000 above such amount, (iii) the aggregate Energy Hedging Commitment shall not be increased to an amount greater than the Maximum Energy Hedging Incremental Facility Amount without the prior written consent of the Majority Lenders, (iv) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from individual Lender’s Commitment may be increased without such Lender’s written consent, (v) the Borrower pursuant shall execute and deliver a Note or Notes as are necessary and requested by the applicable Lenders to this Section reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall set forth be amended to reflect the requested amount revised Commitments of the Incremental Revolving Commitments. Incremental Revolving Commitments may Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging Commitment, the Borrower will prepay (provided that any such prepayment shall be subject to Section 2.03), one or more existing Energy Hedging Loans in an amount necessary such that after giving effect to the increase in the Energy Hedging Commitment, each Energy Hedging Lender will hold its pro rata share (based on its share of the revised Energy Hedging Commitment) of outstanding Energy Hedging Loans.
(b) Any such increase in the Energy Hedging Commitment shall apply, at the option of the Borrower, to (x) the Energy Hedging Commitment of one or more existing Lenders; provided by that each Energy Hedging Issuing Bank and any existing Lender whose Energy Hedging Commitment is being increased must consent in writing thereto and/or (y) the creation of a new Energy Hedging Commitment to one or by more bank or other financial institution (any such other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, being called an “Additional Lender”); provided that, provided that any such Additional Lender shall (A) must be reasonably acceptable to approved by the Borrower and the Administrative Facility Agent shall have consented (such consent approval not to be unreasonably withheld or delayedwithheld) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall and each Energy Hedging Issuing Bank and (B) must become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans a Lender under this Agreement by execution and each Additional Lender delivery of an Assignment and Assumption Agreement; provided further that, in no event or at any time shall become a Revolving Lender and any Borrower Affiliate or Macquarie Affiliate be a Lender with respect to the Additional Revolving Commitment and all matters relating thereto for any Energy Hedging Incremental Loans (including by means of assignment or participation pursuant to an amendment Section 10.07).
(an “c) The Borrower shall use the proceeds of the Energy Hedging Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by Loans solely for the Borrower, each Additional Lender agreeing to provide such Commitment and purpose for which the Administrative Agent. An Incremental Amendment may, without proceeds of the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as Energy Hedging Loans may be necessary, used.
(d) Except as otherwise set forth in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any 2.11, all Energy Hedging Incremental Amendment Loans shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the terms and conditions set forth in Section 4.2. No Lender shall be obligated to provide herein including any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving CommitmentsApplicable Margin.
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Incremental Facility. The Borrower may at At any time on not more than four occasions after the Closing Date but prior to the Maturity Datesecond anniversary of the date hereof, the Borrowers may, by written notice ("Incremental Facility Notice") to the Administrative Agent (whereupon the Administrative Agent which shall promptly deliver a copy to each of the LendersLender Parties), without having request the addition of one or more additional term facilities (each an "Incremental Facility" and together, the "Incremental Facilities"). Each Incremental Facility shall be in an aggregate principal amount of not less than $100 million and all of which together shall be in an aggregate principal not to seek consent from exceed $500 million. The Incremental Facilities
(i) shall be a Term Facility for all purposes hereunder (and references to the Term Facility and Term Advances shall be deemed as the context requires to include reference to the Incremental Facilities) and (ii) shall have such pricing as may be agreed by the Borrowers and the Lender Parties providing such Incremental Facilities and shall otherwise have the same terms as the Term Advances (and references to the Term Facility and Term Advances shall be deemed as the context requires to include reference to the Incremental Facilities) including the same Termination Date and the same proportional amortization as the remaining Term Advances. Any such Incremental Facility shall be offered, first, on a pro rata basis to existing Lenders, request an increase and to the existing Revolving Commitments (extent that such increase, the “Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving Loans”); provided that both at the time of any such request and upon the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall Lenders do not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount commit within 30 days of the Incremental Revolving Commitments. Facility Notice for any such Incremental Revolving Commitments may be provided by Facility, the Borrowers shall have the right to arrange for one or more banks or other financial institutions acceptable to the Agents (any existing Lender or by any other such bank or other financial institution (institution, an "Additional Lender") to extend commitments to provide the Incremental Facility in an aggregate amount equal to the amount, if any, by which the commitments by the Lenders to provide such existing Lender or other bank or other financial institution providing Incremental Facility is less than the amount thereof requested by the Borrowers pursuant to the terms of this Section 2.05(c). Commitments in respect of an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments Facility shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans "Commitments" under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, hereto executed by each of the BorrowerBorrowers, each Additional Lender Party agreeing to provide such Commitment Commitment, each Additional Lender, if any, the Issuing Banks and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect Agents and such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, Agents shall reasonably deem appropriate to effect the provisions and intent of this Section and the application of the proceeds thereofsuch purpose. The effectiveness of any such amendment and the commitments in respect of each Incremental Amendment Facility shall be subject to the satisfaction on the date thereof (eachand, an “if different, on the date on which Advances under the Incremental Facility Closing Date”) are made, of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments3.02.
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Incremental Facility. (a) The Borrower may at any time on not more than four occasions after the Closing Date but prior to the Maturity Datemay, by written notice to the Administrative Agent from time to time request Incremental Term Loans and/or Incremental Revolving Commitments in an aggregate amount not to exceed the Incremental Amount at such time from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (whereupon which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the case may be, in their own discretion; provided, that no Lender will be required to participate in any Incremental Facility without its consent and each Incremental Term Lender and/or Incremental Revolving Lender, if not already a Lender hereunder, shall be subject to the approval (which approval shall not be unreasonably withheld or delayed) of the Administrative Agent (solely to the extent the Administrative Agent’s consent would otherwise be required for an assignment to such Incremental Term Lender or Incremental Revolving Lender, as applicable, in accordance with Section 10.6 hereof) and, in the case of Incremental Revolving Lenders only, the Issuing Lender. Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (1) with respect to Incremental Term Loans, in minimum increments of $10,000,000, (2) with respect to Incremental Revolving Commitments, in minimum increments of $5,000,000 or (3) equal to the remaining Incremental Amount at such time), (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested to become effective (the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice, (iii) in the case of Incremental Term Loans, whether such Incremental Term Loans are to be on the same terms as the outstanding Term Loans or with terms different from the outstanding Term Loans, (iv) the use of proceeds for such Incremental Term Loan and/or Incremental Revolving Commitment and (v) pro forma financial calculations demonstrating compliance with the requirements under clause (iii) of Section 2.24(c).
(b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall promptly deliver a copy reasonably specify to each evidence the Incremental Term Loans of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments (such increase, the “Incremental Term Lender and/or Incremental Revolving Commitments,” and the loans thereunder, the “Commitment of such Incremental Revolving Loans”); provided that both Lender. If at the time of any Incremental Revolving Commitments the Revolving Commitments are still in effect, the Incremental Revolving Commitment shall be on terms and pursuant to documentation applicable to the Revolving Commitments. Each Incremental Assumption Agreement relating to Incremental Term Loans shall specify the terms of the Incremental Term Loans to be made thereunder; provided that (i) the maturity date of any Incremental Term Loan shall be no earlier than the maturity date for the existing Term Loans, (ii) the weighted average life to maturity of any Incremental Term Loan shall be no shorter than the weighted average life to maturity of the existing Term Loans, (iii) if the total yield in respect of any Incremental Term Loans exceeds the total yield for the existing Term Loans by more than 1/2 of 1% (it being understood that any such request excess may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed four-year life to maturity), the Applicable Margin for the existing Term Loans shall be increased so that the total yield in respect of such Incremental Term Loans is no more than 1/ 2 of 1% higher than the total yield for the existing Term Loans; provided that, in determining the interest rate margins applicable to any Incremental Term Loans and the existing Term Loans (x) any OID and upfront fees (which shall be deemed to constitute like amounts of OID) but excluding any arrangement, underwriting or similar fee paid to the Administrative Agent or the Arrangers under any Incremental Term Loans and the existing Term Loans in the initial primary syndication thereof shall be included and equated to interest rate and (y) the excess of any Eurodollar Rate “floor” over three-month Eurodollar Rate and the excess of any ABR “floor” over the ABR, in each case without duplication as of the date of drawing of such Incremental Term Loans (disregarding such “floors” in determining the three-month Eurodollar Rate and ABR on such date), shall be equated to interest margin on the Incremental Term Loans, (iv) the Incremental Term Loans will rank pari passu in right of payment and security with the existing Term Loans and (v) to the extent the terms or documentation for Incremental Term Loans are not consistent with the terms of the existing Term Loans (except to the extent permitted by the foregoing clauses (i) through (iii)) they shall be reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans and/or Incremental Revolving Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto without their consent.
(c) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at become effective under this Section 2.24 unless (i) on the time that any Incremental Revolving date on which such Loan is made (or the date of such effectiveness and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all to the Incremental Term Loans and/or Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from Loans requested to be made on such date, the Borrower pursuant to this Section shall conditions set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender in Section 5.2 shall be reasonably acceptable to the Borrower satisfied and the Administrative Agent shall have consented received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (such consent not to be unreasonably withheld or delayedii) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would the Administrative Agent shall have received board resolutions and other closing certificates and documentation as may be required by the relevant Incremental Assumption Agreement which, to the extent required, shall be consistent with the related documentation delivered on the Closing Date under Section 9.6 for an assignment of Commitments 5.1 and such additional documents and filings (including amendments to such Additional Lender. the Mortgages and other Security Documents and title endorsement bring downs) as the Administrative Agent may reasonably require to assure that the Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Term Loans and/or Incremental Revolving Loans shall become are secured by the Collateral ratably with the existing Term Loans and Revolving Loans, and (iii) the Borrower and its Subsidiaries would be in compliance on a pro forma basis with the financial covenants set forth in Section 7.1 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available, after giving effect to such Incremental Term Loans and/or Loans to be made as of such date under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Incremental Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction therefrom as if made and applied on the date thereof such date.
(each, an “Incremental Facility Closing Date”d) of each Each of the conditions set forth in Section 4.2. No Lender shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be obligated reasonably necessary to provide any ensure that all Incremental Term Loans and/or Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds when originally made, are included in each borrowing of outstanding Term Loans or Revolving Loans on a pro rata basis, that each Incremental Term Lender and each Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed Lender shall be included in connection with such Incremental Revolving Loans. On any Incremental the definitions of Required Lenders and Majority Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each the Borrower agrees that Section 2.12 shall apply to any conversion of Eurodollar Loans to ABR Loans reasonably required by the Additional Lenders shall purchase from each Administrative Agent to effect the foregoing. For the avoidance of doubt, it is understood that the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary increased in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect an amount equal to the addition of such aggregate Incremental Revolving Commitments to the Revolving Commitments.
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Samples: Credit Agreement (Allscripts-Misys Healthcare Solutions, Inc.)
Incremental Facility. (a) The Borrower may at any from time on not more than four occasions to time after the Closing Amendment No. 7 Effective Date but request one or more increases in the Revolving Credit Commitments (each, a “Revolving Credit Commitment Increase”); provided, however, that (i) the aggregate amount of all Revolving Credit Commitment Increases shall not exceed $500,000,000, (ii) no Revolving Credit Commitment Increases shall be requested later than six months prior to the Maturity Scheduled Termination Date, (iii) each Revolving Credit Commitment Increase shall be in an amount not less than $25,000,000 and (iv) any Revolving Credit Commitment Increase shall be permitted by notice the terms of the Senior Notes and the Senior Secured Notes. Nothing in this Agreement shall be construed to obligate the Administrative Agent, any Arranger or any Lender to negotiate for, solicit, provide or commit to provide any Revolving Credit Commitment Increase. Following the receipt by the Administrative Agent (whereupon of the Borrower’s request to obtain a Revolving Credit Commitment Increase, the Administrative Agent shall promptly deliver a copy to notify each Lender of such proposed Revolving Credit Commitment Increase and of the proposed terms and conditions therefor as provided in the Borrower’s notice with respect thereto. Each such Lender (and each of the Lenders)their Affiliates and Approved Funds) may, without having in its sole discretion, commit to seek consent from the Lenders, request an increase participate in such Revolving Credit Commitment Increases by forwarding its commitment therefor to the existing Revolving Commitments (such increase, Administrative Agent in form and substance satisfactory to the “Incremental Revolving Commitments,” Administrative Agent. The Administrative Agent and the loans thereunder, Borrower shall allocate the “Incremental commitment under such Revolving Loans”); provided that both at Credit Commitment Increase among the time of any such request Lenders and upon other Eligible Assignees from which the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect Administrative Agent has received written commitments with respect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section Revolving Credit Commitment Increase shall set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided become effective on a date agreed by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Credit Extension Date”) ), which shall be in any case on or after the date of each satisfaction of the conditions precedent set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof 3.5 (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments.
Appears in 1 contract
Incremental Facility. The (a) Subject to and upon the terms and conditions set forth herein, each Incremental Lender severally agrees to make, on the Incremental Effective Date (as defined below), an Incremental Term Loan Commitment in dollars to the Borrower may at any time on not more than four occasions after in an amount equal to the Closing Date but commitment amount set forth next to such Incremental Lender’s name in Schedule I hereto under the caption “Incremental Term Loan Commitment”; provided that the Incremental Term Loans shall be part of the same facility of loans as the Term Loans under the Term Loan Credit Agreement made prior to the Maturity Date, by notice date hereof (the “Existing Term Loans”). Except as necessary to give effect to the Administrative Agent provisions of clauses (whereupon b) through (f) below, the Administrative Agent Incremental Term Loans shall promptly deliver a copy to each be “Loans”, “Term Loans” and “Additional Term Loans” for all purposes of the LendersTerm Loan Credit Agreement and the other Credit Documents. The Incremental Term Loans may be repaid or prepaid in accordance with the provisions of the Credit Agreement and this Agreement, but once repaid or prepaid may not be reborrowed.
(b) The proceeds of the Incremental Term Loans shall be used solely (i) to pay in part the purchase price for the Asset Purchase (as defined below) and (ii) to pay the fees, costs and expenses incurred in connection with (x) the consummation of the Asset Purchase, (y) the making of the Incremental Term Loans and (z) the effectiveness of the Amendment and any amendment to the Revolving Credit Documents made on the Incremental Effective Date (the transactions described in clause (ii)(x)-(z), without having to seek consent from together with the Lenders, request an increase to the existing Revolving Commitments (such increasepayment of fees in connection therewith, the “Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving LoansTransactions”); provided that both at the time of any such request and upon the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made .
(and immediately after giving effect theretoc) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested principal amount of the Incremental Revolving Commitments. Term Loans made on the Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender Effective Date shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments$130,000,000.
Appears in 1 contract
Samples: Term Loan Joinder Agreement (Douglas Dynamics, Inc)
Incremental Facility. The (a) So long as no Event of Default under subsection 8(a) or 8(f) exists or would arise therefrom, the Borrower may shall have the right, at any time on not more than four occasions and from time to time after the Closing Date but prior to the Maturity Restatement Effective Date, by notice (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders“Incremental Term Loan Commitments”), without having (ii) to seek consent from increase any then-existing Tranche of Term Loans by requesting new term loan commitments to be added to such existing Tranche of Term Loans (the Lenders“Supplemental Term Loan Commitments”), (iii) to request an increase new commitments under one or more new revolving facilities to the existing Revolving Commitments be included in this Agreement, which new revolving facilities may include one or more subfacilities for letters of credit or swing line loans (such increase, the “Incremental Revolving Commitments”), and (iv) to increase any then existing Tranche of revolving commitments by requesting new revolving loan commitments be added to such existing Tranche of revolving commitments (the “Supplemental Revolving Commitments,” and together with the loans thereunderIncremental Term Loan Commitments, Supplemental Term Loan Commitments and Incremental Revolving Commitments, the “Incremental Revolving LoansCommitments”); , provided that both that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this subsection 2.5 shall not exceed, at the time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such request Indebtedness, including to refinance other Indebtedness), an amount that could then be Incurred under this Agreement in compliance with subsection 7.1(b)(i)(II) or the definition of “Maximum Incremental Facilities Amount” and upon (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (i) of the effectiveness definition of “Maximum Incremental Facilities Amount”, the Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause. Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitment referred to below, no Default or Event of Default Commitments) shall exist and at the time that any Incremental Revolving Loan is be made by creating a new Tranche.
(and immediately after giving effect theretob) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice request from the Borrower pursuant to this Section subsection 2.5 shall set forth the requested amount and proposed terms of the relevant Incremental Revolving Commitments. The Incremental Revolving Commitments (or any portion thereof) may be provided made by any existing Lender or by any other bank or other financial institution (any such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitmentinstitution, an “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”), ; provided that if such Additional Incremental Lender shall be reasonably acceptable to is not already a Lender hereunder or any affiliate of a Lender hereunder or an Approved Fund, the Borrower and consent of the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to shall be required (it being understood that any such Additional Lender’s providing Incremental Lender that is an Affiliated Lender shall be subject to the provisions of subsections 10.6(h) and 10.6(i), mutatis mutandis, to the same extent as if such Incremental Revolving Commitment, if Commitments and related Obligations had been obtained by such consent would be required under Section 9.6 for an assignment Lender by way of assignment).
(c) Supplemental Term Loan Commitments to such Additional Lender. Incremental and Supplemental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans or revolving commitments to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Incremental Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. An Increase Supplement or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments (including to subsection 2.2(b)) to the Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this subsection 2.5. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall become a Revolving Lender and be a Lender with respect for all intents and purposes of this Agreement and the term loan made pursuant to the Additional such Supplemental Term Loan Commitment shall be a Term Loan or commitments made pursuant to such Supplemental Revolving Commitment shall be revolving commitments hereunder, as applicable.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments and all matters relating thereto Supplemental Revolving Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryDocuments, executed by the Borrower, Borrower and each Additional Lender agreeing to provide such Commitment and the Administrative Agentapplicable Incremental Lender. An Incremental Commitment Amendment may, without the consent of any other LendersLender, effect such amendments to this Agreement and the other any Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent Borrower and the BorrowerAdministrative Agent, (x) to effect the provisions and intent of this Section subsection 2.5, and/or (y) so long as such amendments are not materially adverse to the other Lenders, to maintain the fungibility of any such Incremental Term Loans with any tranche of then outstanding Term Loans, provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured by the same Collateral securing the Term Loan Facility Obligations or (at the Borrower’s option) will be unsecured, (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Term Loan Facility Obligations and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Loans and (II) so long as any Initial Term Loans are outstanding, any mandatory prepayment from the Net Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Loans provided pursuant to such Incremental Commitment Amendment and the application disposition of the proceeds thereof. The effectiveness which was contemplated by any definitive agreement in respect of any Incremental Amendment shall be subject such acquisition) or Recovery Event, to the satisfaction extent the Net Cash Proceeds of such Asset Disposition or Recovery Event are required to be applied to repay the Initial Term Loans pursuant to subsection 3.4(c), on more than a ratable basis with the date thereof Initial Term Loans (each, an “Incremental Facility Closing Date”after giving effect to any amendment in accordance with subsection 10.1(d)(v)); (ii) of each of the conditions set forth in Section 4.2. No no Lender shall will be obligated required to provide any such Incremental Revolving Loans, Commitment unless it so agrees. The Borrower may use ; (iii) the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject maturity date and the weighted average life to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition maturity of such Incremental Revolving Commitments to the Revolving Commitments.Term Loan
Appears in 1 contract
Incremental Facility. The Subject to all the terms of this Agreement, provided that (x) no Default exists and is then continuing and (y) the Borrower shall be in pro forma compliance (giving effect to the incurrence of such Indebtedness for Money Borrowed) with Section 7.8, from time to time on and after the Agreement Date, the Borrower may at any time on not more than four occasions after incur additional Indebtedness hereunder in the Closing Date but prior form of a revolving credit or term loan facility (an "Incremental Facility", and all such facilities, the "Incremental Facilities") in an aggregate principal amount that, when added to the Maturity Dateaggregate principal amount of any previously extended Incremental Facilities, does not exceed $500,000,000. Each Incremental Facility shall (i) share in the Collateral to the same extent as the other Loans, (ii) be entitled to prepayments pursuant to Section 2.8 to the same extent as the other Loans, (iii) not be secured by notice any collateral other than the Collateral or guaranteed by any Person other than pursuant to the Loan Documents, (iv) be in an aggregate principal amount of not less than $25,000,000, and in an integral multiple of $25,000,000 and (v) documented on other terms and conditions that are reasonably satisfactory to the Administrative Agent Agent. All loans under each Incremental Facility shall be issued at par. The interest rate, commitment fee rate, amortization schedule and maturity date for each Incremental Facility shall be as agreed upon between any Lenders agreeing to provide such Incremental Facility and the Borrower; provided, however, that (whereupon A) in the Administrative Agent case of an Incremental Facility that shall promptly deliver be a copy term loan facility, the Weighted Average Life to each Maturity of such Incremental Facility shall not be shorter than the Weighted Average Life to Maturity of the LendersTerm B Loans (excluding any other Incremental Facility), without having to seek consent from and the Lendersfinal maturity date of such Incremental Facility shall not be earlier than, request the Maturity Date and (B) in the case of an increase Incremental Facility that shall be a revolving credit facility, the final maturity date of such Incremental Facility shall not be earlier than the Initial Maturity Date; provided further, however, that if the interest rate for any Incremental Facility would be more than 0.25% per annum higher than the interest rate applicable to the existing Revolving Commitments (such increaseTerm B Loans, the “interest rate applicable to the Term B Loans shall be increased no later than the effectiveness of such Incremental Revolving Commitments,” Facility so that in no event after the effectiveness thereof shall the interest rate for such Incremental Facility be more than 0.25% per annum higher than the interest rate applicable to the Term B Loans. The lenders and the loans thereunder, the “under each Incremental Revolving Facility will be "Lenders" and "Loans”); provided that both at the time " for all purposes of any such request and upon the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender the other Loan Documents, and shall become be treated, in terms of sharing of payments and other appropriate provisions, like (x) the Term B Lenders and the Term B Loans in the case of an Incremental Facility that shall be a term loan facility and (y) the Revolving Lender Lenders and the Revolving Loans in the case of an Incremental Facility that shall be a Lender with respect to the Additional Revolving Commitment and all matters relating thereto revolving credit facility. The Incremental Facility will be documented pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryDocuments, executed by the Borrower, each Additional Lender agreeing Person providing a commitment to provide such Commitment the Incremental Facility and the Administrative Agent. An Incremental Amendment Such amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.1(f). An Incremental Facility may be established at any time at the request of the Borrower, upon notice to the Administrative Agent and the Lenders, and subject only to the agreement of Persons who, in their sole discretion, choose to participate in such Incremental Facility. No Lender shall have any obligation to participate in any Incremental Facility unless and until it commits to do so. The Administrative Agent and the Borrower shall provide all then existing Lenders with an opportunity to commit to each Incremental Facility on an up to a ratable basis (the period in which any Lender shall be required to make a decision on its participation in such Incremental Facility being in no event be less than ten (10) Business Days from the date of delivery by the Borrower of a notice inviting such participation), and if sufficient commitments cannot be obtained in such manner, shall provide other lenders with such opportunity (and for existing Lenders with the ability to commit for more than their ratable portion), and such other lenders shall become Lenders hereunder pursuant to a joinder agreement reasonably satisfactory to the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments.
Appears in 1 contract
Incremental Facility. The Borrower may (a) So long as no Event ofSpecified Default exists or would arise therefrom, the Borrowers shall have the right, at any time on not more than four occasions and from time to time after the Closing Date but prior to the Maturity Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request an increase to of the existing Revolving aggregate amount of the then outstanding Commitments (such increase, the “Incremental Revolving Commitments,” and the loans thereunder, or the “Incremental Revolving LoansFacilities” and each, an “Incremental Facility”); provided that both at . Notwithstanding anything to contrary herein, the time principal amount of any such request and upon the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000the Available Incremental Amount at such time. Each notice The Parent Borrower may seek to obtain Incremental Revolving Commitments from the Borrower pursuant to this Section shall set forth the requested amount of the existing Lenders or other Persons, as applicable (each an “Incremental Facility Increase,” and each Person extending, or Lender extending, Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided, however, that (i) no Lender shall be obligated to provide an Incremental Facility Increase as a result of any such request by the Borrowers, and (ii) any Additional Lender which is not an existing Lender shall be subject to the approval of, the Administrative Agent and, in the case of any Incremental Revolving Commitments, the Swingline Lender, each Issuing Lender and the Borrowers (each such approval not to be unreasonably withheld). Each Incremental Facility Increase shall be in a minimum aggregate amount of at least $5,000,000 and in integral multiples of $1,000,000 in excess thereof. Any Incremental Facility Increase may be denominated in Dollars.
(b) [Reserved].
(c) Any Incremental Revolving Commitments (A) shall be guaranteed by the Guarantors and shall rank pari passu in right of (x) priority with respect to the same Collateral securing the Obligations and (y) payment with respect to the Obligations in respect of the Commitments in effect prior to the Incremental Revolving Commitment Effective Date and (B) shall be on terms and pursuant to the documentation applicable to the existing Commitments; provided that the Applicable Commitment Fee Rate and Applicable Margin relating to the Incremental Revolving Commitments may exceed the Applicable Commitment Fee Rate and Applicable Margin relating to the Commitments in effect prior to the Incremental Revolving Commitment Effective Date so long as the Applicable Commitment Fee Rate and Applicable Margins relating to all Revolving Credit Loans shall be adjusted to be equal to the Applicable Commitment Fee Rate and Applicable Margin payable to the Lenders providing such Incremental Revolving Commitments.
(d) The Incremental Facilities may be in the form of a separate “first-in, last-out” tranche (the “FILO Tranche”) with a separate borrowing base against the ABL Priority Collateral and interest rate margins in each case to be agreed upon (which, for the avoidance of doubt, shall not require any adjustment to the Applicable Margin of other Loans pursuant to clause (c) above) among the Parent Borrower, the Administrative Agent and the Lenders providing the FILO Tranche so long as (1) any loans under the FILO Tranche may not be guaranteed by any Subsidiaries of the Parent Borrower other than the Guarantors and shall rank pari passu (or, at the option of the Parent Borrower, junior) in right of priority with respect to the Collateral; (2) if the FILO Tranche availability exceeds $0, any Extension of Credit under the Revolving Credit Facility thereafter requested shall be made under the FILO Tranche until the FILO Tranche availability no longer exceeds $0; (3) as between (x) the Revolving Credit Facility (other than the FILO Tranche) and the Designated Hedging Agreements and Designated Cash Management Agreements and (y) the FILO Tranche, all proceeds from the liquidation or other realization of the Collateral (including ABL Priority Collateral) shall be applied, first to obligations owing under, or with respect to, the Revolving Credit Facility (other than the FILO Tranche) and such Designated Hedging Agreements and Designated Cash Management Agreements and second to the FILO Tranche; (4) no Borrower may prepay Revolving Credit Loans under the FILO Tranche or terminate or reduce the commitments in respect thereof at any time that other Loans and/or Reimbursement Obligations (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent) are outstanding; (5) the Required Lenders (calculated as including Lenders under the Incremental Facilities and the FILO Tranche) shall, subject to the terms of the ABL/Term Loan Intercreditor Agreement or any Other Intercreditor Agreement, control exercise of remedies in respect of the Collateral and (5) no changes affecting the priority status of the Revolving Credit Facility (other than the FILO Tranche) vis-à-vis the FILO Tranche may be made without the consent of the Required Lenders under the Revolving Credit Facility, other than such changes which affect only the FILO Tranche.
(e) No Incremental Facility Increase shall become effective unless and until each of the following conditions have been satisfied:
(i) The Borrowers, the Administrative Agent, and any Additional Lender shall be reasonably acceptable have executed and delivered a joinder to the Loan Documents (“Lender Joinder Agreement”) in substantially the form of Exhibit V-2 hereto;
(ii) The Borrowers shall have paid such fees and other compensation to the Additional Lenders and to the Administrative Agent as the applicable Borrowers, the Administrative Agent and such Additional Lenders shall agree;
(iii) The applicable Borrowers shall deliver to the Administrative Agent and the Lenders an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent from counsel to the applicable Borrowers reasonably satisfactory to the Administrative Agent and dated such date;
(iv) A Revolving Credit Note (to the extent requested) will be issued at the applicable Borrowers’ expense, to each such Additional Lender, to be in conformity with requirements of subsection 2.1(d) (with appropriate modification) to the extent necessary to reflect the new Commitment of each Additional Lender;
(v) The Parent Borrower shall deliver a certificate certifying that (A) the representations and warranties made by the Parent Borrower and its Restricted Subsidiaries contained herein and in the other Loan Documents are true and correct in all material respects on and as of closing date of such Incremental Facility except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and (B) no Event ofSpecified Default has occurred and is continuing; and
(vi) The applicable Borrowers and Additional Lenders shall have delivered such other instruments, documents and agreements as the Administrative Agent may reasonably have requested in order to effectuate the documentation of the foregoing.
(i) In the case of any Incremental Facility Increase, the Administrative Agent shall have consented promptly notify each Lender as to the effectiveness of such Incremental Facility Increase (with each date of such consent not effectiveness being referred to herein as an “Incremental Revolving Commitment Effective Date”), and at such time (A) the Commitments under, and for all purposes of, this Agreement shall be unreasonably withheld or delayed) to such Additional Lender’s providing increased by the aggregate amount of such Incremental Revolving CommitmentCommitments, if (B) Schedule A shall be deemed modified, without further action, to reflect the revised Commitments and Commitment Percentages of the Lenders and (C) this Agreement shall be deemed amended, without further action, to the extent necessary to reflect any such consent would be Incremental Revolving Commitments.
(ii) In the case of any Incremental Facility Increase, the Administrative Agent, the Additional Lenders and the Borrowers agree to enter into any amendment required under Section 9.6 for an assignment to incorporate the addition of Commitments to such Additional Lender. the Incremental Revolving Commitments, the pricing of the Incremental Revolving Commitments, the maturity date of the Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, necessary or appropriate in the reasonable opinion of the Administrative Agent and the BorrowerBorrowers in connection therewith. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such amendments.
(g) In connection with the Incremental Facility Increases hereunder, to effect the provisions and intent of this Section Lenders and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject Borrowers agree that, notwithstanding anything to the satisfaction on contrary in this Agreement, (i) the date thereof applicable Borrowers shall, in coordination with the Administrative Agent, (eachx) repay applicable outstanding Revolving Credit Loans of certain Lenders, an “Incremental Facility Closing Date”and obtain applicable Revolving Credit Loans from certain other Lenders (including the Additional Lenders), or (y) of take such other actions as reasonably may be required by the Administrative Agent to the extent necessary so that the Lenders effectively participate in each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental outstanding Revolving Credit Loans, unless it so agrees. The Borrower may use as applicable, pro rata on the proceeds basis of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof their Commitment Percentages (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, determined after giving effect to all such assignments any increase in the Commitments pursuant to this subsection 2.6), and purchases, such Revolving Loans will be held by (ii) the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect applicable Borrowers shall pay to the addition Lenders any costs of such Incremental the type referred to in subsection 4.12 in connection with any repayment and/or Revolving Commitments Credit Loans required pursuant to the Revolving preceding clause (i). Without limiting the obligations of the Borrowers provided for in this subsection 2.6, the Administrative Agent and the Lenders agree that they will use commercially reasonable efforts to attempt to minimize the costs of the type referred to in subsection 4.12 which the Borrowers would otherwise incur in connection with the implementation of an increase in the Commitments.
Appears in 1 contract
Incremental Facility. The Borrower may at any time on not more than four occasions after the Closing Date but prior to the Maturity Date, by (a) Upon notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of notify the Lenders), without having at any time after the Closing Date, the Borrower may from time to seek consent from the Lenderstime request additional Commitments for Term Loans (each an “Incremental Commitment” and all of them, request an increase to the existing Revolving Commitments (such increasecollectively, the “Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving Loans”); provided that both at the time of any such request and upon the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately x) after giving effect thereto) no Default or Event of Default shall exist. The to any such addition, the aggregate amount of all Incremental Revolving Commitments that have been added pursuant to this Section shall not exceed $50,000,000. 100,000,000 and (y) any such addition or increase shall be in an amount of not less than $5,000,000.
(b) Any Loans made in respect of any Incremental Commitments (the “Incremental Term Loans”) shall be made by increasing the Aggregate Commitments with such Incremental Term Loans having identical terms (including pricing) as the existing Term Loans.
(c) Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments Term Loans (or any portion thereof) may be provided made by any existing Lender or by any other bank bank, financial institution or other investing entity (any such bank, financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitmentinvesting entity, an “Additional Incremental Lender”), provided that such Additional Lender shall be in each case on terms permitted in this Section and otherwise on terms reasonably acceptable to the Borrower and Administrative Agent, provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayedwithheld) to such Additional Lender’s providing or Incremental Lender’s, as the case may be, making such Incremental Revolving Commitment, Term Loans if such consent would be required under Section 9.6 8.4 for an assignment of Commitments Loans to such Additional Lender or Incremental Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to as the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as case may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2be. No Lender shall be obligated to provide any Incremental Revolving Loans, Term Loans unless it so agrees. The Borrower may use the proceeds of Any Incremental Revolving Loans for any purpose not prohibited by Commitments shall become effective under this Agreement unless otherwise agreed pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Incremental Lender, if any, and the Administrative Agent. At the time of the sending of such notice, the Borrower (in connection consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Lenders). Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to provide an Incremental Revolving LoansCommitment and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase. On Any Lender not responding within such time period shall be deemed to have declined to provide an Incremental Commitment. The Administrative Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made hereunder. To achieve the full amount of a requested increase, the Borrower may, after first offering such increase to the existing Lenders as provided above, invite Incremental Lenders to become Lenders pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) If any Incremental Facility Closing Date on which Incremental Revolving Commitments are effectedadded in accordance with this Section 2.20, subject the Administrative Agent shall determine the effective date (the “Incremental Commitments Effective Date”) and the final allocation of such addition; provided, that any existing Lender electing to participate in the proposed Incremental Commitments shall have the right to participate in the proposed increase or addition on a pro rata basis in accordance with Term Loans held by such Lender as of the Business Day prior to the satisfaction Incremental Commitments Effective Date. The Administrative Agent shall promptly notify the Borrower and the Lenders of the foregoing terms final allocation of such addition and conditionsthe Incremental Commitments Effective Date. As conditions precedent to such addition, (i) the Borrower shall deliver to the Administrative Agent a certificate substantially in the form attached hereto as Exhibit 3.1(b)(vi) dated as of the Incremental Commitments Effective Date, and (ii) each of the Revolving Lenders conditions set forth in Section 3.2 shall assign be satisfied as of the Incremental Commitments Effective Date. On the Incremental Commitments Effective Date, each Lender or Incremental Lender which is providing an Incremental Commitment (i) shall become a “Lender” for all purposes of this Agreement and the other Loan Documents, (ii) shall make an Incremental Term Loan to the Borrower in a principal amount equal to such Incremental Term Commitment, and such Incremental Term Loan shall be a “Loan” for all purposes of this Agreement and the other Loan Documents and (iii) the Borrower shall execute and deliver to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests Lender or Incremental Lender providing an Incremental Commitment a new Subordinated Term Note in the Revolving amount of such Lender’s or Incremental Lender’s Incremental Term Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments Commitments.
(e) This Section shall supersede any provisions in Section 8.2 to the Revolving Commitmentscontrary.
Appears in 1 contract
Samples: Subordinated Term Loan Agreement (Privatebancorp, Inc)
Incremental Facility. The Borrower may Subject to the terms and conditions set forth herein, Borrowers shall have the right, at any time on not more than four occasions after the Closing Date but prior to the Maturity Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each end of the Lenders)Term, without having to seek consent from the Lendersrequest, request upon ten (10) Business Days prior written notice, an increase to the existing Maximum Revolving Commitments Advance Amount (such increase, the “Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving LoansFacility”) up to $50,000,000 (an aggregate increase of $21,250,000); provided that both at however, that: (a) Borrowers shall not be permitted to make more than two requests for increases during the time of any such request Term, and upon the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default each increase shall exist and at the time that any Incremental Revolving Loan is made not exceed $10,625,000; (and immediately after giving effect theretob) no Default or Event of Default shall exist. The aggregate have occurred or would occur at the time of, or after giving effect to, such request; and (c) Borrower shall pay a closing fee in an amount equal to one half of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from one percent (0.50%) of the Borrower pursuant to this Section shall set forth the requested amount of the increase, which fee shall be earned on the date the increase is effective, and shall be non-refundable when paid. The following terms and conditions shall apply to the Incremental Revolving Commitments. Facility: (i) the loans made under the Incremental Revolving Commitments may Facility shall constitute Obligations and will be provided by any existing Lender or by any secured and guaranteed with the other bank or other financial institution Obligations on a pari passu basis, (ii) such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender Facility shall be reasonably acceptable to obtained from Lenders existing on the Borrower Closing Date and such Lender’s Commitment Percentage of such Incremental Revolving Facility will be as set forth on the signature page hereto, (iii) Borrowers shall execute amended and restated Revolving Credit Notes in favor of the existing Lenders evidencing the increase in the Maximum Revolving Advance Amount, (iv) the conditions in Section 8.2 shall have been satisfied, (v) Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such received evidence that all requisite corporate action and proceedings in connection with the Incremental Revolving CommitmentFacility shall have been taken which evidence shall be in form and substance satisfactory to Administrative Agent, if and (vi) Administrative Agent shall have received from Borrowers and any Guarantor such consent would be required under Section 9.6 for an assignment other documentation as it deems reasonably necessary. Administrative Agent is authorized to enter into, on behalf of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreementthe Lenders, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an any amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of or any other Lenders, effect such amendments to this Agreement and the other Loan Documents document as may be necessary, in necessary to incorporate the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness terms of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any new Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitmentsherein therein.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Skullcandy, Inc.)
Incremental Facility. The (a) So long as no Event of Default exists or would arise therefrom (or, in the case of an Incremental Facility the proceeds of which will be used to finance a Limited Condition Transaction, only to the extent required by the applicable Incremental Lenders; provided that in any event, no Event of Default under Section 9.1(a) or 9.1(f) exists or would arise therefrom), the Parent Borrower may shall have the right, at any time on not more than four occasions and from time to time after the Closing Date but prior to the Maturity Date, by notice (i) to request new term loan commitments under one or more new term loan credit facilities (including new term loan “C” letter of credit facilities) to be included in this Agreement (the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders“Incremental Term Loan Commitments”), without having (ii) to seek consent from the Lenders, request an increase new commitments under one or more new revolving facilities to the existing Revolving Commitments be included in this Agreement (such increase, the “Incremental Revolving Commitments,”), (iii) to increase any Existing Term Loans by requesting new term loan commitments to be added to an Existing Tranche (including new term loan letter of credit commitments under an Existing Tranche of term “C” loans) of Term Loans (the “Supplemental Term Loan Commitments”), (iv) to increase the Existing Tranche of Revolving Commitments by requesting new Revolving Commitments be added to an Existing Tranche of Revolving Commitments (the “Supplemental Revolving Commitments”), and (v) to request new letter of credit facility commitments under one or more new letter of credit facilities to be included in this Agreement (the “Incremental Letter of Credit Commitments” and, together with the Incremental Term Loan Commitments, the Incremental Revolving Commitments, the Supplemental Term Loan Commitments and the loans thereunderSupplemental Revolving Commitments, the “Incremental Revolving LoansCommitments” and an incremental facility established pursuant to any of the foregoing an “Incremental Facility”); , provided that both that, the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.9 shall not exceed, at the time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such request and upon Indebtedness, including to refinance other Indebtedness), the effectiveness Maximum Incremental Facilities Amount at such time. Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitment referred to below, no Default or Event of Default Commitments) shall exist and at the time that any Incremental Revolving Loan is be made by creating a new Tranche.
(and immediately after giving effect theretob) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice request from the Parent Borrower pursuant to this Section 2.9 shall set forth the requested amount and proposed terms of the relevant Incremental Revolving Commitments. The Incremental Revolving Commitments (or any portion thereof) may be provided made by any existing Lender or by any other bank bank, savings and loan association or other similar savings institution, insurance company, investment fund or company or other financial institution (any such existing Lender bank, savings and loan association or other bank savings institution, insurance company, investment fund or company or other financial institution providing an Incremental Revolving Commitmentinstitution, an “Additional Incremental Lender,” and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”) subject, in the case of any Incremental Revolving Commitments and Supplemental Revolving Commitments (if such Additional Incremental Lender is not already a Lender hereunder or any affiliate of a Lender hereunder), provided that such Additional Lender shall be reasonably acceptable to the Borrower and consent of the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed).
(c) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Supplemental Term Loan Commitments to such Additional Lender. Incremental and Supplemental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans or Revolving Commitments to be increased, executed by the Borrowers and each increasing Lender substantially in the form attached hereto as Exhibit R-1 (the “Increase Supplement”) or by each Additional Incremental Lender substantially in the form attached hereto as Exhibit R-2 (the “Lender Joinder Agreement”), as the case may be, which shall (x) in the case of Supplemental Revolving Commitments, (i) specify the amount of Supplemental Revolving Commitments (if any) to be added to such Lenders existing Revolving L/C Commitment Amount or (ii) if such Lender does not maintain a Revolving L/C Commitment Amount, specify the amount of Supplemental Revolving Commitments to be included in the definition of Revolving L/C Commitment Amount and allocable to such Lender and (y) be delivered to the Administrative Agent for recording in the Register. An Increase Supplement or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments (including to Section 2.4(b) and those contemplated by the foregoing clause(x)) to the Loan Documents as may be necessary or appropriate, in the opinion of the Parent Borrower and the Administrative Agent, to effect the provisions of this Section 2.9. Upon effectiveness of the Lender Joinder Agreement, each Additional Incremental Lender shall become a Revolving Lender and be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan or commitments made pursuant to such Supplemental Revolving Commitment shall be Revolving Commitments, as applicable. Upon the effectiveness of the Increase Supplement or the Lender Joinder Agreement, as the case may be, in each case with respect to any Supplemental Revolving Commitments, outstanding Revolving Loans and/or participations in outstanding Swing Line Loans and/or Revolving L/C Obligations of the applicable Existing Tranche, as the case may be, shall be reallocated (and the increasing Lender or joining Additional Incremental Lender, as applicable, shall make appropriate payments representing principal, with the Borrowers making any necessary payments of accrued interest) so that after giving effect thereto the increasing Lender or the joining Additional Incremental Lender, as the case may be, and the other Lenders of the applicable Existing Tranche share ratably in the total Aggregate Outstanding Revolving Commitment Credit in accordance with the applicable Commitments (and all matters relating thereto notwithstanding Section 4.12, no Borrower shall be liable for any amounts under Section 4.12 as a result of such reallocation).
(d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryDocuments, executed by the Borrower, Borrowers and each Additional Lender agreeing to provide such Commitment and the Administrative Agentapplicable Incremental Lender. An Incremental Commitment Amendment may, without the consent of any other LendersLender, effect such amendments to this Agreement and the other any Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent Parent Borrower and the BorrowerAdministrative Agent, to effect the provisions and intent of this Section and 2.9, provided, however, that (i) (A) the application Incremental Commitments will not be guaranteed by any Subsidiary of the proceeds thereof. The effectiveness Parent Borrower other than the Subsidiary Guarantors, and will be secured (except during any Collateral Suspension Period, during which the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall be unsecured) by the same collateral securing the Loans and (B) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Incremental Amendment shall be subject Loan Party that do not also secure the Loans and (II) so long as any Initial Term Loans are outstanding, any mandatory prepayment provisions on a greater than pro rata basis relative to the satisfaction on Initial Term B Loans (or the date thereof Initial Term C Loans in the case of Incremental Term Loans in the form of term “C” loans); (each, an “Incremental Facility Closing Date”ii) of each of the conditions set forth in Section 4.2. No no Lender shall will be obligated required to provide any such Incremental Revolving Loans, Commitment unless it so agrees. The ; (iii) the maturity date of any Incremental Revolving Commitments shall be no earlier than the Initial Revolving Maturity Date; (iv) the maturity date of any Incremental Term Loan Commitments shall be no earlier than the Initial Term Loan Maturity Date (other than an earlier maturity date for (1) customary bridge financings, escrow or other similar arrangements, which, subject to customary conditions (as determined by the Parent Borrower may use in good faith), would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date than the proceeds Initial Term Loan Maturity Date (such bridge financings, escrow or other similar arrangements, “Extendable Bridge Loans/Interim Debt”))) and (2) Incremental Term Loans (other than Extendable Bridge Loans/Interim Debt), together with Indebtedness Incurred pursuant to Section 8.10(a) and 8.10(b)(i), Specified Refinancing Facilities, Permitted Debt Exchange Notes and permitted refinancings of Incremental Revolving Term Loans and any of the foregoing, in each case Incurred in reliance on the Inside Maturity Basket, in an aggregate principal amount of up to the greater of $635,000,000 and 100% of LTM Consolidated EBITDA (this clause 2, the “Inside Maturity Basket”)); (v) the average weighted life to maturity of any Incremental Term Loans shall be no shorter than the average weighted life to maturity applicable to (i) with respect to Incremental Term Loans in the form of tranche “C” loans, the Initial Term C Loans and (ii) with respect to all other Incremental Term Loans, the Initial Term B Loans (in each case, without giving effect to any prepayments on the outstanding Initial Term C Loans or Initial Term B Loans, as applicable), provided that Extendable Bridge Loans/Interim Debt and Incremental Term Loans, Indebtedness Incurred pursuant to Section 8.10(a) and 8.10(b)(i), Specified Refinancing Facilities, Permitted Debt Exchange Notes and permitted refinancings of Incremental Term Loans and any of the foregoing, in each case, Incurred in reliance on the Inside Maturity Basket may have a weighted average life to maturity that is shorter than the remaining weighted average life of the applicable Initial Term Loans, (vi) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Parent Borrower and the applicable Incremental Lenders; provided that (i) in the event that the applicable interest rate margins for any purpose term loans incurred by the Parent Borrower under any Incremental Term Loan Commitment that is pari passu in right of payment and security with the Initial Term Loans are higher than the applicable interest rate margin for the Initial Term Loans by more than 75 basis points, then the Applicable Margin for the Initial Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for the Initial Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 75 basis points; provided further that, in determining the applicable interest rate margins for the Initial Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront fees payable generally to all participating Incremental Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Parent Borrower to the Lenders under the Initial Term Loans or any Incremental Term Loan shall be included (with OID being equated to interest based on assumed four-year life to maturity); (B) customary arrangement, structuring, underwriting, ticking, commitment and other similar fees not prohibited by this Agreement unless otherwise agreed payable to all lenders generally in connection therewith or commitment fees payable to any of the arrangers (or their respective affiliates) in connection with the Initial Term Loans or to one or more arrangers (or their respective affiliates) in connection with the Incremental Term Loans (and any fee payable to any Incremental Lender in lieu of any portion of any such fee payable to any such arranger or affiliate thereof) shall be excluded; (C) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Initial Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Initial Term Loans shall be required, to the extent an increase in the interest rate floor for the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Initial Term Loans shall be increased by such amount and (D) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Initial Term Loans or does not include an interest rate floor, the difference between the interest rate floor applicable to the Initial Term Loans and the Incremental Term Loans shall reduce the applicable interest rate margin of such Incremental Revolving Loans. On Term Loans for purposes of determining whether an increase in the Applicable Margin for the Initial Term Loans shall be required (such adjustments to the Applicable Margin for the Initial Term Loans pursuant to this clause (vi), the “MFN Adjustment”); provided that the MFN Adjustment shall not be applicable to any Incremental Facility Term Loan that (1) is incurred more than 18 months after the Closing Date on which Incremental Revolving Commitments are effectedDate, subject (2) is in an aggregate amount equal to or less than the greater of $635,000,000 and 100% of LTM Consolidated EBITDA, (3) matures at least one year after the maturity date applicable to the satisfaction then outstanding Initial Term Loans, (4) is incurred in connection with a Permitted Acquisition or Permitted Investment, or (5) is incurred under the Incremental Fixed Dollar Basket (clause (1) through (5), the “MFN Exceptions”); (vii) such Incremental Commitment Amendment may (1) provide for the inclusion, as appropriate, of Additional Incremental Lenders in any required vote or action of the foregoing Required Lenders, Required Revolving Lenders or of the Lenders of each Tranche hereunder, (2) provide class protection for any additional credit facilities, (3) provide for the amendment of the definitions of “Additional Obligations,” “Disqualified Stock, and “Refinancing Indebtedness”, in each case only to extend the maturity date from the Initial Term B Loan Maturity Date or Initial Term C Loan Maturity Date, as applicable, to the extended maturity date of such Incremental Term Loans and (4) (A) amend or otherwise modify Section 6.2 solely with respect to any Extension of Credit under any Facility of Incremental Commitments, (B) waive any representation made or deemed made in connection with any Extension of Credit under any Facility of Incremental Commitments and (C) provide that an amendment, supplement or modification of any of the provisions referred to in clause (A) or (B) above may be effected with the consent only of such Incremental Lenders (or any of them); and (vii) the other terms and conditionsdocumentation in respect thereof, each of to the Revolving Lenders shall assign extent not consistent with this Agreement as in effect prior to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments Commitment Amendment, shall otherwise be reasonably satisfactory to the Revolving CommitmentsParent Borrower.
Appears in 1 contract
Samples: Credit Agreement (Hertz Corp)
Incremental Facility. (a) The Borrower may at any time on not more than four occasions after the Closing Date but prior to the Maturity Datemay, by written notice to the Administrative Agent from time to time request Incremental Term Loans and/or Incremental Revolving Commitments in an aggregate amount not to exceed the Incremental Amount at such time from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (whereupon which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the case may be, in their own discretion; provided, that no Lender will be required to participate in any Incremental Facility without its consent and each Incremental Term Lender and/or Incremental Revolving Lender, if not already a Lender hereunder, shall be subject to the approval (which approval shall not be unreasonably withheld or delayed) of the Administrative Agent (solely to the extent the Administrative Agent’s consent would otherwise be required for an assignment to such Incremental Term Lender or Incremental Revolving Lender, as applicable, in accordance with Section 10.6 hereof) and, in the case of Incremental Revolving Lenders only, the Issuing Lender. Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (1) with respect to Incremental Term Loans, in minimum increments of $10,000,000, (2) with respect to Incremental Revolving Commitments, in minimum increments of $5,000,000 or (3) equal to the remaining Incremental Amount at such time), (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested to become effective (the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice, (iii) in the case of Incremental Term Loans, whether such Incremental Term Loans are to be on the same terms as the outstanding Term Loans or with terms different from the outstanding Term Loans, (iv) the use of proceeds for such Incremental Term Loan and/or Incremental Revolving Commitment and (v) pro forma financial calculations demonstrating compliance with the requirements under clause (iii) of Section 2.24(c).
(b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall promptly deliver a copy reasonably specify to each evidence the Incremental Term Loans of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments (such increase, the “Incremental Term Lender and/or Incremental Revolving Commitments,” and the loans thereunder, the “Commitment of such Incremental Revolving Loans”); provided that both Lender. If at the time of any Incremental Revolving Commitments the Revolving Commitments are still in effect, the Incremental Revolving Commitment shall be on terms and pursuant to documentation applicable to the Revolving Commitments. Each Incremental Assumption Agreement relating to Incremental Term Loans shall specify the terms of the Incremental Term Loans to be made thereunder; provided that (i) the maturity date of any Incremental Term Loan shall be no earlier than the maturity date for the existing Term Loans, (ii) the weighted average life to maturity of any Incremental Term Loan shall be no shorter than the weighted average life to maturity of the existing Term Loans, (iii) if the total yield in respect of any Incremental Term Loans exceeds the total yield for the existing Term Loans by more than 1/2 of 1% (it being understood that any such request excess may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed four-year life to maturity), the Applicable Margin for the existing Term Loans shall be increased so that the total yield in respect of such Incremental Term Loans is no more than 1/2 of 1% higher than the total yield for the existing Term Loans; provided that, in determining the interest rate margins applicable to any Incremental Term Loans and the existing Term Loans (x) any OID and upfront fees (which shall be deemed to constitute like amounts of OID) but excluding any arrangement, underwriting or similar fee paid to the Administrative Agent or the Arrangers under any Incremental Term Loans and the existing Term Loans in the initial primary syndication thereof shall be included and equated to interest rate and (y) the excess of any Eurodollar Rate “floor” over three-month Eurodollar Rate and the excess of any ABR “floor” over the ABR, in each case without duplication as of the date of drawing of such Incremental Term Loans (disregarding such “floors” in determining the three-month Eurodollar Rate and ABR on such date), shall be equated to interest margin on the Incremental Term Loans, (iv) the Incremental Term Loans will rank pari passu in right of payment and security with the existing Term Loans and (v) to the extent the terms or documentation for Incremental Term Loans are not consistent with the terms of the existing Term Loans (except to the extent permitted by the foregoing clauses (i) through (iii)) they shall be reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans and/or Incremental Revolving Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto without their consent.
(c) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at become effective under this Section 2.24 unless (i) on the time that any Incremental Revolving date on which such Loan is made (or the date of such effectiveness and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all to the Incremental Term Loans and/or Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from Loans requested to be made on such date, the Borrower pursuant to this Section shall conditions set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender in Section 5.2 shall be reasonably acceptable to the Borrower satisfied and the Administrative Agent shall have consented received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (such consent not to be unreasonably withheld or delayedii) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would the Administrative Agent shall have received board resolutions and other closing certificates and documentation as may be required by the relevant Incremental Assumption Agreement which, to the extent required, shall be consistent with the related documentation delivered on the Closing Date under Section 9.6 for an assignment of Commitments 5.1 and such additional documents and filings (including amendments to such Additional Lender. the Mortgages and other Security Documents and title endorsement bring downs) as the Administrative Agent may reasonably require to assure that the Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Term Loans and/or Incremental Revolving Loans shall become are secured by the Collateral ratably with the existing Term Loans and Revolving Loans, and (iii) the Borrower and its Subsidiaries would be in compliance on a pro forma basis with the financial covenants set forth in Section 7.1 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available, after giving effect to such Incremental Term Loans and/or Loans to be made as of such date under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Incremental Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction therefrom as if made and applied on the date thereof such date.
(each, an “Incremental Facility Closing Date”d) of each Each of the conditions set forth in Section 4.2. No Lender shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be obligated reasonably necessary to provide any ensure that all Incremental Term Loans and/or Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds when originally made, are included in each borrowing of outstanding Term Loans or Revolving Loans on a pro rata basis, that each Incremental Term Lender and each Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed Lender shall be included in connection with such Incremental Revolving Loans. On any Incremental the definitions of Required Lenders and Majority Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each the Borrower agrees that Section 2.12 shall apply to any conversion of Eurodollar Loans to ABR Loans reasonably required by the Additional Lenders shall purchase from each Administrative Agent to effect the foregoing. For the avoidance of doubt, it is understood that the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary increased in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect an amount equal to the addition of such aggregate Incremental Revolving Commitments to the Revolving Commitments.
Appears in 1 contract
Samples: Credit Agreement (Allscripts Healthcare Solutions, Inc.)
Incremental Facility. (a) The Borrower may at any may, by written notice delivered to the Agent from time to time on one or more occasions, request Incremental Commitments, provided that the aggregate principal amount of Incremental Loans made thereunder (together with all Incremental Equivalent Debt) shall not exceed the Available Increase Amount. Such notice shall set forth (x) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Available Increase Amount), (y) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than five Business Days nor more than four occasions 60 days after the Closing Date but prior date of such notice, unless the Agent shall otherwise agree) and (z) whether such Incremental Commitments are commitments to make additional Term Loans, additional Revolving Commitments and Revolving Loans or term loans with terms different from the then existing Term Loans (term loans with different terms from the then existing Term Loans being referred to herein as “Specified Incremental Loans”), as applicable.
(b) The Borrower and each Incremental Lender shall execute and deliver to the Agent an Incremental Assumption Agreement and such other documentation as the Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of any Incremental Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders:
(i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity DateDate and the Weighted Average Life to Maturity of the Incremental Term Loans shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans with the longest Weighted Average Life to Maturity at such time;
(ii) [reserved];
(iii) the interest rate margins applicable to any Incremental Term Loan will be determined by the Borrower and the applicable Incremental Lenders; provided, that,
(A) solely for the benefit of the Initial Term Loans, if the initial yield on such Incremental Term Loan (as reasonably determined by notice the Agent in consultation with the Borrower to be equal to the Administrative Agent sum of (whereupon x) the Administrative Agent margin above Adjusted Term SOFR on such Incremental Term Loans (which shall promptly deliver be increased by the amount that any “Term SOFR floor” applicable to such Incremental Term Loan on the date such Incremental Term Loans are made would exceed the Adjusted Term SOFR for a copy to each of the Lendersthree-month Interest Period commencing on such date) and (y) if such Incremental Term Loans are initially made with original issue discount (“OID”), without having the amount of such OID divided by the lesser of (A) the average life to seek consent from maturity (expressed in years) of such Incremental Term Loans and (B) four) exceeds by more than 50 basis points (the Lenders, request an increase amount of such excess above 50 basis points being referred to the existing Revolving Commitments (such increase, herein as the “Incremental Revolving Commitments,Yield Differential”) the sum of (I) the Applicable Margin then in effect for SOFR Initial Term Loans (which shall be increased by the amount that any “Term SOFR floor” applicable to such SOFR Initial Term Loans, on the date such Incremental Loans are made would exceed the Adjusted Term SOFR for a three-month Interest Period commencing on such date) (but excluding any customary arrangement, underwriting, structuring or similar fees in connection therewith that are not paid to all of the Lenders providing such Incremental Term Loans), (II) any fees payable in connection with the Incremental Term Loans that are shared with all Incremental Lenders providing such Incremental Term Loans and (III) the loans thereunderamount of the OID initially paid in respect of the Initial Term Loans, divided by four, then the “Applicable Margin then in effect for the Initial Term Loans shall automatically be increased by the Incremental Revolving Loans”); provided that both at the time of any such request and Yield Differential, effective upon the making of the Incremental Term Loans.
(iv) all representations and warranties set forth in Section 4 and in each other Loan Document shall be true, correct and complete in all material respects on and as of the date of effectiveness of any Incremental Revolving Commitment referred Assumption Agreement and with the same effect as though made on and as of such date; provided that to belowthe extent such representations and warranties expressly relate to an earlier date, such representations and warranties shall be true, correct and complete 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, correct and complete in all respects on and as of the date of effectiveness of any Incremental Assumption Agreement or on such earlier date, as the case may be; provided further that, if such Incremental Assumption Agreement is being entered into with the primary purpose to complete a Limited Condition Transaction, the foregoing shall be true, correct and complete on and as of the LCT Test Date and only the Specified Representations shall be required to be true, correct and complete in all material respects on and as of the date of effectiveness of any Incremental Assumption Agreement and with the same effect as though made on and as of such date; provided however that to the extent such Specified Representations expressly relate to an earlier date, such representations and warranties shall be true, correct and complete in all 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, correct and complete in all respects on and as of the date of effectiveness of any Incremental Assumption Agreement or on such earlier date, as the case may be;
(v) no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and or would exist immediately after giving effect thereto) thereto provided that, if such Incremental Assumption Agreement is being entered into with the primary purpose to complete a Limited Condition Transaction, the foregoing shall be true on and as of the LCT Test Date and no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section any of Sections 8.1, 8.4 and 8.5 shall set forth exist or would exist immediately after giving effect thereto on and as of the requested amount date of effectiveness of any Incremental Assumption Agreement;
(vi) (A) The Incremental Loans may rank pari passu with or junior to the Obligations in right of payment and/or security or may be unsecured (and to the extent such Incremental Loans rank junior to the Obligations in right of payment or are secured other than by the Security Documents, such Incremental Loans shall be subject to an intercreditor agreement the terms and form of which are reasonably satisfactory to Agent) and (B) no Incremental Loan may be guaranteed by any Subsidiary that is not a Loan Party or secured by any assets that are not Collateral;
(vii) the Incremental Revolving Commitments. Incremental Loans will have the same terms as the Initial Revolving Commitments may be Loans (including pricing and maturity);
(viii) except as otherwise provided by any existing Lender or by any other bank or other financial institution above (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitmentincluding with respect to margin, an “Additional Lender”pricing, maturity and/or fees), provided that such Additional Lender the terms of any Incremental Term Loans, if not substantially consistent with the terms of the Initial Term Loans, shall be reasonably acceptable satisfactory to the Agent (it being understood that (A) any Incremental Term Loans that is pari passu with the Initial Term Loans in right of payment and with respect to security shall share ratably in any prepayment in respect of the Initial Term Loans unless the Borrower and the Administrative lenders in respect of such Incremental Term Loans elect lesser payments and (B) terms not substantially consistent with the Initial Term Loans which are applicable only after the then-existing Term Loan Maturity Date shall be deemed to be acceptable to the Agent; and
(ix) all fees and expenses owing in respect of such increase to the Agent and the Lenders shall have been paid.
(c) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.15 unless the Agent shall have consented received legal opinions, board resolutions and other closing certificates reasonably requested by the Agent and reasonably satisfactory to the Agent:
(d) Each of the parties hereto hereby agrees that the Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Specified Incremental Loans), when originally made, are included in each Borrowing of outstanding Revolving Loans or Term Loans, as applicable, on a pro rata basis. This may be accomplished by requiring each outstanding SOFR Borrowing to be converted into a Base Rate borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Revolving Loan to each outstanding SOFR Borrowing on a pro rata basis. Any conversion of SOFR Loans to Base Rate Loans required by the preceding sentence shall be subject to Section 2.12. If any Incremental Loan is to be allocated to an existing Interest Period for a SOFR Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are Initial Term Loans, the scheduled amortization payments under Section 2.2(b), required to be made after the making of such Incremental Term Loans shall be ratably increased by the initial aggregate principal amount of such Incremental Term Loans.
(e) The Borrower may seek commitments in respect of Incremental Loans from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and, in consultation with the Agent, additional banks, financial institutions and other institutional lenders who will become Lenders in connection therewith; provided, that the Agent shall have consent rights (not to be unreasonably withheld or delayed) with respect to such Additional Lender’s providing such Incremental Revolving Commitmentadditional Lenders, if such consent would be required under pursuant to Section 9.6 13.1 for an assignment of Commitments loans or commitments, as applicable, to such Additional additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments.
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Incremental Facility. The Subject to the terms and conditions set forth herein, the Borrower may shall have the right, at any time and from time to time, to incur additional Indebtedness under this Credit Agreement in the form of one or more additional term loan facilities (each an “Incremental Facility”) by an aggregate amount of up to $100,000,000. The following terms and conditions shall apply to each Incremental Facility: (a) the loans made under any such Incremental Facility (each an “Additional Loan”) shall constitute Credit Party Obligations and will be secured and guaranteed with the other Loans on not more a pari passu basis, (b) the interest rate margin applicable to such Incremental Facility shall be the Applicable Percentage for the Tranche B Term Loan (c) the weighted average life and final maturity applicable to any such Incremental Facility shall be determined at the time such Incremental Facility is made available (provided that (i) such Incremental Facility shall mature no earlier than four occasions after the Closing Tranche B Term Loan Maturity Date but and (ii) no greater than 5% of the Incremental Facility shall amortize prior to the date that is one year before the Tranche B Term Loan Maturity Date), by notice (d) any such Incremental Facility shall be entitled to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request an increase to same voting rights as the existing Revolving Commitments Loans and shall be entitled to receive proceeds of prepayments on the same basis as comparable Loans, (e) any such increaseIncremental Facility shall be obtained from existing Lenders or from other banks, financial institutions or investment funds, in each case in accordance with the “terms set forth below, (f) any such Incremental Revolving Commitments,” Facility shall be in a minimum principal amount of $25,000,000 and integral multiples of $1,000,000 in excess thereof, (g) the loans thereunder, the “Incremental Revolving Loans”); provided that both at the time proceeds of any such request Additional Loan will be used to finance capital expenditures and upon working capital and other general corporate purposes, including Permitted Acquisitions, (h) the effectiveness conditions to Extensions of any Incremental Revolving Commitment referred to below, no Default or Event of Default Credit in Section 4.2 shall exist have been satisfied and at the time that any Incremental Revolving Loan is made (and immediately after giving effect theretoi) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not received from the Borrower updated financial projections and an officer’s certificate, in each case in form and substance satisfactory to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order demonstrating that, after giving effect to all any such assignments and purchasesIncremental Facility, such Revolving Loans the Borrower will be held by in compliance with the financial covenants set forth in Section 5.9. Participation in any such Incremental Facility hereunder shall be offered first to each of the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect Lenders, but each such Lender shall have no obligation to the addition provide all or any portion of such Incremental Revolving Commitments Facility. If the amount of the Incremental Facility requested by the Borrower Table of Contents shall exceed the commitments which the existing Lenders are willing to provide with respect to such Incremental Facility, then the Borrower may invite other banks, financial institutions and investment funds reasonably acceptable to the Revolving CommitmentsAdministrative Agent to join this Credit Agreement as Lenders hereunder for the portion of such Incremental Facility not taken by existing Lenders, provided that such other banks, financial institutions and investment funds shall enter into such joinder agreements to give effect thereto as the Administrative Agent and the Borrower may reasonably request. The Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Credit Agreement or any other Credit Document as may be necessary to incorporate the terms of any new Incremental Facility therein.
Appears in 1 contract
Incremental Facility. The Borrower may at (a) At any time on not more than four occasions after the Closing Date but prior during the Commitment Period, the Borrower may request from time to the Maturity Date, by notice time from one or more existing Lenders or from other Eligible Assignees reasonably acceptable to the Administrative Agent Agent, the Issuing Lender, the Swingline Lender and the Borrower (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request an increase but subject to the existing conditions set forth in clause (b) below) the Total Commitments be increased by an amount not to exceed the Available Revolving Commitments Increase Amount at such time (each such increase, the an “Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving LoansIncrease”); provided that both at the time Borrower may not request an Increase on more than three occasions (excluding any request for an Increase that is not effectuated) during the term of this Agreement. No Lender shall be obligated to increase its Commitments in connection with a proposed Increase. To the extent sufficient existing Lenders, as applicable, do not agree to increase their Commitments on terms acceptable to the Borrower, or to the extent such Lenders have not promptly responded to the Borrower’s request for such increase, the Borrower may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Lender pursuant to a joinder agreement in connection with the proposed Increase (provided that the joinder of any such request and upon “Lender” for the effectiveness purpose of providing all or any portion of any Incremental Revolving Commitment referred to below, no Default or Event of Default such Increase shall exist and at require the time that any Incremental Revolving Loan is made consent (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) of Administrative Agent, the Issuing Lender and the Swingline Lender (but not any other Lender). Any Increase shall be in an amount of at least $10,000,000 (or, if the Available Revolving Increase Amount is less than $10,000,000, such remaining Available Revolving Increase Amount) and integral multiples of $1,000,000 in excess thereof. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of the Increases to the Commitments exceed the Available Revolving Increase Amount during the term of the Agreement.
(b) Each of the following shall be conditions precedent to any Increase of the Commitments in connection therewith:
(i) any Increase shall be on the same terms (including the pricing, and maturity date), as applicable, as, and pursuant to documentation applicable to, the Facility then in effect;
(ii) the Borrower shall have delivered an irrevocable written request to the Administrative Agent for such Increase at least ten (10) Business Days prior to the requested funding date of such Increase;
(iii) [reserved];
(iv) each Lender (including any prospective lenders agreeing to become a Lender hereunder) agreeing to such Additional Lender’s providing such Incremental Revolving CommitmentIncrease, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment Borrower and the Administrative Agent. An Incremental Amendment Agent have signed an Increase Joinder (any Increase Joinder may, without with the consent of any other Lendersthe Administrative Agent, the Borrower and the Lenders agreeing to such Increase, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, necessary or appropriate to effect effectuate the provisions and intent of this Section 2.27) and the application Borrower shall have executed any Notes requested by any Lender in connection with the making of the proceeds thereofIncrease. The effectiveness Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, an Increase Joinder reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby, shall not require the consent of any Incremental Amendment shall be subject Lender other than the Lender(s) agreeing to the satisfaction on the date thereof fund such Increase;
(each, an “Incremental Facility Closing Date”v) of each of the conditions precedent set forth in Section 4.2. No Lender 5.2(a) and (e) are satisfied with respect to such Increase;
(vi) after giving pro forma effect to such Increase and the use of proceeds thereof and assuming that the Total Commitments are fully drawn, (A) no Default or Event of Default shall have occurred and be continuing at the time of such Increase and (B) the Borrower shall be obligated in compliance with the then applicable financial covenants set forth in Section 7.1 hereof as of the end of the most recently ended quarter for which financial statements are required to provide any Incremental Revolving Loansbe delivered prior to such Increase (provided that the Consolidated Leverage Ratio shall not be greater than 0.25x less than the covenant set forth in Section 7.1(c) for such period), unless it so agrees. The and the Borrower may use shall have delivered to the proceeds Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent evidencing compliance with the requirements of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed clause (vi) and clause (v) above;
(vii) in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effectedIncrease, subject the Borrower shall pay to Administrative Agent all fees required to be paid pursuant to the satisfaction terms of the foregoing terms and conditions, Fee Letter; and
(viii) upon each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably Increase in accordance with their this Section 2.27, all outstanding Loans, participations hereunder in Letters of Credit and participations hereunder in Swingline Loans held by each Lender shall be reallocated among the Lenders (including any newly added Lenders) in accordance with the Lenders’ respective revised Revolving Percentages, pursuant to procedures reasonably determined by the Administrative Agent.
(c) Upon the effectiveness of any Increase, (i) all references in this Agreement and any other Loan Document to the Loans shall be deemed, unless the context otherwise requires, to include such Increase advanced pursuant to this Section 2.27 and (ii) all references in this Agreement and any other Loan Document to the Commitment shall be deemed, unless the context otherwise requires, to include the commitment to advance an amount equal to such Increase pursuant to this Section 2.27.
(d) The Loans and Commitments established pursuant to this Section 2.27 shall constitute Loans and 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 any guarantees and the security interests created by the Loan Documents. The Loan Parties shall take any actions reasonably required by Administrative Agent to ensure and demonstrate that the Liens and security interests granted by the Loan Documents continue to be perfected under the UCC or otherwise after giving effect to the addition establishment of any such Incremental Revolving Commitments to new Commitments, which actions may include re-granting Liens and entering into supplements, amendments, restatements or replacements of the Revolving CommitmentsSecurity Documents and executing and delivering all documents, instruments and legal opinions in connection therewith reasonably requested by the Administrative Agent.
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Incremental Facility. (a) The Borrower may at any from time on not more than four occasions after the Closing Date but prior to time amend this Agreement in order to provide to the Maturity DateBorrower additional revolving loan facilities and/or increased revolving commitments in respect of the Revolving Facility or any other existing revolving facility hereunder (each, by notice an “Incremental Revolving Facility”) and additional term loan facilities hereunder (each, an “Incremental Term Facility”; together with any Incremental Revolving Facility, the “Incremental Facilities”), provided that (i) the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000, plus additional amounts to the extent the Consolidated First Lien Net Leverage Ratio (determined (x) on a pro forma basis after giving effect to the provision of such Incremental Facility, (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, if applicable, the use of such proceeds shall be given pro forma effect in such calculation)) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (whereupon b) is less than 2.25:1.00, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent shall promptly deliver a copy and the Lenders pursuant to each Section 6.1(a) or (b) as though such incurrence had been consummated as of the Lenders)first day of the fiscal period covered thereby, without having to seek consent from (y) assuming such Incremental Facility is fully drawn as of such date and (z) disregarding the Lendersproceeds of such Incremental Facility in calculating such leverage ratio (it being understood that, request an increase if applicable, the use of such proceeds shall be given pro forma effect in such calculation) and (iv) at the time and after giving effect to the existing Revolving Commitments (incurrence of any Incremental Facility, no Event of Default shall have occurred and be continuing; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Permitted Acquisition and to the extent the Additional Lenders participating in such increasetranche of an Incremental Term Facility agree, the “Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving Loans”); provided that both foregoing clause (iv) shall be tested solely at the time of the execution of the acquisition agreement related to such Permitted Acquisition. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility (provided that any Incremental Term Facility may amortize in an amount such request that it is fungible with the Term Loan Facility) and upon a final maturity no earlier than the effectiveness Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The Applicable Margin (including all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Facility shall be on such terms as are reasonably satisfactory to the Administrative Agent, the Borrower and the Lenders providing such Incremental Facility. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower and (ii) no Incremental Revolving Facility shall have any amortization. In the case of any Incremental Revolving Commitment referred Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is implemented shall be reasonably satisfactory to below, the Administrative Agent. At no Default or Event time shall there be Revolving Commitments hereunder (including revolving commitments in respect of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Facility, Extended Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the Incremental and any original Revolving Commitments) that have more than four different maturity dates.
(b) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other Any additional bank, financial institution (such institution, existing Lender or other bank Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other financial institution providing an Incremental Revolving Commitment, Person being called an “Additional Lender”)) and, provided that such Additional Lender if not already a Lender, shall (i) be reasonably acceptable subject to the Borrower and the Administrative Agent shall have consented consent (such consent not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender (to such Additional Lender’s providing such Incremental Revolving Commitment, if the extent such consent would be required under Section 9.6 for with respect to an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall Lender pursuant to Section 10.6) and (ii) become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans a Lender under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryDocuments, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions and intent of this Section and (including to provide for voting provisions applicable to the application of the proceeds thereofAdditional Lenders). The effectiveness of any Incremental Facility Amendment shall shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, that at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments time and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition incurrence of any Incremental Facility and the use of proceeds thereof, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such Incremental Revolving Commitments date as if made on and as of such date, except to the Revolving Commitmentsextent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such earlier date; provided that, in the event that any tranche of an Incremental Term Facility is used to finance a Permitted Acquisition and to the extent the Additional Lenders participating in such tranche of an Incremental Term Facility agree, the foregoing shall be limited to customary “specified representations” and those representations included in the acquisition agreement related to such Permitted Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations (or decline to consummate the acquisition) under such acquisition agreement as a result of a breach of such representations. The proceeds of any Incremental Facility will be used only for general corporate purposes (including, for the avoidance of doubt, Permitted Acquisitions and other Investments and Restricted Payments).
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Incremental Facility. The (a) Each Borrower may at any time on not more than four occasions or from time to time after the Closing Date but prior to the Maturity Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request one or more tranches of term loans (each an “Incremental Term Facility”) or revolving facilities or letter of credit facilities or an increase to in the existing amount of the Revolving Commitments Facility (such increaseeach, the an “Incremental Revolving Commitments,” and Facility”; together with the loans thereunderIncremental Term Facilities, the each an “Incremental Revolving LoansFacility”); , provided that both (i) at the time of any such request and upon after the effectiveness of any Incremental Revolving Commitment Amendment referred to below, no Default or Event of Default shall exist have occurred and at be continuing, (ii) the time Company shall be in compliance with the covenants contained in Section 7.1 determined on a pro forma basis as of the last day of the most recent period of the Company for which financial statements are available as if any term loans under such Incremental Facility had been outstanding and any revolving commitment under such Incremental Facility (to the extent available to make Loans) had been fully used on the last day of such period, and (iii) the aggregate principal amount of the Incremental Facilities shall not exceed the greater of (x) $500,000,000 and (y) such higher amount if, after giving effect thereto (including funding thereof in the case of an Incremental Term Facility and the funding of loans expected to be borrowed on the effective date thereof in the case of an Incremental Revolving Facility), the Consolidated Leverage Ratio determined on a pro forma basis would be less than 1.50 to 1.00. Each Incremental Facility shall be in an aggregate principal amount that is not less than $50,000,000 (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence).
(i) Any Incremental Facility shall be ratably secured with the Loans, (ii) any Incremental Facility shall not mature earlier than the Revolving Termination Date nor have a weighted average life (if applicable and other than for nominal amortization of 1% or less of the principal amount of such Incremental Facility per year) which is shorter than the then remaining weighted average life of the Revolving Facility, (iii) the terms and conditions applicable to any Incremental Revolving Loan is made Facility (other than with respect to maturity, which shall be governed by the preceding clause (ii)) shall be the same as those applicable to the Revolving Facility other than such terms and immediately after giving effect theretoconditions which do not apply or relate to any previously existing Facility or other terms reasonably satisfactory to the Administrative Agent, (iv)(A) no Default or Event of Default shall exist. The aggregate amount of all the Applicable Margin and Facility Fee relating to any Incremental Revolving Commitments Facility shall be the same as the Applicable Margin and Facility Fee relating to the Revolving Facility and (B) the Applicable Margin relating to any Incremental Term Facility shall be determined by the Company and the Lenders providing such Incremental Term Facility and (v) any Incremental Facility shall otherwise be on terms and pursuant to documentation to be determined by the Company and the Persons willing to provide such Incremental Facility, provided that to the extent such terms and documentation are not exceed $50,000,000consistent with the then existing Facilities (other than with respect to pricing, amortization and maturity) they shall be reasonably satisfactory to the Administrative Agent (it being agreed that Incremental Term Facilities may contain customary mandatory prepayments, voting rights and prepayment premiums). Each notice from the Borrower Company pursuant to this Section 2.19 shall set forth the requested amount and proposed terms of the relevant Incremental Revolving CommitmentsFacility and the Lenders or other Persons willing to provide the Incremental Facility. The Incremental Revolving Commitments Facility may be provided by any existing Lender or by any other bank or Eligible Assignee selected by the Company (any such other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, fund being called an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayedwithheld) to such Lender’s or Additional Lender’s providing such Incremental Revolving Commitment, Facility if such consent would be required under Section 9.6 10.6 for an assignment of Commitments Loans to such Lender or Additional Lender. Commitments in respect of Incremental Revolving Commitments Facilities shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryDocuments, executed by the Borrowerapplicable Borrower(s), each Additional Lender agreeing to provide such Commitment Commitment, if any, each Additional Lender, if any, and the Administrative AgentAgent pursuant to Section 10.1(e) hereof. An The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerCompany, to effect the provisions and intent of this Section and the application of the proceeds thereof2.19. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.25.2 (it being understood that all references to the date of making of an Extension of Credit or similar language in such Section 5.2 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrowers will use the proceeds of the Incremental Facilities for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Revolving LoansFacility, unless it so agrees. The Borrower may use Administrative Agent and the proceeds of Incremental Revolving Loans for any purpose not prohibited by Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject shall not apply to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign transactions effected pursuant to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitmentsthis paragraph.
Appears in 1 contract
Samples: Credit Agreement (Lear Corp)
Incremental Facility. The Borrower may at any time on not more than four occasions after the Closing Date but prior to the Maturity Date, by written notice to the Administrative Agent (whereupon Loan Administrator elect to request the Administrative Agent shall promptly deliver a copy to each establishment of the Lenders), without having to seek consent from the Lenders, request an increase to one or more new Commitments under the existing Revolving Commitments term facility (such increase, the “Incremental Revolving Commitments,Facilities” and the loans thereunder, the “Incremental Revolving Loans”), in an aggregate amount not to exceed $10,000,000 since the Amendment Effective Date in accordance with the following requirements:
(i) each such notice shall specify the date on which the Borrower proposes that such Incremental Facility shall be effective, which shall be a date not less than two (2) Business Days after the date on which such notice is delivered to the Loan Administrator or such different date as may be agreed to by the Majority Incremental Lenders (as defined below) in their sole discretion;
(ii) any Incremental Facilities must be offered by the Borrower on equal terms, with 50.0% of such Incremental Facility being offered to Tranche A Lenders (such Lenders that have accepted such offer, the “Tranche A Incremental Lenders”) and 50.0% of such Incremental Facility being offered to Lenders that are Tranche B Lenders (such Lenders that have accepted such offer, the “Tranche B Incremental Lenders”) (the Lenders accepting such offer, the “Incremental Lenders” and, the Incremental Lenders representing both (x) a majority of the Tranche A Incremental Lenders and (y) a majority of the Tranche B Incremental Lenders, the “Majority Incremental Lenders”); provided, that, no Lender shall be required to lend Incremental Loans or provide a Commitment with respect thereto; provided further that both at the time of any such request and upon the effectiveness aggregate principal amount of any Incremental Revolving Commitment referred to below, Facility must be funded 50.0% by the Tranche A Incremental Lenders and 50.0% by the Tranche B Incremental Lenders and no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender Facility shall be reasonably acceptable to funded or otherwise established that does not satisfy such funding levels;
(iii) the Borrower terms and conditions of each such Incremental Facility (including the Administrative Agent shall have consented (such consent not terms and conditions under which each is to be unreasonably withheld or delayedextended) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would shall be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed mutually agreed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Majority Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent Lenders and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments.
Appears in 1 contract
Incremental Facility. The (a) So long as no Event of Default under Section 8.01(a) or 8.01(f) exists or would arise therefrom, the Borrower may shall have the right, at any time on not more than four occasions and from time to time after the Closing Date but prior to the Maturity Restatement Date, by notice (i) to the Administrative Agent request new commitments under one or more new revolving facilities to be included in this Agreement (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments (such increase, the “Incremental Revolving Commitments,” ”), (ii) to increase the Existing Tranche of Commitments by requesting new Commitments be added to an Existing Tranche of Commitments (the “Supplemental Revolving Commitments”), and (iii) to request new synthetic or other letter of credit facility commitments under one or more new synthetic or other letter of credit facilities to be included in this Agreement (together with the Incremental Revolving Commitments and the loans thereunderSupplemental Revolving Commitments, the “Incremental Revolving LoansCommitments”); , provided that both that, the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.24 shall not exceed, at the time the respective Incremental Commitment becomes effective (and after giving effect to the incurrence of Indebtedness in connection therewith and the application of proceeds of any such request and upon the effectiveness Indebtedness to refinance such other Indebtedness), an amount that could then be incurred under this Agreement in compliance with Section 7.01(b)(i)(I). Any loans made in respect of any such Incremental Commitment (other than Supplemental Revolving Commitment referred to below, no Default or Event of Default Commitments) shall exist and at the time that any Incremental Revolving Loan is be made by creating a new Tranche.
(and immediately after giving effect theretob) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice request from the Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Revolving Commitments. The Incremental Revolving Commitments (or any portion thereof) may be provided made by any existing Lender or by any other bank or other financial institution (any such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitmentinstitution, an “Additional Lender”)) subject, provided that in the case of any Incremental Revolving Commitments and Supplemental Revolving Commitments (if such Additional Lender shall be reasonably acceptable is not already a Lender hereunder or any affiliate of a Lender hereunder) to the Borrower and consent of the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed).
(c) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Supplemental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans commitments under this Agreement pursuant to a supplement specifying the Tranche of Commitments to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit H-1 (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H-2 (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent 1005940296v112 for recording in the Register. An Increase Supplement or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments to the Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.24. Upon effectiveness of the Lender Joinder Agreement, each Additional Lender shall become a Revolving Lender and be a Lender for all intents and purposes of this Agreement and the commitments made pursuant to such Supplemental Revolving Commitment shall be Commitments. Upon the effectiveness of the Increase Supplement or the Lender Joinder Agreement, as the case may be, in each case with respect to any Supplemental Revolving Commitments, outstanding Loans and/or participations in outstanding L/C Exposure of the applicable Existing Tranche, as the case may be, shall be reallocated (and the increasing Lender or joining Additional Lender, as applicable, shall make appropriate payments representing principal, with the Borrower making any necessary payments of accrued interest) so that after giving effect thereto the increasing Lender or the joining Additional Lender, as the case may be, and the other Lenders of the applicable Existing Tranche share ratably in the total Aggregate Credit Exposure in accordance with the applicable Commitments (and notwithstanding Section 10.05, no Borrower shall be liable for any amounts under Section 10.05 as a result of such reallocation).
(d) Incremental Commitments (other than Supplemental Revolving Commitment and all matters relating thereto Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryDocuments, executed by the Borrower, Borrower and each Additional Lender agreeing to provide such Commitment and the Administrative AgentLender. An Incremental Commitment Amendment may, without the consent of any other LendersLender, effect such amendments to this Agreement and the other any Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent Borrower and the BorrowerAdministrative Agent, to effect the provisions and intent of this Section and 2.24, provided, however, that (i) (A) the application Incremental Commitments will not be guaranteed by any Subsidiary of the proceeds thereof. The effectiveness Borrower other than the Subsidiary Guarantors, and will be secured (any incremental loans drawn thereunder, the “Incremental Loans”) on a pari passu or (at the Borrower’s option) junior basis by the same collateral securing the Loans, (B) the Incremental Commitments and any Incremental Loans shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Loans and (II) so long as any Loans (other than Incremental Amendment shall be subject Loans) are outstanding, any mandatory prepayment provisions that do not also apply to the satisfaction Loans on a pro rata basis following the date thereof (each, occurrence of an “Incremental Facility Closing Date”) of each acceleration of the conditions set forth in Section 4.2. No Loans; (ii) no Lender shall will be obligated required to provide any such Incremental Revolving Loans, Commitment unless it so agrees. The Borrower may use ; (iii) the proceeds maturity date of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Commitments shall be no earlier than the Initial2020 Revolving Loans. On any Incremental Facility Closing Maturity Date on which Incremental Revolving Commitments are effected(other than an earlier maturity date for customary bridge financings, which, subject to customary conditions (as determined by the satisfaction Borrower in good faith), would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date than the Initial2020 Revolving Maturity Date); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; (v) such Incremental Commitment Amendment may provide for the 1005940296v112 inclusion, as appropriate, of Additional Lenders in any required vote or action of the foregoing Required Lenders or of the Lenders of each Tranche hereunder and may provide class protection for any additional credit facilities; and (vi) the other terms and conditionsdocumentation in respect thereof, each of to the Revolving Lenders shall assign extent not consistent with this Agreement as in effect prior to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments Commitment Amendment, shall otherwise be reasonably satisfactory to the Revolving CommitmentsBorrower.
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Incremental Facility. The Borrower may at any time on not more than four occasions after the Closing Date but prior to the Maturity Date, by (a) Upon notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of notify the Lenders), without having at any time after the Closing Date, the Borrowers may from time to seek consent from time request (i) additional Commitments under the LendersTerm Facility (each an “Incremental Term Commitment” and all of them, request an increase to the existing Revolving Commitments (such increasecollectively, the “Incremental Term Commitments”) or (ii) increases in the aggregate amount of the Revolving Commitments (each such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Commitments,” and the loans thereunder, the “Incremental Revolving LoansCommitments”); provided that both at the time of (x) after giving effect to any such request addition, the aggregate amount of Incremental Commitments that have been added pursuant to this Section 2.14 shall not exceed $25,000,000, (y) any such addition or increase shall be in an amount of not less than $10,000,000 and upon the effectiveness (z) there shall be not more than two (2) such increases.
(b) Any Loans made in respect of any Incremental Revolving Commitments shall be made by increasing the Total Revolving Commitment referred to belowwith the same terms (including pricing) as the existing Revolving Loans (each, no Default or Event a “Revolving Commitment Increase”). Any Loans made in respect of Default shall exist and any Incremental Term Commitments (the “Incremental Term Loans”) may be made, at the time option of the Borrowers, by either (i) increasing the Total Term Commitment with the same terms (including pricing) as the existing Term Loans, or (ii) creating a new tranche of terms loans (an “Incremental Term Loan Tranche”); provided that any Incremental Revolving Term Loan is made Tranche (and immediately after giving effect theretoA) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. have a final maturity earlier than the Term Facility Final Maturity Date or a weighted average life which is shorter than the then remaining average life of the Term Loans, (B) shall rank pari passu in right of payment and of security (including Guaranties) with the Revolving Loans and the Term Loans and (C) shall have such other terms and provisions, to the extent not consistent with the Term Loans, as are reasonably satisfactory to the Joint Lead Arrangers.
(c) Each notice from the Borrower Borrowers pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the Incremental Revolving Commitments. Incremental Revolving Commitments Term Loans (or any portion thereof) may be provided made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank bank, financial institution or other investing entity (any such bank, financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitmentinvesting entity, an “Additional Incremental Lender”), provided that such Additional Lender shall be in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Borrower and Administrative Agent, provided that the Administrative Agent (and, in the case of a Revolving Commitment Increase, the Letter of Credit Issuer and the Swingline Lender) shall have consented (such consent not to be unreasonably withheld or delayedwithheld) to such Additional Lender’s 's or Incremental Lender's, as the case may be, making such Incremental Term Loans or providing such Incremental Revolving Commitment, Commitment Increase if such consent would be required under Section 9.6 12.4 for an assignment of Commitments Loans or Revolving Commitments, as applicable, to such Additional Lender or Incremental Lender, as the case may be. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. Any Incremental Commitments shall become Commitments (or in the case of any Revolving Commitments under this AgreementCommitment Increase to be provided by an existing Revolving Lender, Incremental an increase in such Revolving Loans shall become Lender's Revolving Loans Commitment) under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryCredit Documents, executed by the BorrowerBorrowers, each Additional Lender agreeing to provide such Commitment Commitment, if any, each Incremental Lender, if any, and the Administrative Agent. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14. At the time of the sending of such notice, the Borrowers (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Lenders). Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to provide an Incremental Commitment and, if so, whether by an amount equal to, greater than, or less than its pro rata share of such requested increase (which shall be calculated on the basis of the amount of the funded and unfunded exposure under all the Facilities held by each Lender). Any Lender not responding within such time period shall be deemed to have declined to provide an Incremental Commitment. The Administrative Agent shall notify the Borrowers and each Lender of the Lenders' responses to each request made hereunder. To achieve the full amount of a requested increase, the Borrowers may, after first offering such increase to the existing Lenders as provided above, invite Incremental Lenders to become Lenders pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) If any Incremental Commitments are added in accordance with this Section 2.14, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Commitments Effective Date”) and the final allocation of such addition; provided, that any existing Lender electing to participate in the proposed Incremental Commitments shall have the right to participate in the proposed increase or addition on a pro rata basis in accordance with such Lender’s Revolving Commitment (in the case of an increase of the Revolving Commitments) or the outstanding Term Loans held by such Lender (in the case of Incremental Term Commitments) as of the Business Day prior to the Incremental Commitments Effective Date. The Administrative Agent shall promptly notify the Borrowers and the Lenders of the final allocation of such addition and the Incremental Commitments Effective Date. As a condition precedent to such addition, the Borrowers shall deliver to the Administrative Agent a certificate of the Borrowers dated as of the Incremental Commitments Effective Date signed by a Responsible Officer of the Borrowers certifying that, before and after giving effect to such increase, (i) the representations and warranties contained in Section 7 and the other Credit Documents are true and correct in all material respects on and as of the Incremental Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date and (ii) no Default or Event of Default exists before or after giving effect to such addition. On each Incremental Commitments Effective Date, each Lender or Incremental Lender which is providing an Incremental Commitment (i) shall become a “Lender” for all purposes of this Agreement and the other Credit Documents, (ii) shall have, as applicable, an Incremental Term Commitment and/or an Incremental Revolving Commitment which shall become “Commitments” hereunder and (iii) in the case of an Incremental Term Commitment, shall make an Incremental Term Loan to the Borrowers in a principal amount equal to such Incremental Term Commitment, and such Incremental Term Loan shall be a “Term Loan” for all purposes of this Agreement and the other Credit Documents as (except that the interest rate applicable to any Incremental Term Loan under an Incremental Term Loan Tranche may be necessarydifferent).
(e) Upon each Revolving Commitment Increase pursuant to this Section 2.14, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each existing Revolving Lender, if any, and each Incremental Lender, if any, in the reasonable opinion each case providing a portion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof such Revolving Commitment Increase (each, each an “Incremental Facility Closing DateRevolving Lender”) of ), and each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Commitments are effected, subject to the satisfaction Lender's risk participation hereunder in outstanding Letters of the foregoing terms Credit and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), Swingline Loans such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be Commitment Increase and each such deemed assignment and assumption of such risk participations, the percentage of the aggregate outstanding (A) risk participations hereunder in Letters of Credit and (B) risk participations in Swingline Loans, in each case, held by each Revolving Lender (including each such Incremental Revolving Lender) will equal such Revolving Lender's pro rata share of the existing outstanding Revolving Lenders and Additional Lenders ratably in accordance with their Loans based on each such Revolving Commitments Lender's Revolving Percentage immediately after giving effect to such Revolving Commitment Increase and (ii) if, on the addition date of such Revolving Commitment Increase, there are any Revolving Loans outstanding, the Administrative Agent shall take those steps which it deems, in its sole discretion, necessary and appropriate to result in each Revolving Lender (including each Incremental Revolving Commitments Lender) having a pro rata share of the outstanding Revolving Loans based on each such Revolving Lender’s Revolving Percentage immediately after giving effect to such Revolving Commitment Increase, provided that any prepayment made in connection with the taking of any such steps shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the Revolving Commitmentsimmediately preceding sentence.
(f) This Section 2.14 shall supersede any provisions in Section 12.12 to the contrary.
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Incremental Facility. The (a) So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom, the Borrower may shall have the right, at any time on not more than four occasions and from time to time after the Closing Date but prior to the Maturity Date, by notice (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders“Incremental Term Loan Commitments”), without having and (ii) to seek consent from the Lenders, request an increase new commitments under one or more new revolving facilities to the existing Revolving Commitments be included in this Agreement (such increase, the “Incremental Revolving Commitments,” and ”) (together with the loans thereunderIncremental Term Loan Commitments, the “Incremental Revolving LoansCommitments”); , provided that, (i) either (x) after giving pro forma effect to any Incurrence or Discharge of Indebtedness on the date the applicable Incremental Commitment Amendment (as defined below) becomes effective, the Consolidated Secured Leverage Ratio shall be less than or equal to 4.75:1.00 (and the Borrower shall deliver a certificate, no later than two Business Days (or such shorter period as agreed between the Borrower and the Administrative Agent) prior to the date on which such Incremental Commitment shall become effective to the Administrative Agent certifying that both at the time Consolidated Secured Leverage Ratio shall be less than or equal to 4.75:1.00) or (y) the aggregate then outstanding principal amount of any such request the sum of all unutilized Incremental Commitments and Incremental Loans does not exceed $750 million, (ii) upon the effectiveness of any Incremental Revolving Commitment referred to Amendment (as defined below), no Default or Event of Default shall exist have occurred and at be continuing and (iii) the time that representations and warranties set forth in Section 4 shall be true and correct in all material respects on and as of the effective date of any Incremental Revolving Loan is Commitment Amendment (although any representations and warranties that expressly relate to a given date shall be required only to be true and correct in all material respects as of the respective date or the respective period, as the case may be). Any loans made in respect of any such Incremental Commitment shall be made by creating a new Tranche.
(and immediately after giving effect theretob) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice request from the Borrower pursuant to this Section subsection 2.5 shall set forth the requested amount and proposed terms of the relevant Incremental Revolving Commitments. The Incremental Revolving Commitments (or any portion thereof) may be provided made by any existing Lender or by any other bank or other financial institution (any such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitmentinstitution, an “Additional Lender”)) subject, provided that in the case of any Incremental Revolving Commitments (if such Additional Lender shall be reasonably acceptable is not already a Lender hereunder or any affiliate of a Lender hereunder) to the Borrower and consent of the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed).
(c) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans commitments under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryDocuments, executed by the Borrower, Borrower and each Additional Lender agreeing to provide such Commitment and the Administrative AgentLender. An Incremental Commitment Amendment may, without the consent of any other LendersLender, effect such amendments to this Agreement and the other any Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent Borrower and the BorrowerAdministrative Agent, to effect the provisions and intent of this Section and subsection 2.5, provided, however, that (i) (A) the application Incremental Commitments will not be guaranteed by any Subsidiary of the proceeds thereof. The effectiveness Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same collateral securing the Loans, (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Incremental Amendment shall be subject Loan Party that do not also secure the Loans and (II) any mandatory prepayment provisions that do not also apply to the satisfaction Term Loans on the date thereof a pro rata basis, so long as any Term Loans are outstanding; (each, an “Incremental Facility Closing Date”ii) of each of the conditions set forth in Section 4.2. No no Lender shall will be obligated required to provide any such Incremental Revolving Loans, Commitment unless it so agrees. The ; (iii) the maturity date of such Incremental Commitments shall be no earlier than the Term Loan Maturity Date; (iv) the weighted average life to maturity of all Incremental Term Loans of any Tranche shall be no shorter than the weighted average life to maturity of the Term Loans; (v) interest rate margins applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower may use and the proceeds of Incremental Revolving Loans applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any purpose not prohibited term loans incurred by this Agreement unless otherwise agreed the Borrower under any Incremental Term Loan Commitment are higher than the applicable interest rate margin for the Term Loans by more than 50 basis points, then the Applicable Margin for the Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for the Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided further that, in determining the applicable interest rate margins for the Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity); (B) customary arrangement, commitment or amendment fees payable to any of the Lead Arrangers (or their respective affiliates) in connection with the Term Loan Facility or to one or more arrangers (or their respective affiliates) in connection with the applicable Incremental Term Loans (and any fee payable to any Additional Lender in lieu of any portion of any such fee payable to any such arranger or affiliate thereof) shall be excluded; and (C) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Term Loans shall be required, to the extent an increase in the interest rate floor for the Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Term Loans shall be increased by such amount; (vi) such Incremental Revolving Loans. On Commitment Amendment may provide for the inclusion, as appropriate, of Additional Lenders in any Incremental required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder and may provide class protection for any additional credit facilities in a manner consistent with those provided by the original Facility Closing Date on which Incremental Revolving Commitments are effected, subject pursuant to the satisfaction provisions of subsection 10.1(a) as originally in effect; and (vii) the foregoing other terms and conditionsdocumentation in respect thereof, each of to the Revolving Lenders shall assign extent not consistent with this Agreement as in effect prior to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments Commitment Amendment, shall otherwise be reasonably satisfactory to the Revolving CommitmentsBorrower.
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Incremental Facility. The Borrower may at any time on not more than four occasions after the Closing Date but prior to the Maturity Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments (such increase, the “First Lien Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving Loans”); provided Lender hereby agrees that both at the time of any such request and upon the effectiveness of any its respective First Lien Incremental Revolving Commitment referred to belowand, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to extent applicable, its respective Incremental Loans will be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction made on the date thereof (each, an “Incremental Facility Closing Date”) of each of following terms and conditions:
a. Subject solely to the conditions set forth in Section 4.2. No 3 below, as of the Effective Date (x) the First Lien Incremental Revolving Lender shall be obligated hereby agrees to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use its respective portion of the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which First Lien Incremental Revolving Commitments as set forth on Schedule 1.1(b) annexed hereto under the heading “First Lien Incremental Revolving Commitments”.
b. The First Lien Incremental Revolving Lender (i) confirms that it has received a copy of the Credit Agreement and the other Credit Documents and the exhibits thereto, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement; (ii) agrees that it will, independently and without reliance upon the Administrative Agent, the Collateral Agent, any other Lender or Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Credit Documents as are effected, subject delegated to the satisfaction of Administrative Agent or the foregoing Collateral Agent, as the case may be, by the terms and conditionsthereof, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date powers as shall be necessary in order that, after giving effect to all such assignments are reasonably incidental thereto; and purchases, such Revolving Loans (iv) agrees that it will be held by the existing Revolving Lenders and Additional Lenders ratably perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender and as an Incremental Lender.
c. Except as expressly set forth in this Agreement, for all purposes under the Credit Agreement and the other Credit Documents, the First Lien Incremental Revolving Commitments will have the same terms, and be treated as the same Class, as the Revolving Credit Commitments and the First Lien Incremental Loans shall have the same terms, and be treated as the same Class, as the Revolving Credit Loans (including for purposes of mandatory prepayments and voluntary prepayments). On and after the Effective Date, each reference in the Credit Agreement to (i) “Revolving Credit Commitments” shall be deemed to include a reference to the First Lien Incremental Commitments contemplated hereby and (ii) “Revolving Credit Loans” shall be deemed to include a reference to the First Lien Incremental Loans, except in each case as the context may otherwise require. For the avoidance of doubt, (x) the Incremental Revolving Credit Maturity Date for the First Lien Incremental Revolving Commitments and for the First Lien Incremental Loans shall be the Revolving Credit Maturity Date and (y) the Applicable Margin and the Commitment Fee Rate for the First Lien Incremental Loans shall be the same as for the Revolving Credit Loans and Revolving Credit Commitments.
d. Upon giving effect to the First Lien Incremental Revolving Commitments, the Revolving Loans shall be reallocated among the Lenders (including the First Lien Incremental Revolving Lenders) in accordance with their respective Revolving Credit Commitment Percentage (calculated after giving effect to the addition of such First Lien Incremental Revolving Commitments Commitments) (with such reallocation to be effected as directed by the Administrative Agent, including through the funding of new Revolving CommitmentsLoans and the repayment of existing Revolving Loans).
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Samples: First Lien Credit Agreement (BrightView Holdings, Inc.)
Incremental Facility. The (a) So long as no Event of Default under Section 8.01(a) or 8.01(f) exists or would arise therefrom, the Borrower may shall have the right, at any time on not more than four occasions and from time to time after the Closing Date but prior to the Maturity Restatement Date, by notice (i) to the Administrative Agent request new commitments under one or more new revolving facilities to be included in this Agreement (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments (such increase, the “Incremental Revolving Commitments,” ”), (ii) to increase the Existing Tranche of Commitments by requesting new Commitments be added to an Existing Tranche of Commitments (the “Supplemental Revolving Commitments”), and (iii) to request new synthetic or other letter of credit facility commitments under one or more new synthetic or other letter of credit facilities to be included in this Agreement (together with the Incremental Revolving Commitments and the loans thereunderSupplemental Revolving Commitments, the “Incremental Revolving LoansCommitments”); provided provided, that both the aggregate amount of Commitments shall not exceed, at the time the respective Incremental Commitment becomes effective, the greater of $400.0 million and 50.0% of EBITDA (for the Measurement Period applicable at the time such Revolving Credit Agreement Indebtedness is committed). Any loans made in respect of any such Incremental Commitment (other than Supplemental Revolving Commitments) shall be made by creating a new Tranche.
(b) Each request and upon the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Revolving Commitments. The Incremental Revolving Commitments (or any portion thereof) may be provided made by any existing Lender or by any other bank or other financial institution (any such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitmentinstitution, an “Additional Lender”)) subject, provided that in the case of any Incremental Revolving Commitments and Supplemental Revolving Commitments (if such Additional Lender shall be reasonably acceptable is not already a Lender hereunder or any affiliate of a Lender hereunder) to the Borrower and consent of the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed).
(c) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Supplemental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans commitments under this Agreement pursuant to a supplement specifying the Tranche of Commitments to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit H-1 (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H-2 (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. An Increase Supplement or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments to the Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.24. Upon effectiveness of the Lender Joinder Agreement, each Additional Lender shall become a Revolving Lender and be a Lender for all intents and purposes of this Agreement and the commitments made pursuant to such Supplemental Revolving Commitment shall be Commitments. Upon the effectiveness of the Increase Supplement or the Lender Joinder Agreement, as the case may be, in each case with respect to any Supplemental Revolving Commitments, outstanding Loans and/or participations in outstanding L/C Exposure of the applicable Existing Tranche, as the case may be, shall be reallocated (and the increasing Lender or joining Additional Lender, as applicable, shall make appropriate payments representing principal, with the Borrower making any necessary payments of accrued interest) so that after giving effect thereto the increasing Lender or the joining Additional Lender, as the case may be, and the other Lenders of the applicable Existing Tranche share ratably in the total Aggregate Credit Exposure in accordance with the applicable Commitments (and notwithstanding Section 10.05, no Borrower shall be liable for any amounts under Section 10.05 as a result of such reallocation).
(d) Incremental Commitments (other than Supplemental Revolving Commitment and all matters relating thereto Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryDocuments, executed by the Borrower, Borrower and each Additional Lender agreeing to provide such Commitment and the Administrative AgentLender. An Incremental Commitment Amendment may, without the consent of any other LendersLender, effect such amendments to this Agreement and the other any Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent Borrower and the BorrowerAdministrative Agent, to effect the provisions and intent of this Section and 2.24, provided, however, that (i) (A) the application Incremental Commitments will not be guaranteed by any Subsidiary of the proceeds thereof. The effectiveness Borrower other than the Subsidiary Guarantors, and will be secured (any incremental loans drawn thereunder, the “Incremental Loans”) on a pari passu or (at the Borrower’s option) junior basis by the same collateral securing the Loans, (B) the Incremental Commitments and any Incremental Loans shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Loans and (II) so long as any Loans (other than Incremental Amendment shall be subject Loans) are outstanding, any mandatory prepayment provisions that do not also apply to the satisfaction Loans on a pro rata basis following the date thereof (each, occurrence of an “Incremental Facility Closing Date”) of each acceleration of the conditions set forth in Section 4.2. No Loans; (ii) no Lender shall will be obligated required to provide any such Incremental Revolving Loans, Commitment unless it so agrees. The Borrower may use ; (iii) the proceeds maturity date of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Commitments shall be no earlier than the 2020 Revolving Loans. On any Incremental Facility Closing Maturity Date on which Incremental Revolving Commitments are effected(other than an earlier maturity date for customary bridge financings, which, subject to customary conditions (as determined by the satisfaction Borrower in good faith), would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date than the 2020 Revolving Maturity Date); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; (v) such Incremental Commitment Amendment may provide for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the foregoing Required Lenders or of the Lenders of each Tranche hereunder and may provide class protection for any additional credit facilities; and (vi) the other terms and conditionsdocumentation in respect thereof, each of to the Revolving Lenders shall assign extent not consistent with this Agreement as in effect prior to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments Commitment Amendment, shall otherwise be reasonably satisfactory to the Revolving CommitmentsBorrower.
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Incremental Facility. The Borrower may at (a) At any time on not more than four occasions after the Closing Date but during the Commitment Period (in the case of a Revolving Commitment Increase) or any time after the Closing Date and prior to the Term Loan Maturity DateDate (in the case of an Incremental Term Facility), by notice the Borrower may request (but subject to the Administrative Agent conditions set forth in clause (whereupon b) below) (x) the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments be increased by an amount not to exceed the Available Incremental Amount (each such increase, a “Revolving Commitment Increase”) and/or (y) the Lenders establish an incremental term loan facility under this Agreement in an aggregate principal amount not to exceed the Available Incremental Amount (each such facility, an “Incremental Term Facility” and, together with any Revolving Commitment Increase, the “Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving LoansFacilities”); provided . No Lender shall be obligated to participate in an Incremental Facility. Any Incremental Facility shall be in an amount of at least $10,000,000 (or, if the Available Incremental Amount is less than $10,000,000, such remaining Available Incremental Amount) and integral multiples of $1,000,000 in excess thereof. Additionally, for the avoidance of doubt, it is understood and agreed that both at in no event shall the time aggregate amount of any such request and upon Incremental Facilities exceed the Available Incremental Amount during the term of the Agreement.
(b) Each of the following shall be conditions precedent to the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made Facility:
(and immediately after giving effect theretoi) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant shall have delivered an irrevocable written request to this Section shall set forth the Administrative Agent for such Incremental Facility at least ten (10) Business Days prior to the requested amount effective date of such Incremental Facility (or such shorter period as agreed to by the Administrative Agent), and promptly after receipt thereof, the Administrative Agent shall invite each Lender to provide the Incremental Revolving Commitments. Facility ratably in accordance with its Aggregate Exposure Percentage of each requested Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution Facility (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided it being agreed that such Additional no Lender shall be reasonably obligated to provide an Incremental Facility and that any Lender may elect to participate in such Increase in an amount that is less than its Aggregate Exposure Percentage of such requested Increase or more than its Aggregate Exposure Percentage of such requested Incremental Facility if other Lenders have elected not to participate in any applicable requested Incremental Facility in accordance with their Aggregate Exposure Percentages) and to the extent five (5) Business Days after receipt of invitation, sufficient Lenders do not agree to provide the Incremental Facility on terms acceptable to the Borrower, then the Borrower may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Lender in connection with the proposed Incremental Facility;
(ii) each Lender agreeing to participate in any such Incremental Facility, the Borrower and the Administrative Agent shall have consented signed an Incremental Joinder (such any Incremental Joinder may, with the consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An , the Borrower and the Lenders agreeing to such Incremental Amendment may, without the consent of any other LendersFacility, effect such amendments to this Agreement and the other Loan Documents as may be necessarynecessary or appropriate to effectuate the provisions of this Section 2.27) and the Borrower shall have executed any Notes requested by any Lender in connection with the incurrence of the Incremental Facility. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, an Incremental Joinder reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby, shall not require the consent of any Lender other than the Lender(s) agreeing to fund such Incremental Facility;
(iii) each of the conditions precedent set forth in Section 5.2(a) and (e) are satisfied with respect to such Incremental Facility;
(iv) after giving pro forma effect to such Incremental Facility and the use of proceeds thereof, (A) no Default or Event of Default shall have occurred and be continuing at the time of the incurrence of such Incremental Facility and (B) the Borrower shall be in compliance with the then applicable financial covenants set forth in Section 7.1 hereof as of the end of the most recently ended quarter for which financial statements are required to be delivered prior to the incurrence of such Incremental Facility (and in the reasonable opinion case of a Revolving Commitment Increase, assuming the Revolving Facility was fully drawn); provided that the Consolidated Leverage Ratio shall not be greater than 0.25x less than the covenant set forth in Section 7.1(c) for such period, and the Borrower shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent evidencing compliance with the requirements of this clause (iv) and clause (iii) above;
(v) upon the incurrence of any Revolving Commitment Increase in accordance with this Section 2.27, all outstanding Loans, participations hereunder in Letters of Credit and participation hereunder in Swingline Loans held by each Lender shall be reallocated among the Lenders (including any newly added Lenders) in accordance with the Lenders’ respective revised Revolving Percentages and L/C Percentages, pursuant to procedures reasonably determined by the Administrative Agent;
(vi) any such Revolving Commitment Increase shall be on the same terms (including pricing and maturity date) as, and shall be pursuant to the same documentation applicable to, the Revolving Facility then in effect;
(vii) any Incremental Term Loan Facility may provide for the ability to participate (A) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary prepayments of the Term Loans and (B) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments of the Term Loans, and, in any case, (A) no Incremental Term Loan shall have a final maturity date earlier than the Term Loan Maturity Date (but may be later), and (B) the amortization schedule of any Incremental Term Loan shall not have a weighted average life to maturity shorter than the remaining weighted average life to maturity of the Term Loans made on the Closing Date;
(viii) any Incremental Term Loan and Revolving Commitment Increase shall rank pari passu or junior in right of security in respect of the Collateral. No Incremental Facility will be guaranteed by any Person other than a Guarantor hereunder and shall not be secured by any property or assets other than the Collateral;
(ix) the all-in yield (based on the interest rate and original issue discount and upfront fees, if any, but excluding other amounts, including arrangement, commitment, structuring and underwriting fees) applicable to any Incremental Term Loan shall not be more than 0.50% per annum higher than the corresponding all-in yield with respect to the then-existing Term Loans (measured based on the all-in yield with respect to the Term Loans made on the Closing Date) unless the Applicable Margin with respect to the then-existing Term Loans is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Facility and the Borrower, all-in yield applicable to effect the provisions then-existing Term Loans minus 0.50%;
(x) the Borrower shall have paid all fees and intent expenses in connection with the exercise of the applicable Incremental Facility (including those contemplated by the Fee Letter); and
(xi) there shall not be more than three exercises of the Incremental Facility during the term of this Section and Agreement.
(c) Upon the application of the proceeds thereof. The effectiveness of any Incremental Amendment Facility, (i) in the case of a Revolving Commitment Increase, (x) all references in this Agreement and any other Loan Document to the Revolving Commitments shall be subject deemed, unless the context otherwise requires, to include such Revolving Commitment Increase advanced pursuant to this Section 2.27 and (y) all references in this Agreement and any other Loan Document to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender Revolving Commitment shall be obligated to provide any Incremental Revolving Loansdeemed, unless it so agrees. the context otherwise requires, to include the commitment to advance an amount equal to such Revolving Commitment Increase pursuant to this Section 2.27 and (ii) in the case of an Incremental Term Facility, all references in this Agreement and any other Loan Document to the Loans and/or Lenders shall be deemed, unless the context otherwise requires, to include the term loans incurred pursuant to such Incremental Term Facility and the lenders thereunder.
(d) The Borrower may use Incremental Facilities established pursuant to this Section 2.27 shall be entitled to all the proceeds of Incremental Revolving Loans for any purpose not prohibited benefits afforded by this Agreement unless otherwise agreed and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents, other than in connection with such the case of an Incremental Revolving Loans. On any Incremental Term Facility Closing Date that is secured on which Incremental Revolving Commitments are effected, subject to the satisfaction a junior basis in respect of the foregoing terms Collateral. The Loan Parties shall take any actions reasonably required by Administrative Agent to ensure and conditions, each of demonstrate that the Revolving Lenders shall assign to each of the Additional Lenders, Liens and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such security interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held granted by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments Loan Documents continue to be perfected under the UCC or otherwise after giving effect to the addition establishment of any such Incremental Revolving Commitments Facility, which actions may include re-granting Liens and entering into supplements, amendments, restatements or replacements of the Security Documents and executing and delivering all documents, instruments and legal opinions in connection therewith reasonably requested by the Administrative Agent.
(e) Any documentation with respect to any Incremental Term Facility which differ from those with respect to the Revolving CommitmentsTerm Loans made on the Closing Date (except to the extent permitted hereunder) shall reflect market terms and conditions at the time of issuance thereof as determined by the Borrower and the Administrative Agent or otherwise be reasonably acceptable to the Administrative Agent (it being understood that terms differing from those with respect to the Term Loans made on the Closing Date are acceptable if (1) the Lenders under the Term Loan Facility also receive the benefits of each term or (2) are applicable only after the Term Loan Maturity Date).
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Incremental Facility. (a) The Borrower may at any time on not more than four occasions after and the Closing Date but prior to the Maturity DateCo-Borrower may, by written notice to the Administrative Agent from time to time request Incremental Term Loans and/or Incremental Revolving Commitments in an aggregate amount not to exceed the Incremental Amount at such time from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (whereupon which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the case may be, in their own discretion; provided, that no Lender will be required to participate in any Incremental Facility without its consent and each Incremental Term Lender and/or Incremental Revolving Lender, if not already a Lender hereunder, shall be subject to the approval (which approval shall not be unreasonably withheld or delayed) of the Administrative Agent (solely to the extent the Administrative Agent’s consent would otherwise be required for an assignment to such Incremental Term Lender or Incremental Revolving Lender, as applicable, in accordance with Section 10.6 hereof) and, in the case of Incremental Revolving Lenders only, the Issuing Lender. Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (1) with respect to Incremental Term Loans, in minimum increments of $10,000,000, (2) with respect to Incremental Revolving Commitments, in minimum increments of $5,000,000 or (3) equal to the remaining Incremental Amount at such time), (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested to become effective (the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice, (iii) in the case of Incremental Term Loans, whether such Incremental Term Loans are to be on the same terms as the outstanding Term Loans or with terms different from the outstanding Term Loans, (iv) the use of proceeds for such Incremental Term Loan and/or Incremental Revolving Commitment and (v) pro forma financial calculations demonstrating compliance with the requirements under clause (iii) of Section 2.24(c).
(b) The Borrower, the Co-Borrower and each Incremental Term Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall promptly deliver a copy reasonably specify to each evidence the Incremental Term Loans of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments (such increase, the “Incremental Term Lender and/or Incremental Revolving Commitments,” and the loans thereunder, the “Commitment of such Incremental Revolving Loans”); provided that both Lender. If at the time of any Incremental Revolving Commitments the Revolving Commitments are still in effect, the Incremental Revolving Commitment shall be on terms and pursuant to documentation applicable to the Revolving Commitments. Each Incremental Assumption Agreement relating to Incremental Term Loans shall specify the terms of the Incremental Term Loans to be made thereunder; provided that (i) the maturity date of any Incremental Term Loan shall be no earlier than the maturity date for the existing Term Loans, (ii) the weighted average life to maturity of any Incremental Term Loan shall be no shorter than the remaining weighted average life to maturity of the existing Term Loans, (iii) if the total yield in respect of any Incremental Term Loans that would be considered tranche A term loans under then-existing customary market convention exceeds the total yield for the existing Term Loans by more than 1/2 of 1% (it being understood that any such request excess may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed four-year life to maturity), the Applicable Margin for the existing Term Loans shall be increased so that the total yield in respect of such Incremental Term Loans is no more than 1/2 of 1% higher than the total yield for the existing Term Loans; provided that, in determining the interest rate margins applicable to any Incremental Term Loans and the existing Term Loans (x) any OID and upfront fees (which shall be deemed to constitute like amounts of OID) but excluding any arrangement, underwriting or similar fee paid to the Administrative Agent or the arrangers under any Incremental Term Loans and the existing Term Loans in the initial primary syndication thereof shall be included and equated to interest rate and (y) the excess of any Eurodollar Rate “floor” over three-month Eurodollar Rate and the excess of any ABR “floor” over the ABR, in each case without duplication as of the date of drawing of such Incremental Term Loans (disregarding such “floors” in determining the three-month Eurodollar Rate and ABR on such date), shall be equated to interest margin on the Incremental Term Loans, (iv) the Incremental Term Loans will rank pari passu in right of payment and security with the existing Term Loans, (v) the Incremental Term Loans shall share ratably in any optional or mandatory prepayments of the Term Facility unless the lenders with respect to the applicable Incremental Term Loans and the Borrower agree to a less than ratable share of such prepayments and (vi) to the extent the terms or documentation for Incremental Term Loans are not consistent with the terms of the existing Term Loans (except to the extent permitted by the foregoing clauses (i) through (iii) and clause (v)) they shall be reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans and/or Incremental Revolving Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto without their consent.
(c) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at become effective under this Section 2.24 unless (i) on the time that any Incremental Revolving date on which such Loan is made (or the date of such effectiveness and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all to the Incremental Term Loans and/or Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from Loans requested to be made on such date, the Borrower pursuant to this Section shall conditions set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender in Section 5.2 shall be reasonably acceptable to the Borrower satisfied and the Administrative Agent shall have consented received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (such consent not to be unreasonably withheld or delayedii) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would the Administrative Agent shall have received board resolutions and other closing certificates and documentation as may be required by the relevant Incremental Assumption Agreement which, to the extent required, shall be consistent with the related documentation delivered on the Closing Date under Section 9.6 for an assignment of Commitments 5.1 and such additional documents and filings (including amendments to such Additional Lender. the Mortgages and other Security Documents and title endorsement bring downs) as the Administrative Agent may reasonably require to assure that the Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Term Loans and/or Incremental Revolving Loans shall become are secured by the Collateral ratably with the existing Term Loans and Revolving Loans, and (iii) the Borrower and its Subsidiaries would be in compliance on a pro forma basis with the financial covenants set forth in Section 7.1 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available, after giving effect to such Incremental Term Loans and/or Loans to be made as of such date under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Incremental Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction therefrom as if made and applied on the date thereof such date.
(each, an “Incremental Facility Closing Date”d) of each Each of the conditions set forth in Section 4.2. No Lender shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be obligated reasonably necessary to provide any ensure that all Incremental Term Loans and/or Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds when originally made, are included in each borrowing of outstanding Term Loans or Revolving Loans on a pro rata basis, that each Incremental Term Lender and each Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed Lender shall be included in connection with such Incremental Revolving Loans. On any Incremental the definitions of Required Lenders and Majority Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each the Borrower agrees that Section 2.12 shall apply to any conversion of Eurodollar Loans to ABR Loans reasonably required by the Additional Lenders shall purchase from each Administrative Agent to effect the foregoing. For the avoidance of doubt, it is understood that the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary increased in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect an amount equal to the addition of such aggregate Incremental Revolving Commitments to the Revolving Commitments.
Appears in 1 contract
Samples: Credit Agreement (Allscripts Healthcare Solutions, Inc.)
Incremental Facility. The (a) So long as no Event of Default exists or would arise therefrom (or, in the case of an Incremental Facility the proceeds of which will be used to finance a Limited Condition Transaction, only to the extent required by the applicable Incremental Lenders; provided that in any event, no Event of Default under Section 9.1(a) or 9.1(f) exists or would arise therefrom), the Parent Borrower may shall have the right, at any time on not more than four occasions and from time to time after the Closing Date but prior to the Maturity Date, by notice (i) to request new term loan commitments under one or more new term loan credit facilities (including new term loan “C” letter of credit facilities) to be included in this Agreement (the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders“Incremental Term Loan Commitments”), without having (ii) to seek consent from the Lenders, request an increase new commitments under one or more new revolving facilities to the existing Revolving Commitments be included in this Agreement (such increase, the “Incremental Revolving Commitments,”), (iii) to increase any Existing Term Loans by requesting new term loan commitments to be added to an Existing Tranche (including new term loan letter of credit commitments under an Existing Tranche of term “C” loans) of Term Loans (the “Supplemental Term Loan Commitments”), (iv) to increase the Existing Tranche of Revolving Commitments by requesting new Revolving Commitments be added to an Existing Tranche of Revolving Commitments (the “Supplemental Revolving Commitments”), and (v) to request new letter of credit facility commitments under one or more new letter of credit facilities to be included in this Agreement (the “Incremental Letter of Credit Commitments” and, together with the Incremental Term Loan Commitments, the Incremental Revolving Commitments, the Supplemental Term Loan Commitments and the loans thereunderSupplemental Revolving Commitments, the “Incremental Revolving LoansCommitments” and an incremental facility established pursuant to any of the foregoing an “Incremental Facility”); , provided that both that, the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.9 shall not exceed, at the time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such request and upon Indebtedness, including to refinance other Indebtedness), the effectiveness Maximum Incremental Facilities Amount at such time. Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitment referred to below, no Default or Event of Default Commitments) shall exist and at the time that any Incremental Revolving Loan is be made by creating a new Tranche.
(and immediately after giving effect theretob) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice request from the Parent Borrower pursuant to this Section 2.9 shall set forth the requested amount and proposed terms of the relevant Incremental Revolving Commitments. The Incremental Revolving Commitments (or any portion thereof) may be provided made by any existing Lender or by any other bank bank, savings and loan association or other similar savings institution, insurance company, investment fund or company or other financial institution (any such existing Lender bank, savings and loan association or other bank savings institution, insurance company, investment fund or company or other financial institution providing an Incremental Revolving Commitmentinstitution, an “Additional Incremental Lender,” and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”) subject, in the case of any Incremental Revolving Commitments and Supplemental Revolving Commitments (if such Additional Incremental Lender is not already a Lender hereunder or any affiliate of a Lender hereunder), provided that such Additional Lender shall be reasonably acceptable to the Borrower and consent of the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed).
(c) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Supplemental Term Loan Commitments to such Additional Lender. Incremental and Supplemental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans or Revolving Commitments to be increased, executed by the Borrowers and each increasing Lender substantially in the form attached hereto as Exhibit R-1 (the “Increase Supplement”) or by each Additional Incremental Lender substantially in the form attached hereto as Exhibit R-2 (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. An Increase Supplement or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments (including to Section 2.4(b)) to the Loan Documents as may be necessary or appropriate, in the opinion of the Parent Borrower and the Administrative Agent, to effect the provisions of this Section 2.9. Upon effectiveness of the Lender Joinder Agreement, each Additional Incremental Lender shall become a Revolving Lender and be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan or commitments made pursuant to such Supplemental Revolving Commitment shall be Revolving Commitments, as applicable. Upon the effectiveness of the Increase Supplement or the Lender Joinder Agreement, as the case may be, in each case with respect to any Supplemental Revolving Commitments, outstanding Revolving Loans and/or participations in outstanding Swing Line Loans and/or Revolving L/C Obligations of the applicable Existing Tranche, as the case may be, shall be reallocated (and the increasing Lender or joining Additional Incremental Lender, as applicable, shall make appropriate payments representing principal, with the Borrowers making any necessary payments of accrued interest) so that after giving effect thereto the increasing Lender or the joining Additional Incremental Lender, as the case may be, and the other Lenders of the applicable Existing Tranche share ratably in the total Aggregate Outstanding Revolving Commitment Credit in accordance with the applicable Commitments (and all matters relating thereto notwithstanding Section 4.12, no Borrower shall be liable for any amounts under Section 4.12 as a result of such reallocation).
(d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryDocuments, executed by the Borrower, Borrowers and each Additional Lender agreeing to provide such Commitment and the Administrative Agentapplicable Incremental Lender. An Incremental Commitment Amendment may, without the consent of any other LendersLender, effect such amendments to this Agreement and the other any Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent Parent Borrower and the BorrowerAdministrative Agent, to effect the provisions and intent of this Section and 2.9, provided, however, that (i) (A) the application Incremental Commitments will not be guaranteed by any Subsidiary of the proceeds thereof. The effectiveness Parent Borrower other than the Subsidiary Guarantors, and will be secured (except during any Collateral Suspension Period, during which the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall be unsecured) by the same collateral securing the Loans and (B) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Incremental Amendment shall be subject Loan Party that do not also secure the Loans and (II) so long as any Initial Term Loans are outstanding, any mandatory prepayment provisions on a greater than pro rata basis relative to the satisfaction on Initial Term B Loans (or the date thereof Initial Term C Loans in the case of Incremental Term Loans in the form of term “C” loans); (each, an “Incremental Facility Closing Date”ii) of each of the conditions set forth in Section 4.2. No no Lender shall will be obligated required to provide any such Incremental Revolving Loans, Commitment unless it so agrees. The ; (iii) the maturity date of any Incremental Revolving Commitments shall be no earlier than the Initial Revolving Maturity Date; (iv) the maturity date of any Incremental Term Loan Commitments shall be no earlier than the Initial Term Loan Maturity Date (other than an earlier maturity date for (1) customary bridge financings, escrow or other similar arrangements, which, subject to customary conditions (as determined by the Parent Borrower may use in good faith), would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date than the proceeds Initial Term Loan Maturity Date (such bridge financings, escrow or other similar arrangements, “Extendable Bridge Loans/Interim Debt”))) and (2) Incremental Term Loans (other than Extendable Bridge Loans/Interim Debt), together with Indebtedness Incurred pursuant to Section 8.10(a) and 8.10(b)(i), Specified Refinancing Facilities, Permitted Debt Exchange Notes and permitted refinancings of Incremental Revolving Term Loans and any of the foregoing, in each case Incurred in reliance on the Inside Maturity Basket, in an aggregate principal amount of up to the greater of $635,000,000 and 100% of LTM Consolidated EBITDA (this clause 2, the “Inside Maturity Basket”)); (v) the average weighted life to maturity of any Incremental Term Loans shall be no shorter than the average weighted life to maturity applicable to (i) with respect to Incremental Term Loans in the form of tranche “C” loans, the Initial Term C Loans and (ii) with respect to all other Incremental Term Loans, the Initial Term B Loans (in each case, without giving effect to any prepayments on the outstanding Initial Term C Loans or Initial Term B Loans, as applicable), provided that Extendable Bridge Loans/Interim Debt and Incremental Term Loans, Indebtedness Incurred pursuant to Section 8.10(a) and 8.10(b)(i), Specified Refinancing Facilities, Permitted Debt Exchange Notes and permitted refinancings of Incremental Term Loans and any of the foregoing, in each case, Incurred in reliance on the Inside Maturity Basket may have a weighted average life to maturity that is shorter than the remaining weighted average life of the applicable Initial Term Loans, (vi) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Parent Borrower and the applicable Incremental Lenders; provided that (i) in the event that the applicable interest rate margins for any purpose term loans incurred by the Parent Borrower under any Incremental Term Loan Commitment that is pari passu in right of payment and security with the Initial Term Loans are higher than the applicable interest rate margin for the Initial Term Loans by more than 75 basis points, then the Applicable Margin for the Initial Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for the Initial Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 75 basis points; provided further that, in determining the applicable interest rate margins for the Initial Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront fees payable generally to all participating Incremental Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Parent Borrower to the Lenders under the Initial Term Loans or any Incremental Term Loan shall be included (with OID being equated to interest based on assumed four-year life to maturity); (B) customary arrangement, structuring, underwriting, ticking, commitment and other similar fees not prohibited by this Agreement unless otherwise agreed payable to all lenders generally in connection therewith or commitment fees payable to any of the arrangers (or their respective affiliates) in connection with the Initial Term Loans or to one or more arrangers (or their respective affiliates) in connection with the Incremental Term Loans (and any fee payable to any Incremental Lender in lieu of any portion of any such fee payable to any such arranger or affiliate thereof) shall be excluded; (C) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Initial Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Initial Term Loans shall be required, to the extent an increase in the interest rate floor for the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Initial Term Loans shall be increased by such amount and (D) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Initial Term Loans or does not include an interest rate floor, the difference between the interest rate floor applicable to the Initial Term Loans and the Incremental Term Loans shall reduce the applicable interest rate margin of such Incremental Revolving Loans. On Term Loans for purposes of determining whether an increase in the Applicable Margin for the Initial Term Loans shall be required (such adjustments to the Applicable Margin for the Initial Term Loans pursuant to this clause (vi), the “MFN Adjustment”); provided that the MFN Adjustment shall not be applicable to any Incremental Facility Term Loan that (1) is incurred more than 18 months after the Closing Date on which Incremental Revolving Commitments are effectedDate, subject (2) is in an aggregate amount equal to or less than the greater of $635,000,000 and 100% of LTM Consolidated EBITDA, (3) matures at least one year after the maturity date applicable to the satisfaction then outstanding Initial Term Loans, (4) is incurred in connection with a Permitted Acquisition or Permitted Investment, or (5) is incurred under the Incremental Fixed Dollar Basket (clause (1) through (5), the “MFN Exceptions”); (vii) such Incremental Commitment Amendment may (1) provide for the inclusion, as appropriate, of Additional Incremental Lenders in any required vote or action of the foregoing Required Lenders, Required Revolving Lenders or of the Lenders of each Tranche hereunder, (2) provide class protection for any additional credit facilities, (3) provide for the amendment of the definitions of “Additional Obligations,” “Disqualified Stock, and “Refinancing Indebtedness”, in each case only to extend the maturity date from the Initial Term B Loan Maturity Date or Initial Term C Loan Maturity Date, as applicable, to the extended maturity date of such Incremental Term Loans and (4) (A) amend or otherwise modify Section 6.2 solely with respect to any Extension of Credit under any Facility of Incremental Commitments, (B) waive any representation made or deemed made in connection with any Extension of Credit under any Facility of Incremental Commitments and (C) provide that an amendment, supplement or modification of any of the provisions referred to in clause (A) or (B) above may be effected with the consent only of such Incremental Lenders (or any of them); and (vii) the other terms and conditionsdocumentation in respect thereof, each of to the Revolving Lenders shall assign extent not consistent with this Agreement as in effect prior to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments Commitment Amendment, shall otherwise be reasonably satisfactory to the Revolving CommitmentsParent Borrower.
Appears in 1 contract
Samples: Credit Agreement (Hertz Corp)
Incremental Facility. The Borrower may at any time on not more than four occasions after the Closing Date but prior to (a) On or before the Maturity Date, by notice the Borrower will have the right, but not the obligation, to increase the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each committed amount of the Lenders)Revolving Credit Facility by an aggregate principal amount not to exceed $20,000,000, without having to seek consent from the Lendersin each case, request by incurring incremental revolving credit commitments (each, an increase to the existing Revolving Commitments (such increase, the “Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving LoansFacility”); provided that both at that: (i) all representations and warranties hereunder shall be true and correct in all material respects after giving effect to the time Incremental Facility (except in the case of any such request representation and upon warranty which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the effectiveness of any Incremental Revolving Commitment referred to belowrespective date or for the respective period, as the case may be) and no Default or Event of Default shall exist have occurred and at the time that any Incremental Revolving Loan is made (and immediately be continuing after giving effect thereto; (ii) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant shall be in compliance with all covenants, including, without limitation, pro forma compliance with the Financial Covenants after giving effect to this Section shall set forth the requested amount Incremental Facility; and (iii) all other terms of the Incremental Facility shall be substantially identical with the terms of the existing Revolving Commitments. Credit Facility except as reasonably approved by the Administrative Agent.
(b) Any Incremental Revolving Commitments may Facility will be provided by any existing Lenders or other Persons who become Lenders in connection therewith; provided that no existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall will be obligated to provide any portion of any Incremental Facility. Cadence shall have the exclusive right to act as arranger and bookrunner (including any similar role) in connection with the Incremental Facility and shall be exclusively entitled to any underwriting, arrangement or similar fees in connection therewith. 56 #96922345v9
(c) Upon the effectiveness of each Incremental Facility, if there are Letters of Credit then outstanding, the participations of the Revolving Loans, unless it so agrees. The Borrower may use Credit Lenders in such Letters of Credit will be automatically adjusted to reflect the proceeds Applicable Percentages of Incremental all the Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed Credit Lenders (including each Person who becomes a Lender in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments Facility) after giving effect to the addition of such applicable Incremental Revolving Commitments to the Revolving CommitmentsFacility.
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Incremental Facility. The Borrower may (a) So long as no Event of Default exists or would arise therefrom, the Borrowers shall have the right, at any time on not more than four occasions and from time to time after the Closing Date but prior to the Maturity Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request an increase to of the existing Revolving aggregate amount of the then outstanding Commitments (such increase, the “Incremental Revolving Commitments,” and the loans thereunder, or the “Incremental Revolving LoansFacilities” and each, an “Incremental Facility”); provided that both at . Notwithstanding anything to contrary herein, the time principal amount of any such request and upon the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000the Available Incremental Amount at such time. Each notice The Parent Borrower may seek to obtain Incremental Revolving Commitments from the Borrower pursuant to this Section shall set forth the requested amount of the existing Lenders or other Persons, as applicable (each an “Incremental Facility Increase,” and each Person extending, or Lender extending, Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided, however, that (i) no Lender shall be obligated to provide an Incremental Facility Increase as a result of any such request by the Borrowers, and (ii) any Additional Lender which is not an existing Lender shall be subject to the approval of, the Administrative Agent, each Issuing Lender and the Borrowers (each such approval not to be unreasonably withheld). Each Incremental Facility Increase shall be in a minimum aggregate amount of at least $5,000,000 and in integral multiples of $1,000,000 in excess thereof. Any Incremental Facility Increase may be denominated in Dollars.
(b) [Reserved].
(c) Any Incremental Revolving Commitments (A) shall be guaranteed by the Guarantors and shall rank pari passu in right of (x) priority with respect to the same Collateral securing the Obligations and (y) payment with respect to the Obligations in respect of the Commitments in effect prior to the Incremental Revolving Commitment Effective Date and (B) shall be on terms and pursuant to the documentation applicable to the existing Commitments; provided that the Applicable Margin relating to the Incremental Revolving Commitments may exceed the Applicable Margin relating to the Commitments in effect prior to the Incremental Revolving Commitment Effective Date so long as the Applicable Margins relating to all Revolving Credit Loans shall be adjusted to be equal to the Applicable Margin payable to the Lenders providing such Incremental Revolving Commitments.
(d) The Incremental Facilities may be in the form of a separate “first-in, last-out” tranche (the “FILO Tranche”) with a separate borrowing base against the ABL Priority Collateral and interest rate margins in each case to be agreed upon (which, for the avoidance of doubt, shall not require any adjustment to the Applicable Margin of other Loans pursuant to clause (c) above) among the Parent Borrower, the Administrative Agent and the Lenders providing the FILO Tranche so long as (1) any loans under the FILO Tranche may not be guaranteed by any Subsidiaries of the Parent Borrower other than the Guarantors and shall rank pari passu (or, at the option of the Parent Borrower, junior) in right of priority with respect to the Collateral; (2) if the FILO Tranche availability exceeds $0, any Extension of Credit under the Revolving Credit Facility thereafter requested shall be made under the FILO Tranche until the FILO Tranche availability no longer exceeds $0; (3) as between (x) the Revolving Credit Facility (other than the FILO Tranche) and the Designated Hedging Agreements and Designated Cash Management Agreements and (y) the FILO Tranche, all proceeds from the liquidation or other realization of the Collateral (including ABL Priority Collateral) shall be applied, first to obligations owing under, or with respect to, the Revolving Credit Facility (other than the FILO Tranche) and such Designated Hedging Agreements and Designated Cash Management Agreements and second to the FILO Tranche; (4) no Borrower may prepay Revolving Credit Loans under the FILO Tranche or terminate or reduce the commitments in respect thereof at any time that other Loans and/or Reimbursement Obligations (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent) are outstanding; (5) the Required Lenders (calculated as including Lenders under the Incremental Facilities and the FILO Tranche) shall, subject to the terms of any Intercreditor Agreement, control exercise of remedies in respect of the Collateral and (5) no changes affecting the priority status of the Revolving Credit Facility (other than the FILO Tranche) vis-à-vis the FILO Tranche may be made without the consent of the Required Lenders under the Revolving Credit Facility, other than such changes which affect only the FILO Tranche.
(e) No Incremental Facility Increase shall become effective unless and until each of the following conditions have been satisfied:
(i) The Borrowers, the Administrative Agent, and any Additional Lender shall be reasonably acceptable have executed and delivered a joinder to the Loan Documents (“Lender Joinder Agreement”) in substantially the form of Exhibit O hereto or such other form as is agreed by the Borrowers, the Administrative Agent and then Additional Lenders party thereto;
(ii) The Borrowers shall have paid such fees and other compensation to the Additional Lenders and to the Administrative Agent as the applicable Borrowers, the Administrative Agent and such Additional Lenders shall agree;
(iii) The applicable Borrowers shall deliver to the Administrative Agent and the Lenders an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent from counsel to the applicable Borrowers reasonably satisfactory to the Administrative Agent and dated such date;
(iv) A Revolving Credit Note (to the extent requested) will be issued at the applicable Borrowers’ expense, to each such Additional Lender, to be in conformity with requirements of subsection 2.1(d) (with appropriate modification) to the extent necessary to reflect the new Commitment of each Additional Lender;
(v) The Parent Borrower shall deliver a certificate certifying that (A) the representations and warranties made by the Parent Borrower and the other Loan Parties contained herein and in the other Loan Documents are true and correct in all material respects on and as of closing date of such Incremental Facility except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and (B) no Event of Default has occurred and is continuing; and
(vi) The applicable Borrowers and Additional Lenders shall have delivered such other instruments, documents and agreements as the Administrative Agent may reasonably have requested in order to effectuate the documentation of the foregoing.
(i) In the case of any Incremental Facility Increase, the Administrative Agent shall have consented promptly notify each Lender as to the effectiveness of such Incremental Facility Increase (with each date of such consent not effectiveness being referred to herein as an “Incremental Revolving Commitment Effective Date”), and at such time (A) the Commitments under, and for all purposes of, this Agreement shall be unreasonably withheld or delayed) to such Additional Lender’s providing increased by the aggregate amount of such Incremental Revolving CommitmentCommitments, if (B) Schedule A shall be deemed modified, without further action, to reflect the revised Commitments and Commitment Percentages of the Lenders and (C) this Agreement shall be deemed amended, without further action, to the extent necessary to reflect any such consent would be Incremental Revolving Commitments.
(ii) In the case of any Incremental Facility Increase, the Administrative Agent, the Additional Lenders and the Borrowers agree to enter into any amendment required under Section 9.6 for an assignment to incorporate the addition of Commitments to such Additional Lender. the Incremental Revolving Commitments, the pricing of the Incremental Revolving Commitments, the maturity date of the Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, necessary or appropriate in the reasonable opinion of the Administrative Agent and the BorrowerBorrowers in connection therewith. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such amendments.
(g) In connection with the Incremental Facility Increases hereunder, to effect the provisions and intent of this Section Lenders and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject Borrowers agree that, notwithstanding anything to the satisfaction on contrary in this Agreement, (i) the date thereof applicable Borrowers shall, in coordination with the Administrative Agent, (eachx) repay applicable outstanding Revolving Credit Loans of certain Lenders, an “Incremental Facility Closing Date”and obtain applicable Revolving Credit Loans from certain other Lenders (including the Additional Lenders), or (y) of take such other actions as reasonably may be required by the Administrative Agent to the extent necessary so that the Lenders effectively participate in each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental outstanding Revolving Credit Loans, unless it so agrees. The Borrower may use as applicable, pro rata on the proceeds basis of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof their Commitment Percentages (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, determined after giving effect to all such assignments any increase in the Commitments pursuant to this subsection 2.6), and purchases, such Revolving Loans will be held by (ii) the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect applicable Borrowers shall pay to the addition Lenders any costs of such Incremental the type referred to in subsection 4.12 in connection with any repayment and/or Revolving Commitments Credit Loans required pursuant to the Revolving preceding clause (i). Without limiting the obligations of the Borrowers provided for in this subsection 2.6, the Administrative Agent and the Lenders agree that they will use commercially reasonable efforts to attempt to minimize the costs of the type referred to in subsection 4.12 which the Borrowers would otherwise incur in connection with the implementation of an increase in the Commitments.
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Incremental Facility. The Borrower may at (i) At any time on not more than four occasions during the period from and after the Closing Date through but prior excluding the date that is the third year anniversary of the Closing Date, at the option of Borrowers (but subject to the Maturity Date, by notice to the Administrative Agent conditions set forth in clause (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lendersb) below), without having the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate not to seek consent from exceed the Lenders, request an increase to the existing Revolving Commitments Available Increase Amount (each such increase, an “Increase”). Agent shall invite each Lender to increase its Revolver Commitments (it being understood that no Lender shall be obligated to increase its Revolver Commitments) in connection with a proposed Increase at the “Incremental Revolving Commitments,” interest margin proposed by Xxxxxxxxx, and if sufficient Lenders do not agree to increase their Revolver Commitments in connection with such proposed Increase, then Agent or Borrowers may invite any prospective lender who is reasonably satisfactory to Agent and Borrowers to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of at least $5,000,000 and integral multiples of $5,000,000 in excess thereof. In no event may the Revolver Commitments and the loans thereunder, the “Incremental Revolving Loans”); provided that both at the time of any such request and upon the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower Maximum Revolver Amount be increased pursuant to this Section 2.14 on more than two (2) occasions in the aggregate for all such Increases. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall set forth the requested aggregate amount of the Incremental Revolving Commitments. Incremental Revolving Increases to the Revolver Commitments may exceed the Available Increase Amount.
(ii) Each of the following shall be provided by conditions precedent to any existing Lender Increase of the Revolver Commitments and the Maximum Revolver Amount in connection therewith:
(1) Agent or by any other bank Borrowers have obtained the commitment of one or more Lenders (or other financial institution prospective lenders) reasonably satisfactory to Agent and Borrowers to provide the applicable Increase and any such Lenders (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitmentprospective lenders), Borrowers, and Agent have signed a joinder agreement to this Agreement (an “Additional LenderIncrease Joinder”), provided in form and substance reasonably satisfactory to Agent, to which such Lenders (or prospective lenders), Borrowers, and Agent are party,
(2) each of the conditions precedent set forth in Section 3.2 are satisfied,
(3) if any Loan Party or any of its Subsidiaries owns any Margin Stock or is acquiring any Margin Stock in connection with the transactions that are contemplated to be consummated in connection with such Additional Lender Increase, Borrowers shall be deliver to Agent a description of any such Margin Stock being acquired, together with an updated Form U-1 (with sufficient additional originals thereof for each Lender), duly executed and delivered by the Borrowers, together with such other documentation as Agent shall reasonably acceptable request, in order to enable Agent and the Lenders to comply with any of the requirements under Regulations T, U or X of the Federal Reserve Board,
(4) Borrowers have delivered to Agent updated pro forma Projections (after giving effect to the Borrower applicable Increase) for the Loan Parties and their Subsidiaries evidencing compliance on a pro forma basis with Section 7 for the Administrative Agent twelve months (on a month-by-month basis) immediately following the proposed date of the applicable Increase (calculated as if a Covenant Testing Period was in effect during the entire twelve month period), and
(5) Borrowers shall have consented reached agreement with the Lenders (such consent not or prospective lenders) agreeing to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of the increased Revolver Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional interest margins applicable to Revolving Commitment and all matters relating thereto Loans to be made pursuant to an amendment the increased Revolver Commitments (an “Incremental Amendment”) which interest margins may be with respect to Revolving Loans made pursuant to the increased Revolver Commitments, higher than or equal to the interest margins applicable to Revolving Loans set forth in this Agreement and such other Loan Documents as are necessary, executed by immediately prior to the Borrower, each Additional Lender agreeing to provide such Commitment date of the increased Revolver Commitments (the date of the effectiveness of the increased Revolver Commitments and the Administrative Maximum Revolver Amount, the “Increase Date”)) and shall have communicated the amount of such interest margins to Agent. An Incremental Amendment Any Increase Joinder may, without with the consent of any other LendersAgent, Borrowers and the Lenders or prospective lenders agreeing to the proposed Increase, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, necessary to effect effectuate the provisions and intent of this Section and 2.14 (including any amendment necessary to effectuate the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans interest margins for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall to be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect made pursuant to the addition of such Incremental Revolving Commitments to the Revolving increased Revolver Commitments).
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Incremental Facility. (a) The Borrower may at any time on not more than four occasions after the Closing Date but prior to the Maturity Datemay, by written notice to the Administrative Agent from time to time, request Incremental Term Loans and/or Incremental Revolving Commitments in an aggregate amount not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (whereupon which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Loans, as the case may be, in their own discretion; provided, that each Incremental Term Lender and/or Incremental Revolving Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and, in the case of Incremental Revolving Lenders only, the Issuing Lender (which approval shall, in either case, not be unreasonably withheld). Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (1) with respect to Incremental Term Loans, in minimum increments of $25,000,000, (2) with respect to Incremental Revolving Commitments, in minimum increments of $5,000,000 or (3) equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested to become effective (the “Increased Amount Date”), (iii) whether such Incremental Term Loans, if any, are to be term loans on the same terms as the Initial Term Loans or term loans with terms different from the outstanding Term Loans (“Other Term Loans”), (iv) the use of proceeds for such Incremental Term Loan and (v) pro forma financial statements demonstrating compliance on a pro forma basis with the financial covenants set forth in Section 8.1 and the requirement set forth in Section 4.16(d)(iv) after giving effect to such Incremental Term Loan and/or Incremental Revolving Commitments and the Loans to be made thereunder and the application of the proceeds therefrom (including by giving pro forma effect to any Permitted Acquisition financed thereby) as if made and applied on the date of the most-recent financial statements of the Borrower delivered pursuant to Section 7.1.
(b) In addition to any Incremental Revolving Commitments that may be requested pursuant to Section 4.16(a), the Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Commitments in an aggregate amount not to exceed the Additional Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Revolving Lender) willing to provide such Incremental Revolving Loans in their own discretion; provided, that each Incremental Revolving Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and the Issuing Lender (which approval shall, in either case, not be unreasonably withheld). Such notice shall set forth (i) the amount of the Incremental Revolving Commitments being requested, which shall be in minimum increments of $5,000,000 or equal to the remaining Additional Incremental Amount), (ii) the Increased Amount Date and (iii) pro forma financial statements demonstrating compliance on a pro forma basis with the financial covenants set forth in Section 8.1 after giving effect to such Incremental Revolving Commitments and the Loans to be made thereunder and the application of the proceeds therefrom (including by giving pro forma effect to any Permitted Acquisition financed thereby) as if made and applied on the date of the most-recent financial statements of the Borrower delivered pursuant to Section 7.1.
(c) The Borrower and each Incremental Term Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall promptly deliver a copy reasonably specify to each evidence the Incremental Term Loans of such Incremental Term Lender and/or Incremental Revolving Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the Lenders)Incremental Term Loans to be made thereunder; provided, that, without having to seek the prior written consent from of the Required Lenders, request an increase (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date, (ii) the average life to maturity of any Other Term Loans shall be no shorter than the existing average life to maturity of the Initial Term Loans, (iii) no proceeds of the Incremental Term Loans and/or any Loans made on the closing date of any Incremental Revolving Commitments shall be used to make any Restricted Payment and (such increase, iv) the “Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving Loans”); provided that both at the time terms of any such request Incremental Term Loans and/or Incremental Revolving Commitments shall be no less favorable or restrictive in any material respect as to the Borrower or any of its Subsidiaries than the terms of the corresponding portion of the Facilities and provided, further, that if the total yield (including the interest rate margin, fees, any OID (as defined below) and/or interest rate floors) in respect of any Other Term Loan exceeds the total yield for the Initial Term Loans by more than 1/4 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner determined by the Administrative Agent based on an assumed four-year life to maturity), the Applicable Margin for the Initial Term Loans shall be increased so that the total yield in respect of such Other Term Loan (giving effect to any OID issued in connection with such Other Term Loan) is no more than 1/4 of 1% higher than the total yield for the Initial Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans and/or Incremental Revolving Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at become effective under this Section 4.16 unless (i) on the time that any Incremental Revolving date on which such Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from such effectiveness, the Borrower pursuant to this Section shall conditions set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender in Section 6.2 shall be reasonably acceptable to the Borrower satisfied and the Administrative Agent shall have consented received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and consistent with those delivered on the Closing Date under Section 6.1 and such consent not additional documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bring downs) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Incremental Revolving Loans are secured by the Collateral ratably with the existing Term Loans and Revolving Loans, (iii) the Borrower and its Subsidiaries would be unreasonably withheld or delayed) in compliance with the financial covenants set forth in Section 8.1 on a pro forma basis after giving effect to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Term Loans and/or Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments Loans to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section made thereunder and the application of the proceeds thereof. The effectiveness of any therefrom as if made and applied on such date and (iv) the Consolidated Secured Leverage Ratio does not exceed 3.75 to 1.00 on a pro forma basis after giving effect to such Incremental Amendment shall Term Loans and/or Incremental Revolving Commitments and the Loans to be subject to made thereunder and the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each application of the conditions set forth in proceeds therefrom as if made and applied on such date; provided that the foregoing clause (iv) shall not apply to Incremental Revolving Commitments established pursuant to Section 4.2. No Lender shall 4.16(b).
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be obligated reasonably necessary to provide any ensure that all Incremental Term Loans (other than Other Term Loans) and/or Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds when originally made, are included in each Borrowing of Incremental outstanding Term Loans or Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lendersa pro rata basis, and each the Borrower agrees that Section 4.11 shall apply to any conversion of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Eurocurrency Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Base Rate Loans will be held reasonably required by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving Administrative Agent to effect to the addition of such Incremental Revolving Commitments to the Revolving Commitmentsforegoing.
Appears in 1 contract
Incremental Facility. The Borrower may at any time on not more than four occasions after the Closing Date but prior to the Maturity Date, by (a) Upon notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of notify the Lenders), without having at any time after the Closing Date, the Borrower may from time to seek consent from time request (i) additional commitments under the LendersTerm Facility (each an “Incremental Term Commitment” and all of them, request an increase to the existing Revolving Commitments (such increasecollectively, the “Incremental Term Commitments”) and/or (ii) increases in the aggregate amount of the Revolving Commitments (each such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Commitments,” and the loans thereunder, the “Incremental Revolving LoansCommitments”); provided that (x) both at the time of before and after giving effect to any such request addition(s), the aggregate amount of Incremental Commitments that have been added pursuant to this Section 2.14 after the Closing Date (excluding, for the avoidance of doubt, each Term Loan A-2 added on the Closing Date) shall not exceed $400,000,000, (y) any such addition or increase shall be in an amount of not less than $10,000,000 and upon (z) there shall be not more than three (3) such increases after the effectiveness Closing Date.
(a) Any Loans made in respect of any Incremental Revolving Commitments shall be made by increasing the Total Revolving Commitment referred to belowwith the same terms (including pricing) as the existing Revolving Loans (each, no Default or Event a “Revolving Commitment Increase”). Any Loans made in respect of Default shall exist and any Incremental Term Commitments (the “Incremental Term Loans”) may be made, at the time that any option of the Borrower, by either (i) issuing a commitment to make term loans with the same terms (including pricing) as an existing Series of Term Loans, or (ii) creating a new Series of terms loans (an “Incremental Term Loan Tranche”). Any Revolving Loan is made Commitment Increases or Incremental Term Loans (and immediately after giving effect theretoA) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. have a final maturity earlier than the Revolving Facility Final Maturity Date or LEGAL02/38433738v11 Term Facility Final Maturity Date or a weighted average life which is shorter than the then remaining average life of Term Loans A-2, as the case may be, (B) shall rank pari passu in right of payment and of security (including Guaranties) with the Revolving Loans and the Term Loans and (C) shall have such other terms and provisions, to the extent not consistent with the Revolving Loans or the Term Loans, as the case may be, as are reasonably satisfactory to the Joint Lead Arrangers.
(b) Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the Incremental Revolving Commitments. Incremental Revolving Commitments Term Loans (or any portion thereof) may be provided made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank bank, financial institution or other investing entity (any such bank, financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitmentinvesting entity, an “Additional Incremental Lender”), provided that such Additional Lender shall be in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Borrower and Administrative Agent, provided that the Administrative Agent (and, in the case of a Revolving Commitment Increase, the Letter of Credit Issuer and the Swingline Lender) shall have consented (such consent not to be unreasonably withheld or delayedwithheld) to such Additional Lender’s 's or Incremental Lender's, as the case may be, making such Incremental Term Loans or providing such Incremental Revolving Commitment, Commitment Increase if such consent would be required under Section 9.6 12.4 for an assignment of Commitments Loans or Revolving Commitments, as applicable, to such Additional Lender or Incremental Lender, as the case may be. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. Any Incremental Commitments shall become Commitments (or in the case of any Revolving Commitments under this AgreementCommitment Increase to be provided by an existing Revolving Lender, Incremental an increase in such Revolving Loans shall become Lender's Revolving Loans Commitment) under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryCredit Documents, executed by the Borrower, each Additional Lender agreeing to provide such Commitment Commitment, if any, each Incremental Lender, if any, and the Administrative Agent. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14. At the time of the sending of such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Lenders). Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to provide an Incremental Commitment and, if so, whether by an amount equal to, greater than, or less than its pro rata share of such requested increase (which shall be calculated on the basis of the amount of the funded and unfunded exposure under all the Facilities held by each Lender). Any Lender not responding within such time period shall be deemed to have declined to provide an Incremental Commitment. The Administrative Agent shall notify the Borrower and each Lender of the Lenders' responses to each request made hereunder. To achieve the full amount of a requested increase, the Borrower may, after first offering such increase to the existing Lenders as provided above, invite Incremental Lenders to become Lenders pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(c) If any Incremental Commitments are added in accordance with this Section 2.14, the Administrative Agent and the Borrower shall determine the effective date (the “Incremental Commitments Effective Date”) and the final allocation of such addition; provided, that any existing Lender electing to participate in the proposed Incremental Commitments shall have the right to participate in the proposed increase or addition on a pro rata basis in accordance with such Lender’s Revolving Commitment (in the case of an increase of the Revolving Commitments) or the outstanding Term Loans held by such Lender (in the case of Incremental Term Commitments) as of LEGAL02/38433738v11 the Business Day prior to the Incremental Commitments Effective Date. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such addition and the Incremental Commitments Effective Date. As a condition precedent to such addition, the Borrower shall deliver to the Administrative Agent (i) a pro forma Compliance Certificate after giving effect to such addition and (ii) a certificate of the Borrower dated as of the Incremental Commitments Effective Date signed by an Authorized Officer of the Borrower certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Section 7 and the other Credit Documents are true and correct in all material respects on and as of the Incremental Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, (B) no Default or Event of Default exists before or after giving effect to such addition and (C) all conditions set forth in Section 6.2 are satisfied as of such date. On each Incremental Commitments Effective Date, each Lender or Incremental Lender which is providing an Incremental Commitment (x) shall become a “Lender” for all purposes of this Agreement and the other Credit Documents, (y) shall have, as applicable, an Incremental Term Commitment and/or an Incremental Revolving Commitment which shall become “Commitments” hereunder and (z) in the case of an Incremental Term Commitment, shall make an Incremental Term Loan to the Borrower in a principal amount equal to such Incremental Term Commitment, and such Incremental Term Loan shall be a “Term Loan” for all purposes of this Agreement and the other Credit Documents as (except that the interest rate applicable to any Incremental Term Loan under an Incremental Term Loan Tranche may be necessarydifferent).
(d) Upon each Revolving Commitment Increase pursuant to this Section 2.14, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each existing Revolving Lender, if any, and each Incremental Lender, if any, in the reasonable opinion each case providing a portion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof such Revolving Commitment Increase (each, each an “Incremental Facility Closing DateRevolving Lender”) of ), and each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Commitments are effected, subject to the satisfaction Lender's risk participation hereunder in outstanding Letters of the foregoing terms Credit and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), Swingline Loans such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be Commitment Increase and each such deemed assignment and assumption of such risk participations, the percentage of the aggregate outstanding (A) risk participations hereunder in Letters of Credit and (B) risk participations in Swingline Loans, in each case, held by each Revolving Lender (including each such Incremental Revolving Lender) will equal such Revolving Lender's pro rata share of the existing outstanding Revolving Lenders and Additional Lenders ratably in accordance with their Loans based on each such Revolving Commitments Lender's Revolving Percentage immediately after giving effect to such Revolving Commitment Increase and (ii) if, on the addition date of such Revolving Commitment Increase, there are any Revolving Loans outstanding, the Administrative Agent shall take those steps which it deems, in its sole discretion, necessary and appropriate to result in each Revolving Lender (including each Incremental Revolving Commitments Lender) having a pro rata share of the outstanding Revolving Loans based on each such Revolving Lender's Revolving Percentage immediately after giving effect to such Revolving Commitment Increase, provided that any prepayment made in connection with the taking of any such steps shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the Revolving Commitmentsimmediately preceding sentence.
(e) This Section 2.14 shall supersede any provisions in Section 12.12 to the contrary. LEGAL02/38433738v11
Appears in 1 contract
Samples: Credit Agreement (Air Transport Services Group, Inc.)
Incremental Facility. (a) The Borrower may at any time on not more than four occasions after the Closing Date request (but prior subject, in each case, to the Maturity Date, by notice to conditions set forth in clause (b) below and the Administrative Agent other terms set forth in this Section 2.27) the Lenders establish commitments (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments (such increase, the “Incremental Revolving Commitments,” and ”) to make an incremental term loan facility including term loan facilities in the loans thereunderform of commitments to make delayed draw term loans, in an aggregate principal amount not to exceed the Available Incremental Amount (each such facility, an “Incremental Revolving LoansFacility”); provided that both prior to the Delayed Draw Termination Date, the Borrower shall have first either (x) drawn the Delayed Draw Commitments in full or (y) terminated all unused Delayed Draw Commitments before requesting an Incremental Facility. No Lender shall be obligated to participate in an Incremental Facility. Any Incremental Facility shall be in an amount of at least $10,000,000 (or, if the time Available Incremental Amount is less than $10,000,000, such remaining Available Incremental Amount) and integral multiples of any such request $1,000,000 in excess thereof. Additionally, for the avoidance of doubt, it is understood and upon agreed that in no event shall the aggregate amount of Incremental Facilities exceed the Available Incremental Amount during the term of the Agreement.
(b) Each of the following shall be conditions precedent to the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made Facility:
(and immediately after giving effect theretoi) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant shall have delivered an irrevocable written request to this Section shall set forth the Administrative Agent for such Incremental Facility at least fifteen (15) Business Days prior to the requested amount effective date of such Incremental Facility (or such shorter period as agreed to by the Administrative Agent), and promptly after receipt thereof, the Administrative Agent shall invite each existing Lender to provide the Incremental Revolving Commitments. Facility ratably in accordance with its Aggregate Exposure Percentage of each requested Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution Facility (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided it being agreed that such Additional no Lender shall be reasonably obligated to provide an Incremental Facility unless it elects to do so in its sole discretion and that any Lender may elect to participate in such Incremental Facility in an amount that is less than its Aggregate Exposure Percentage of such requested Incremental Facility or more than its Aggregate Exposure Percentage of such requested Incremental Facility if other Lenders have elected not to participate in any applicable requested Incremental Facility in accordance with their Aggregate Exposure Percentages) and to the extent fifteen (15) Business Days after receipt of invitation, sufficient Lenders do not agree to provide the Incremental Facility on terms acceptable to the Borrower, then the Borrower may invite any additional bank, financial institution and other institutional lenders or investors, subject to the consent of the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), to become an Incremental Lender in connection with the proposed Incremental Facility under terms no more favorable (taken as a whole) to such other lenders and investors than those initially offered to each existing Lender;
(ii) each Lender agreeing to participate in any such Incremental Facility, the Borrower and the Administrative Agent shall have consented (such signed an Incremental Joinder. In addition, with the consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An , the Borrower and the Lenders agreeing to such Incremental Amendment mayFacility, may amend this Agreement (without the consent of any other Lenders, Person) in order to effect such amendments to this Agreement and the other Loan Documents as may be necessarynecessary or appropriate to effectuate the provisions of this Section 2.27 (any such amendment, an “Incremental Amendment”) and the Borrower shall have executed any Notes requested by any Lender in connection with the incurrence of the Incremental Facility. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, an Incremental Amendment reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby, shall not require the consent of any Lender other than the Lender(s) agreeing to fund such Incremental Facility;
(iii) subject to the provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence of such Incremental Facility, each of the conditions precedent set forth in Section 5.2(a) and (c) are satisfied; provided that to the extent agreed to by the Lenders providing any such Incremental Facility, the condition set forth in Section 5.2(a) may be satisfied with (x) the accuracy of customary “specified representations” and “acquisition agreement representations” and (y) such other limitations or exceptions to representations and warranties as may be agreed by the lenders providing such Incremental Facility; provided further that the condition set forth in Section 5.2(c) may be satisfied, if agreed by the lenders providing such Incremental Facility, so long as no Default or Event of Default pursuant to Section 8.1(a) or (f) has occurred or is continuing;
(iv) after giving pro forma effect to such Incremental Facility and the use of proceeds thereof for such Incremental Facility, (A) the Consolidated First Lien Net Leverage Ratio shall not exceed 4.00 to 1.00 and (B) the ARR Total Leverage Ratio shall not exceed 0.665:1.00, in each case, calculated on a Pro Forma Basis as of the reasonable opinion end of the most recent Test Period (assuming, in each case, that (x) in the case of any Incremental Facility being incurred at such time in the form of commitments to make delayed draw term loans, assuming such delayed draw term loans were fully drawn, and (y) the proceeds of any such Incremental Facility incurred at such time shall not be netted from the Consolidated First Lien Net Leverage Ratio);
(v) the terms and conditions with respect to any such Incremental Loan shall be determined by the Borrower and the Lenders thereunder, but shall not be, except to the extent permitted by Section 2.27(b)(ix) below, materially more favorable (taken as a whole) to the Lenders of such Incremental Loans than the existing terms and conditions in this Agreement and the other Loan Documents (taken as a whole) that apply to the Lenders of the then outstanding Loans (unless such existing terms and conditions contained in this Agreement and the other Loan Documents are amended so as to conform to the materially more favorable terms and conditions that apply to the Lenders of the Incremental Loans or are otherwise reasonably satisfactory to the Administrative Agent);
(vi) (A) subject to Section 2.27(b)(ix) below, any pricing (including, for the avoidance of doubt, any call protection or prepayment premiums, interest rate margins, original issue discount or upfront fees (if any) and interest rate floors (if any)), (B) subject to Section 2.27(b)(vii) below, maturity, and (C) subject to Section 2.27(b)(vii) below, any amortization schedule applicable to any Incremental Facility shall, in each case of clauses (A) through (C), be determined by the Borrower and the Lenders thereunder;
(A) any Incremental Facility providing for a separate tranche of Loans may provide for the ability to participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments of the Loans, and, in any case, (B) no Incremental Loan shall have a final maturity date earlier (but may be later) than the Maturity Date, (C) the amortization schedule of any Incremental Loan shall not have a weighted average life to maturity shorter than the remaining weighted average life to maturity of the Loans made on the Closing Date and (D) the Borrower at its election with the consent of the Administrative Agent Agent, and without requiring the consent of any Lender, may effect such amendments to the Loan Documents with respect to Incremental Loans as may be reasonably necessary so that such Incremental Loans and the Borrowerapplicable existing Loans form the same class of Loans or so that such Incremental Loans are fungible with any other outstanding Loans, including by amending the schedule of amortization payments relating to effect any existing tranche of Loans; provided that any such amendments will not decrease any amortization payment to any Lender that would have otherwise been payable to such Lender immediately prior to the provisions effectiveness of such applicable amendments;
(viii) any Incremental Loan shall rank pari passu (x) in right of payment of the Loans and intent (y) in right of security in respect of the Collateral. No Incremental Facility will be guaranteed by any Person other than a Guarantor hereunder or secured by any property or assets other than the Collateral;
(ix) the all-in yield (based on the interest rate and original issue discount, closing and upfront fees, initial commitment fees and similar fees, if any, but excluding customary arrangement, structuring, underwriting and amendment fees (“All-In Yield”)) applicable to any Incremental Facility shall not be more than 0.50% per annum higher than the All-In Yield with respect to the then existing Loans under the Closing Date Facilities unless the Applicable Margin with respect to such existing Loans under the Closing Date Facilities is increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Facility and the All-In Yield applicable to the then existing Loans under the Closing Date Facilities minus 0.50% per annum;
(x) any “most favored nation” pricing provision with respect to the Incremental Loans shall be determined by the Borrower and the Incremental Lenders providing such Incremental Loans; provided that no such “most favored nation” pricing provision shall be more favorable to the applicable Incremental Lenders than that contained in clause (ix) of this Section 2.27(b);
(xi) the Borrower shall have paid all fees and expenses in connection with the application exercise of the proceeds thereof. The applicable Incremental Facility;
(xii) all Incremental Loans shall be denominated in Dollars; and
(xiii) each Lender making the Incremental Loans shall have received the approval of such Xxxxxx’s investment committee approval (in such investment committee’s sole discretion) with respect thereto.
(c) Upon the effectiveness of any Incremental Amendment Facility, all references in this Agreement and any other Loan Document to the Loans and/or Lenders shall be subject deemed, unless the context otherwise requires, to include the satisfaction on the date thereof (each, an “term loans incurred pursuant to such Incremental Facility Closing Date”and the lenders thereunder.
(d) of each of the conditions set forth in The Incremental Facilities established pursuant to this Section 4.2. No Lender 2.27 shall be obligated entitled to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use all the proceeds of Incremental Revolving Loans for any purpose not prohibited benefits afforded by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to and the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lendersother Loan Documents, and each of shall, without limiting the Additional Lenders shall purchase foregoing, benefit equally and ratably from each of any guarantees and the Revolving Lenders, at the principal amount thereof (together with accrued interest), such security interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held created by the existing Revolving Lenders Loan Documents. The Loan Parties shall take any actions reasonably required by Administrative Agent to ensure and Additional Lenders ratably in accordance with their Revolving Commitments demonstrate that the Liens and security interests granted under the Loan Documents continue to be perfected under the UCC or otherwise after giving effect to the addition establishment of any such Incremental Revolving Commitments Facility, which actions may include reaffirming Liens and entering into supplements, amendments, restatements or replacements of the Security Documents and executing and delivering all documents, instruments and legal opinions in connection therewith reasonably requested by the Administrative Agent. This Section 2.27 supersedes any provisions in Section 10.1 to the Revolving Commitmentscontrary (other than amendments of provisions that are described in Section 10.1(a), which shall be governed by Section 10.1).
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Incremental Facility. The Borrower may at any time on not more than four occasions after the Closing Date but prior to the Maturity Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments (such increase, the “Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving Loans”); provided that both at the time of any such request and upon the effectiveness of any Incremental Revolving Commitment referred to below, a) So long as no Default or Event of Default shall exist has occurred and is continuing, at any time prior to March 31, 2005, the time that any Borrower may request pursuant to the procedure set forth in Section 2.15(c), the addition of an Incremental Facility consisting of two types of new loans referred to herein as "Incremental Revolving Loan is made Credit Loans" and "Incremental Seasonal Revolving Credit Loans" (and immediately after giving effect thereto) no Default or Event of Default shall existcollectively, "Incremental Loans"); provided however that the Borrower may not make a request for an Incremental Facility in an amount other than $10,000,000. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from Credit Loans shall: (i) upon the Borrower pursuant to this Section shall set forth the requested amount effectiveness of the Incremental Revolving Commitments. Incremental Revolving Commitments may be Commitment relating thereto as provided by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”in Section 2.15(b), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not deemed to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 Credit Loans for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans all purposes under this Agreement and the other Credit Documents; (ii) have the same interest rates and related margins and commitment fees as all other Revolving Credit Loans; and (iii) otherwise have all of the same terms and conditions (other than the amount of the upfront fee) as each Additional Revolving Credit Loan that is not an Incremental Revolving Credit Loan. In addition, all references in the Credit Documents to Revolving Credit Loans shall be deemed, as the context requires, to include references to Incremental Revolving Credit Loans made pursuant to this Agreement. The Incremental Seasonal Revolving Credit Loans shall: (i) upon the effectiveness of the Incremental Commitment relating thereto as provided in Section 2.15(b), be deemed to be Seasonal Revolving Credit Loans for all purposes under this Agreement and the other Credit Documents; (ii) have the same interest rates and related margins and commitment fees as all other Seasonal Revolving Credit Loans; and (iii) otherwise have all of the same terms and conditions (other than the amount of the upfront fee) as each Seasonal Revolving Credit Loan that is not an Incremental Seasonal Revolving Credit Loan. In addition, all references in the Credit Documents to Seasonal Revolving Credit Loans shall be deemed, as the context requires, to include references to Incremental Seasonal Revolving Credit Loans made pursuant to this Agreement. No Lender shall have any obligation to make an Incremental Loan unless and until it commits to do so. Incremental Commitments in respect of Incremental Loans shall become a Revolving Lender and a Lender with respect to part of the Additional Revolving Commitment and all matters relating thereto Total Commitments under this Agreement pursuant to (x) an amendment (an “"Incremental Loan Amendment”") to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing or other financial institution that is approved by the Administrative Agent which agrees to provide such Incremental Commitment (and no other Lender shall be required to execute such amendment), and the Administrative Agent. An Incremental Amendment may, without the consent of and (y) any other Lenders, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary(executed by the Borrower, in the reasonable opinion of its relevant Subsidiaries, and the Administrative Agent and only) as the Borrower, Administrative Agent shall reasonably deem appropriate to effect such purpose. Notwithstanding anything to the provisions and intent of this Section and contrary contained herein, the application of the proceeds thereof. The effectiveness of any such Incremental Loan Amendment shall be subject to the satisfaction on the date thereof (eachand, an “if different, on the date on which the Incremental Facility Closing Date”) Loans are made, of each of the conditions set forth in Section 4.24.01.
(b) So long as (i) the Borrower shall have given the Administrative Agent no less than five Business Days' prior notice of the effectiveness thereof and (ii) any financial institution not theretofore a Lender which is providing the Incremental Commitment shall have become a Lender under this Agreement pursuant to an Incremental Loan Amendment, the Incremental Commitment being requested by the Borrower shall become effective under this Agreement upon the effectiveness of such Incremental Loan Amendment. No Lender Upon such effectiveness, (i) Part I of Schedule 2.01(a) shall be obligated to provide any Incremental Revolving Loans, unless it so agreesdeemed amended and restated in its entirety as set forth on Part II of Schedule 2.01(a) and (ii) Part I of Schedule 2.01(b) shall be deemed amended and restated in its entirety as set forth on Part II of Schedule 2.01(b). The Borrower may use In the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any event that the Incremental Facility Closing Date on which shall have become effective, the Person providing the Incremental Revolving Commitments are effectedCommitment shall be deemed to have agreed, upon the terms and subject to the satisfaction conditions of this Agreement, with respect to the Incremental Commitment, to make from time to time during the period from the date of the foregoing terms and conditions, each effectiveness of the Revolving Lenders shall assign applicable Incremental Loan Amendment through the Final Maturity Date, one or more Loans to each the Borrower pursuant to the provisions of Section 2.03 in an aggregate principal amount not exceeding at any time such Person's aggregate portion of the Additional Lenders, and each Total Commitment at such time.
(c) When the Borrower wishes to request a Lender or other financial institution to provide proposals for the providing of the Additional Lenders Incremental Facility, the Borrower may solicit requests from any Lender or other financial institution for the providing of a commitment for Incremental Loans (the "Incremental Commitment"). Upon the selection by the Borrower of a Lender or such other financial institution, the Borrower shall purchase from each promptly notify the Administrative Agent of the Revolving Lenders, at the principal amount thereof (together with accrued interest), Lender or such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held other financial institution selected for approval by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition Administrative Agent. Administrative Agent shall promptly thereafter notify Borrower of its approval or rejection of such Incremental Revolving Commitments Lender or other financial institution, which approval shall not to the Revolving Commitmentsbe unreasonably withheld.
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Incremental Facility. (a) The Borrower may at any time on not more than four occasions after and the Closing Date but prior to the Maturity DateCo-Borrower may, by written notice to the Administrative Agent from time to time request Incremental Term Loans and/or Incremental Revolving Commitments in an aggregate amount not to exceed the Incremental Amount at such time from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (whereupon which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the case may be, in their own discretion; provided, that no Lender will be required to participate in any Incremental Facility without its consent and each Incremental Term Lender and/or Incremental Revolving Lender, if not already a Lender hereunder, shall be subject to the approval (which approval shall not be unreasonably withheld or delayed) of the Administrative Agent (solely to the extent the Administrative Agent’s consent would otherwise be required for an assignment to such Incremental Term Lender or Incremental Revolving Lender, as applicable, in accordance with Section 10.6 hereof) and, in the case of Incremental Revolving Lenders only, the Issuing Lender. Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (1) with respect to Incremental Term Loans, in minimum increments of $10,000,000, (2) with respect to Incremental Revolving Commitments, in minimum increments of $5,000,000 or (3) equal to the remaining Incremental Amount at such time), (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested to become effective (the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice, (iii) in the case of Incremental Term Loans, whether such Incremental Term Loans are to be on the same terms as the outstanding Term Loans or with terms different from the outstanding Term Loans, (iv) the use of proceeds for such Incremental Term Loan and/or Incremental Revolving Commitment and (v) pro forma financial calculations demonstrating compliance with the requirements under clause (iii) of Section 2.24(c).
(b) The Borrower, the Co-Borrower and each Incremental Term Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall promptly deliver a copy reasonably specify to each evidence the Incremental Term Loans of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments (such increase, the “Incremental Term Lender and/or Incremental Revolving Commitments,” and the loans thereunder, the “Commitment of such Incremental Revolving Loans”); provided that both Lender. If at the time of any Incremental Revolving Commitments the Revolving Commitments are still in effect, the Incremental Revolving Commitment shall be on terms and pursuant to documentation applicable to the Revolving Commitments. Each Incremental Assumption Agreement relating to Incremental Term Loans shall specify the terms of the Incremental Term Loans to be made thereunder (including any “most favored nation” pricing provisions applicable to such request Incremental Term Loans); provided that (i) the maturity date of any Incremental Term Loan shall be no earlier than the maturity date for the existing Term Loans, (ii) the weighted average life to maturity of any Incremental Term Loan shall be no shorter than the remaining weighted average life to maturity of the existing Term Loans (other than as necessary, if applicable, to make such Incremental Term Loan fungible with the existing Term Loans), (iii) if the total yield in respect of any Incremental Term Loans that would be considered tranche A term loans under then-existing customary market convention exceeds the total yield for the existing Term Loans by more than ½ of 1% (it being understood that any such excess may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed four-year life to maturity), the Applicable Margin for the existing Term Loans shall be increased so that the total yield in respect of such Incremental Term Loans is no more than ½ of 1% higher than the total yield for the existing Term Loans; provided that, in determining the interest rate margins applicable to any Incremental Term Loans and the existing Term Loans (x) any OID and upfront fees (which shall be deemed to constitute like amounts of OID) but excluding any arrangement, underwriting or similar fee paid to the Administrative Agent or the arrangers under any Incremental Term Loans and the existing Term Loans in the initial primary syndication thereof shall be included and equated to interest rate and (y) the excess of any Eurodollar Rate “floor” over three-month Eurodollar Rate and the excess of any ABR “floor” over the ABR, in each case without duplication as of the date of drawing of such Incremental Term Loans (disregarding such “floors” in determining the three-month Eurodollar Rate and ABR on such date), shall be equated to interest margin on the Incremental Term Loans, (iv) the Incremental Term Loans will rank pari passu in right of payment and security with the existing Term Loans, (v) the Incremental Term Loans shall share ratably in any optional or mandatory prepayments of the Term Facility unless the lenders with respect to the applicable Incremental Term Loans and the Borrower agree to a less than ratable share of such prepayments and (vi) to the extent the terms or documentation for Incremental Term Loans are not consistent with the terms of the existing Term Loans (except to the extent permitted by the foregoing clauses (i) through (iii) and clause (v)) they shall be reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans and/or Incremental Revolving Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto without their consent.
(c) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at become effective under this Section 2.24 unless (i) on the time that any Incremental Revolving date on which such Loan is made (or the date of such effectiveness and immediately after giving effect theretoto the Incremental Term Loans and/or Incremental Revolving Loans requested to be made on such date, the conditions set forth in Section 5.2 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received board resolutions and other closing certificates and documentation as may be required by the relevant Incremental Assumption Agreement which, to the extent required, shall be consistent with the related documentation delivered on the Restatement Date and such additional documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bring downs) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Incremental Revolving Loans are secured by the Collateral ratably with the existing Term Loans and Revolving Loans, and (iii) the Borrower and its Subsidiaries would be in compliance on a pro forma basis with the financial covenants set forth in Section 7.1 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available, after giving effect to such Incremental Term Loans and/or Loans to be made as of such date under the Incremental Revolving Commitment (and assuming such Incremental Revolving Commitments are fully drawn) and the application of the proceeds therefrom as if made and applied on such date; provided that in the case of any Incremental Term Loans the proceeds of which shall be used to consummate an acquisition permitted by this Agreement for which the Borrower has determined, in good faith, that limited conditionality with respect to financing is required (any such acquisition, a “Limited Conditionality Acquisition”), in lieu of satisfying clauses (i) and (iii) above, such Incremental Term Loans may be made if (x) as of the date of entry into the definitive documentation in respect of such Limited Conditionality Acquisition (the “Limited Conditionality Acquisition Agreement”), (1) no Default or Event of Default shall exist. The aggregate amount have occurred and be continuing or would arise after giving effect thereto, (2) the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date and (3) the Borrower and its Subsidiaries would be in compliance on a pro forma basis with the financial covenants set forth in Section 7.1 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available, after giving effect to such Incremental Term Loans and any Incremental Revolving Commitment to be made on the applicable Increased Amount Date (and assuming any such Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayedare fully drawn) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness therefrom as if made and applied on such date and (y) as of any Incremental Amendment the applicable Increased Amount Date, (1) no Event of Default under Section 8(a) or (f) shall have occurred and be subject to continuing and (2) the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) representations and warranties of each of the conditions Loan Party set forth in Section 4.2. No Lender the Loan Documents that are those customarily made in connection with acquisition financings (as determined by the Borrower and the Lenders in respect of such Incremental Term Loans) shall be obligated true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to provide any ensure that all Incremental Term Loans and/or Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds when originally made, are included in each borrowing of outstanding Term Loans or Revolving Loans on a pro rata basis, that each Incremental Term Lender and each Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed Lender shall be included in connection with such Incremental Revolving Loans. On any Incremental the definitions of Required Lenders and Majority Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each the Borrower agrees that Section 2.12 shall apply to any conversion of Eurodollar Loans to ABR Loans reasonably required by the Additional Lenders shall purchase from each Administrative Agent to effect the foregoing. For the avoidance of doubt, it is understood that the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary increased in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect an amount equal to the addition of such aggregate Incremental Revolving Commitments to the Revolving Commitments.
Appears in 1 contract
Samples: Replacement Facility Amendment (Allscripts Healthcare Solutions, Inc.)
Incremental Facility. The Borrower may at (a) At any time on not more than four occasions after the Closing Date but during the Commitment Period (in the case of a Revolving Commitment Increase) or any time after the Closing Date and prior to the Term Loan Maturity DateDate (in the case of an Incremental Term Facility), by notice the Borrower may request (but subject, in each case, to the Administrative Agent conditions set forth in clause (whereupon b) below and the Administrative Agent shall promptly deliver other terms set forth in this Section 2.27) (x) the Revolving Commitments be increased by an amount not to exceed the Available Incremental Amount (each such increase, a copy “Revolving Commitment Increase”) and/or (y) the Lenders establish an incremental term loan facility, including term loan facilities in the form of commitments to each of the Lenders), without having to seek consent from the Lenders, request make delayed draw term loans (which may be an increase to the existing Term Facility) under this Agreement in an aggregate principal amount not to exceed the Available Incremental Amount (each such facility, an “Incremental Term Facility” and, together with any Revolving Commitments (such increaseCommitment Increase, the “Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving LoansFacilities”); provided that, after giving effect to any Revolving Commitment Increase, the ratio of (i) the Total Revolving Commitments to (ii) Term Loans (including any unfunded commitments to make delayed draw term loans, as though such commitments were fully drawn) shall be no greater than ten percent (10%) (it being understood, for the avoidance of doubt, that both the Borrower may request an Incremental Facility consisting solely of Incremental Term Loans). No Lender shall be obligated to participate in an Incremental Facility. Any Incremental Facility shall be in an amount of at least $10,000,000 (or, if the Available Incremental Amount is less than $10,000,000, such remaining Available Incremental Amount) and integral multiples of $1,000,000 in excess thereof. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of Incremental Facilities exceed the Available Incremental Amount during the term of the Agreement. If the Borrower incurs indebtedness under an Incremental Facility under the Fixed Incremental Amount prong of the Available Incremental Amount on the same date that it incurs indebtedness under such Incremental Facility using the Ratio Incremental Amount prong of the Available Incremental Amount, then the applicable leverage ratio will be calculated with respect to such incurrence under the Ratio Incremental Amount without regard to any concurrent incurrence of indebtedness under such Incremental Facility using the Fixed Incremental Amount. Unless the Borrower elects otherwise, each Incremental Facility will be deemed incurred first under the Ratio Incremental Amount to the extent permitted, with the balance incurred under the Fixed Incremental Amount to the extent permitted. The Borrower may, in its sole discretion, at the time of incurrence of any Incremental Facility, or at any later time, divide, classify or reclassify, any Incremental Facility incurred as Fixed Incremental Amount as an Incremental Facility incurred as Ratio Incremental Amount to the extent that the Borrower would, at such request and upon later time, satisfy the applicable leverage ratio for the incurrence of such Indebtedness under the Ratio Incremental Amount.
(b) Each of the following shall be conditions precedent to the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made Facility:
(and immediately after giving effect theretoi) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant shall have delivered an irrevocable written request to this Section shall set forth the Administrative Agent for such Incremental Facility at least ten (10) Business Days prior to the requested amount effective date of such Incremental Facility (or such shorter period as agreed to by the Administrative Agent), and promptly after receipt thereof, the Administrative Agent shall invite each existing Lender to provide the Incremental Revolving Commitments. Facility ratably in accordance with its Aggregate Exposure Percentage of each requested Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution Facility (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided it being agreed that such Additional no Lender shall be reasonably obligated to provide an Incremental Facility unless it elects to do so in its sole discretion and that any Lender may elect to participate in such Incremental Facility in an amount that is less than its Aggregate Exposure Percentage of such requested Incremental Facility or more than its Aggregate Exposure Percentage of such requested Incremental Facility if other Lenders have elected not to participate in any applicable requested Incremental Facility in accordance with their Aggregate Exposure Percentages) and to the extent ten (10) Business Days after receipt of invitation, sufficient Lenders do not agree to provide the Incremental Facility on terms acceptable to the Borrower, then the Borrower may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Lender in connection with the proposed Incremental Facility under terms no more favorable than those initially offered to each existing Lender;
(ii) each Lender agreeing to participate in any such Incremental Facility, the Borrower and the Administrative Agent shall have consented (such signed an Incremental Joinder. In addition, with the consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An , the Borrower and the Lenders agreeing to such Incremental Amendment mayFacility, may amend this Agreement (without the consent of any other Lenders, Person) in order to effect such amendments to this Agreement and the other Loan Documents as may be necessarynecessary or appropriate to effectuate the provisions of this Section 2.27 (any such amendment, an “Incremental Amendment”) and the Borrower shall have executed any Notes requested by any Lender in connection with the incurrence of the Incremental Facility. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, an Incremental Amendment reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby, shall not require the consent of any Lender other than the Lender(s) agreeing to fund such Incremental Facility;
(iii) subject to the provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence of such Incremental Facility, each of the conditions precedent set forth in Section 5.2(a) and (e) are satisfied; provided that, to the extent agreed to by the Lenders providing any such Incremental Facility, the condition set forth in Section 5.2(a) may be satisfied with (x) the accuracy of customary “specified representations” and “acquisition agreement representations” and (y) such other limitations or exceptions to representations and warranties as may be agreed by the lenders providing such Incremental Facility); provided further that the condition set forth in Section 5.2(e) may be satisfied, if agreed by the lenders providing such Incremental Facility, so long as no Default or Event of Default pursuant to Section 8.1(a) or (f) has occurred or is continuing;
(iv) after giving pro forma effect to such Incremental Facility and the use of proceeds thereof on the closing date for such Incremental Facility, subject to the provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence of such Incremental Facility, the Borrower shall be in compliance with the financial covenant set forth in Section 7.1 hereof as of the end of the most recently ended quarter for which financial statements are required to be delivered prior to the incurrence of such Incremental Facility (without netting the proceeds of such Incremental Facility from the calculation of the Consolidated Net Leverage Ratio and (x) in the case of a Revolving Commitment Increase, assuming the Revolving Facility was fully drawn and (y) in the case of any Incremental Term Facility being incurred at such time in the form of commitments to make delayed draw term loans, assuming such delayed draw term loans were fully drawn); provided that, the Borrower shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent evidencing compliance with the requirements of this clause (iv) and clause (iii) above;
(v) upon the incurrence of any Revolving Commitment Increase in accordance with this Section 2.27, all outstanding Loans, participations hereunder in Letters of Credit held by each Lender shall be reallocated among the Lenders (including any newly added Lenders) in accordance with the Lenders’ respective revised Revolving Percentages and L/C Percentages, pursuant to procedures reasonably determined by the Administrative Agent;
(vi) any such Revolving Commitment Increase or increase to the Term Facility shall be on the same terms (including pricing and maturity date) as, and shall be pursuant to the same documentation applicable to, the Revolving Facility or Term Facility then in effect. as applicable;
(vii) (A) any Incremental Term Facility providing for a separate tranche of Term Loans may provide for the ability to participate (I) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary prepayments of the Term Loans and (II) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments of the Term Loans, and, in any case, (B) no Incremental Term Loan shall have a final maturity date earlier (but may be later) than the reasonable opinion Term Loan Maturity Date, (C) the amortization schedule of any Incremental Term Loan shall not have a weighted average life to maturity shorter than the remaining weighted average life to maturity of the Term Loans made on the Closing Date and (D) the Borrower at its election with the consent of the Administrative Agent Agent, and without requiring the consent of any Lender, may effect such amendments to the Loan Documents with respect to Incremental Term Loans as may be reasonably necessary so that such Incremental Term Loans and the applicable existing Term Loans form the same class of Term Loans or so that such Incremental Term Loans are fungible with any other outstanding Term Loans, including by amending the schedule of amortization payments relating to any existing tranche of Term Loans; provided, that any such amendments will not decrease any amortization payment to any Lender that would have otherwise been payable to such Lender immediately prior to the effectiveness of such applicable amendments;
(viii) any Incremental Term Loan and Revolving Commitment Increase shall rank pari passu or junior in right of security in respect of the Collateral, or shall be unsecured. No Incremental Facility will be guaranteed by any Person other than a Guarantor hereunder or secured by any property or assets other than the Collateral;
(ix) the all-in yield (based on the interest rate and original issue discount, closing and upfront fees, initial commitment fees and similar fees, if any, but excluding other amounts, including customary arrangement, structuring, underwriting, amendment, consent and customary unused revolving or delayed draw commitment fees, “All-In Yield”)) applicable to any Incremental Facility secured by the Collateral on a pari passu basis with the Facilities shall not be more than 0.50% per annum higher than the All-In Yield with respect to the then existing Term Loans made on the Closing Date and the Revolving Facility (measured at the time of incurrence of such Incremental Facility) unless the Applicable Margin with respect to such Term Loans and the Revolving Facility is increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Facility and the All-In Yield applicable to the then existing Term Loans made on the Closing Date and the Revolving Facility minus 0.50% per annum; and
(x) in the case of any Incremental Term Loan incurred in the form of delayed draw term loans, as a condition of borrowing such Incremental Term Loans, immediately after the funding thereof on Pro Forma Basis, (a) with respect to such Incremental Term Loans secured by the Collateral on a pari passu basis with the Facilities, the Consolidated First Lien Net Leverage Ratio shall not exceed 2.90 to 1.00, (b) with respect to such Incremental Term Loans that are secured by the Collateral on a junior lien basis to the Facilities (which shall be subject to an Intercreditor Agreement), the Consolidated Secured Net Leverage Ratio shall not exceed 3.40 to 1.00, and (c) with respect to such Incremental Term Loans that are unsecured, the Consolidated Net Leverage Ratio shall not exceed 3.90 to 1.00 (assuming the proceeds of any such Incremental Term Loans incurred at such time shall not be netted from Consolidated Funded Indebtedness for purposes of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio or the Consolidated Net Leverage Ratio, as the case may be, for purposes of this clause (x)); provided, that in the case of a Limited Condition Acquisition, the applicable leverage ratio set forth in the foregoing (a) through (c) may, at the option of the Borrower, to effect be tested at the provisions time the definitive agreements for such Limited Condition Acquisition are entered into; and
(xi) the Borrower shall have paid all fees and intent of this Section and expenses in connection with the application exercise of the proceeds thereof. The applicable Incremental Facility.
(c) Upon the effectiveness of any Incremental Amendment Facility, (i) in the case of a Revolving Commitment Increase, (x) all references in this Agreement and any other Loan Document to the Revolving Commitments shall be subject deemed, unless the context otherwise requires, to include such Revolving Commitment Increase advanced pursuant to this Section 2.27 and (y) all references in this Agreement and any other Loan Document to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender Revolving Commitment shall be obligated to provide any Incremental Revolving Loansdeemed, unless it so agrees. the context otherwise requires, to include the commitment to advance an amount equal to such Revolving Commitment Increase pursuant to this Section 2.27 and (ii) in the case of an Incremental Term Facility, all references in this Agreement and any other Loan Document to the Loans and/or Lenders shall be deemed, unless the context otherwise requires, to include the term loans incurred pursuant to such Incremental Term Facility and the lenders thereunder.
(d) The Borrower may use Incremental Facilities established pursuant to this Section 2.27 shall be entitled to all the proceeds of Incremental Revolving Loans for any purpose not prohibited benefits afforded by this Agreement unless otherwise agreed and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents, other than in connection with such the case of an Incremental Revolving Loans. On any Incremental Term Facility Closing Date that is secured on which Incremental Revolving Commitments are effected, subject to the satisfaction a junior basis in respect of the foregoing terms Collateral. The Loan Parties shall take any actions reasonably required by Administrative Agent to ensure and conditions, each of demonstrate that the Revolving Lenders shall assign Liens and security interests granted under the Loan Documents continue to each of be perfected under the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments UCC or otherwise after giving effect to the addition establishment of any such Incremental Revolving Commitments Facility, which actions may include reaffirming Liens and entering into supplements, amendments, restatements or replacements of the Security Documents and executing and delivering all documents, instruments and legal opinions in connection therewith reasonably requested by the Administrative Agent.
(e) Any documentation with respect to any Incremental Term Facility which differ from those with respect to the Revolving CommitmentsTerm Loans made on the Closing Date (except to the extent permitted hereunder) shall reflect terms and conditions at the time of issuance thereof as determined by the Borrower and the Administrative Agent or otherwise be reasonably acceptable to the Administrative Agent (it being understood that terms differing from those with respect to the Term Loans made on the Closing Date are acceptable if (1) the Lenders under the Term Facility also receive the benefits of each such term or (2) are applicable only after the Term Loan Maturity Date). This Section 2.27 supersedes any provisions in Section 10.1 to the contrary (other than amendments of provisions that are described in Section 10.1(a) or any waiver of the condition described in Section 2.27(b)(x), which shall be governed by Section 10.1).
Appears in 1 contract
Incremental Facility. The Subject to the terms and conditions set forth herein, the Borrower may shall have the right, at any time on not more than four occasions from time to time during the Commitment Period and after the Closing Date but prior First Amendment Effective Date, to incur additional Indebtedness under this Credit Agreement in the form of term loans (each, an “Incremental Term Loan”) and/or increases to the Maturity DateRevolving Committed Amount (each, an “Incremental Revolver”; each Incremental Term Loan and Incremental Revolver, an “Incremental Facility”) by notice an aggregate amount of up to $125,000,000. The following terms and conditions shall apply to each Incremental Facility: (a) the loans made under any such Incremental Facility (each an “Additional Loan”) shall constitute Credit Party Obligations and will be secured and guaranteed with the other Credit Party Obligations on a pari passu basis, (b) any such Additional Loans (1) made pursuant to an Incremental Revolver shall have the same terms (including interest rate, maturity date, voting rights and rights to receive the proceeds of prepayments) as the existing Revolving Loans and shall be considered Revolving Loans hereunder and (2) made pursuant to an Incremental Term Loan shall have terms (including interest rate, maturity date, voting rights, rights to receive the proceeds of prepayments and amortization) to be agreed upon by the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments (such increase, the “Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving Loans”); provided that both Borrower at the time of such Incremental Term Loan, (c) each Incremental Facility shall be in a minimum principal amount of $25,000,000 and integral multiples of $2,500,000 in excess thereof, (d) the proceeds of any Additional Loan will be used for the purposes set forth in Section 3.11, (e) the Borrower shall execute such promissory notes as are necessary to reflect the Additional Loans under any such request and upon Incremental Facility, (f) before any Additional Loans are made, the effectiveness conditions to Extensions of any Incremental Revolving Commitment referred to belowCredit in Section 4.2 shall have been satisfied, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect theretog) no Default or Event of Default shall exist. The aggregate amount of all then exist or would exist after giving effect to any such Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution Facility, (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and h) the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment received from the Borrower a satisfactory legal opinion of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect counsel to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement Borrower and such other Loan Documents documentation as are necessaryit deems reasonably necessary to effectuate each such Incremental Facility and (i) the Administrative Agent shall have received from the Borrower updated financial projections and an officer’s certificate, executed in each case in form and substance satisfactory to the Administrative Agent, demonstrating that, (A) after giving effect to any such Incremental Facility on a pro forma basis, the Credit Parties will be in compliance with the financial covenants set forth in Section 5.9 and (B) if the full amount of the Revolving Committed Amount (after giving effect to such Incremental Facility) were drawn by the Borrower, each Additional Lender agreeing to provide such Commitment the Credit Parties would be in compliance with all financial covenants under the Subordinated Note Documents and the Administrative Agentdocuments for all other publicly held or privately placed Indebtedness incurred in accordance with Section 6.1(p). An Each Incremental Amendment mayFacility shall be obtained from existing Lenders or from other banks, without the consent of any other Lenders, effect such amendments financial institutions or investment funds reasonably acceptable to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower; provided that such other banks, financial institutions and investment funds shall enter into such joinder or other agreements to give effect thereto as the provisions and intent of this Section Administrative Agent and the application Borrower may reasonably request. The Administrative Agent is authorized to enter into, on behalf of the proceeds thereof. The effectiveness Lenders, any amendment to this Credit Agreement or any other Credit Document as may be necessary to incorporate the terms of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitmentstherein.
Appears in 1 contract
Samples: Credit Agreement (Belden CDT Inc.)
Incremental Facility. The Borrower may at At any time on not more than four occasions after the Closing Date but prior to the Maturity Datesecond anniversary of the date hereof, the Borrowers may, by written notice ("INCREMENTAL FACILITY NOTICE") to the Administrative Agent (whereupon the Administrative Agent which shall promptly deliver a copy to each of the LendersLender Parties), without having request the addition of one or more additional term facilities (each an "INCREMENTAL FACILITY" and together, the "INCREMENTAL FACILITIES"). Each Incremental Facility shall be in an aggregate principal amount of not less than $100 million and all of which together shall be in an aggregate principal amount not to seek consent from exceed $650 million. The Incremental Facilities
(i) shall be a Term Facility for all purposes hereunder (and references to the Term Facility and Term Advances shall be deemed as the context requires to include reference to the Incremental Facilities) and (ii) shall have such pricing as may be agreed by the Borrowers and the Lender Parties providing such Incremental Facilities and shall otherwise have the same terms as the Term Advances (and references to the Term Facility and Term Advances shall be deemed as the context requires to include reference to the Incremental Facilities) including the same Termination Date and the same proportional amortization as the remaining Term Advances or such later termination date and longer proportional amortization terms as shall be agreed by the Borrowers and the Incremental Lenders providing such Incremental Facility. Any such Incremental Facility shall be offered, first, on a pro rata basis to existing Lenders, request an increase and to the existing Revolving Commitments (extent that such increase, the “Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving Loans”); provided that both at the time of any such request and upon the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall Lenders do not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount commit within 15 days of the Incremental Revolving Commitments. Facility Notice for any such Incremental Revolving Commitments may be provided by Facility, the Borrowers shall have the right to arrange for one or more banks or other financial institutions acceptable to the Agents (any existing Lender or by any other such bank or other financial institution (institution, an "ADDITIONAL LENDER") to extend commitments to provide the Incremental Facility in an aggregate amount equal to the amount, if any, by which the commitments by the Lenders to provide such existing Lender or other bank or other financial institution providing Incremental Facility is less than the amount thereof requested by the Borrowers pursuant to the terms of this Section 2.05(c). Commitments in respect of an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments Facility shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans "Commitments" under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, hereto executed by each of the BorrowerBorrowers, each Additional Lender Party agreeing to provide such Commitment Commitment, each Additional Lender, if any, the Issuing Banks and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect Agents and such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, Agents shall reasonably deem appropriate to effect the provisions and intent of this Section and the application of the proceeds thereofsuch purpose. The effectiveness of any such amendment and the commitments in respect of each Incremental Amendment Facility shall be subject to the satisfaction on the date thereof (eachand, an “if different, on the date on which Advances under the Incremental Facility Closing Date”) are made, of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments3.02.
Appears in 1 contract
Samples: Credit Agreement (Broadwing Inc)
Incremental Facility. The Borrower may (a) So long as no Event of Default under subsection 9(a) or (f) exists or would arise therefrom, the Borrowers shall have the right, at any time on not more than four occasions and from time to time after the Closing Date but prior to the Maturity Date, by notice to the Administrative Agent request (whereupon the Administrative Agent shall promptly deliver a copy to each i) an increase of the Lenders), without having to seek consent from aggregate amount of the Lenders, request an increase to the existing Revolving then outstanding Commitments (such increase, the “Incremental Revolving Commitments,”) or (ii) one or more term loans (the “Incremental ABL Term Loans” and together with the loans thereunderIncremental Revolving Commitments, collectively, the “Incremental Revolving LoansFacilities” and each, an “Incremental Facility”); provided that both at . Notwithstanding anything to the time of any such request and upon contrary herein, the effectiveness principal amount of any Incremental Revolving Commitment referred to below, no Default ABL Term Loans or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000the Available Incremental Amount at such time. Each notice from the The Parent Borrower pursuant may seek to this Section shall set forth the requested amount of the Incremental Revolving Commitments. obtain Incremental Revolving Commitments may be provided by any or Incremental ABL Term Loans from existing Lender Lenders or by any other bank Persons, as applicable (each an “Incremental Facility Increase,” and each Person extending, or other financial institution (such existing Lender or other bank or other financial institution providing an extending, Incremental Revolving CommitmentCommitments or Incremental ABL Term Loans, an “Additional Lender”), provided provided, however, that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayedi) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No no Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any an Incremental Facility Closing Date on Increase as a result of any such request by the Borrowers, and (ii) any Additional Lender which Incremental Revolving Commitments are effected, is not an existing Lender shall be subject to the satisfaction approval of, the Administrative Agent, the Swing Line Lender, each Issuing Lender and the Borrowers (each such approval not to be unreasonably withheld).
(b) (i) Any Incremental ABL Term Loans (A) may not be guaranteed by any Subsidiaries of the foregoing terms Parent Borrower other than the Guarantors and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lendersrank pari passu (or, at the principal amount thereof option of the Parent Borrower, junior) in right of (together x) priority with accrued interest)respect to the Collateral and (y) payment with respect to the Obligations in respect of the Commitments and any existing Incremental ABL Term Loans, such interests in (B) shall count against, the Borrowing Base, (C) shall not have a final maturity that is earlier than the Maturity Date, (D) shall not amortize at a rate greater than 1.0% per annum, (E) for purposes of prepayments, shall be treated no more favorably than the Revolving Credit Loans, (F) may not be secured by any Collateral or other assets of any Loan Party that do not also secure the Loans outstanding and (G) shall otherwise be on such Incremental Facility Closing Date terms as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect are reasonably satisfactory to the addition of such Incremental Revolving Commitments to the Revolving CommitmentsAdministrative Agent.
Appears in 1 contract
Incremental Facility. The Borrower may at any time on not more than four occasions after the Closing Date but prior to the Maturity Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments (such increase, the “Each Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving Loans”); provided that both at the time of any such request and upon the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender Facility shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become effected by a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, joinder agreement executed by the Borrower, the Administrative Agent and each Additional Lender agreeing making such Incremental Facility, in form and substance reasonably satisfactory to provide each of them; provided that:
i. Any Incremental Facility that consists of an increase in the Revolving Facility shall have terms and conditions identical to the terms and conditions applicable to the Revolving Facility.
(A) any Incremental Facility that consists of an increase in the existing Term Loan shall have terms and conditions identical to the terms and conditions applicable to the Term Facility; and (B) any Incremental Facility that consists of one or more new tranches of term loans shall have terms and conditions set forth in the amendment or joinder agreement giving effect to such Commitment Incremental Facility; provided that (1) the weighted average life to maturity of any such Incremental Facility shall be no shorter than the remaining weighted average life to maturity of any then existing Term Loan, (2) the maturity date of such Incremental Facility shall not be earlier than the Maturity Date for any then existing Term Loan and (3) the Applicable Rate for any such Incremental Facility shall be determined by the Borrower and the Administrative AgentLenders for such Incremental Facility.
iii. An Notwithstanding the provisions of Section 11.01, the joinder agreement effecting any Incremental Amendment Facility may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions and intent of this Section and 2.16, including in the application of the proceeds thereof. The effectiveness case of any Incremental Amendment shall be subject Facility that consists of one or more new tranches of term loans, amendments, to include such terms as are customary for a term loan commitment, including mandatory prepayments, assignments and voting provisions substantially as provided herein with respect to the satisfaction on the date thereof (eachTerm Commitment, an “Incremental Facility Closing Date”) of each of the conditions set forth but subject in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject all respects to the satisfaction requirements of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitmentsthis Section 2.16.
Appears in 1 contract
Samples: Credit Agreement (Lydall Inc /De/)
Incremental Facility. The Borrower may at (a) At any time on not more than four occasions after the Closing Date but during the Commitment Period (in the case of a Revolving Commitment Increase) or any time after the Closing Date and prior to the Term Loan Maturity DateDate (in the case of an Incremental Term Facility), by notice the Borrower may request (but subject, in each case, to the Administrative Agent conditions set forth in clause (whereupon b) below) (x) the Administrative Agent shall promptly deliver Revolving Commitments be increased (or, solely in connection with a copy Limited Condition Acquisition, a separate tranche of Revolving Commitments may be created) by an amount not to exceed the Available Incremental Amount (each of such increase, a “Revolving Commitment Increase”) and/or (y) the Lenders), without having to seek consent from the Lenders, request Lenders establish an incremental term loan facility (which may be an increase to the existing Term Facility) under this Agreement in an aggregate principal amount not to exceed the Available Incremental Amount (each such facility, an “Incremental Term Facility” and, together with any Revolving Commitments (such increaseCommitment Increase, the “Incremental Revolving Commitments,” Facilities”). No Lender shall be obligated to participate in an Incremental Facility. Any Incremental Facility shall be in an amount of at least $10,000,000 (or, if the Available Incremental Amount is less than $10,000,000, such remaining Available Incremental Amount) and integral multiples of $1,000,000 in excess thereof. Additionally, for the loans thereunderavoidance of doubt, it is understood and agreed that in no event shall the “aggregate amount of Incremental Facilities exceed the Available Incremental Amount during the term of the Agreement. If the Borrower incurs indebtedness under an Incremental Facility under the Fixed Incremental Amount prong of the Available Incremental Amount on the same date that it incurs indebtedness under the Ratio Incremental Amount prong of the Available Incremental Amount and/or that it incurs Revolving Loans”); provided that both , then the Consolidated Net Leverage Ratio will be calculated with respect to such incurrence under the Ratio Incremental Amount without regard to any incurrence of indebtedness under the Fixed Incremental Amount or any incurrence of Revolving Loans. Unless the Borrower elects otherwise, each Incremental Facility will be deemed incurred first under the Ratio Incremental Amount to the extent permitted, with the balance incurred under the Fixed Incremental Amount. The Borrower may, in its sole discretion, at the time of incurrence of any such request and upon Incremental Facility, or at any later time, divide, classify or reclassify, any Incremental Facility incurred as Fixed Incremental Amount as an Incremental Facility incurred as Ratio Incremental Amount.
(b) Each of the following shall be conditions precedent to the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made Facility:
(and immediately after giving effect theretoi) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant shall have delivered an irrevocable written request to this Section shall set forth the Administrative Agent for such Incremental Facility at least ten (10) Business Days prior to the requested amount effective date of such Incremental Facility (or such shorter period as agreed to by the Administrative Agent), and promptly after receipt thereof, the Administrative Agent shall invite each Lender to provide the Incremental Revolving Commitments. Facility ratably in accordance with its Aggregate Exposure Percentage of each requested Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution Facility (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided it being agreed that such Additional no Lender shall be reasonably obligated to provide an Incremental Facility and that any Lender may elect to participate in such Incremental Facility in an amount that is less than its Aggregate Exposure Percentage of such requested Incremental Facility or more than its Aggregate Exposure Percentage of such requested Incremental Facility if other Lenders have elected not to participate in any applicable requested Incremental Facility in accordance with their Aggregate Exposure Percentages) and to the extent five (5) Business Days after receipt of invitation, sufficient Lenders do not agree to provide the Incremental Facility on terms acceptable to the Borrower, then the Borrower may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Lender in connection with the proposed Incremental Facility;
(ii) each Lender agreeing to participate in any such Incremental Facility, the Borrower and the Administrative Agent shall have consented signed an Incremental Joinder (such any Incremental Joinder may, with the consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An , the Borrower and the Lenders agreeing to such Incremental Amendment may, without the consent of any other LendersFacility, effect such amendments to this Agreement and the other Loan Documents as may be necessarynecessary or appropriate to effectuate the provisions of this Section 2.27) and the Borrower shall have executed any Notes requested by any Lender in connection with the incurrence of the Incremental Facility. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, an Incremental Joinder reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby, shall not require the consent of any Lender other than the Lender(s) agreeing to fund such Incremental Facility;
(iii) subject to the provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence of such Incremental Facility, each of the conditions precedent set forth in Section 5.2(a) and (e) are satisfied; provided that, to the extent agreed to by the Lenders providing any such Incremental Facility, the condition set forth in Section 5.2(a) may be satisfied with (x) the accuracy of customary “specified representations” and “acquisition agreement representations” and (y) such other limitations or exceptions to representations and warranties as may be agreed by the lenders providing such Incremental Facility); provided further that the condition set forth in Section 5.2(e) may be satisfied, if agreed by the lenders providing such Incremental Facility, so long as no Default or Event of Default pursuant to Section 8.1(a) or (f) has occurred or is continuing;
(iv) after giving pro forma effect to such Incremental Facility and the use of proceeds thereof, subject to the provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence of such Incremental Facility, the Borrower shall be in compliance with the then applicable financial covenants set forth in Section 7.1 hereof as of the end of the most recently ended quarter for which financial statements are required to be delivered prior to the incurrence of such Incremental Facility (without netting the proceeds of such Incremental Facility from the calculation of the Consolidated Net Leverage Ratio and in the reasonable opinion case of a Revolving Commitment Increase, assuming the Revolving Facility was fully drawn); provided that the Consolidated Net Leverage Ratio shall not be greater than 0.25x less than the covenant set forth in Section 7.1(b) for such period, and the Borrower shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent evidencing compliance with the requirements of this clause (iv) and clause (iii) above;
(v) upon the incurrence of any Revolving Commitment Increase in accordance with this Section 2.27, all outstanding Loans, participations hereunder in Letters of Credit and participation hereunder in Swingline Loans held by each Lender shall be reallocated among the Lenders (including any newly added Lenders) in accordance with the Lenders’ respective revised Revolving Percentages and L/C Percentages, pursuant to procedures reasonably determined by the Administrative Agent;
(vi) any such Revolving Commitment Increase or increase to the Term Facility shall be on the same terms (including pricing and maturity date) as, and shall be pursuant to the same documentation applicable to, the Revolving Facility or Term Facility then in effect. as applicable;
(vii) any Incremental Term Loan Facility providing for a separate tranche of Term Loans may provide for the ability to participate (A) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary prepayments of the Term Loans and (B) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments of the Term Loans, and, in any case, (A) no Incremental Term Loan shall have a final maturity date earlier than the Term Loan Maturity Date (but may be later), and (B) the amortization schedule of any Incremental Term Loan shall not have a weighted average life to maturity shorter than the remaining weighted average life to maturity of the Term Loans made on the Closing Date;
(viii) any Incremental Term Loan and Revolving Commitment Increase shall rank pari passu or junior in right of security in respect of the Collateral. No Incremental Facility will be guaranteed by any Person other than a Guarantor hereunder and shall not be secured by any property or assets other than the Collateral;
(ix) the all-in yield (based on the interest rate and original issue discount and upfront fees, if any, but excluding other amounts, including arrangement, commitment, structuring and underwriting fees) applicable to any Incremental Term Loan shall not be more than 0.50% per annum higher than the corresponding all-in yield with respect to the then-existing Term Loans (measured based on the all-in yield with respect to the Term Loans made on the Closing Date) unless the Applicable Margin with respect to the then-existing Term Loans is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Facility and the Borrower, all-in yield applicable to effect the provisions then-existing Term Loans minus 0.50%; and
(x) the Borrower shall have paid all fees and intent of this Section and expenses in connection with the application exercise of the proceeds thereof. The applicable Incremental Facility.
(c) Upon the effectiveness of any Incremental Amendment Facility, (i) in the case of a Revolving Commitment Increase, (x) all references in this Agreement and any other Loan Document to the Revolving Commitments shall be subject deemed, unless the context otherwise requires, to include such Revolving Commitment Increase advanced pursuant to this Section 2.27 and (y) all references in this Agreement and any other Loan Document to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender Revolving Commitment shall be obligated to provide any Incremental Revolving Loansdeemed, unless it so agrees. the context otherwise requires, to include the commitment to advance an amount equal to such Revolving Commitment Increase pursuant to this Section 2.27 and (ii) in the case of an Incremental Term Facility, all references in this Agreement and any other Loan Document to the Loans and/or Lenders shall be deemed, unless the context otherwise requires, to include the term loans incurred pursuant to such Incremental Term Facility and the lenders thereunder.
(d) The Borrower may use Incremental Facilities established pursuant to this Section 2.27 shall be entitled to all the proceeds of Incremental Revolving Loans for any purpose not prohibited benefits afforded by this Agreement unless otherwise agreed and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents, other than in connection with such the case of an Incremental Revolving Loans. On any Incremental Term Facility Closing Date that is secured on which Incremental Revolving Commitments are effected, subject to the satisfaction a junior basis in respect of the foregoing terms Collateral. The Loan Parties shall take any actions reasonably required by Administrative Agent to ensure and conditions, each of demonstrate that the Revolving Lenders shall assign Liens and security interests granted under the Loan Documents continue to each of be perfected under the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments UCC or otherwise after giving effect to the addition establishment of any such Incremental Revolving Commitments Facility, which actions may include reaffirming Liens and entering into supplements, amendments, restatements or replacements of the Security Documents and executing and delivering all documents, instruments and legal opinions in connection therewith reasonably requested by the Administrative Agent.
(e) Any documentation with respect to any Incremental Term Facility which differ from those with respect to the Revolving CommitmentsTerm Loans made on the Closing Date (except to the extent permitted hereunder) shall reflect terms and conditions at the time of issuance thereof as determined by the Borrower and the Administrative Agent or otherwise be reasonably acceptable to the Administrative Agent (it being understood that terms differing from those with respect to the Term Loans made on the Closing Date are acceptable if (1) the Lenders under the Term Loan Facility also receive the benefits of each term or (2) are applicable only after the Term Loan Maturity Date).
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Incremental Facility. The (a) So long as no Specified Default exists or would arise therefrom, the Borrower may Representative shall have the right, at any time on not more than four occasions and from time to time after the Closing Date but prior to the Maturity Date, to request (i) to increase the then outstanding Commitments by notice requesting new Commitments to be added to an existing Tranche of then outstanding Commitments (the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders“Supplemental Commitments”), without having (ii) to seek consent from the Lenders, request an increase new Commitments under one or more new revolving facilities to the existing Revolving Commitments be included in this Agreement (such increase, the “Incremental Revolving Commitments,”) or (iii) one or more term loans (the “Incremental ABL Term Loans” and together with the loans thereunderSupplemental Commitments and Incremental Revolving Commitments, collectively, the “Incremental Revolving LoansFacilities” and each, an “Incremental Facility”); provided that both . Notwithstanding anything to contrary herein, the principal amount of any Incremental Facility at the time of any such request and upon the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments Facility becomes effective shall not exceed $50,000,000the Available Incremental Amount at such time. Each notice The Borrower Representative may seek to obtain Incremental Facilities from the Borrower pursuant to this Section shall set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank Lenders or other financial institution Persons, as applicable (such existing each an “Incremental Facility Increase,” and each Person extending, or Lender or other bank or other financial institution providing an extending, Incremental Revolving CommitmentFacilities, an “Additional Lender”), provided provided, however, that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayedi) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No no Lender shall be obligated to provide an Incremental Facility Increase as a result of any such request by the Borrower Representative and (ii) any Additional Lender which is not an existing Lender shall be subject to the approval of, the Administrative Agent and, in the case of any Incremental Revolving LoansCommitments or Supplemental Commitments, unless it so agreesthe Swingline Lender, each Issuing Lender and the Borrowers (each such approval not to be unreasonably withheld, conditioned or delayed). The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Each Incremental Facility Closing Date on which Increase shall be in a minimum aggregate amount of at least $10,000,000 and in integral multiples of $5,000,000 in excess thereof. Any Incremental Revolving Commitments are effected, subject to the satisfaction Facility Increase may be denominated in Dollars.
(b) (i) Any Incremental ABL Term Loans (A) may not be guaranteed by any Subsidiaries of the foregoing terms Parent other than the Guarantors and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lendersrank pari passu (or, at the principal amount thereof option of the Borrower Representative, junior) in right of (together x) priority with accrued interest)respect to the Collateral and (y) payment with respect to the Obligations in respect of the Commitments and any existing Incremental ABL Term Loans, such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as (B) shall be necessary in order thatpart of, after giving effect to all such assignments and purchasescount against, such Revolving the Borrowing Base and shall not amortize at a rate greater than 1.0% per annum, (C) may not be secured by any Collateral or other assets of any Loan Party that do not also secure the Loans will be held by and (D) shall not have a final maturity that is earlier than the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving CommitmentsTermination Date.
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Incremental Facility. The Subject to the terms and conditions set forth herein, the Borrower may shall have the right, at any time on not more than four occasions from time to time during the Commitment Period and after the Closing Date but prior Second Amendment Effective Date, to incur additional Indebtedness under this Credit Agreement in the form of term loans (each, an “Incremental Term Loan”) and/or increases to the Revolving Committed Amount (each, an “Incremental Revolver”; each Incremental Term Loan and Incremental Revolver, an “Incremental Facility”) by an aggregate amount of up to $100,000,000. The following terms and conditions shall apply to each Incremental Facility: (a) the loans made under any such Incremental Facility (each an “Additional Loan”) shall constitute Credit Party Obligations and will be secured and guaranteed with the other Credit Party Obligations on a pari passu basis, (b) (1) any such Additional Loans (A) made pursuant to an Incremental Revolver shall (I) have the same terms (including interest rate, voting rights and rights to receive the proceeds of prepayments) as the existing Revolving Loans, (II) shall be considered Revolving Loans hereunder and (III) shall mature on the Extended Maturity DateDate and (B) made pursuant to an Incremental Term Loan shall have terms (including interest rate, maturity date, voting rights, rights to receive the proceeds of prepayments and amortization) to be agreed upon by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments (such increase, the “Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving Loans”); provided that both Borrower at the time of such Incremental Term Loan and (2) the additional Revolving Commitments comprising the Incremental Revolver shall be Extended Revolving Commitments, (c) each Incremental Facility shall be in a minimum principal amount of $50,000,000 and integral multiples of $10,000,000 in excess thereof, (d) the proceeds of any Additional Loan will be used for the purposes set forth in Section 3.11, (e) the Borrower shall execute such promissory notes as are necessary to reflect the Additional Loans under any such request and upon Incremental Facility, (f) before any Additional Loans are made, the effectiveness conditions to Extensions of any Incremental Revolving Commitment referred to belowCredit in Section 4.2 shall have been satisfied, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect theretog) no Default or Event of Default shall exist. The aggregate amount of all then exist or would exist after giving effect to any such Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution Facility, (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and h) the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment received from the Borrower a satisfactory legal opinion of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect counsel to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement Borrower and such other Loan Documents documentation as are necessaryit deems reasonably necessary to effectuate each such Incremental Facility and (i) the Administrative Agent shall have received from the Borrower updated financial projections and an officer’s certificate, executed in each case in form and substance satisfactory to the Administrative Agent, demonstrating that, (A) after giving effect to any such Incremental Facility on a pro forma basis, the Credit Parties will be in compliance with the financial covenants set forth in Section 5.9 and (B) if the full amount of the Revolving Committed Amount (after giving effect to such Incremental Facility) were drawn by the Borrower, each Additional Lender agreeing to provide such Commitment the Credit Parties would be in compliance with all financial and other covenants (including covenants restricting indebtedness and liens) under the Subordinated Note Documents and the Administrative Agentdocuments for all other publicly held or privately placed Indebtedness incurred in accordance with Section 6.1(p). An Each Incremental Amendment mayFacility shall be obtained from existing Lenders or from other banks, without the consent of any other Lenders, effect such amendments financial institutions or investment funds reasonably acceptable to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower; provided that such other banks, financial institutions and investment funds shall enter into such joinder or other agreements to give effect thereto as the provisions and intent of this Section Administrative Agent and the application Borrower may reasonably request. The Administrative Agent is authorized to enter into, on behalf of the proceeds thereof. The effectiveness Lenders, any amendment to this Credit Agreement or any other Credit Document as may be necessary to incorporate the terms of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitmentstherein.
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Samples: Credit Agreement (Belden Inc.)
Incremental Facility. The Borrower may (a) So long as no Event of Default under subsection 9(a) or (f) exists or would arise therefrom, the Borrowers shall have the right, at any time on not more than four occasions and from time to time after the Closing Date but prior to the Maturity Date, by notice to the Administrative Agent request (whereupon the Administrative Agent shall promptly deliver a copy to each i) an increase of the Lenders), without having to seek consent from aggregate amount of the Lenders, request an increase to the existing Revolving then outstanding Commitments (such increase, the “Incremental Revolving Commitments,”) or (ii) one or more term loans (the “Incremental ABL Term Loans” and together with the loans thereunderIncremental Revolving Commitments, collectively, the “Incremental Revolving LoansFacilities” and each, an “Incremental Facility”); provided that both at . Notwithstanding anything to the time of any such request and upon contrary herein, the effectiveness principal amount of any Incremental Revolving Commitment referred to below, no Default ABL Term Loans or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000the Available Incremental Amount at such time. Each notice from the The Parent Borrower pursuant may seek to this Section shall set forth the requested amount of the Incremental Revolving Commitments. obtain Incremental Revolving Commitments may be provided by any or Incremental ABL Term Loans from existing Lender Lenders or by any other bank Persons, as applicable (each an “Incremental Facility Increase,” and each Person extending, or other financial institution (such existing Lender or other bank or other financial institution providing an extending, Incremental Revolving CommitmentCommitments or Incremental ABL Term Loans, an “Additional Lender”), provided, however, that (i) no Lender shall be obligated to provide an Incremental Facility Increase as a result of any such request by the Borrowers, and (ii) any Additional Lender which is not an existing Lender shall be subject to the approval of, the Administrative Agent, the Swing Line Lender, each Issuing Lender and the Borrowers (each such approval not to be unreasonably withheld).
(i) Any Incremental ABL Term Loans (A) may not be guaranteed by any Subsidiaries of the Parent Borrower other than the Guarantors and shall rank pari passu (or, at the option of the Parent Borrower, junior) in right of (x) priority with respect to the Collateral and (y) payment with respect to the Obligations in respect of the Commitments and any existing Incremental ABL Term Loans, (B) shall count against, the Borrowing Base, (C) shall not have a final maturity that is earlier than the Maturity Date, (D) shall not amortize at a rate greater than 1.0% per annum, (E) for purposes of prepayments, shall be treated no more favorably than the Revolving Credit Loans, (F) may not be secured by any Collateral or other assets of any Loan Party that do not also secure the Loans and (G) shall otherwise be on terms as are reasonably satisfactory to the Administrative Agent.
(ii) Any Incremental Revolving Commitments (A) shall be guaranteed by the Guarantors and shall rank pari passu in right of (x) priority with respect to the Collateral and (y) payment with respect to the Obligations in respect of the Commitments in effect prior to the Incremental Revolving Commitment Effective Date and (B) shall be on terms and pursuant to the documentation applicable to the existing Commitments; provided that the Applicable Margin relating to the Incremental Revolving Commitments may exceed the Applicable Margin relating to the Commitments in effect prior to the Incremental Revolving Commitment Effective Date so long as the Applicable Margins relating to all Revolving Credit Loans shall be adjusted to be equal to the Applicable Margin payable to the Lenders providing such Incremental Revolving Commitments.
(iii) The Incremental Facilities may be in the form of a separate “first-in, last out” tranche (the “FILO Tranche”) with a separate borrowing base against the ABL Priority Collateral and interest rate margins in each case to be agreed upon (which, for the avoidance of doubt, shall not require any adjustment to the Applicable Margin of other Loans pursuant to clause (ii) above) among the Parent Borrower, the Administrative Agent and the Lenders providing the FILO Tranche so long as (1) any loans under the FILO Tranche may not be guaranteed by any Subsidiaries of the Parent Borrower other than the Guarantors; (2) if the FILO Tranche availability exceeds $0, any Extension of Credit under the Facility thereafter requested shall be made under the FILO Tranche until the FILO Tranche availability no longer exceeds $0; (3) as between (x) the Facility (other than the FILO Tranche) and the Incremental ABL Term Loans, on the one hand and (y) the FILO Tranche, on the other hand, all proceeds from the liquidation or other realization of the Collateral (including ABL Priority Collateral) shall be applied, first to obligations owing under, or with respect to, the Facility (other than the FILO Tranche) and the Incremental ABL Term Loans and second to the FILO Tranche; (4) no Borrower may prepay Revolving Credit Loans under the FILO Tranche or terminate or reduce the commitments in respect thereof at any time that other Loans and/or Reimbursement Obligations (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent) or Incremental ABL Term Loans are outstanding; (5) the Required Lenders (calculated as including Lenders under any Incremental Facilities that rank pari passu with the existing Commitments) shall, subject to the terms of the Base Intercreditor Agreement, control exercise of remedies in respect of the Collateral and (6) no changes affecting the priority status of the Facility (other than the FILO Tranche) or the Incremental ABL Term Loans, on the one hand, vis-à-vis the FILO Tranche, on the other hand, may be made without the consent of the Required Lenders (calculated as including Lenders under any Incremental Facility that ranks pari passu with the existing Commitments) under the Facility, other than such changes which affect only the FILO Tranche, or only the Incremental ABL Term Loans, as the case may be.
(c) No Incremental Facility Increase shall become effective unless and until each of the following conditions has been satisfied:
(i) The Borrowers, the Administrative Agent, and any Additional Lender shall be reasonably acceptable have executed and delivered a joinder to the Loan Documents (“Lender Joinder Agreement”) in substantially the form of Exhibit O hereto;
(ii) The Borrowers shall have paid such fees and other compensation to the Additional Lenders and to the Administrative Agent as the applicable Borrowers, the Administrative Agent and such Additional Lenders shall agree;
(iii) The applicable Borrowers shall deliver to the Administrative Agent and the Lenders an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent from counsel to the applicable Borrowers and dated such date;
(iv) A Revolving Note (to the extent requested) will be issued at the applicable Borrowers’ expense, to each such Additional Lender, to be in conformity with requirements of subsection 2.1(g) (with appropriate modification) to the extent necessary to reflect the new Commitment of each Additional Lender;
(v) The Parent Borrower shall deliver a certificate certifying that (A) the representations and warranties made by the Parent Borrower and its Restricted Subsidiaries contained herein and in the other Loan Documents are true and correct in all material respects on and as of the Incremental Facility Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and (B) no Event of Default under subsection 9(a) or (f) has occurred and is continuing; and
(vi) The applicable Borrowers and Additional Lenders shall have delivered such other instruments, documents and agreements as the Administrative Agent may reasonably have requested in order to effectuate the documentation of the foregoing.; and
(vii) The Parent Borrower shall have received the confirmation described in subsection 7.10.
(d) (i) In the case of any Incremental Facility Increase constituting Incremental Revolving Commitments, the Administrative Agent shall have consented promptly notify each Lender as to the effectiveness of such Incremental Facility Increase (with each date of such consent not effectiveness being referred to herein as an “Incremental Revolving Commitment Effective Date”), and at such time (i) the U.S. Facility Commitments and the Canadian Facility Commitments, as applicable, under, and for all purposes of, this Agreement shall be unreasonably withheld or delayed) to such Additional Lender’s providing increased by the aggregate amount of such Incremental Revolving CommitmentCommitments, if (ii) Schedule A shall be deemed modified, without further action, to reflect the revised Commitments and Commitment Percentages of the Lenders and (iii) this Agreement shall be deemed amended, without further action, to the extent necessary to reflect any such consent would be Incremental Revolving Commitments.
(ii) In the case of any Incremental Facility Increase, the Administrative Agent, the Additional Lenders and the Borrowers agree to enter into any amendment required under Section 9.6 for an assignment to incorporate the addition of Commitments to such Additional Lender. the Incremental Revolving Commitments shall become and the Incremental ABL Term Loans, the pricing of the Incremental Revolving Commitments under this Agreementand the Incremental ABL Term Loans, the maturity date of the Incremental Revolving Commitments and the Incremental ABL Term Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof Borrowers in connection therewith (each, each an “Incremental Facility Closing DateCommitment Amendment”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees). The Borrower may use Lenders hereby irrevocably authorize the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with Administrative Agent to enter into such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitmentsamendments.
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Incremental Facility. (a) The Borrower may at any from time on not more than four occasions after the Closing Date but prior to time amend this Agreement in order to provide to the Maturity DateBorrower increased revolving commitments (each, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each an “Incremental Revolving Facility”) and additional term loan facilities and/or increased term loan commitments in respect of the Lenders)Term Facility or any other existing term loan facility hereunder (each, without having to seek consent from the Lenders, request an increase to the existing “Incremental Term Facility”; together with any Incremental Revolving Commitments (such increaseFacility, the “Incremental Revolving Commitments,” and Facilities”), provided that the loans thereunderaggregate principal amount of the Incremental Facilities pursuant to this Section 4.25 shall not exceed (A) together with the aggregate initial principal amount of any Incremental Notes incurred pursuant to clause (A)(i) of the proviso to Section 8.2(q), $200,000,000 plus (B) an additional amount if, after giving effect to such additional amount, on a pro forma basis the “Consolidated Senior Secured Leverage Ratio (assuming, (x) if such Incremental Facility is an Incremental Revolving Loans”)Facility, such Incremental Revolving Facility is fully drawn as of such date and (y) that any indebtedness incurred under an Incremental Facility is senior secured debt; provided that both at whether or not such debt is senior or secured) does not exceed 4.75:1.00 as of the time last day of any such request the most recently ended fiscal quarter. Each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000. Each Incremental Facility will be secured and guaranteed with the other Facilities on a pari passu basis. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility and a final maturity no earlier than the Term Loan Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Activation Notice specifies a lesser treatment. Each Incremental Revolving Facility shall have the same terms as the Revolving Credit Facility and upon the effectiveness of any Incremental Revolving Commitment referred Facility, the commitments thereunder shall be Revolving Credit Commitments for all purposes hereunder. Other than amortization, pricing or maturity date, each Incremental Term Facility shall have the same terms as the Term Facility or such terms as are reasonably satisfactory to belowthe Administrative Agent and the Borrower, provided that if the Applicable Margin (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Term Facility and any Eurodollar or ABR floor applicable to such Incremental Term Facility but excluding any ticking fees, arrangement fees and other fees not paid to the makers of such loans generally) relating to any Incremental Term Facility exceeds the Applicable Margin (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Term Facility, and any Eurodollar or ABR floor applicable to the Term Facility) relating to the Term Facility immediately prior to the effectiveness of the applicable Incremental Term Facility by more than 0.50%, the Applicable Margin relating to the Term Facility shall be adjusted to be equal to the Applicable Margin (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Term Facility and any Eurodollar or ABR floor applicable to such Incremental Facility) relating to such Incremental Term Facility minus 0.50%. In the case of any Incremental Term Facility that increases the term loan commitments under the Term Facility or any other existing term loan facility, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. An Incremental Facility may be made available under this Agreement only if, after giving effect thereto and the use of proceeds thereof no Default or Event of Default exists (or with respect to any use of an Incremental Term Facility for a Permitted Acquisition that requires limited conditionality, no Default or Event of Default shall exist and exists at the time that any of entry into the applicable acquisition agreement for such Permitted Acquisition).
(b) An Incremental Revolving Loan is Facility shall be made (and immediately after giving effect thereto) no Default or Event available hereunder upon delivery to the Administrative Agent of Default shall existnotice thereof executed by the Borrower. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other Any additional bank, financial institution (such institution, existing Lender or other bank Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other financial institution providing an Incremental Revolving Commitment, Person being called an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitmentand, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional not already a Lender. Incremental Revolving Commitments , shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans a Lender under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryDocuments, executed by the Borrower, each such Additional Lender agreeing to provide such Commitment and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions and intent of this Section and subsection (including to provide for voting provisions applicable to the application of the proceeds thereofAdditional Lenders). The effectiveness of any Incremental Facility Amendment shall shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender subsection 6.2 (it being understood that all references to “Borrowing Date” in subsection 6.2 shall be obligated deemed to provide any refer to the Incremental Revolving Loans, unless it so agreesFacility Closing Date). The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitmentsused only for general corporate purposes (including acquisitions permitted under subsection 8.7).
Appears in 1 contract
Samples: Credit Agreement (Cumulus Media Inc)
Incremental Facility. (a) The Borrower may at any time on not more than four occasions or from time to time after the Closing Date but prior to the Maturity Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lendersrequest one or more additional tranches of term loans, request revolving facilities or letter of credit facilities (each, an increase to the existing Revolving Commitments (such increase, the “Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving LoansFacility”); , provided that both (i) at the time of any such request and upon after the effectiveness of any Incremental Revolving Commitment Amendment referred to below, no Default or Event of Default shall exist have occurred and at be continuing, (ii) the time Borrower shall be in compliance with the covenants contained in Section 7.1 determined on a pro forma basis as of the last day of the most recent period of the Borrower for which financial statements are available as if any term loans under such Incremental Facility had been outstanding and any revolving commitment under such Incremental Facility (to the extent not available to issue letters of credit) had been fully used on the last day of such period and (iii) the Consolidated Leverage Ratio determined on a pro forma basis as of the last day of the most recent fiscal quarter of the Borrower for which financial statements are available, determined as if any term loans under such Incremental Facility had been outstanding on the last day of such period, shall be less than 2.5 to 1.0. Each Incremental Facility shall be in an aggregate principal amount that any is not less than $50,000,000 (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence) and there shall be not more than 3 requests for Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall existFacilities. The Notwithstanding anything to the contrary herein, the aggregate amount of all the Incremental Revolving Commitments Facilities shall not exceed $50,000,000200,000,000. Any Incremental Facility (a) shall rank pari passu in right of payment and of security with the Loans, (b) shall not mature earlier than the Maturity Date or have a weighted average life (if applicable) which is shorter than the then remaining average life of the Loans, and (c) shall otherwise be on terms and pursuant to documentation to be determined by the Borrower and the Persons willing to provide such Incremental Facility, provided that (A) to the extent such terms and documentation are not consistent with the Facility (other than with respect to pricing, amortization and maturity) they shall be reasonably satisfactory to the Administrative Agent and (B) if the Applicable Margin (which term for purposes of this Section 2.20 shall include any original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders under Facility or the Incremental Facility, as applicable, in the primary syndication thereof (with OID being equated to interest based on assumed three-year life to maturity)) relating to any Incremental Facility exceeds the Applicable Margin relating to the Facility immediately prior to the effectiveness of the applicable Incremental Amendment, the Applicable Margin relating to the Facility shall be adjusted to equal the Applicable Margin relating to such Incremental Facility. Each notice from the Borrower pursuant to this Section 2.20 shall set forth the requested amount and proposed terms of the relevant Incremental Revolving CommitmentsFacility and the Lenders or other Persons willing to provide the Incremental Facility. The Incremental Revolving Commitments Facility may be provided by any existing Lender or by any other bank or Eligible Assignee selected by the Borrower (any such other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, fund being called an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayedwithheld) to such Lender’s or Additional Lender’s providing such Incremental Revolving Commitment, Facility if such consent would be required under Section 9.6 10.6 for an assignment of Commitments Loans to such Lender or Additional Lender. Commitments in respect of Incremental Revolving Commitments Facilities shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryDocuments, executed by the Borrower, each Additional Lender agreeing to provide such Commitment Commitment, if any, each Additional Lender, if any, and the Administrative AgentAgent pursuant to Section 10.1(e) hereof. An The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof2.20. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.25.2 (it being understood that all references to the Delayed Draw Funding Date or similar language in such Section 5.2 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Facilities for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Revolving LoansFacility, unless it so agrees. The Borrower may use Administrative Agent and the proceeds of Incremental Revolving Loans for any purpose not prohibited by Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject shall not apply to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign transactions effected pursuant to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitmentsthis paragraph.
Appears in 1 contract
Samples: Credit Agreement (Lear Corp)
Incremental Facility. The Borrower may (a) From time to time upon at any time on not more than four occasions after the Closing Date but least 30 days’ prior to the Maturity Date, by written notice to the Administrative Facility Agent (whereupon which notice shall be promptly transmitted by the Administrative Facility Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the LendersBorrower shall have the right, request an increase subject to the existing Revolving Commitments terms and conditions set forth below, to increase the aggregate amount of the Energy Hedging Commitment (any such increaseincrease referred to herein, the as an “Energy Hedging Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving LoansLoan”); provided that both that, (i) at the time of any such request and upon the effectiveness of any such Energy Hedging Incremental Revolving Commitment referred to belowLoan, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately or would exist after giving effect thereto, (ii) such increase must be in a minimum amount of $50,000,000 and in integral multiples of $5,000,000 above such amount, (iii) the aggregate Energy Hedging Commitment shall not be increased to an amount greater than the Maximum Energy Hedging Incremental Facility Amount without the prior written consent of the Majority Lenders, (iv) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from individual Lender’s Commitment may be increased without such Lender’s written consent, (v) the Borrower pursuant shall execute and deliver a Note or Notes as are necessary and requested by the applicable Lenders to this Section reflect the increase in the Energy Hedging Commitment, (vi) Schedule 2.01 shall set forth be amended to reflect the requested amount revised Commitments of the Incremental Revolving Commitments. Incremental Revolving Commitments may Lenders and (vii) if any Loans are outstanding at the time of an increase in the Energy Hedging Commitment, the Borrower will prepay (provided that any such prepayment shall be subject to Section 2.03), one or more existing Energy Hedging Loans in an amount necessary such that after giving effect to the increase in the Energy Hedging Commitment, each Energy Hedging Lender will hold its pro rata share (based on its share of the revised Energy Hedging Commitment) of outstanding Energy Hedging Loans.
(b) Any such increase in the Energy Hedging Commitment shall apply, at the option of the Borrower, to (x) the Energy Hedging Commitment of one or more existing Lenders; provided by that each Energy Hedging Issuing Bank and any existing Lender whose Energy Hedging Commitment is being increased must consent in writing thereto and/or (y) the creation of a new Energy Hedging Commitment to one or by more bank or other financial institution (any such other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, being called an “Additional Lender”); provided that, provided that any such Additional Lender shall (A) must be reasonably acceptable to approved by the Borrower and the Administrative Facility Agent shall have consented (such consent approval not to be unreasonably withheld or delayedwithheld) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall and each Energy Hedging Issuing Bank and (B) must become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans a Lender under this Agreement by execution and each Additional Lender delivery of an Assignment and Assumption Agreement; provided further that, in no event or at any time shall become a Revolving Lender and any Borrower Affiliate or Macquarie Affiliate be a Lender with respect to the Additional Revolving Commitment and all matters relating thereto for any Energy Hedging Incremental Loans (including by means of assignment or participation pursuant to an amendment Section 10.07).
(an “c) The Borrower shall use the proceeds of the Energy Hedging Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by Loans solely for the Borrower, each Additional Lender agreeing to provide such Commitment and purpose for which the Administrative Agent. An Incremental Amendment may, without proceeds of the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as Energy Hedging Loans may be necessary, used.
(d) Except as otherwise set forth in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any 2.11, all Energy Hedging Incremental Amendment Loans shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the terms and conditions set forth in Section 4.2. No Lender shall be obligated to provide herein including any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving CommitmentsApplicable Margin.
Appears in 1 contract
Incremental Facility. The Borrower may at (a) At any time on not during the Revolving Commitment Period, the Borrowers may request from time to time from one or more than four occasions after the Closing Date but prior to the Maturity Date, by notice existing Lenders or from other Eligible Assignees reasonably acceptable to the Administrative Agent Agent, the Issuing Lender, the Swingline Lender and the Borrowers (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request an increase but subject to the existing conditions set forth in clause (b) below) the Total Revolving Commitments be increased by an amount not to exceed the Available Revolving Increase Amount at such time (each such increase, the an “Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving LoansIncrease”); provided that both at the time Borrowers may not request an Increase on more than three occasions during the term of this Agreement and provided that any such Increase shall be subject to the consent of the Administrative Agent. No Lender shall be obligated to increase its Revolving Commitments in connection with a proposed Increase. To the extent sufficient existing Lenders do not agree to increase their Commitments on terms acceptable to the Borrowers, or to the extent such Lenders have not promptly responded to the Borrowers’ request for such increase, the Borrowers may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Lender pursuant to a joinder agreement in connection with the proposed Increase (provided that the joinder of any such request and upon “Lender” for the effectiveness purpose of providing all or any portion of any Incremental Revolving Commitment referred to below, no Default or Event of Default such Increase shall exist and at require the time that any Incremental Revolving Loan is made consent (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) of Administrative Agent, the Issuing Lender, the Swingline Lender and the Required Lenders. Any Increase shall be in an amount of at least $5,000,000 (or, if the Available Revolving Increase Amount is less than $5,000,000, such remaining Available Revolving Increase Amount) and integral multiples of $1,000,000 in excess thereof. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of the Increases to the Total Revolving Commitments exceed the Available Revolving Increase Amount during the term of the Agreement.
(b) Each of the following shall be conditions precedent to any Increase of the Total Revolving Commitments in connection therewith:
(i) any Increase shall be on the same terms (including the pricing, and maturity date), as applicable, as, and pursuant to documentation applicable to the Facility then in effect;
(ii) the Borrowers shall have delivered an irrevocable written request to the Administrative Agent for such Increase at least ten (10) Business Days prior to the requested funding date of such Increase;
(iii) each Lender (including any prospective lenders agreeing to become a Lender hereunder) agreeing to such Additional Lender’s providing such Incremental Revolving CommitmentIncrease, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment Borrowers and the Administrative Agent. An Incremental Amendment Agent have signed an Increase Joinder (any Increase Joinder may, without with the consent of any other Lendersthe Administrative Agent, the Borrowers and the Lenders agreeing to such Increase, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, necessary or appropriate to effect effectuate the provisions and intent of this Section 2.27) and the application Borrowers shall have executed any Notes requested by any Lender in connection with the making of the proceeds thereofIncrease. The effectiveness of any Incremental Amendment shall be subject Notwithstanding anything to the satisfaction on the date thereof contrary in this Agreement or in any other Loan Document, an
(each, an “Incremental Facility Closing Date”iv) of each of the conditions precedent set forth in Section 4.2. No Lender 5.2(a) and (e) are satisfied with respect to such Increase;
(v) after giving pro forma effect to such Increase and the use of proceeds thereof, (A) no Default or Event of Default shall have occurred and be continuing at the time of such Increase and (B) the Borrowers shall be obligated in compliance with the then applicable financial covenants set forth in Section 7.1 hereof as of the end of the most recently ended month and quarter for which financial statements are required to provide any Incremental Revolving Loansbe delivered prior to such Increase, unless it so agrees. The Borrower may use and the proceeds Borrowers shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent evidencing compliance with the requirements of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed clause (vi) and clause (v) above;
(vi) in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effectedIncrease, subject the Borrowers shall pay to Administrative Agent all fees required to be paid pursuant to the satisfaction terms of the foregoing terms and conditions, Fee Letter; and
(vii) upon each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably Increase in accordance with their this Section 2.27, all outstanding Loans, participations hereunder in Letters of Credit and participations hereunder in Swingline Loans held by each Lender in the Facility shall be reallocated among the Lenders (including any newly added Lenders) in accordance with the Lenders’ respective revised Revolving Percentages, pursuant to procedures reasonably determined by the Administrative Agent.
(c) Upon the effectiveness of any Increase, (i) all references in this Agreement and any other Loan Document to the Loans shall be deemed, unless the context otherwise requires, to include such Increase advanced pursuant to this Section 2.27 and (ii) all references in this Agreement and any other Loan Document to the Revolving Commitments and the Total Revolving Commitments shall be deemed, unless the context otherwise requires, to include the commitment to advance an amount equal to such Increase pursuant to this Section 2.27.
(d) The Loans and Revolving Commitments established pursuant to this Section 2.27 shall constitute Loans and Revolving 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 any guarantees and the security interests created by the Loan Documents. The Borrowers shall take any actions reasonably required by Administrative Agent to ensure and demonstrate that the Liens and security interests granted by the Loan Documents continue to be perfected under the UCC or otherwise after giving effect to the addition establishment of any such Incremental Revolving Commitments to the new Revolving Commitments.
Appears in 1 contract
Samples: Credit Agreement (Teladoc, Inc.)
Incremental Facility. (a) The Borrower Company may at any from time on not more than four occasions after the Closing Date but prior to time amend this Agreement in order to provide to the Maturity DateCompany additional revolving loan facilities (each, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments (such increase, the “Incremental Revolving Commitments,” Loan Facility”) and additional term loan facilities (each, an “Incremental Term Loan Facility”), provided that (i) the aggregate principal amount of the Incremental Facilities shall not exceed $400,000,000 and (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $50,000,000. Each Incremental Facility will be secured and guaranteed with the Revolving Credit Facility on a pari passu basis. Each Incremental Facility must have a final maturity on or after the Revolving Credit Termination Date and an average life (if an Incremental Term Facility) which is at least as long as the remaining term of the Revolving Credit Facility. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the Revolving Credit Facility unless the applicable Incremental Facility Activation Notice specifies a lesser treatment. An Incremental Facility may be made available under this Agreement only if, after giving effect thereto and the loans thereunder, the “Incremental Revolving Loans”); provided that both at the time use of any such request and upon the effectiveness of any Incremental Revolving Commitment referred to belowproceeds thereof, no Default or Event of Default shall exist exists and at the time that any Incremental Revolving Loan is Company would be in compliance with the covenants set forth in subsection 13.1 for the most recently ended fiscal quarter (calculated on a pro forma basis, as reasonably determined by the Company after consultation with the Administrative Agent, to give effect to the Loans to be made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth such Incremental Facility and the requested amount Permitted Acquisition and other permitted uses made with the proceeds thereof). Proceeds of the Incremental Revolving Commitments. Incremental Revolving Commitments Facilities may be provided by any existing Lender or by any other bank or other financial institution used only for the purposes specified in subsections 4.3 and 7.3.
(such existing Lender or other bank or other financial institution providing b) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall Facility Activation Notice executed by the Company and the financial institutions (who must be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment Company and the Administrative Agent) identified as “Incremental Lenders” therein who have executed such Incremental Facility Activation Notice. An Upon the Incremental Amendment mayFacility Effective Date specified in an Incremental Facility Activation Notice, without the consent Incremental Lenders specified therein shall become Lenders under this Agreement with respect to such Incremental Facility. Each Incremental Facility Activation Notice shall specify (i) the respective Incremental Facility Amount of any other such Incremental Lenders, effect (ii) the applicable Incremental Facility Effective Date, (iii) the applicable Incremental Facility Maturity Date, (iv) the amortization schedule or revolving credit period, as applicable, applicable to such amendments Incremental Facility, (v) whether such Incremental Lenders may elect to decline prepayments as specified in subsection 8.6 and are entitled to share in mandatory prepayments as specified in subsection 8.6 and (vi) the Applicable Margin for the Incremental Loans to be made pursuant to such Incremental Facility Activation Notice and, if such Incremental Facility is an Incremental Revolving Loan Facility, the commitment fee therefor, and shall be otherwise duly completed. Each Incremental Lender that is a signatory to an Incremental Facility Activation Notice severally agrees, on the terms and conditions of this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the BorrowerAgreement, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any make Incremental Amendment shall be subject Loans to the satisfaction Company on the date thereof (each, an “Incremental Facility Closing Date”) of each of or during the conditions set forth periods specified in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as Activation Notice. Nothing in this subsection 16.13 shall be necessary in order that, after giving effect construed to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect obligate any Lender not party to the addition of such Incremental Revolving Commitments Facility Activation Notice to the Revolving Commitmentsexecute an Incremental Term Loan Activation Notice or to make Incremental Loans.
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Incremental Facility. (a) The Borrower may at from time to time amend this Agreement in order to provide to the Borrower additional term loan facilities and/or increased term loan commitments in respect of the Facility or any time other existing term loan facility hereunder (each, an “Incremental Facility”), provided that (i) the aggregate principal amount of the Incremental Facilities and the First Lien Incremental Facilities shall not exceed $500,000,000, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000 and (iii) the Consolidated Senior Secured Leverage Ratio as of such date (determined on not more a pro forma basis after giving effect to the provision of such Incremental Facility) is less than four occasions after or equal to 5.0 to 1.0. Each Incremental Facility will be secured and guaranteed with the Closing Date but prior Facility on a pari passu basis. Each Incremental Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Facility and a final maturity no earlier than the Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the Facility unless the applicable Incremental Facility Activation Notice specifies a lesser treatment. Other than amortization, by notice pricing or maturity date, each Incremental Facility shall have the same terms as the Facility or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower, provided that if the Applicable Margin (whereupon the Administrative Agent which, for such purposes only, shall promptly deliver a copy be deemed to each of the Lenders)include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility but excluding any ticking fees, without having to seek consent from the Lenders, request an increase arrangement fees and other fees not paid to the existing Revolving Commitments makers of such loans generally) relating to any Incremental Facility exceeds the Applicable Margin (which, for such increasepurposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the “Incremental Revolving Commitments,” Facility, and any Eurodollar or ABR floor applicable to the loans thereunder, Facility) relating to the “Incremental Revolving Loans”); provided that both at the time of any such request and upon Facility immediately prior to the effectiveness of the applicable Incremental Facility by more than 0.25%, the Applicable Margin relating to the Facility shall be adjusted to be equal to the Applicable Margin (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Revolving Commitment referred Facility) relating to belowsuch Incremental Facility minus 0.25%. With respect to increases in the term loan commitments under the Facility or any other existing term loan facility, the manner in which such increase is implemented shall be reasonably satisfactory to the Administrative Agent. An Incremental Facility may be made available under this Agreement only if, after giving effect thereto and the use of proceeds thereof no Default or Event of Default exists.
(b) An Incremental Facility shall exist and at be made available hereunder upon delivery to the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event Administrative Agent of Default shall existnotice thereof executed by the Borrower. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other Any additional bank, financial institution (such institution, existing Lender or other bank Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other financial institution providing an Incremental Revolving Commitment, Person being called an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitmentand, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional not already a Lender. Incremental Revolving Commitments , shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans a Lender under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryDocuments, executed by the Borrower, each such Additional Lender agreeing to provide such Commitment and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions and intent of this Section and subsection (including to provide for voting provisions applicable to the application of the proceeds thereofAdditional Lenders). The effectiveness of any Incremental Facility Amendment shall shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of the following conditions precedent: (i) each of the conditions set forth representations and warranties made in Section 4.2. No Lender or pursuant to the Loan Documents shall be obligated true and correct in all material respects on and as of such date as if made on and as of such date (unless stated to provide any Incremental Revolving Loansrelate to a specific earlier date, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest)case, such interests representations and warranties shall be true and correct in the Revolving Loans outstanding all material respects as of such earlier date) and (ii) no Default or Event of Default shall have occurred and be continuing on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments date or after giving effect to the addition Incremental Facility to be made on such date. The proceeds of such any Incremental Revolving Commitments to the Revolving CommitmentsFacility will be used only for general corporate purposes (including acquisitions permitted under subsection 8.7).
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Incremental Facility. (a) The Borrower may at any may, by written notice delivered to the Agent from time to time on one or more occasions, request Incremental Commitments, provided that the aggregate principal amount of Incremental Loans made thereunder (together with all Incremental Equivalent Debt) shall not exceed the Available Increase Amount. Such notice shall set forth (x) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Available Increase Amount), (y) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than five Business Days nor more than four occasions 60 days after the Closing Date but prior date of such notice, unless the Agent shall otherwise agree) and (z) whether such Incremental Commitments are commitments to make additional Term Loans, additional Revolving Commitments and Revolving Loans or term loans with terms different from the then existing Term Loans (term loans with different terms from the then existing Term Loans being referred to herein as “Specified Incremental Loans”), as applicable.
(b) The Borrower and each Incremental Lender shall execute and deliver to the Agent an Incremental Assumption Agreement and such other documentation as the Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of any Incremental Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders:
(i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity DateDate and the Weighted Average Life to Maturity of the Incremental Term Loans shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans with the longest Weighted Average Life to Maturity at such time;
(ii) [reserved];
(iii) the interest rate margins applicable to any Incremental Term Loan will be determined by the Borrower and the applicable Incremental Lenders; provided, that,
(A) solely for the benefit of the Initial Term Loans, if the initial yield on such Incremental Term Loan (as reasonably determined by notice the Agent in consultation with the Borrower to be equal to the Administrative Agent sum of (whereupon x) the Administrative Agent margin above the Eurodollar Rate on such Incremental Term Loans (which shall promptly deliver be increased by the amount that any “LIBOR floor” applicable to such Incremental Term Loan on the date such Incremental Term Loans are made would exceed the Eurodollar Rate for a copy to each of the Lendersthree-month Interest Period commencing on such date) and (y) if such Incremental Term Loans are initially made with original issue discount (“OID”), without having the amount of such OID divided by the lesser of (A) the average life to seek consent from maturity (expressed in years) of such Incremental Term Loans and (B) four) exceeds by more than 50 basis points (the Lenders, request an increase amount of such excess above 50 basis points being referred to the existing Revolving Commitments (such increase, herein as the “Incremental Revolving Commitments,Yield Differential”) the sum of (I) the Applicable Margin then in effect for Eurodollar Initial Term Loans (which shall be increased by the amount that any “LIBOR floor” applicable to such Eurodollar Initial Term Loans, on the date such Incremental Loans are made would exceed the Eurodollar Rate for a three-month Interest Period commencing on such date) (but excluding any customary arrangement, underwriting, structuring or similar fees in connection therewith that are not paid to all of the Lenders providing such Incremental Term Loans), (II) any fees payable in connection with the Incremental Term Loans that are shared with all Incremental Lenders providing such Incremental Term Loans and (III) the loans thereunderamount of the OID initially paid in respect of the Initial Term Loans, divided by four, then the “Applicable Margin then in effect for the Initial Term Loans shall automatically be increased by the Incremental Revolving Loans”); provided that both at the time of any such request and Yield Differential, effective upon the making of the Incremental Term Loans.
(iv) all representations and warranties set forth in Section 4 and in each other Loan Document shall be true, correct and complete in all material respects on and as of the date of effectiveness of any Incremental Revolving Commitment referred Assumption Agreement and with the same effect as though made on and as of such date; provided that to belowthe extent such representations and warranties expressly relate to an earlier date, such representations and warranties shall be true, correct and complete 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, correct and complete in all respects on and as of the date of effectiveness of any Incremental Assumption Agreement or on such earlier date, as the case may be; provided further that, if such Incremental Assumption Agreement is being entered into with the primary purpose to complete a Limited Condition Transaction, the foregoing shall be true, correct and complete on and as of the LCT Test Date and only the Specified Representations shall be required to be true, correct and complete in all material respects on and as of the date of effectiveness of any Incremental Assumption Agreement and with the same effect as though made on and as of such date; provided however that to the extent such Specified Representations expressly relate to an earlier date, such representations and warranties shall be true, correct and complete in all 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, correct and complete in all respects on and as of the date of effectiveness of any Incremental Assumption Agreement or on such earlier date, as the case may be;
(v) no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and or would exist immediately after giving effect thereto) thereto provided that, if such Incremental Assumption Agreement is being entered into with the primary purpose to complete a Limited Condition Transaction, the foregoing shall be true on and as of the LCT Test Date and no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section any of Sections 8.1, 8.4 and 8.5 shall set forth exist or would exist immediately after giving effect thereto on and as of the requested amount date of effectiveness of any Incremental Assumption Agreement;
(vi) (A) The Incremental Loans may rank pari passu with or junior to the Obligations in right of payment and/or security or may be unsecured (and to the extent such Incremental Loans rank junior to the Obligations in right of payment or are secured other than by the Security Documents, such Incremental Loans shall be subject to an intercreditor agreement the -37- terms and form of which are reasonably satisfactory to Agent) and (B) no Incremental Loan may be guaranteed by any Subsidiary that is not a Loan Party or secured by any assets that are not Collateral;
(vii) the Incremental Revolving Commitments. Incremental Loans will have the same terms as the Initial Revolving Commitments may be Loans (including pricing and maturity);
(viii) except as otherwise provided by any existing Lender or by any other bank or other financial institution above (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitmentincluding with respect to margin, an “Additional Lender”pricing, maturity and/or fees), provided that such Additional Lender the terms of any Incremental Term Loans, if not substantially consistent with the terms of the Initial Term Loans, shall be reasonably acceptable satisfactory to the Agent (it being understood that (A) any Incremental Term Loans that is pari passu with the Initial Term Loans in right of payment and with respect to security shall share ratably in any prepayment in respect of the Initial Term Loans unless the Borrower and the Administrative lenders in respect of such Incremental Term Loans elect lesser payments and (B) terms not substantially consistent with the Initial Term Loans which are applicable only after the then-existing Term Loan Maturity Date shall be deemed to be acceptable to the Agent; and
(ix) all fees and expenses owing in respect of such increase to the Agent and the Lenders shall have been paid.
(c) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.15 unless the Agent shall have consented received legal opinions, board resolutions and other closing certificates reasonably requested by the Agent and reasonably satisfactory to the Agent:
(d) Each of the parties hereto hereby agrees that the Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Specified Incremental Loans), when originally made, are included in each Borrowing of outstanding Revolving Loans or Term Loans, as applicable, on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar borrowing to be converted into an Base Rate borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Revolving Loan to each outstanding Eurodollar borrowing on a pro rata basis. Any conversion of Eurodollar Loans to Base Rate Loans required by the preceding sentence shall be subject to Section 2.12. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurodollar Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are Initial Term Loans, the scheduled amortization payments under Section 2.2(b), required to be made after the making of such Incremental Term Loans shall be ratably increased by the initial aggregate principal amount of such Incremental Term Loans.
(e) The Borrower may seek commitments in respect of Incremental Loans from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and, in consultation with the Agent, additional banks, financial institutions and other institutional lenders who will become Lenders in connection therewith; provided, that the Agent shall have consent rights (not to be unreasonably withheld or delayed) with respect to such Additional Lender’s providing such Incremental Revolving Commitmentadditional -38- Lenders, if such consent would be required under pursuant to Section 9.6 13.1 for an assignment of Commitments loans or commitments, as applicable, to such Additional additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments.
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Incremental Facility. The Borrower may at any Company shall have the right, from time on not more than four occasions after the Closing Date but prior to the Maturity Datetime, by notice to the Administrative Agent request additional term loans (whereupon the Administrative Agent shall promptly deliver a copy each such loan an “Incremental Loan”) pursuant to each of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments incremental facility (such increase, the “Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving LoansFacility”); , provided that both at the time any tranche of any such request and upon Incremental Loans is issued pursuant to the effectiveness Incremental Facility, (a) no Unmatured Event of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist have occurred and at be continuing or result from the time that any issuance of such Incremental Revolving Loan is made Loans, (and immediately after b) the Company shall have delivered to the Administrative Agent a Compliance Certificate, completed on a pro forma basis, giving effect theretoto the Incremental Loans, (c) no Default or Event of Default shall exist. The the aggregate principal amount of all tranches under the Incremental Revolving Commitments Facility hereunder shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may 200,000,000, (d) each tranche must be provided by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed term loan which is governed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent terms of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, with terms and conditions no more restrictive than those in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject with respect to the satisfaction on then existing Facilities, (e) the date thereof Company or a Restricted Subsidiary Obligor which is a U.K. Subsidiary or a U.S. Subsidiary must be the borrower (each, an “Incremental Facility Closing DateBorrower”) thereunder, (f) the weighted average life and final maturity of each tranche shall be at least six months longer than the weighted average life and final maturity of the conditions set forth in Section 4.2. No Lender Term B Loans, (g) the applicable interest rates may differ from the then existing Facilities, provided, however, if the Applicable Margin for any tranche of Incremental Loans is more than 25 basis points higher than the Applicable Margin for the Term B Loans, the Applicable Margin for the Term B Loans shall be obligated to provide proportionately adjusted such that the Applicable Margin for any tranche of Incremental Loans is no more than 25 basis points higher than the Applicable Margin for the Term B Loans, and (h) any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order thatissued at a price (including upfront fees and original issue discount, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition if any) not lower than 99.50% of such Incremental Revolving Commitments to the Revolving Commitmentspar.
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Samples: Fifth Amended and Restated Credit Agreement (Hollinger International Inc)
Incremental Facility. The Borrower may at (a) At any time on not more than four occasions after the Closing Date but during the Commitment Period (in the case of a Revolving Commitment Increase) or any time after the Closing Date and prior to the Term Loan Maturity DateDate (in the case of an Incremental Term Facility), by notice the Borrower may request (but subject, in each case, to the Administrative Agent conditions set forth in clause (whereupon b) below) (x) the Administrative Agent shall promptly deliver Revolving Commitments be increased (or, solely in connection with a copy Limited Condition Acquisition, a separate tranche of Revolving Commitments may be created) by an amount not to exceed the Available Incremental Amount (each of such increase, a “Revolving Commitment Increase”) and/or (y) the Lenders), without having to seek consent from the Lenders, request Lenders establish an incremental term loan facility (which may be an increase to the existing Term Facility) under this Agreement in an aggregate principal amount not to exceed the Available Incremental Amount (each such facility, an “Incremental Term Facility” and, together with any Revolving Commitments (such increaseCommitment Increase, the “Incremental Facilities”). No Lender shall be obligated to participate in an Incremental Facility. Any Incremental Facility shall be in an amount of at least $10,000,000 (or, if the Available Incremental Amount is less than $10,000,000, such remaining Available Incremental Amount) and integral multiples of $1,000,000 in excess thereof. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of Incremental Facilities exceed the Available Incremental Amount during the term of the Agreement. If the Borrower incurs indebtedness under an Incremental Facility under the Fixed Incremental Amount prong of the Available Incremental Amount on the same date that it incurs indebtedness under the Ratio Incremental Amount prong of the Available Incremental Amount and/or that it incurs Revolving Commitments,” and Loans, then the loans thereunderConsolidated Net Leverage Ratio (and, following a Junior Debt Incurrence Event, the “Consolidated Senior Net Leverage Ratio) will be calculated with respect to such incurrence under the Ratio Incremental Amount without regard to any incurrence of indebtedness under the Fixed Incremental Amount or any incurrence of Revolving Loans”); provided that both . Unless the Borrower elects otherwise, each Incremental Facility will be deemed incurred first under the Ratio Incremental Amount to the extent permitted, with the balance incurred under the Fixed Incremental Amount. The Borrower may, in its sole discretion, at the time of incurrence of any such request and upon Incremental Facility, or at any later time, divide, classify or reclassify, any Incremental Facility incurred as Fixed Incremental Amount as an Incremental Facility incurred as Ratio Incremental Amount.
(b) Each of the following shall be conditions precedent to the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made Facility:
(and immediately after giving effect theretoi) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant shall have delivered an irrevocable written request to this Section shall set forth the Administrative Agent for such Incremental Facility at least ten (10) Business Days prior to the requested amount effective date of such Incremental Facility (or such shorter period as agreed to by the Administrative Agent), and promptly after receipt thereof, the Administrative Agent shall invite each Lender to provide the Incremental Revolving Commitments. Facility ratably in accordance with its Aggregate Exposure Percentage of each requested Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution Facility (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided it being agreed that such Additional no Lender shall be reasonably obligated to provide an Incremental Facility and that any Lender may elect to participate in such Incremental Facility in an amount that is less than its Aggregate Exposure Percentage of such requested Incremental Facility or more than its Aggregate Exposure Percentage of such requested Incremental Facility if other Lenders have elected not to participate in any applicable requested Incremental Facility in accordance with their Aggregate Exposure Percentages) and to the extent five (5) Business Days after receipt of invitation, sufficient Lenders do not agree to provide the Incremental Facility on terms acceptable to the Borrower, then the Borrower may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Lender in connection with the proposed Incremental Facility;
(ii) each Lender agreeing to participate in any such Incremental Facility, the Borrower and the Administrative Agent shall have consented signed an Incremental Joinder (such any Incremental Joinder may, with the consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An , the Borrower and the Lenders agreeing to such Incremental Amendment may, without the consent of any other LendersFacility, effect such amendments to this Agreement and the other Loan Documents as may be necessarynecessary or appropriate to effectuate the provisions of this Section 2.27) and the Borrower shall have executed any Notes requested by any Lender in connection with the incurrence of the Incremental Facility. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, an Incremental Joinder reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby, shall not require the consent of any Lender other than the Lender(s) agreeing to fund such Incremental Facility;
(iii) subject to the provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence of such Incremental Facility, each of the conditions precedent set forth in Section 5.2(a) and (e) are satisfied; provided that, to the extent agreed to by the Lenders providing any such Incremental Facility, the condition set forth in Section 5.2(a) may be satisfied with (x) the accuracy of customary “specified representations” and “acquisition agreement representations” and (y) such other limitations or exceptions to representations and warranties as may be agreed by the lenders providing such Incremental Facility); provided further that the condition set forth in Section 5.2(e) may be satisfied, if agreed by the lenders providing such Incremental Facility, so long as no Default or Event of Default pursuant to Section 8.1(a) or (f) has occurred or is continuing;
(iv) after giving pro forma effect to such Incremental Facility and the use of proceeds thereof, subject to the provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence of such Incremental Facility, the Borrower shall be in compliance with the then applicable financial covenants set forth in Section 7.1 hereof as of the end of the most recently ended quarter for which financial statements are required to be delivered prior to the incurrence of such Incremental Facility (without netting the proceeds of such Incremental Facility from the calculation of the Consolidated Net Leverage Ratio (or, following a Junior Debt Incurrence Event, from the calculation of the Consolidated Senior Net Leverage Ratio) and in the reasonable opinion case of a Revolving Commitment Increase, assuming the Revolving Facility was fully drawn); provided that, (A) prior to a Junior Debt Incurrence Event, the Consolidated Net Leverage Ratio shall not be greater than 0.25x less than the covenant set forth in Section 7.1(b) for such period and (B) from and after a Junior Debt Incurrence Event, (A) the Consolidated Senior Net Leverage Ratio shall be equal to or less than 2.75:1.00 and (B) the Consolidated Net Leverage Ratio shall be equal to or less than 3.75:1.00, and the Borrower shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent evidencing compliance with the requirements of this clause (iv) and clause (iii) above;
(v) upon the incurrence of any Revolving Commitment Increase in accordance with this Section 2.27, all outstanding Loans, participations hereunder in Letters of Credit and participation hereunder in Swingline Loans held by each Lender shall be reallocated among the Lenders (including any newly added Lenders) in accordance with the Lenders’ respective revised Revolving Percentages and L/C Percentages, pursuant to procedures reasonably determined by the Administrative Agent;
(vi) any such Revolving Commitment Increase or increase to the Term Facility shall be on the same terms (including pricing and maturity date) as, and shall be pursuant to the same documentation applicable to, the Revolving Facility or Term Facility then in effect. as applicable;
(vii) any Incremental Term Loan Facility providing for a separate tranche of Term Loans may provide for the ability to participate (A) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary prepayments of the Term Loans and (B) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments of the Term Loans, and, in any case, (A) no Incremental Term Loan shall have a final maturity date earlier (but may be later) than the Term Loan Maturity Date and (B) the amortization schedule of any Incremental Term Loan shall not have a weighted average life to maturity shorter than the remaining weighted average life to maturity of the Term Loans made on the Closing Date;
(viii) any Incremental Term Loan and Revolving Commitment Increase shall rank pari passu or junior in right of security in respect of the Collateral. No Incremental Facility will be guaranteed by any Person other than a Guarantor hereunder and shall not be secured by any property or assets other than the Collateral;
(ix) the all-in yield (based on the interest rate and original issue discount and upfront fees, if any, but excluding other amounts, including arrangement, commitment, structuring and underwriting fees) applicable to any Incremental Term Loan shall not be more than 0.50% per annum higher than the corresponding all-in yield with respect to the then-existing Term Loans (measured based on the all-in yield with respect to the Term Loans made on the Closing Date) unless the Applicable Margin with respect to the then-existing Term Loans is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Facility and the Borrower, all-in yield applicable to effect the provisions then-existing Term Loans minus 0.50%; and
(x) the Borrower shall have paid all fees and intent of this Section and expenses in connection with the application exercise of the proceeds thereof. The applicable Incremental Facility.
(c) Upon the effectiveness of any Incremental Amendment Facility, (i) in the case of a Revolving Commitment Increase, (x) all references in this Agreement and any other Loan Document to the Revolving Commitments shall be subject deemed, unless the context otherwise requires, to include such Revolving Commitment Increase advanced pursuant to this Section 2.27 and (y) all references in this Agreement and any other Loan Document to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender Revolving Commitment shall be obligated to provide any Incremental Revolving Loansdeemed, unless it so agrees. the context otherwise requires, to include the commitment to advance an amount equal to such Revolving Commitment Increase pursuant to this Section 2.27 and (ii) in the case of an Incremental Term Facility, all references in this Agreement and any other Loan Document to the Loans and/or Lenders shall be deemed, unless the context otherwise requires, to include the term loans incurred pursuant to such Incremental Term Facility and the lenders thereunder.
(d) The Borrower may use Incremental Facilities established pursuant to this Section 2.27 shall be entitled to all the proceeds of Incremental Revolving Loans for any purpose not prohibited benefits afforded by this Agreement unless otherwise agreed and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents, other than in connection with such the case of an Incremental Revolving Loans. On any Incremental Term Facility Closing Date that is secured on which Incremental Revolving Commitments are effected, subject to the satisfaction a junior basis in respect of the foregoing terms Collateral. The Loan Parties shall take any actions reasonably required by Administrative Agent to ensure and conditions, each of demonstrate that the Revolving Lenders shall assign Liens and security interests granted under the Loan Documents continue to each of be perfected under the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments UCC or otherwise after giving effect to the addition establishment of any such Incremental Revolving Commitments Facility, which actions may include reaffirming Liens and entering into supplements, amendments, restatements or replacements of the Security Documents and executing and delivering all documents, instruments and legal opinions in connection therewith reasonably requested by the Administrative Agent.
(e) Any documentation with respect to any Incremental Term Facility which differ from those with respect to the Revolving CommitmentsTerm Loans made on the Closing Date (except to the extent permitted hereunder) shall reflect terms and conditions at the time of issuance thereof as determined by the Borrower and the Administrative Agent or otherwise be reasonably acceptable to the Administrative Agent (it being understood that terms differing from those with respect to the Term Loans made on the Closing Date are acceptable if (1) the Lenders under the Term Loan Facility also receive the benefits of each term or (2) are applicable only after the Term Loan Maturity Date).
Appears in 1 contract
Incremental Facility. The (a) So long as no Event of Default under Section 8.01(a) or 8.01(f) exists or would arise therefrom, the Borrower may shall have the right, at any time on not more than four occasions and from time to time after the Closing Date but prior to the Maturity Restatement Date, by notice (i) to the Administrative Agent request new commitments under one or more new revolving facilities to be included in this Agreement (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments (such increase, the “Incremental Revolving Commitments,” ”), (ii) to increase the Existing Tranche of Commitments by requesting new Commitments be added to an Existing Tranche of Commitments (the “Supplemental Revolving 1003651351v23 Commitments”), and (iii) to request new synthetic or other letter of credit facility commitments under one or more new synthetic or other letter of credit facilities to be included in this Agreement (together with the Incremental Revolving Commitments and the loans thereunderSupplemental Revolving Commitments, the “Incremental Revolving LoansCommitments”); , provided that both that, the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.24 shall not exceed, at the time the respective Incremental Commitment becomes effective (and after giving effect to the incurrence of Indebtedness in connection therewith and the application of proceeds of any such request and upon the effectiveness Indebtedness to refinance such other Indebtedness), an amount that could then be incurred under this Agreement in compliance with Section 7.01(b)(i). Any loans made in respect of any such Incremental Commitment (other than Supplemental Revolving Commitment referred to below, no Default or Event of Default Commitments) shall exist and at the time that any Incremental Revolving Loan is be made by creating a new Tranche.
(and immediately after giving effect theretob) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice request from the Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Revolving Commitments. The Incremental Revolving Commitments (or any portion thereof) may be provided made by any existing Lender or by any other bank or other financial institution (any such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitmentinstitution, an “Additional Lender”)) subject, provided that in the case of any Incremental Revolving Commitments and Supplemental Revolving Commitments (if such Additional Lender shall be reasonably acceptable is not already a Lender hereunder or any affiliate of a Lender hereunder) to the Borrower and consent of the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed).
(c) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Supplemental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans commitments under this Agreement pursuant to a supplement specifying the Tranche of Commitments to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit H-1 (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H-2 (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. An Increase Supplement or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments to the Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.24. Upon effectiveness of the Lender Joinder Agreement, each Additional Lender shall become a Revolving Lender and be a Lender for all intents and purposes of this Agreement and the commitments made pursuant to such Supplemental Revolving Commitment shall be Commitments. Upon the effectiveness of the Increase Supplement or the Lender Joinder Agreement, as the case may be, in each case with respect to any Supplemental Revolving Commitments, outstanding Loans and/or participations in outstanding L/C Exposure of the applicable Existing Tranche, as the case may be, shall be reallocated (and the increasing Lender or joining Additional Lender, as applicable, shall make appropriate payments representing principal, with the Borrower making any necessary payments of accrued interest) so that after giving effect thereto the increasing Lender or the joining Additional Lender, as the case may be, and the other Lenders of the applicable Existing Tranche share ratably in the total Aggregate Credit Exposure in accordance with the applicable Commitments (and notwithstanding Section 10.05, no Borrower shall be liable for any amounts under Section 10.05 as a result of such reallocation). 1003651351v23
(d) Incremental Commitments (other than Supplemental Revolving Commitment and all matters relating thereto Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryDocuments, executed by the Borrower, Borrower and each Additional Lender agreeing to provide such Commitment and the Administrative AgentLender. An Incremental Commitment Amendment may, without the consent of any other LendersLender, effect such amendments to this Agreement and the other any Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent Borrower and the BorrowerAdministrative Agent, to effect the provisions and intent of this Section and 2.24, provided, however, that (i) (A) the application Incremental Commitments will not be guaranteed by any Subsidiary of the proceeds thereof. The effectiveness Borrower other than the Subsidiary Guarantors, and will be secured (any incremental loans drawn thereunder, the “Incremental Loans”) on a pari passu or (at the Borrower’s option) junior basis by the same collateral securing the Loans, (B) the Incremental Commitments and any Incremental Loans shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Loans and (II) so long as any Loans (other than Incremental Amendment shall be subject Loans) are outstanding, any mandatory prepayment provisions that do not also apply to the satisfaction Loans on a pro rata basis following the date thereof (each, occurrence of an “Incremental Facility Closing Date”) of each acceleration of the conditions set forth in Section 4.2. No Loans; (ii) no Lender shall will be obligated required to provide any such Incremental Revolving Loans, Commitment unless it so agrees. The Borrower may use ; (iii) the proceeds maturity date of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Commitments shall be no earlier than the Initial Revolving Loans. On any Incremental Facility Closing Maturity Date on which Incremental Revolving Commitments are effected(other than an earlier maturity date for customary bridge financings, which, subject to customary conditions (as determined by the satisfaction Borrower in good faith), would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date than the Initial Revolving Maturity Date); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; (v) such Incremental Commitment Amendment may provide for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the foregoing Required Lenders or of the Lenders of each Tranche hereunder and may provide class protection for any additional credit facilities; and (vi) the other terms and conditionsdocumentation in respect thereof, each of to the Revolving Lenders shall assign extent not consistent with this Agreement as in effect prior to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments Commitment Amendment, shall otherwise be reasonably satisfactory to the Revolving CommitmentsBorrower.
Appears in 1 contract
Incremental Facility. The (a) So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom, the Borrower may shall have the right, at any time on not more than four occasions and from time to time after the Closing Date but prior to the Maturity Date, by notice (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders“Incremental Term Loan Commitments”), without having and (ii) to seek consent from the Lenders, request an increase new commitments under one or more new revolving facilities to the existing Revolving Commitments be included in this Agreement (such increase, the “Incremental Revolving Commitments,” and ”) (together with the loans thereunderIncremental Term Loan Commitments, the “Incremental Revolving LoansCommitments”); , provided that, (i) either (x) after giving pro forma effect to any Incurrence or Discharge of Indebtedness on the date the applicable Incremental Commitment Amendment (as defined below) becomes effective, the Consolidated Secured Leverage Ratio shall be less than or equal to 4.75:1.00 (and the Borrower shall deliver a certificate, no later than two Business Days (or such shorter period as agreed between the Borrower and the Administrative Agent) prior to the date on which such Incremental Commitment shall become effective to the Administrative Agent certifying that both at the time Consolidated Secured Leverage Ratio shall be less than or equal to 4.75:1.00) or (y) the aggregate then outstanding principal amount of any such request the sum of all unutilized Incremental Commitments and Incremental Loans (excluding the Initial Incremental Term Loan Commitments and the Initial Incremental Term Loans incurred pursuant to the First Amendment) does not exceed $750 million, (ii) upon the effectiveness of any Incremental Revolving Commitment referred to Amendment (as defined below), no Default or Event of Default shall exist have occurred and at be continuing and (iii) the time representations and warranties set forth in Section 4 shall be true and correct in all material respects on and as of the effective date of any Incremental Commitment Amendment (although any representations and warranties that expressly relate to a given date shall be required only to be true and correct in all material respects as of the respective date or the respective period, as the case may be). Any loans made in respect of any such Incremental Commitment shall be made by creating a new Tranche; provided that any Incremental Revolving Loan is made Term Loans may, to the extent provided in the applicable Incremental Commitment Amendment, be designated as an increase in Initial Incremental Term Loans.
(and immediately after giving effect theretob) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice request from the Borrower pursuant to this Section subsection 2.5 shall set forth the requested amount and proposed terms of the relevant Incremental Revolving Commitments. The Incremental Revolving Commitments (or any portion thereof) may be provided made by any existing Lender or by any other bank or other financial institution (any such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitmentinstitution, an “Additional Lender”)) subject, provided that in the case of any Incremental Revolving Commitments (if such Additional Lender shall be reasonably acceptable is not already a Lender hereunder or any affiliate of a Lender hereunder) to the Borrower and consent of the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed).
(c) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans commitments under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryDocuments, executed by the Borrower, Borrower and each Additional Lender agreeing to provide such Commitment and the Administrative AgentLender. An Incremental Commitment Amendment may, without the consent of any other LendersLender, effect such amendments to this Agreement and the other any Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent Borrower and the BorrowerAdministrative Agent, to effect the provisions and intent of this Section and subsection 2.5, provided, however, that (i) (A) the application Incremental Commitments will not be guaranteed by any Subsidiary of the proceeds thereof. The effectiveness Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same collateral securing the Loans, (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Incremental Amendment shall be subject Loan Party that do not also secure the Loans and (II) any mandatory prepayment provisions that do not also apply to the satisfaction Term Loans on the date thereof a pro rata basis, so long as any Term Loans are outstanding; (each, an “Incremental Facility Closing Date”ii) of each of the conditions set forth in Section 4.2. No no Lender shall will be obligated required to provide any such Incremental Revolving Loans, Commitment unless it so agrees. The Borrower may use ; (iii) the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition maturity date of such Incremental Revolving Commitments shall be no earlier than the Term Loan Maturity Date; (iv) the weighted average life to maturity of all Incremental Term Loans of any Tranche shall be no shorter than the weighted average life to maturity of the Term Loans; (v) interest rate margins applicable to the Revolving Commitments.loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan
Appears in 1 contract
Samples: Credit Agreement (Trans-Porte, Inc.)
Incremental Facility. The Borrower may at (a) At any time on not more than four occasions after the Closing Date but during the Commitment Period (in the case of a Revolving Commitment Increase) or any time after the Closing Date and prior to the Term Loan Maturity DateDate (in the case of an Incremental Term Facility), by notice the Borrower may request (but subject, in each case, to the Administrative Agent conditions set forth in clause (whereupon b) below) (x) the Administrative Agent shall promptly deliver Revolving Commitments be increased (or, solely in connection with a copy Limited Condition Acquisition, a separate tranche of Revolving Commitments may be created) by an amount not to exceed the Available Incremental Amount (each of such increase, a “Revolving Commitment Increase”) and/or (y) the Lenders), without having to seek consent from the Lenders, request Lenders establish an incremental term loan facility (which may be an increase to the existing Term Facility) under this Agreement in an aggregate principal amount not to exceed the Available Incremental Amount (each such facility, an “Incremental Term Facility” and, together with any Revolving Commitments (such increaseCommitment Increase, the “Incremental Facilities”). No Lender shall be obligated to participate in an Incremental Facility. Any Incremental Facility shall be in an amount of at least $10,000,000 (or, if the Available Incremental Amount is less than $10,000,000, such remaining Available Incremental Amount) and integral multiples of $1,000,000 in excess thereof. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of Incremental Facilities exceed the Available Incremental Amount during the term of the Agreement. If the Borrower incurs indebtedness under an Incremental Facility under the Fixed Incremental Amount prong of the Available Incremental Amount on the same date that it incurs indebtedness under the Ratio Incremental Amount prong of the Available Incremental Amount and/or that it incurs Revolving Commitments,” and Loans, then the loans thereunderConsolidated Net Leverage Ratio (and, following a Junior Debt Incurrence Event, the “Consolidated Senior Net Leverage Ratio) will be calculated with respect to such incurrence under the Ratio Incremental Amount without regard to any incurrence of indebtedness under the Fixed Incremental Amount or any incurrence of Revolving Loans”); provided that both . Unless the Borrower elects otherwise, each Incremental Facility will be deemed incurred first under the Ratio Incremental Amount to the extent permitted, with the balance incurred under the Fixed Incremental Amount. The Borrower may, in its sole discretion, at the time of incurrence of any such request and upon Incremental Facility, or at any later time, divide, classify or reclassify, any Incremental Facility incurred as Fixed Incremental Amount as an Incremental Facility incurred as Ratio Incremental Amount.
(b) Each of the following shall be conditions precedent to the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made Facility:
(and immediately after giving effect theretoi) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant shall have delivered an irrevocable written request to this Section shall set forth the Administrative Agent for such Incremental Facility at least ten (10) Business Days prior to the requested amount effective date of such Incremental Facility (or such shorter period as agreed to by the Administrative Agent), and promptly after receipt thereof, the Administrative Agent shall invite each Lender to provide the Incremental Revolving Commitments. Facility ratably in accordance with its Aggregate Exposure Percentage of each requested Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution Facility (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided it being agreed that such Additional no Lender shall be reasonably obligated to provide an Incremental Facility and that any Lender may elect to participate in such Incremental Facility in an amount that is less than its Aggregate Exposure Percentage of such requested Incremental Facility or more than its Aggregate Exposure Percentage of such requested Incremental Facility if other Lenders have elected not to participate in any applicable requested Incremental Facility in accordance with their Aggregate Exposure Percentages) and to the extent five (5) Business Days after receipt of invitation, sufficient Lenders do not agree to provide the Incremental Facility on terms acceptable to the Borrower, then the Borrower may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Lender in connection with the proposed Incremental Facility;
(ii) each Lender agreeing to participate in any such Incremental Facility, the Borrower and the Administrative Agent shall have consented signed an Incremental Joinder (such any Incremental Joinder may, with the consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An , the Borrower and the Lenders agreeing to such Incremental Amendment may, without the consent of any other LendersFacility, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, necessary or appropriate to effect effectuate the provisions and intent of this Section 2.27) and the application Borrower shall have executed any Notes requested by any Lender in connection with the incurrence of the proceeds thereofIncremental Facility. The effectiveness Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, an Incremental Joinder reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby, shall not require the consent of any Lender other than the Lender(s) agreeing to fund such Incremental Amendment shall be Facility;
(iii) subject to the satisfaction on provisions of Section 1.5 to the date thereof (eachextent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence of such Incremental Facility, an “Incremental Facility Closing Date”) of each of the conditions precedent set forth in Section 4.2. No Lender shall be obligated 5.2(a) and (e) are satisfied; provided that, to provide the extent agreed to by the Lenders providing any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Facility, the condition set forth in Section 5.2(a) may be satisfied with (x) the accuracy of customary “specified representations” and “acquisition agreement representations” and (y) such other limitations or exceptions to representations and warranties as may be agreed by the lenders providing such Incremental Facility); provided further that the condition set forth in Section 5.2(e) may be satisfied, if agreed by the lenders providing such Incremental Facility, so long as no Default or Event of Default pursuant to Section 8.1(a) or (f) has occurred or is continuing;
(iv) after giving pro forma effect to such Incremental Facility Closing Date on which Incremental Revolving Commitments are effectedand the use of proceeds thereof, subject to the satisfaction provisions of Section 1.5 to the extent an LCA Election has been made with respect to any Permitted Acquisition corresponding to the incurrence of such Incremental Facility, the Borrower shall be in compliance with the then applicable financial covenants set forth in Section 7.1 hereof as of the foregoing terms and conditions, each end of the Revolving Lenders shall assign most recently ended quarter for which financial statements are required to each be delivered prior to the incurrence of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by (without netting the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition proceeds of such Incremental Facility from the calculation of the Consolidated Net Leverage Ratio (or, following a Junior Debt Incurrence Event, from the calculation of the Consolidated Senior Net Leverage Ratio) and in the case of a Revolving Commitments to Commitment Increase, assuming the Revolving Commitments.Facility was fully drawn); provided that, (A) prior to a Junior Debt Incurrence Eventthe March 31, 2024, Financial Statement Delivery Date, the Consolidated Net Leverage Ratio shall not be greater than 0.25x less than the covenant set forth in Section 7.1(b) for such period and (B) from and after a Junior Debt Incurrence Eventthe March 31, 2024,
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Incremental Facility. The Borrower may at any time on not more than four occasions after the Closing Date but prior to the Maturity Date, by (a) Upon notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of notify the Lenders), without having at any time after the Closing Date, the Borrower may from time to seek consent from time request (i) additional commitments under the LendersTerm Facility (each an “Incremental Term Commitment” and all of them, request an increase to the existing Revolving Commitments (such increasecollectively, the “Incremental Term Commitments”) and/or (ii) increases in the aggregate amount of the Revolving Commitments (each such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Commitments,” and the loans thereunder, the “Incremental Revolving LoansCommitments”); provided that (x) both at the time of before and after giving effect to any such request addition(s), the aggregate amount of Incremental Commitments that have been added pursuant to this Section 2.14 after the Closing Date shall not exceed $100,000,000, (y) any such addition or increase shall be in an amount of not less than $10,000,000 and upon (z) there shall be not more than three (3) such increases after the effectiveness Closing Date.
(b) Any Loans made in respect of any Incremental Revolving Commitments shall be made by increasing the Total Revolving Commitment referred to belowwith the same terms (including pricing) as the existing Revolving Loans (each, no Default or Event a “Revolving Commitment Increase”). Any Loans made in respect of Default shall exist and any Incremental Term Commitments (the “Incremental Term Loans”) may be made, at the time that any option of the Borrower, by either (i) issuing a commitment to make term loans with the same terms (including pricing) as the existing Term Loans, or (ii) creating a new tranche of terms loans (an “Incremental Term Loan Tranche”). Any Revolving Loan is made Commitment Increases or Incremental Term Loans (and immediately after giving effect theretoA) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. have a final maturity earlier than the Revolving Facility Final Maturity Date or Term Facility Final Maturity Date or a weighted average life which is shorter than the then remaining average life of the Term Loans, as the case may be, (B) shall rank pari passu in right of payment and of security (including Guaranties) with the Revolving Loans and the Term Loans and (C) shall have such other terms and provisions, to the extent not consistent with the Revolving Loans or the Term Loans, as the case may be, as are reasonably satisfactory to the Joint Lead Arrangers.
(c) Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the Incremental Revolving Commitments. Incremental Revolving Commitments Term Loans (or any portion thereof) may be provided made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank bank, financial institution or other investing entity (any such bank, financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitmentinvesting entity, an “Additional Incremental Lender”), provided that such Additional Lender shall be in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Borrower and Administrative Agent, provided that the Administrative Agent (and, in the case of a Revolving Commitment Increase, the Letter of Credit Issuer and the Swingline Lender) shall have consented (such consent not to be unreasonably withheld or delayedwithheld) to such Additional Lender’s 's or Incremental Lender's, as the case may be, making such Incremental Term Loans or providing such Incremental Revolving Commitment, Commitment Increase if such consent would be required under Section 9.6 12.4 for an assignment of Commitments Loans or Revolving Commitments, as applicable, to such Additional Lender or Incremental Lender, as the case may be. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. Any Incremental Commitments shall become Commitments (or in the case of any Revolving Commitments under this AgreementCommitment Increase to be provided by an existing Revolving Lender, Incremental an increase in such Revolving Loans shall become Lender's Revolving Loans Commitment) under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryCredit Documents, executed by the Borrower, each Additional Lender agreeing to provide such Commitment Commitment, if any, each Incremental Lender, if any, and the Administrative Agent. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14. At the time of the sending of such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Lenders). Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to provide an Incremental Commitment and, if so, whether by an amount equal to, greater than, or less than its pro rata share of such requested increase (which shall be calculated on the basis of the amount of the funded and unfunded exposure under all the Facilities held by each Lender). Any Lender not responding within such time period shall be deemed to have declined to provide an Incremental Commitment. The Administrative Agent shall notify the Borrower and each Lender of the Lenders' responses to each request made hereunder. To achieve the full amount of a requested increase, the Borrower may, after first offering such increase to the existing Lenders as provided above, invite Incremental Lenders to become Lenders pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) If any Incremental Commitments are added in accordance with this Section 2.14, the Administrative Agent and the Borrower shall determine the effective date (the “Incremental Commitments Effective Date”) and the final allocation of such addition; provided, that any existing Lender electing to participate in the proposed Incremental Commitments shall have the right to participate in the proposed increase or addition on a pro rata basis in accordance with such Lender’s Revolving Commitment (in the case of an increase of the Revolving Commitments) or the outstanding Term Loans held by such Lender (in the case of Incremental Term Commitments) as of the Business Day prior to the Incremental Commitments Effective Date. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such addition and the Incremental Commitments Effective Date. As a condition precedent to such addition, the Borrower shall deliver to the Administrative Agent (i) a pro forma Compliance Certificate after giving effect to such addition and (ii) a certificate of the Borrower dated as of the Incremental Commitments Effective Date signed by an Authorized Officer of the Borrower certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Section 7 and the other Credit Documents are true and correct in all material respects on and as of the Incremental Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, (B) no Default or Event of Default exists before or after giving effect to such addition and (C) all conditions set forth in Section 6.2 are satisfied as of such date. On each Incremental Commitments Effective Date, each Lender or Incremental Lender which is providing an Incremental Commitment (x) shall become a “Lender” for all purposes of this Agreement and the other Credit Documents, (y) shall have, as applicable, an Incremental Term Commitment and/or an Incremental Revolving Commitment which shall become “Commitments” hereunder and (z) in the case of an Incremental Term Commitment, shall make an Incremental Term Loan to the Borrower in a principal amount equal to such Incremental Term Commitment, and such Incremental Term Loan shall be a “Term Loan” for all purposes of this Agreement and the other Credit Documents as (except that the interest rate applicable to any Incremental Term Loan under an Incremental Term Loan Tranche may be necessarydifferent).
(e) Upon each Revolving Commitment Increase pursuant to this Section 2.14, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each existing Revolving Lender, if any, and each Incremental Lender, if any, in the reasonable opinion each case providing a portion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof such Revolving Commitment Increase (each, each an “Incremental Facility Closing DateRevolving Lender”) of ), and each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Commitments are effected, subject to the satisfaction Lender's risk participation hereunder in outstanding Letters of the foregoing terms Credit and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), Swingline Loans such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be Commitment Increase and each such deemed assignment and assumption of such risk participations, the percentage of the aggregate outstanding (A) risk participations hereunder in Letters of Credit and (B) risk participations in Swingline Loans, in each case, held by each Revolving Lender (including each such Incremental Revolving Lender) will equal such Revolving Lender's pro rata share of the existing outstanding Revolving Lenders and Additional Lenders ratably in accordance with their Loans based on each such Revolving Commitments Lender's Revolving Percentage immediately after giving effect to such Revolving Commitment Increase and (ii) if, on the addition date of such Revolving Commitment Increase, there are any Revolving Loans outstanding, the Administrative Agent shall take those steps which it deems, in its sole discretion, necessary and appropriate to result in each Revolving Lender (including each Incremental Revolving Commitments Lender) having a pro rata share of the outstanding Revolving Loans based on each such Revolving Lender's Revolving Percentage immediately after giving effect to such Revolving Commitment Increase, provided that any prepayment made in connection with the taking of any such steps shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the Revolving Commitmentsimmediately preceding sentence.
(f) This Section 2.14 shall supersede any provisions in Section 12.12 to the contrary.
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Samples: Credit Agreement (Air Transport Services Group, Inc.)
Incremental Facility. The (a) So long as no Specified Default exists or would arise therefrom, the Borrower may Representative shall have the right, at any time on not more than four occasions and from time to time after the Closing Date but prior (i) to increase the Maturity Date, existing Commitments by notice requesting new Commitments to be added to an Existing Tranche of existing Commitments (the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders“Supplemental Commitments”), without having (ii) to seek consent from the Lenders, request an increase new Commitments under one or more new revolving facilities to the existing Revolving Commitments be included in this Agreement (such increase, the “Incremental Revolving Commitments,”) or (iii) one or more term loans (the “Incremental ABL Term Loans” and together with the loans thereunderSupplemental Commitments and Incremental Revolving Commitments, collectively, the “Incremental Revolving LoansFacilities” and each, an “Incremental Facility”); provided that both . Notwithstanding anything to contrary herein, the principal amount of any Incremental Facility at the time of any such request and upon the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments Facility becomes effective shall not exceed $50,000,000the Available Incremental Amount at such time. Each notice The Borrower Representative may seek to obtain Incremental Facilities from the Borrower pursuant to this Section shall set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank Lenders or other financial institution Persons, as applicable (such existing each an “Incremental Facility Increase,” and each Person extending, or Lender or other bank or other financial institution providing an extending, Incremental Revolving CommitmentFacilities, an “Additional Lender”), provided provided, however, that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayedi) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No no Lender shall be obligated to provide an Incremental Facility Increase as a result of any such request by the Borrower Representative and (ii) any Additional Lender that is not an existing Lender shall be subject to the approval of the Administrative Agent and, in the case of any Incremental Revolving LoansCommitments or Supplemental Commitments, unless it so agreesthe Swingline Lender and the Borrowers (each such approval not to be unreasonably withheld, conditioned or delayed). The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Each Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction Increase shall be in a minimum aggregate amount of the foregoing terms at least $15,000,000 and conditions, each in integral multiples of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests $5,000,000 in the Revolving Loans outstanding on such excess thereof. Any Incremental Facility Closing Date as shall Increase may be necessary denominated in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving CommitmentsDollars.
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Incremental Facility. The (a) Subject to and upon the terms and conditions set forth herein, each Incremental Tranche A Term Lender severally agrees to make, on the Incremental Effective Date (as defined below), an Incremental Tranche A Term Loan in dollars to the Parent Borrower may at any time on not more than four occasions after in an amount equal to the Closing Date but commitment amount set forth next to such Incremental Tranche A Term Lender’s name in Schedule I hereto under the caption “Incremental Tranche A Term Commitment”; provided that the Incremental Tranche A Term Loans shall each constitute the same Class of Tranche A Term Loans under the Credit Agreement as the Tranche A Term Loans made prior to the Maturity Date, by notice to the Administrative Agent date hereof (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments (such increase, the “Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving Existing Tranche A Term Loans”); provided that both at . Except as necessary to give effect to the time provisions of any such request and upon the effectiveness of any Incremental Revolving Commitment referred to clauses (b) through (i) below, no Default or Event of Default the Incremental Tranche A Term Loans shall exist be “Loans”, “Term Loans”, “Tranche A Term Loans” and at the time that any “Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of Term Loans” for all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount purposes of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Credit Agreement and the other Loan Documents as Documents. The Incremental Tranche A Term Loans may be necessary, repaid or prepaid in accordance with the reasonable opinion provisions of the Administrative Agent Credit Agreement and the Borrowerthis Agreement, to effect the provisions and intent of this Section and the application but once repaid or prepaid may not be reborrowed.
(b) The proceeds of the proceeds thereof. The effectiveness of any Incremental Amendment Tranche A Term Loans shall be subject used solely (i) to pay in part the satisfaction on purchase price for the date thereof Acquisition (eachas defined below), an (ii) to finance the refinancing or repayment (the “Incremental Facility Closing DateRefinancing”) of each certain existing Indebtedness of the conditions set forth in Section 4.2. No Lender shall be obligated Target (as defined below) and its Subsidiaries and (iii) to provide any Incremental Revolving Loanspay the fees, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed costs and expenses incurred in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effectedthe Acquisition, subject to the satisfaction Refinancing and the incurrence of the Incremental Tranche A Term Loans (the foregoing terms and conditionstransactions, each the “Transactions”).
(c) The aggregate principal amount of the Revolving Lenders shall assign to each of Incremental Tranche A Term Loans made on the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments$275,000,000.
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Incremental Facility. The Borrower may at any time on not more than four occasions after the Closing Date but prior to the Maturity Date, by (a) Upon notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of notify the Lenders), without having at any time after the Closing Date, the Borrower may from time to seek consent from time request (i) additional Commitments under the LendersTerm Facility (each an “Incremental Term Commitment” and all of them, request an increase to the existing Revolving Commitments (such increasecollectively, the “Incremental Term Commitments”) or (ii) increases in the aggregate amount of the Revolving Commitments (each such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Commitments,” and the loans thereunder, the “Incremental Revolving LoansCommitments”); provided that (x) both at the time of any such request before and upon the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The to any such addition, the aggregate amount of all Incremental Revolving Commitments that have been added pursuant to this shall not exceed $50,000,000, (y) any such addition or increase shall be in an amount of not less than $10,000,000 and (z) there shall be not more than three (3) such increases.
(b) Any Loans made in respect of any Incremental Revolving Commitments shall be made by increasing the Total Revolving Commitment with the same terms (including pricing) as the existing Revolving Loans (each, a “Revolving Commitment Increase”). Any Loans made in respect of any Incremental Term Commitments (the “Incremental Term Loans”) may be made, at the option of the Borrower, by either (i) increasing the Total Term Commitment with the same terms (including pricing) as the existing Term Loans, or (ii) creating a new tranche of terms loans (an “Incremental Term Loan Tranche”). Any Revolving Commitment Increases or Incremental Term Loans (A) shall not have a final maturity earlier than the Revolving Facility Final Maturity Date or Term Facility Final Maturity Date or a weighted average life which is shorter than the then remaining average life of the Term Loans, as the case may be, (B) shall rank pari passu in right of payment and of security (including Guaranties) with the Revolving Loans and the Term Loans and (C) shall have such other terms and provisions, to the extent not consistent with the Revolving Loans or the Term Loans, as the case may be, as are reasonably satisfactory to the Joint Lead Arrangers.
(c) Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the Incremental Revolving Commitments. Incremental Revolving Commitments Term Loans (or any portion thereof) may be provided made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank bank, financial institution or other investing entity (any such bank, financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitmentinvesting entity, an “Additional Incremental Lender”), provided that such Additional Lender shall be in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Borrower and Administrative Agent, provided that the Administrative Agent (and, in the case of a Revolving Commitment Increase, the Letter of Credit Issuer and the Swingline Lender) shall have consented (such consent not to be unreasonably withheld or delayedwithheld) to such Additional Lender’s 's or Incremental Lender's, as the case may be, making such Incremental Term Loans or providing such Incremental Revolving Commitment, Commitment Increase if such consent would be required under Section 9.6 12.4 for an assignment of Commitments Loans or Revolving Commitments, as applicable, to such Additional Lender or Incremental Lender, as the case may be. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. Any Incremental Commitments shall become Commitments (or in the case of any Revolving Commitments under this AgreementCommitment Increase to be provided by an existing Revolving Lender, Incremental an increase in such Revolving Loans shall become Lender's Revolving Loans Commitment) under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryCredit Documents, executed by the Borrower, each Additional Lender agreeing to provide such Commitment Commitment, if any, each Incremental Lender, if any, and the Administrative Agent. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14. At the time of the sending of such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Lenders). Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to provide an Incremental Commitment and, if so, whether by an amount equal to, greater than, or less than its pro rata share of such requested increase (which shall be calculated on the basis of the amount of the funded and unfunded exposure under all the Facilities held by each Lender). Any Lender not responding within such time period shall be deemed to have declined to provide an Incremental Commitment. The Administrative Agent shall notify the Borrower and each Lender of the Lenders' responses to each request made hereunder. To achieve the full amount of a requested increase, the Borrower may, after first offering such increase to the existing Lenders as provided above, invite Incremental Lenders to become Lenders pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) If any Incremental Commitments are added in accordance with this Section 2.14, the Administrative Agent and the Borrower shall determine the effective date (the “Incremental Commitments Effective Date”) and the final allocation of such addition; provided, that any existing Lender electing to participate in the proposed Incremental Commitments shall have the right to participate in the proposed increase or addition on a pro rata basis in accordance with such Lender’s Revolving Commitment (in the case of an increase of the Revolving Commitments) or the outstanding Term Loans held by such Lender (in the case of Incremental Term Commitments) as of the Business Day prior to the Incremental Commitments Effective Date. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such addition and the Incremental Commitments Effective Date. As a condition precedent to such addition, the Borrower shall deliver to the Administrative Agent (i) a pro forma Compliance Certificate after giving effect to such addition and (ii) a certificate of the Borrower dated as of the Incremental Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Section 7 and the other Credit Documents are true and correct in all material respects on and as of the Incremental Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, (B) no Default or Event of Default exists before or after giving effect to such addition and (C) all conditions set forth in Section 6.2 are satisfied as of such date. On each Incremental Commitments Effective Date, each Lender or Incremental Lender which is providing an Incremental Commitment (x) shall become a “Lender” for all purposes of this Agreement and the other Credit Documents, (y) shall have, as applicable, an Incremental Term Commitment and/or an Incremental Revolving Commitment which shall become “Commitments” hereunder and (z) in the case of an Incremental Term Commitment, shall make an Incremental Term Loan to the Borrower in a principal amount equal to such Incremental Term Commitment, and such Incremental Term Loan shall be a “Term Loan” for all purposes of this Agreement and the other Credit Documents as (except that the interest rate applicable to any Incremental Term Loan under an Incremental Term Loan Tranche may be necessarydifferent).
(e) Upon each Revolving Commitment Increase pursuant to this Section 2.14, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each existing Revolving Lender, if any, and each Incremental Lender, if any, in the reasonable opinion each case providing a portion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof such Revolving Commitment Increase (each, each an “Incremental Facility Closing DateRevolving Lender”) of ), and each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Commitments are effected, subject to the satisfaction Lender's risk participation hereunder in outstanding Letters of the foregoing terms Credit and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), Swingline Loans such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be Commitment Increase and each such deemed assignment and assumption of such risk participations, the percentage of the aggregate outstanding (A) risk participations hereunder in Letters of Credit and (B) risk participations in Swingline Loans, in each case, held by each Revolving Lender (including each such Incremental Revolving Lender) will equal such Revolving Lender's pro rata share of the existing outstanding Revolving Lenders and Additional Lenders ratably in accordance with their Loans based on each such Revolving Commitments Lender's Revolving Percentage immediately after giving effect to such Revolving Commitment Increase and (ii) if, on the addition date of such Revolving Commitment Increase, there are any Revolving Loans outstanding, the Administrative Agent shall take those steps which it deems, in its sole discretion, necessary and appropriate to result in each Revolving Lender (including each Incremental Revolving Commitments Lender) having a pro rata share of the outstanding Revolving Loans based on each such Revolving Lender's Revolving Percentage immediately after giving effect to such Revolving Commitment Increase, provided that any prepayment made in connection with the taking of any such steps shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the Revolving Commitmentsimmediately preceding sentence.
(f) This Section 2.14 shall supersede any provisions in Section 12.12 to the contrary.
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Samples: Credit Agreement (Air Transport Services Group, Inc.)
Incremental Facility. (a) The Borrower may at any from time on not more than four occasions after the Closing Date but prior to time amend this Agreement in order to provide to the Maturity DateBorrower additional revolving loan facilities and/or increased revolving commitments in respect of the Revolving Facility or any other existing revolving facility hereunder (each, by notice an “Incremental Revolving Facility”) and additional term loan facilities hereunder (each, an “Incremental Term Facility”; together with any Incremental Revolving Facility, the “Incremental Facilities”), provided that (i) the aggregate principal amount of the Incremental Facilities shall not exceed $50,000,000, (ii) each Incremental Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 7.1 after giving effect to the incurrence of such Incremental Facility, such compliance to be determined (x) on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(a) or (whereupon the Administrative Agent shall promptly deliver a copy to each b) as though such incurrence had been consummated as of the Lenders)first day of the fiscal period covered thereby, without having to seek consent from the Lenders(y) assuming, request if such Incremental Facility is an increase to the existing Revolving Commitments (such increase, the “Incremental Revolving Commitments,” and the loans thereunderFacility, the “such Incremental Revolving Loans”); provided that both Facility is fully drawn as of such date and (z) disregarding the proceeds of such Incremental Facility in calculating such financial covenant and (iv) at the time of any such request and upon after giving effect to the effectiveness incurrence of any Incremental Revolving Commitment referred to belowFacility and the use of proceeds thereof, no Default or Event of Default shall exist have occurred and at be continuing. The Loans and Commitments in respect of any Incremental Facility and all obligations in respect thereof shall be Obligations under this Agreement and the time other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Each Incremental Term Facility must have a weighted average life to maturity which is the same or longer than the then remaining weighted average life to maturity of the Term Facility and a final maturity no earlier than the Final Maturity Date. Incremental Facilities will be entitled to prepayments and voting rights on the same basis as the comparable Facility unless the applicable Incremental Facility Amendment specifies a lesser treatment. Each Incremental Revolving Facility shall have a final maturity no earlier than the Final Revolving Termination Date. The terms of the applicable Incremental Facility shall be as set forth in the applicable Incremental Facility Amendment; provided that (i) other than amortization (with respect to any Incremental Term Facility), pricing or maturity date, each Incremental Facility shall have the same terms as the Term Facility or the Revolving Facility, as applicable, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower, (ii) no Incremental Revolving Facility shall have any amortization and (iii) if, for any Incremental Facility, the Applicable Margin (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (equated to interest based on an assumed four-year life to maturity) payable to all Lenders providing such Incremental Facility and any Eurodollar or ABR floor applicable to such Incremental Facility but excluding any ticking fees, arrangement fees and other fees not paid to the makers of such loans generally) relating to such Incremental Facility exceeds the Applicable Margin (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (equated to interest based on an assumed four-year life to maturity) payable to all Lenders providing the Term Facility or the Revolving Facility, as applicable, and any Eurodollar or ABR floor applicable to the Term Facility or the Revolving Facility, as applicable) relating to the Term Facility or the Revolving Facility, as applicable, immediately prior to the effectiveness of such Incremental Facility by more than 0.25%, the Applicable Margin (as calculated above) relating to the Term Facility or the Revolving Facility, as applicable, shall be adjusted to be equal to the Applicable Margin (as calculated above) relating to such Incremental Facility minus 0.25% (it being understood that differences in any Eurodollar or ABR floor, if required to be adjusted pursuant to the foregoing, shall be added to the Eurodollar or ABR floor to the extent required and not to the Applicable Margin). In the case of any Incremental Revolving Loan Facility that increases the commitments under the Revolving Facility or any other existing revolving credit facility hereunder, the manner in which such increase is made implemented shall be reasonably satisfactory to the Administrative Agent. At no time shall there be Revolving Commitments hereunder (and immediately after giving effect thereto) no Default or Event including revolving commitments in respect of Default shall exist. The aggregate amount of all any Incremental Revolving Facility, Extended Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the Incremental and any original Revolving Commitments) that have more than four different maturity dates.
(b) An Incremental Facility shall be made available hereunder upon delivery to the Administrative Agent of notice thereof executed by the Borrower. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other Any additional bank, financial institution (such institution, existing Lender or other bank Person that elects to extend loans or commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower (any such bank, financial institution, existing Lender or other financial institution providing an Incremental Revolving Commitment, Person being called an “Additional Lender”)) and, provided that such Additional Lender if not already a Lender, shall (i) be reasonably acceptable subject to the Borrower and the Administrative Agent shall have consented consent (such consent not to be unreasonably withheld or delayed) of the Administrative Agent, the Issuing Lender and/or the Swingline Lender (to such Additional Lender’s providing such Incremental Revolving Commitment, if the extent such consent would be required under Section 9.6 for with respect to an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall Lender pursuant to Section 10.6) and (ii) become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans a Lender under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryDocuments, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facility shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions and intent of this Section and (including to provide for voting provisions applicable to the application of the proceeds thereofAdditional Lenders). The effectiveness of any Incremental Facility Amendment shall shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees5.2. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by used only for general corporate purposes (including, for the existing Revolving Lenders avoidance of doubt, Permitted Acquisitions and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitmentsother Investments and Restricted Payments).
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Incremental Facility. The Borrower may at any time on not more than four occasions after (a) After the Closing Date but prior and subject to the Maturity Dateterms and conditions of this Agreement, the Borrower may request an Incremental Facility Commitment on any Business Day in the form of (i) one or more new Term Loan facilities and/or (ii) an increase in the existing Term Loan by sending notice thereof to the Administrative Agent for distribution to the Lenders; provided, however, (whereupon A) the aggregate principal amount of any Incremental Facility Loan during the term of this Agreement shall not exceed the Incremental Facility Amount, (B) after giving effect on a Pro Forma Basis to such Incremental Facility Loan and any Permitted Acquisition or Investment made with the proceeds thereof, the Consolidated Total Net Leverage Ratio shall be less than the maximum amount permitted pursuant to Section 7.8(a), (C) the Borrower may not request an Incremental Facility Commitment after the occurrence and during the continuance of an Event of Default, including, without limitation, any Event of Default that would result after giving effect to any Incremental Facility Loan and the anticipated use of proceeds thereof (unless the Lenders providing such Incremental Facility Loan otherwise agree), (D) (1) each request for an Incremental Facility Commitment shall be in a minimum principal amount of $5,000,000 and (2) on the effective date of the requested Incremental Facility Commitment (after giving effect thereto and the use of proceeds thereof) the aggregate principal amount of the outstanding Incremental Facility Loans shall not exceed the Incremental Facility Amount, (E) the maturity date for Incremental Facility Loans shall not be earlier than the date certain set forth in the definition of Term Loan Maturity Date, (F) the Weighted Average Life to Maturity of any Incremental Facility Loan shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans and (G) except as set forth in this Section 2.17 with respect to maturity, amortization and all-in yield, any Incremental Facility Loans shall have the same terms as the existing Term Loans or shall have terms that are not more restrictive to the Borrower and its Subsidiaries than the terms applicable to the existing Term Loans. Any Incremental Facility Commitment shall be governed by the related Notice of Incremental Facility Commitment, this Agreement and the other Loan Documents. The Borrower may seek commitments in respect of the Incremental Facility Commitments from existing Lenders and other lenders reasonably satisfactory to the Administrative Agent. The decision of any Lender to provide an Incremental Facility Commitment to the Borrower shall be at such Lender’s sole discretion and shall be made in writing. No Lender shall have an obligation to participate in any Incremental Facility Commitment. Amendments to this Agreement that are required to give effect to an Incremental Facility shall only require the consent of the Borrower and Administrative Agent, except to the extent that a specific Lender’s consent is otherwise required with respect to an issuance by such Lender of any Incremental Facility Commitment.
(b) Prior to the effectiveness of an Incremental Facility Commitment, the Borrower shall (i) deliver to the Administrative Agent shall promptly deliver for distribution to the Lenders a copy Notice of Incremental Facility Commitment in substantially the form of Exhibit F attached hereto and (ii) provide revised Projections to each the Administrative Agent upon the reasonable request of the Administrative Agent, which shall be in substantially the same form as the Projections delivered to the Administrative Agent prior to the Closing Date and which shall set forth the Consolidated Total Net Leverage Ratio, after giving effect to such Incremental Facility Commitment (and the anticipated use of proceeds thereof). The Incremental Facility Commitment and each Loan made under the Incremental Facilities shall be in the form of and constitute an Advance that shall be made subject to all of the terms and conditions contained in this Agreement (including, without limitation, the conditions set forth in Section 3.2, except as otherwise provided in this Section 2.17) applicable to, and shall constitute and comprise a portion of, the Loans and Obligations and, except as otherwise provided in this Section 2.17, shall be on terms substantially consistent with, and no more favorable than, those applicable to the Term Loans.
(c) No Incremental Facility Commitment or Incremental Facility Loan shall by itself result in any reduction of the Revolving Commitment, Term Loan Commitment, Revolving Commitment Ratio or Term Loan Commitment Ratio of the Lender making such Incremental Facility Commitment.
(d) Incremental Facility Loans (i) subject to Section 2.17(a), shall be repaid as agreed to by the Borrower and the Lenders making such Incremental Facility Loans; (ii) shall for all purposes be Loans and Obligations hereunder and under the Loan Documents; (iii) shall, if requested by a Lender providing an Incremental Facility Commitment, be represented by Incremental Facility Notes in substantially the form of Exhibit F attached hereto; and (iv) shall rank pari passu with the other Loans for purposes of Sections 2.10 and 8.2.
(e) Subject to Section 2.17(a), unless otherwise agreed by the Credit Parties and the Administrative Agent, Incremental Facility Loans shall be subject to the pricing, interest rate and amortization provisions of this Agreement then applicable to Term Loans; provided, the interest rate margins (excluding arrangement, commitment, structuring and underwriting fees and amendment fees and other similar fees, in each case, not generally shared with other Lenders), without having upfront fees, original issue discount (calculated based on a four (4) year life to seek consent from maturity) and the LendersLIBOR floor, request if any, applicable to an Incremental Facility Loan shall not be greater than the highest margin that may, under any circumstances (other than in the case of the Default Rate), be payable with respect to the Loans, upfront fees, original issue discount and LIBOR floor, (provided, that such differential between interest rate floors will be equated to the applicable all-in-yield for purposes of determining whether an increase to the existing Revolving Commitments (interest rate under the initial Term Loan will be required, but only to the extent an increase in the interest rate floor in the initial Term Loan would cause an increase in the interest rate then in effect thereunder, and in such increasecase, the “interest rate floor (but not the interest rate margin) applicable to the initial Term Loan will be increased to the extent of such differential between interest rate floors if any, payable with respect to the Term Loans) plus 0.50% per annum, unless the interest rate with respect to the preexisting Loans is increased so as to be equal to the interest rate applicable to the applicable Incremental Revolving Commitments,” Facility Loan minus 0.50% per annum. Upon the making of an Incremental Facility Loan, such Loans shall for all purposes be deemed to be Term Loans hereunder.
(f) Incremental Facility Loans shall be requested by the Borrower pursuant to a request (which shall be in substantially the form of a Request for Advance) delivered in the same manner as a Request for Advance, but shall be funded pro rata only by those Lenders or Persons holding the related Incremental Facility Commitment, as applicable.
(g) Each of the Credit Parties and the loans thereunderLenders shall execute and deliver such agreements, documents and instruments reasonably requested by Administrative Agent to effectuate all of the “Incremental Revolving Loans”)foregoing provisions of this Section 2.17; provided that, any opinion of counsel requested by the Administrative Agent in connection with an Incremental Facility Commitment may contain the qualification that both no opinion is given with respect to the most favored nations provision set forth in clause (e) above.
(h) Notwithstanding anything to the contrary herein, if the proceeds of any Incremental Facility Loans will be used to consummate a Permitted Acquisition and the Borrower so elects and the Lenders providing such Incremental Facility Loan so agree, (x) in clause (a)(B) above shall apply only at the time the as of any the date the definitive acquisition agreement (the “Subject Acquisition Agreement”) in respect thereof is executed (after giving effect on a Pro Forma Basis to the Incremental Facility Loan and the Permitted Acquisition or Investment as though they had occurred on such request and upon date), (y) the effectiveness of condition that at the time any Incremental Revolving Commitment referred to belowFacility Loans are made (and after giving effect thereto), no Default or Event of Default shall exist, shall be limited to a condition that no Event of Default under Section 8.1(b), (f) or (g) shall exist and at the time such time; provided that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount exist as of the date the Subject Acquisition Agreement is executed (after giving effect on a Pro Forma Basis to the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender Facility Loan and the Permitted Acquisition or by any other bank or other financial institution Investment as though they had occurred on such date) and (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided z) the condition that such Additional Lender shall be reasonably acceptable to the representations and warranties of the Borrower and each other Credit Party contained in Article 4 or any other Loan Document shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) at the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing time that any such Incremental Revolving CommitmentFacility Advance is made (and after giving effect thereto), if such consent shall be limited to the accuracy of the representations and warranties that would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this constitute Specified Representations and the representations in the Subject Acquisition Agreement and each Additional Lender shall become a Revolving Lender and a Lender made by or with respect to the Additional Revolving Commitment acquisition target, its subsidiaries and all matters relating thereto pursuant their respective businesses that are material to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and interests of the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect but only to the extent that the Borrower or an Affiliate of the Borrower has the right to terminate its or their obligations under the Subject Acquisition Agreement or to decline to consummate such amendments to this Agreement and the other Loan Documents Permitted Acquisition as may be necessary, a result of a breach of such representations in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving CommitmentsAcquisition Agreement.
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Incremental Facility. The (a) Each Borrower may at any time on not more than four occasions or from time to time after the Closing Date but prior to the Maturity Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request one or more tranches of term loans (each an “Incremental Term Facility”) or revolving facilities or letter of credit facilities or an increase to in the existing amount of the Revolving Commitments Facility (such increaseeach, the an “Incremental Revolving Commitments,” and Facility”; together with the loans thereunderIncremental Term Facilities, the each an “Incremental Revolving LoansFacility”); , provided that both (i) at the time of any such request and upon after the effectiveness of any Incremental Revolving Commitment Amendment referred to below, no Default or Event of Default shall exist have occurred and at be continuing, (ii) the time that Company shall be in compliance with the covenants contained in Section 7.1 determined on a pro forma basis as of the last day of the most recent period of the Company for which financial statements are available as if any term loans under such Incremental Facility had been outstanding and any revolving commitment under such Incremental Facility (to the extent available to make Loans) had been fully used on the last day of such period, (iii) in the case of an Incremental Revolving Loan Facility, the Consolidated Leverage Ratio determined on a pro forma basis as of the last day of the most recent fiscal quarter of the Company for which financial statements are available, determined using the amount of Loans expected to be borrowed under such Incremental Revolving Facility on the effective date thereof, shall be less than 2.75 to 1.0 and (iv) in the case of an Incremental Term Facility, the Consolidated Senior Secured Leverage Ratio, determined on a pro forma basis as of the last day of the most recent fiscal quarter of the Company for which financial statements are available, determined as if any term loans under such Incremental Term Facility had been outstanding on the last day of such period, shall be less than 2.00 to 1.00. Each Incremental Facility shall be in an aggregate principal amount that is made not less than $50,000,000 (and immediately after giving effect thereto) no Default or Event of Default shall existprovided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). The Notwithstanding anything to the contrary herein, the aggregate amount of all the Incremental Revolving Commitments Facilities shall not exceed $50,000,000300,000,000 at any one time outstanding.
(i) Any Incremental Facility shall be ratably secured with the Loans, (ii) any Incremental Facility shall not mature earlier than the Revolving Termination Date or have a weighted average life (if applicable and other than for nominal amortization of 1% or less of the principal amount of such Incremental Facility per year) which is shorter than the then remaining weighted average life of the Revolving Facility, (iii) the terms and conditions applicable to any Incremental Revolving Facility (other than with respect to maturity, which shall be governed by the preceding clause (ii)) shall be the same as those applicable to the Revolving Facility other than such terms and conditions which do not apply or relate to any previously existing Facility or other terms reasonably satisfactory to the Administrative Agent, (iv)(A) the Applicable Margin and Facility Fee relating to any Incremental Revolving Facility shall be the same as the Applicable Margin and Facility Fee relating to the Revolving Facility and (B) the Applicable Margin relating to any Incremental Term Facility shall be determined by the Company and the Lenders providing such Incremental Term Facility and (v) any Incremental Facility shall otherwise be on terms and pursuant to documentation to be determined by the Company and the Persons willing to provide such Incremental Facility, provided that (1) to the extent such terms and documentation are not consistent with the then existing Facilities (other than with respect to pricing, amortization and maturity) they shall be reasonably satisfactory to the Administrative Agent (it being agreed Incremental Term Facilities may contain customary mandatory prepayments, voting rights and prepayment premiums) and (2) in the case of Incremental Term Facilities, if the Applicable Margin (which term for purposes of this Section 2.19 shall include any original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrowers to the lenders under, and pricing floors applicable to, any Incremental Term Facility in the primary syndication thereof (with OID being equated to interest based on assumed four-year life to maturity)) relating to such Incremental Term Facility exceeds the Applicable Margin relating to any then existing Incremental Term Facility immediately prior to the effectiveness of the applicable Incremental Amendment, the Applicable Margin relating to such existing Incremental Term Facility shall be adjusted to equal the Applicable Margin relating to such subsequent Incremental Term Facility minus 0.25% per annum. Each notice from the Borrower Company pursuant to this Section 2.19 shall set forth the requested amount and proposed terms of the relevant Incremental Revolving CommitmentsFacility and the Lenders or other Persons willing to provide the Incremental Facility. The Incremental Revolving Commitments Facility may be provided by any existing Lender or by any other bank or Eligible Assignee selected by the Company (any such other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, fund being called an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayedwithheld) to such Lender’s or Additional Lender’s providing such Incremental Revolving Commitment, Facility if such consent would be required under Section 9.6 10.6 for an assignment of Commitments Loans to such Lender or Additional Lender. Commitments in respect of Incremental Revolving Commitments Facilities shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryDocuments, executed by the Borrowerapplicable Borrower(s), each Additional Lender agreeing to provide such Commitment Commitment, if any, each Additional Lender, if any, and the Administrative AgentAgent pursuant to Section 10.1(e) hereof. An The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerCompany, to effect the provisions and intent of this Section and the application of the proceeds thereof2.19. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.25.2 (it being understood that all references to the date of making of an Extension of Credit or similar language in such Section 5.2 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrowers will use the proceeds of the Incremental Facilities for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Revolving LoansFacility, unless it so agrees. The Borrower may use Administrative Agent and the proceeds of Incremental Revolving Loans for any purpose not prohibited by Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject shall not apply to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign transactions effected pursuant to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitmentsthis paragraph.
Appears in 1 contract
Samples: Credit Agreement (Lear Corp)
Incremental Facility. The (a) So long as no Event of Default under Section 9(a) or 9(f) exists or would arise therefrom, the Parent Borrower may shall have the right, at any time on not more than four occasions and from time to time after the Closing Date but prior to the Maturity Date, by notice (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders“Incremental Term Loan Commitments”), without having (ii) to seek consent from the Lenders, request an increase new commitments under one or more new revolving facilities to the existing Revolving Commitments be included in this Agreement (such increase, the “Incremental Revolving Commitments,”), (iii) to increase any Existing Term Loans by requesting new term loan commitments to be added to an Existing Tranche of Term Loans (the “Supplemental Term Loan Commitments”), (iv) to increase the Existing Tranche of Revolving Commitments by requesting new Revolving Commitments be added to an Existing Tranche of Revolving Commitments (the “Supplemental Revolving Commitments”), and (v) to request new synthetic or other letter of credit facility commitments under one or more new synthetic or other letter of credit facilities to be included in this Agreement (the “Incremental Letter of Credit Commitments” and, together with the Incremental Term Loan Commitments, the Incremental Revolving Commitments, the Supplemental Term Loan Commitments and the loans thereunderSupplemental Revolving Commitments, the “Incremental Revolving LoansCommitments”); , provided that both that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.9 shall not exceed, at the time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such request Indebtedness, including to refinance other Indebtedness), the Maximum Incremental Facilities Amount at such time and upon (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (i) of the effectiveness definition of “Maximum Incremental Facilities Amount”, the Parent Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause. Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitment referred to below, no Default or Event of Default Commitments) shall exist and at the time that any Incremental Revolving Loan is be made by creating a new Tranche.
(and immediately after giving effect theretob) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice request from the Parent Borrower pursuant to this Section 2.9 shall set forth the requested amount and proposed terms of the relevant Incremental Revolving Commitments. The Incremental Revolving Commitments (or any portion thereof) may be provided made by any existing Lender or by any other bank bank, savings and loan association or other similar savings institution, insurance company, investment fund or company or other financial institution (any such existing Lender bank, savings and loan association or other bank savings institution, insurance company, investment fund or company or other financial institution providing an Incremental Revolving Commitmentinstitution, an “Additional Incremental Lender,” and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”) subject, in the case of any Incremental Revolving Commitments and Supplemental Revolving Commitments (if such Additional Incremental Lender is not already a Lender hereunder or any affiliate of a Lender hereunder), provided that such Additional Lender shall be reasonably acceptable to the Borrower and consent of the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed).
(c) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Supplemental Term Loan Commitments to such Additional Lender. Incremental and Supplemental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans or Revolving Commitments to be increased, executed by the Borrowers and each increasing Lender substantially in the form attached hereto as Exhibit R-1 (the “Increase Supplement”) or by each Additional Incremental Lender substantially in the form attached hereto as Exhibit R-2 (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. An Increase Supplement or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments (including to Section 2.4(b)) to the Loan Documents as may be necessary or appropriate, in the opinion of the Parent Borrower and the Administrative Agent, to effect the provisions of this Section 2.9. Upon effectiveness of the Lender Joinder Agreement, each Additional Incremental Lender shall become a Revolving Lender and be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan or commitments made pursuant to such Supplemental Revolving Commitment shall be Revolving Commitments, as applicable. Upon the effectiveness of the Increase Supplement or the Lender Joinder Agreement, as the case may be, in each case with respect to any Supplemental Revolving Commitments, outstanding Revolving Loans and/or participations in outstanding Swing Line Loans and/or L/C Obligations of the applicable Existing Tranche, as the case may be, shall be reallocated (and the increasing Lender or joining Additional Incremental Lender, as applicable, shall make appropriate payments representing principal, with the Borrowers making any necessary payments of accrued interest) so that after giving effect thereto the increasing Lender or the joining Additional Incremental Lender, as the case may be, and the other Lenders of the applicable Existing Tranche share ratably in the total Aggregate Outstanding Revolving Commitment Credit in accordance with the applicable Commitments (and all matters relating thereto notwithstanding Section 4.12, no Borrower shall be liable for any amounts under Section 4.12 as a result of such reallocation).
(d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryDocuments, executed by the Borrower, Borrowers and each Additional Lender agreeing to provide such Commitment and the Administrative Agentapplicable Incremental Lender. An Incremental Commitment Amendment may, without the consent of any other LendersLender, effect such amendments to this Agreement and the other any Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent Parent Borrower and the BorrowerAdministrative Agent, to effect the provisions and intent of this Section and 2.9, provided, however, that (i) (A) the application Incremental Commitments will not be guaranteed by any Subsidiary of the proceeds thereof. The effectiveness Parent Borrower other than the Subsidiary Guarantors, and will be secured (except during any Collateral Suspension Period, during which the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall be unsecured) by the same collateral securing the Loans and (B) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Loans and (II) so long as any Loans (other than Incremental Amendment shall be subject Loans) are outstanding, any mandatory prepayment provisions that do not also apply to the satisfaction Loans on a pro rata basis following the date thereof (each, occurrence of an “Incremental Facility Closing Date”) of each acceleration of the conditions set forth in Section 4.2. No Loans; (ii) no Lender shall will be obligated required to provide any such Incremental Revolving Loans, Commitment unless it so agrees. The Borrower may use ; (iii) the proceeds maturity date of any Incremental Revolving Loans Commitments shall be no earlier than the Tranche B-1 Revolving Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions (as determined by the Parent Borrower in good faith), would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date than the Tranche B-1 Revolving Maturity Date); (iv) the maturity date of any Incremental Term Loan Commitments shall be no earlier than the Tranche B-1 Term Loan Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date than the Tranche B-1 Term Loan Maturity Date); (v) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Parent Borrower and the applicable Incremental Lenders; provided that in the event that the applicable interest rate margins for any purpose not prohibited term loans incurred by this Agreement unless otherwise agreed the Parent Borrower under any Incremental Term Loan Commitment are higher than the applicable interest rate margin for the Tranche B-1 Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche B-1 Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for the Tranche B-1 Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided further that, in determining the applicable interest rate margins for the Tranche B-1 Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront fees payable generally to all participating Incremental Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Parent Borrower to the Lenders under the Tranche B-1 Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity); (B) customary arrangement or commitment fees payable to any of the Arrangers (or their respective affiliates) in connection with the Tranche B-1 Term Loans or to one or more arrangers (or their respective affiliates) in connection with the Incremental Term Loans (and any fee payable to any Incremental Lender in lieu of any portion of any such fee payable to any such arranger or affiliate thereof) shall be excluded; (C) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche B-1 Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche B-1 Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche B-1 Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche B-1 Term Loans shall be increased by such amount and (D) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche B-1 Term Loans or does not include an interest rate floor, the difference between the interest rate floor applicable to the Tranche B-1 Term Loans and the Incremental Term Loans shall reduce the applicable interest rate margin of such Incremental Term Loans for purposes of determining whether an increase in the Applicable Margin for the Tranche B-1 Term Loans shall be required; (vi) such Incremental Commitment Amendment may
(1) provide for the inclusion, as appropriate, of Additional Incremental Lenders in any required vote or action of the Required Lenders, Required Revolving Loans. On Lenders or of the Lenders of each Tranche hereunder, (2) provide class protection for any Incremental Facility Closing additional credit facilities, (3) provide for the amendment of the definitions of “Additional Obligations,” “Disqualified Stock, “and “Refinancing Indebtedness”, in each case only to extend the maturity date from the Tranche B-1 Term Loan Maturity Date on which Incremental Revolving Commitments are effected, subject to the satisfaction extended maturity date of such Incremental Term Loans and (4) (A) amend or otherwise modify Section 6.2 solely with respect to any Extension of Credit under any Facility of Incremental Commitments, (B) waive any representation made or deemed made in connection with any Extension of Credit under any Facility of Incremental Commitments and (C) provide that an amendment, supplement or modification of any of the foregoing provisions referred to in clause (A) or (B) above may be effected with the consent only of such Incremental Lenders (or any of them); and (vii) the other terms and conditionsdocumentation in respect thereof, each of to the Revolving Lenders shall assign extent not consistent with this Agreement as in effect prior to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments Commitment Amendment, shall otherwise be reasonably satisfactory to the Revolving CommitmentsParent Borrower.
Appears in 1 contract
Samples: Credit Agreement
Incremental Facility. (a) The Borrower may at any from time on not more than four occasions to time after the Closing Effective Date but request one or more increases in the Revolving Credit Commitments (each, a “Revolving Credit Commitment Increase”); provided, however, that (i) the aggregate amount of all Revolving Credit Commitment Increases shall not exceed $500,000,000, (ii) no Revolving Credit Commitment Increases shall be requested later than six months prior to the Maturity Scheduled Termination Date, (iii) each Revolving Credit Commitment Increase shall be in an amount not less than $25,000,000 and (iv) any Revolving Credit Commitment Increase shall be permitted by notice the terms of the Senior Notes and the Senior Secured Notes. Nothing in this Agreement shall be construed to obligate the Administrative Agent, any Arranger or any Lender to negotiate for, solicit, provide or commit to provide any Revolving Credit Commitment Increase. Following the receipt by the Administrative Agent (whereupon of the Borrower’s request to obtain a Revolving Credit Commitment Increase, the Administrative Agent shall promptly deliver a copy to notify each Lender of such proposed Revolving Credit Commitment Increase and of the proposed terms and conditions therefor as provided in the Borrower’s notice with respect thereto. Each such Lender (and each of the Lenders)their Affiliates and Approved Funds) may, without having in its sole discretion, commit to seek consent from the Lenders, request an increase participate in such Revolving Credit Commitment Increases by forwarding its commitment therefor to the existing Revolving Commitments (such increase, Administrative Agent in form and substance satisfactory to the “Incremental Revolving Commitments,” Administrative Agent. The Administrative Agent and the loans thereunder, Borrower shall allocate the “Incremental commitment under such Revolving Loans”); provided that both at Credit Commitment Increase among the time of any such request Lenders and upon other Eligible Assignees from which the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect Administrative Agent has received written commitments with respect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section Revolving Credit Commitment Increase shall set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided become effective on a date agreed by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Credit Extension Date”) ), which shall be in any case on or after the date of each satisfaction of the conditions precedent set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof 3.5 (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments.
Appears in 1 contract
Incremental Facility. The Borrower may at any time on not more than four occasions or from time to time after the Closing Date but prior to the Maturity Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lendersrequest one or more additional tranches of term loans, request revolving facilities or letter of credit facilities (each, an increase to the existing Revolving Commitments (such increase, the “Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving LoansFacility”); , provided that both (i) at the time of any such request and upon after the effectiveness of any Incremental Revolving Commitment Amendment referred to below, no Default or Event of Default shall exist have occurred and at be continuing, (ii) the time Borrower shall be in compliance with the covenants contained in Section 7.1 determined on a pro forma basis as of the last day of the most recent period of the Borrower for which financial statements are available as if any term loans under such Incremental Facility had been outstanding and any revolving commitment under such Incremental Facility (to the extent not available to issue letters of credit) had been fully used on the last day of such period and (iii) the Consolidated Leverage Ratio determined on a pro forma basis as of the last day of the most recent fiscal quarter of the Borrower for which financial statements are available, determined as if any term loans under such Incremental Facility had been outstanding on the last day of such period, shall be less than 2.5 to 1.0. Each Incremental Facility shall be in an aggregate principal amount that any is not less than $50,000,000 (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence) and there shall be not more than 3 requests for Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall existFacilities. The Notwithstanding anything to the contrary herein, the aggregate amount of all the Incremental Facilities (including the Incremental Revolving Commitments Facility) shall not exceed $50,000,000200,000,000. Any Incremental Facility (a) shall rank pari passu in right of payment and of security with the Loans, (b) shall not mature earlier than the Maturity Date or have a weighted average life (if applicable) which is shorter than the then remaining average life of the Loans, and (c) shall otherwise be on terms and pursuant to documentation to be determined by the Borrower and the Persons willing to provide such Incremental Facility, provided that (A) to the extent such terms and documentation are not consistent with the Facilities (other than with respect to pricing, amortization and maturity) they shall be reasonably satisfactory to the Administrative Agent and (B) if the Applicable Margin (which term for purposes of this Section 2.20 shall include any original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders under any applicable Facility (which, for any Incremental Facility consisting of a term loan facility shall be the Term Facility and for any Incremental Facility consisting of a revolving loan facility shall be the Incremental Revolving Facility) or the Incremental Facility, as applicable, in the primary syndication thereof (with OID being equated to interest based on assumed three-year life to maturity)) relating to any Incremental Facility exceeds the Applicable Margin relating to the applicable Facility immediately prior to the effectiveness of the applicable Incremental Amendment, the Applicable Margin relating to such Facility shall be adjusted to equal the Applicable Margin relating to such Incremental Facility. Each notice from the Borrower pursuant to this Section 2.20 shall set forth the requested amount and proposed terms of the relevant Incremental Revolving CommitmentsFacility and the Lenders or other Persons willing to provide the Incremental Facility. The Incremental Revolving Commitments Facility may be provided by any existing Lender or by any other bank or Eligible Assignee selected by the Borrower (any such other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, fund being called an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayedwithheld) to such Lender’s or Additional Lender’s providing such Incremental Revolving Commitment, Facility if such consent would be required under Section 9.6 10.6 for an assignment of Commitments Loans to such Lender or Additional Lender. Commitments in respect of Incremental Revolving Commitments Facilities shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such and, as appropriate, the other Loan Documents as are necessaryDocuments, executed by the Borrower, each Additional Lender agreeing to provide such Commitment Commitment, if any, each Additional Lender, if any, and the Administrative AgentAgent pursuant to Section 10.1(e) hereof. An The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof2.20. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.25.2 (it being understood that all references to the Delayed Draw Funding Date or similar language in such Section 5.2 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Facilities for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Revolving LoansFacility, unless it so agrees. The Borrower may use Administrative Agent and the proceeds of Incremental Revolving Loans for any purpose not prohibited by Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject shall not apply to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign transactions effected pursuant to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitmentsthis paragraph.
Appears in 1 contract
Samples: Credit Agreement (Lear Corp)
Incremental Facility. The Borrower may at (a) At any time on not more than four occasions after from the Closing Date but prior to until the Term Loan Maturity Date, by notice the Borrower may request (but subject to the Administrative Agent conditions set forth below) (whereupon the Administrative Agent shall promptly deliver x) to have new Term Loans made available (each a copy “Term Increase”) or to add one or more incremental term loan facilities (collectively with any Term Increase, each of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments (such increase, the “Incremental Revolving Commitments,Term Loan Facility” and the loans thereunder, the “Incremental Revolving Additional Term Loans”); provided that both , or (y) the Revolving Commitment be increased by an amount not to exceed the Available Revolving Increase Amount (each such increase of the Revolving Commitment, a “Revolver Increase” and together with the Term Increase, each, an “Increase” and collectively, with any Incremental Term Loan Facility, each an “Incremental Facility”). Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Facilities and Incremental Equivalent Debt (determined at the time of any such request and upon the effectiveness of any Incremental Revolving Commitment referred to belowincurrence), no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the sum of (i) the Unrestricted Incremental Amount plus (ii) the amount of any voluntary prepayments, repurchases, redemptions or other retirements of the Term Loans effected after the Closing Date (including pursuant to debt buy-backs made by the Borrower or any Restricted Subsidiary pursuant to this Section shall set forth the requested “Dutch Auction” procedures and that are offered to all Lenders on a pro rata basis, in an amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable equal to the Borrower and the Administrative Agent shall have consented discounted amount actually paid in respect thereof, but excluding (such consent not to be unreasonably withheld or delayedA) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment any prepayment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Term Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving substantially concurrent borrowings of new Loans for any purpose not prohibited by hereunder and (B) prepayments with the proceeds of substantially concurrent incurrence of other long term Indebtedness) (this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof clause (together with accrued interestii), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments.“Voluntary Prepayment Amount”) plus
Appears in 1 contract
Incremental Facility. (a) The Borrower may at any from time on not more than four occasions to time after the Closing Amendment No. 4 Effective Date but request one or more increases in the Revolving Credit Commitments (each, a “Revolving Credit Commitment Increase”); provided, however, that (i) the aggregate amount of all Revolving Credit Commitment Increases shall not exceed $500,000,000, (ii) no Revolving Credit Commitment Increases shall be requested later than six months prior to the Maturity Scheduled Termination Date, (iii) each Revolving Credit Commitment Increase shall be in an amount not less than $25,000,000 and (iv) any Revolving Credit Commitment Increase shall be permitted by notice the terms of the Senior Notes and the Senior Secured Notes. Nothing in this Agreement shall be construed to obligate the Administrative Agent, any Arranger or any Lender to negotiate for, solicit, provide or commit to provide any Revolving Credit Commitment Increase. Following the receipt by the Administrative Agent (whereupon of the Borrower’s request to obtain a Revolving Credit Commitment Increase, the Administrative Agent shall promptly deliver a copy to notify each Lender of such proposed Revolving Credit Commitment Increase and of the proposed terms and conditions therefor as provided in the Borrower’s notice with respect thereto. Each such Lender (and each of the Lenders)their Affiliates and Approved Funds) may, without having in its sole discretion, commit to seek consent from the Lenders, request an increase participate in such Revolving Credit Commitment Increases by forwarding its commitment therefor to the existing Revolving Commitments (such increase, Administrative Agent in form and substance satisfactory to the “Incremental Revolving Commitments,” Administrative Agent. The Administrative Agent and the loans thereunder, Borrower shall allocate the “Incremental commitment under such Revolving Loans”); provided that both at Credit Commitment Increase among the time of any such request Lenders and upon other Eligible Assignees from which the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately after giving effect Administrative Agent has received written commitments with respect thereto) no Default or Event of Default shall exist. The aggregate amount of all Incremental Revolving Commitments shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section Revolving Credit Commitment Increase shall set forth the requested amount of the Incremental Revolving Commitments. Incremental Revolving Commitments may be provided become effective on a date agreed by any existing Lender or by any other bank or other financial institution (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall be reasonably acceptable to the Borrower and the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Additional Lender’s providing such Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional Lender. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions and intent of this Section and the application of the proceeds thereof. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Credit Extension Date”) ), which shall be in any case on or after the date of each satisfaction of the conditions precedent set forth in Section 4.2. No Lender shall be obligated to provide any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Incremental Revolving Loans. On any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof 3.5 (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments.
Appears in 1 contract
Incremental Facility. The Borrower may at any time on not more than four occasions after After the Closing Date but prior to the Maturity Effective Date, by notice to the Administrative Agent (whereupon Borrower will have the Administrative Agent shall promptly deliver a copy to each right, without the consent of the Lenders), without having to seek consent from the Lenders, request an increase to the existing Revolving Commitments establish a revolving credit facility under this Agreement (such increase, the “Incremental Revolving Commitments,” and the loans thereunder, the “Incremental Revolving LoansFacility”); provided that both at the time of any such request and upon the effectiveness of any Incremental Revolving Commitment referred to below, no Default or Event of Default shall exist and at the time that any Incremental Revolving Loan is made (and immediately a) after giving effect thereto) no Default or Event of Default shall exist. The aggregate to the Incremental Facility, the outstanding principal amount of Loans outstanding under all portions of the Facility plus the commitments under the Incremental Revolving Commitments Facility (whether funded or not), shall not exceed $50,000,000. Each notice from 150,000,000, (b) all representations and warranties set forth in Article III and the other Loan Documents must be true and correct in all material respects upon giving effect to the Incremental Facility and no Default shall have occurred or be continuing at either the time of the request or the effective date of such increase, (c) any such increase must be in a minimum amount of $25,000,000 and in integral multiples of $5,000,000 in excess thereof, and (d) after giving effect to the Incremental Facility, on a pro forma basis, the Total Debt to EBITDA Ratio will be no greater than 0.50 to 1.00 less than the level set forth in Section 6.1(b) for such Computation Period, and (e) the Borrower pursuant to this Section shall be in compliance on a pro forma basis with the covenant set forth in Section 6.1(a), in each case under this clause (e), as of the requested amount effective date of the Incremental Revolving CommitmentsFacility (assuming that the Incremental Facility is fully drawn). The Borrower shall offer, in consultation with the Administrative Agent, the Incremental Revolving Commitments Facility to the Lenders (but no Lender will have an obligation to commit to all or any portion of the Incremental Facility). If the Lenders are not willing to commit to the Incremental Facility, the Borrower may be provided by offer the Incremental Facility or any existing Lender or by any portion thereof to other bank or other third party financial institution institutions (such existing Lender or other bank or other financial institution providing an Incremental Revolving Commitment, an “Additional Lender”), provided that such Additional Lender shall which must be reasonably acceptable to the Administrative Agent); provided that such new third party institution must have a commitment of at least $15,000,000. The Incremental Facility shall be established on terms customary for transactions of its size and type and (i) shall contain representations and warranties, covenants, indemnification provisions, events of default and other material terms that are identical to the Facility (unless otherwise reasonably satisfactory to the Lenders), (ii) provide for any revolving lenders thereunder to be secured on a pari passu basis with the Lenders under the Facility, (iii) appoint the Administrative Agent as agent for the revolving lenders (whether or not the Administrative Agent, as Lender, is participating thereunder), and (iv) will rank pari passu in right of payment and with respect to security with the Facility and the borrower and guarantors of the Incremental Facility shall be the same as the Borrower and Guarantors with respect to the Facility. In connection with any Incremental Facility, the Borrower, the Administrative Agent and each applicable Lender shall execute and deliver to the Administrative Agent an Incremental Amendment and such other documentation as the Administrative Agent shall have consented (such consent not reasonably specify to be unreasonably withheld or delayed) to such Additional Lender’s providing such evidence the Incremental Revolving Commitment, if such consent would be required under Section 9.6 for an assignment of Commitments to such Additional LenderFacility. Incremental Revolving Commitments shall become Revolving Commitments under this Agreement, Incremental Revolving Loans shall become Revolving Loans under this Agreement and each Additional Lender shall become a Revolving Lender and a Lender with respect to the Additional Revolving Commitment and all matters relating thereto pursuant to an amendment (an “Incremental Amendment”) to this Agreement and such other Loan Documents as are necessary, executed by the Borrower, each Additional Lender agreeing to provide such Commitment and the Administrative Agent. An Any Incremental Amendment may, without the consent of any other LendersLender, effect such amendments to this Agreement and the other Loan Documents as 51 Credit Agreement may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect implement the provisions terms of the Incremental Facility on terms consistent with this Section (including amendments to permit accrued interest and intent fees to share ratably in the benefits of this Section Agreement and the application other Loan Documents and to include appropriately the Lenders holding such Incremental Facility in any determination of the proceeds thereofRequired Lenders on substantially the same basis as the Lenders prior to such inclusion). The effectiveness Administrative Agent and the Lenders hereby consent to the transactions contemplated by this Section (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Incremental Amendment shall Facility on such terms as may be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2. No Lender shall be obligated to provide the relevant Incremental Amendment) and hereby waive the requirements of any Incremental Revolving Loans, unless it so agrees. The Borrower may use the proceeds provision of Incremental Revolving Loans for any purpose not prohibited by this Agreement unless or any other Loan Document that may otherwise agreed in connection with such Incremental Revolving Loans. On prohibit any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, each of the Revolving Lenders shall assign to each of the Additional Lenders, and each of the Additional Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held or any other transaction contemplated by the existing Revolving Lenders and Additional Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitmentsthis Section.
Appears in 1 contract
Samples: Credit Agreement (Formfactor Inc)
