Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, elect to request the establishment of one or more new term loans (the “Incremental Loans”) in connection with (and as part of) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an aggregate amount for all such Incremental Loans not to exceed $1,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered or approached to provide all or a portion of any Incremental Loans may elect or decline, in its sole discretion, to provide such Incremental Loans. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing. 2.2.2 Such Incremental Loans shall become effective as of such Increased Amount Date; provided that (i) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date before or after giving effect to such Incremental Loans; (ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby. 2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan. 2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Falconstor Software Inc)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at (a) At any time or and from time to time after the Closing Date and on or prior to September 22the Latest Maturity Date, 2018, by written notice delivered subject to the terms and express conditions set forth herein, the Borrower may by no less than three (3) Business Days’ prior notice to the applicable Administrative Agent (or such lesser number of days reasonably acceptable to such Administrative Agent), elect request to request the establishment of add one or more new term loans (the “Incremental Loans”) in connection with (and as part of) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an aggregate amount for all such Incremental Loans not to exceed $1,000,000. Each such notice shall specify the date credit facilities (each, an “Increased Amount DateIncremental Facility”) on which denominated, in the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered or approached to provide all or a portion case of any Incremental Loans may elect or declineTerm Facility, in its sole discretionDollars or, in the case of any Incremental Revolving Facility, at the option of the Borrower, in Dollars or any Alternative Currency, and consisting of one or more additional tranches of term loans or an increase to provide an existing Class of Term Loans (each, an “Incremental Term Facility”) or one or more additional tranches of revolving commitments or an increase in an existing Class of Revolving Commitments (each, an “Incremental Revolving Facility”) (all such Incremental Loans. For Revolving Facilities not to exceed $150,000,000 in the avoidance of doubtaggregate), any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase or a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans shall become effective as of such Increased Amount Date; combination thereof, provided that (i) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date immediately before or and after giving effect to such each Incremental Loans; Facility Amendment and the applicable Incremental Facility, no Event of Default has occurred and is continuing or would result therefrom (ii) except in the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) case that the proceeds of any Incremental Loans are being used to finance a Permitted Acquisition or other permitted Investments, in which case the standard will be (A) no Event of Default at the time of entering into a definitive agreement with respect thereto and (B) no Event of Default under Sections 7.01(a), (b), (h) or (i) on the date of incurrence thereof), (ii) subject to the provisos to this sentence, immediately after giving effect to each Incremental Facility Amendment and the applicable Incremental Facility, the Total Secured Net Leverage Ratio computed on a Pro Forma Basis shall not exceed 3.00:1.00 (provided, however, that if the proceeds of Incremental Facilities will be used to finance a Permitted Acquisition (or a similar Investment permitted hereunder), the Total Secured Net Leverage Ratio shall be tested as of the date of entering into a definitive written agreement with respect thereto) (assuming, solely for purposes of this Section 2.20 at the time of incurrence and not for any other provision hereunder, that (I) all Incremental Facilities, all Additional Term Notes and all Additional Debt secured by Liens under Section 6.02(hh), in each case established on or prior to such date are (x) fully drawn and (y) secured, whether or not so secured and (II) the proceeds of such Incremental Loans are not included as unrestricted cash and Cash Equivalents in clause (i) of the definition of “Total Secured Net Leverage Ratio”; provided that to the extent the proceeds of such Incremental Loans are to be used as permitted to prepay Indebtedness, the use of such proceeds for the prepayment of such Indebtedness may be given pro forma effect), provided that the financial incurrence test set forth in clause (ii) of this paragraph (a) shall not apply to the incurrence of an aggregate principal amount of Indebtedness under Incremental Facilities and Unrestricted Additional Term Notes after the Closing Date not to exceed an amount the Dollar Equivalent (calculated using the Exchange Rate on the date of effectiveness of such Incremental Facility Amendment and Incremental Facility) of which equals $300,000,000 plus the amount of any voluntary prepayments of the Term Loans and voluntary permanent reductions of the Revolving Commitments effected after the Closing Date that are not financed with the incurrence of Credit Agreement Refinancing Indebtedness and that do not reduce the amount of any payment otherwise due pursuant to Section 10.6; 2.11(d) by operation of the proviso to such clause (ivsuch Indebtedness, the “Unrestricted Incremental First Lien Indebtedness”) (it being understood and agreed that (I) the Borrower shall designate any such Indebtedness as Unrestricted Incremental Loans shall share ratably First Lien Indebtedness on or prior to the date of such incurrence by notice to the applicable Administrative Agent and (II) the Borrower may redesignate any such Indebtedness originally designated as Unrestricted Incremental First Lien Indebtedness if, at the time of such redesignation, the Borrower would be permitted to incur under this Section 2.20 the aggregate principal amount of Indebtedness being so redesignated (for purposes of clarity, with any such redesignation having the effect of increasing the Borrower’s ability to incur Unrestricted Incremental First Lien Indebtedness as of the date of such redesignation by the amount of such Indebtedness so redesignated) and (iii) (I) in the Collateral and shall benefit ratably from event that the guarantees under Yield for any Incremental Term Facility is higher than the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as Yield for the Initial Term LoansLoans by more than 50 basis points, including with respect to interest rate, except as then the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to Applicable Margin for the Initial Term Loans shall be increased to the extent necessary so that the Yield for such Initial Term Loans is equal to the Yield for such Incremental Term Facility minus 50 basis points and (II) in the event that the Yield for any Incremental Revolving Facility is higher than the Yield for the Initial Revolving Loans by more than 50 basis points, then the Applicable Margin for the Initial Revolving Loans shall be increased to the extent necessary so that the Yield for such Initial Revolving Loans is equal to the Yield for such Incremental Revolving Facility minus 50 basis points. Each Incremental Facility shall be in an integral multiple of $5,000,000 and be in an aggregate principal amount that is not less than $25,000,000, provided that such amount may be less than $25,000,000 and need not be in an integral multiple of $5,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Facilities set forth above.
(b) Each Incremental Term Facility (i) if made a part of the existing tranche of Initial Term Loans, shall have terms identical to those applicable to such Initial Term Loans or (ii) if consisting of an additional tranche of term loans shall have such terms as determined by the Borrower and the lenders providing such Incremental Term Facility; provided that (A) such Incremental Term Facility shall rank pari passu in right of payment in respect of the Collateral with the Initial Term Loans, (B) no Restricted Subsidiary is a borrower or a guarantor with respect to such Indebtedness unless such Restricted Subsidiary is a Loan Party which shall have previously or substantially concurrently guaranteed or borrowed, as applicable, the Obligations, (C) no Incremental Term Facility shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Term Loans, (D) no Incremental Term Facility shall have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the then-remaining Initial Term Loans (without giving effect to nominal amortization for periods where amortization has been eliminated as a result of a prepayment of the applicable Initial Term Loans), (E) for purposes of prepayments, shall be treated no more favorably than the Initial Term Loans of the Borrower except those that only apply after the then existing Latest Maturity Date with respect to Term Loans, and (F) the covenants, events of default and guarantees (other than maturity fees, discounts, interest rate, redemption terms and redemption premiums) of such Incremental Term Loans, if not consistent with the terms of the Term Loans, shall not be materially more restrictive to the Loan Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Term Loans unless (x) the Lenders of the Term Loans receive the benefit of such more restrictive terms or (y) any such provisions apply only after the Term Loan Maturity Date.
(c) Each Incremental Revolving Facility (i) if made a part of the existing tranche of Initial Revolving Commitments shall have terms identical to those applicable to such Class of Initial Revolving Commitments or (ii) if consisting of an additional tranche of revolving loans and commitments shall be subject to substantially the same terms as the Initial Revolving Commitments (other than pricing, fees, maturity and other immaterial terms which shall be determined by the Borrower and the lenders providing such Incremental Revolving Facility); provided that no Incremental Revolving Facility shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Commitments.
(d) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Facility. Any additional bank, financial institution, existing Lender or other Person that elects to provide Commitments under an Incremental Facility shall be reasonably satisfactory to the Administrative Agent; (viii) Borrower and, in the case of any Incremental Revolving Facility and, to the extent such Incremental consent would be required for an assignment of such Loans shall be effected or Commitments pursuant to one Section 9.04, the Issuing Bank (such consent not to be unreasonably withheld, delayed or more Joinder Agreements conditioned) (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed and delivered by the Borrower, such Additional Lender (in the case of this Agreement and, as appropriate, any other Loan Document, as applicable) and (to the extent it directly adversely amends or modifies the rights or duties of any Administrative Agent and one or more New Lenders; and (ix) and/or the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Collateral Agent, each Administrative Agent in connection with any such transaction, including any supplements or amendments to and/or the Collateral Documents providing for such Agent). No Lender shall be obligated to provide any Commitments under an Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which Facility, unless it so agrees. Commitments in respect of any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) Facilities shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of Commitments under this Agreement, any . An Incremental Loans, when funded, shall be deemed to be Term Loans. Each Joinder Agreement 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 necessary necessary, advisable or appropriate, in the reasonable opinion of the Administrative AgentAgents and the Borrower, to effect the provisions of this Section 2.2(including to provide for voting provisions applicable to the Additional Lenders comparable to the provisions of clause (B) of the second proviso of Section 9.02(b)). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Additional Lenders, be subject to the satisfaction (or waiver) on the date thereof (each, an “Incremental Facility Closing Date”) of the express conditions in respect of such Incremental Facility Amendment to be mutually agreed upon by the Additional Lenders and the Borrower customary for transactions of the type in respect of which the applicable Incremental Facility relates. The proceeds of any Loans under an Incremental Facility will be used, directly or indirectly, for working capital and/or general corporate purposes and/or any other purposes not prohibited hereunder (including, without limitation, Restricted Payments, Acquisitions and other Investments). This Section 2.20 shall supersede any provisions in Section 2.11, Section 2.18 and Section 9.02 to the contrary.
(e) Upon each increase in the Revolving Commitments under any Revolving Credit Facility pursuant to this Section 2.20, 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 Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) in respect of such increase, and each such Incremental Revolving Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit under such Revolving Credit Facility such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in such Letters of Credit under such Revolving Credit Facility held by each Revolving Lender (including each such Incremental Revolving Lender), as applicable, will equal the percentage of the aggregate Revolving Commitments of all Revolving Lenders under such Revolving Credit Facility. Additionally, if any Revolving Loans are outstanding under a Revolving Credit Facility at the time any Incremental Revolving Commitments are established, the applicable Revolving Lenders immediately after effectiveness of such Incremental Revolving Commitments shall purchase and assign at par such amounts of the Revolving Loans outstanding under such Revolving Credit Facility at such time as the Revolving Facility Administrative Agent may require such that each Revolving Lender holds its Applicable Percentage of all Revolving Loans outstanding under such Revolving Credit Facility immediately after giving effect to all such assignments. The Revolving Facility 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 transactions effected pursuant to the immediately preceding sentence.
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate At any time, the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower Borrowers may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of of:
(a) one or more new incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more/an additional term loan (any such additional term loan, an “Incremental Term Loan”); or
(b) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans”) in connection with ); provided that (and as part ofi) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate principal amount for all such Incremental Loans Loan Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,000300,000,000 (provided that any amount of Incremental Loans funded pursuant to the terms of this Agreement shall reduce the total aggregate principal amount for all Incremental Equivalent Debt permitted to be incurred hereunder on a dollar-for-dollar basis) and (ii) the total aggregate principal amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $50,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes Borrowers propose that the any Incremental Loans Loan Commitment shall be effective, which shall be a date not less than twenty (20) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrowers shall invite existing Lenders and may invite any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”); provided that both the Swingline Loan Lender and the Issuing Lender shall consent to each Incremental Lender providing any portion of an Incremental Revolving Credit Commitment. Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansLoan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(i) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(ii) the Borrower Administrative Agent and the Lenders shall be have received from the Borrowers a Compliance Certificate demonstrating, in pro forma form and substance reasonably satisfactory to the Administrative Agent, that the (1) Borrowers are in compliance with the financial covenant set forth covenants specified in Section 11.13; 9.14 [Maximum Consolidated Leverage Ratio] and Section 9.15 [Minimum Consolidated Interest Coverage Ratio] and (2) Consolidated Leverage Ratio will be at least 0.25 to 1.00 less than the maximum Consolidated Leverage Ratio in effect as of the Increased Amount Date pursuant to Section 9.14 [Maximum Consolidated Leverage Ratio], in each case based on the financial statements most recently delivered pursuant to Section 8.12(a) [Quarterly Financial Statements] or Section 8.12(b) [Annual Financial Statements], as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully drawn) and (z) any Permitted Acquisition consummated in connection therewith;
(iii) each of the representations and warranties contained in Article 6 [Representations and Warranties] shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Change, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(iv) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrowers and their Subsidiaries (including Permitted Acquisitions);
(v) any proposed Incremental Lender shall join this Agreement as permitted a Lender pursuant to Section 10.6; a Lender Joinder Agreement;
(ivvi) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall share ratably constitute Obligations of the Borrowers and shall be secured and guaranteed with the other Obligations on a pari passu basis;
(1) in the Collateral case of each Incremental Term Loan:
(I) such Incremental Term Loan will mature and shall benefit ratably from amortize in a manner reasonably acceptable to the guarantees under the Guaranty and Collateral Agreement; (v) Administrative Agent, the Incremental Loans shall share no greater than ratably Lenders making such Incremental Term Loan and the Borrowers, but will not in any mandatory prepayments event have a shorter weighted average life to maturity than the remaining weighted average life to maturity (as reasonably determined by the Administrative Agent) of the existing initial Term Loans; (vi) the Incremental Loans shall mature on or a maturity date earlier than the Term Loan Maturity Date; ;
(viiII) the Applicable Margin and pricing grid, if applicable, for such Incremental Term Loan shall be determined by the Administrative Agent, the applicable Incremental Lenders and the Borrowers on the applicable Increased Amount Date;
(III) any Incremental Lender making any Incremental Term Loan shall be entitled to the same voting rights as the existing Term Loan Lenders under the Term Loan Facility and (unless otherwise agreed by the applicable Incremental Lenders; provided that no such agreement shall allow the Incremental Term Loans to be prepaid prior to the initial Term Loans) each Incremental Term Loan shall receive proceeds of prepayments on the same basis as the initial Term Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof); and
(IV) except as provided above, all other terms and conditions applicable to such Incremental Term Loan shall, except to the extent otherwise provided in this Section 5.17, be identical to the terms and conditions applicable to the initial Term Loans;
(2) in the case of each Incremental Revolving Credit Increase:
(I) such Incremental Revolving Credit Increase shall be part of the Revolving Credit Facility, shall mature on the Expiration Date, shall bear interest and be entitled to fees, in each case at the rate applicable to the Revolving Credit Facility, and shall otherwise be subject to the same terms and conditions as the Initial Term Loans, including with respect Revolving Credit Facility;
(II) any Incremental Lender making any Incremental Revolving Credit Increase shall be entitled to interest rate, except the same voting rights as the relevant Joinder Agreement existing Revolving Credit Lenders under the Revolving Credit Facility and (unless otherwise provides, agreed by the applicable Incremental Lenders; provided that all terms and documentation with respect to any Incremental Loans which differ from those no such agreement shall allow the Revolving Credit Commitments with respect to the Initial Term Incremental Revolving Credit Increase to be terminated prior to termination of the existing Revolving Credit Commitments) each Revolving Credit Loan funded by an Incremental Revolving Credit Increase shall receive proceeds of prepayments on the same basis as the existing Revolving Credit Loans shall (such prepayments to be reasonably satisfactory shared pro rata on the basis of the original aggregate funded amount thereof); and
(III) the outstanding Revolving Credit Loans and Ratable Shares of Swingline Loans and Letter of Credit Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders to the Administrative Agent; Revolving Credit Facility (viii) including the Incremental Lenders providing such Incremental Loans Revolving Credit Increase) in accordance with their revised Ratable Shares and the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required.
(3) Incremental Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 and with the consent of the Administrative Agent, to effect the provisions of this Section 2.25.17, without the consent of any other Lenders; and
(4) the Borrowers shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Loans and/or Incremental Loan Commitments) reasonably requested by Administrative Agent in connection with any such transaction.
(c) The Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement.
(d) On any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to make, an Incremental Term Loan to the Borrowers in an amount equal to its Incremental Term Loan Commitment and shall become a Lender hereunder with respect to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto.
(e) On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Revolving Credit Commitment shall become a Lender under the Revolving Credit Facility hereunder with respect to such Incremental Revolving Credit Commitment.
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts (a) Prior to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after last day of the Closing Date and on or prior to September 22Term, 2018the Borrowing Agent may, by written notice delivered to the Administrative AgentAgent (who shall promptly notify the applicable Lenders of such request), elect to request the establishment of of:
(i) one or more new incremental term loans loan commitments (any such incremental term loan commitment, an "Incremental Term Loan Commitment") to make one or more term loans, including a borrowing of an additional term loan the “principal amount of which will be added to the outstanding principal amount of the existing tranche of Incremental Term Loans (any such additional term loan, an "Incremental Term Loan"); or
(ii) one or more increases in the Revolving Commitment (any such increase, an "Incremental Revolving Credit Commitment" and, together with the Incremental Term Loan Commitments, the "Incremental Loan Commitments") to make Revolving Advances (any such increase, an "Incremental Revolving Credit Increase" and, together with the Incremental Term Loans, the "Incremental Loans”) in connection with "); provided that the total aggregate initial principal amount (and as part of) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 date of incurrence thereof) of such requested Incremental Loan Commitments and Schedule 10.13 hereto, in an aggregate amount for all such Incremental Loans shall not to exceed Three Hundred Million and 00/100 Dollars ($1,000,000. 300,000,000).
(iii) Each such notice shall specify the date (each, an “"Increased Amount Date”") on which the Borrower proposes Borrowers propose that the any Incremental Loans Loan Commitment shall be effective; provided that , which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Agent (or such earlier date as may be approved by the Agent).
(iv) The Borrowers may invite any Lender, any Affiliate of any Lender and/or any other Person, to provide an Incremental Loan Commitment, subject to the consent of the Agent and the Issuer and Swing Loan Lender, in each case, such consent not to be unreasonably withheld, to the extent such consent would be required for an assignment by such Person (any such Person, an "Incremental Lender"), and subject to the requirements of Section 16.3.
(v) Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loans. For the avoidance of doubt, Loan Commitment or any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financingthereof.
2.2.2 Such (vi) Any Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that (i) that, each of the following conditions set forth in Section 12.2 were has been satisfied or waived on as of such Increased Amount Date before Date: 268323208
(A) There shall exist no Default or Event of Default immediately prior to or after giving effect to such any Incremental Loans; Loan Commitment and the making of any Incremental Loans pursuant thereto;
(iiB) the Borrower The amount of Incremental Loan requested pursuant to this Section 2.24 shall be at least Fifty Million and 00/100 Dollars ($50,000,000.00);
(C) each of the representations and warranties of the Loan Parties contained in pro forma compliance Article V of the Agreement and in the Other Documents shall be true in all material respects on and as of the date of such additional Loan or Letter of Credit with the financial covenant set forth same effect as though such representations and warranties had been made on and as of such date (except representations and warranties which expressly relate solely to an earlier date or time, which representations and warranties shall be true and correct in Section 11.13; all material respects on and as of the specific dates or times referred to therein) and the Loan Parties shall have performed and complied with all covenants and conditions hereof;
(iiiD) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; for any purpose not prohibited under this Agreement;
(ivE) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall share ratably constitute Obligations of the Borrowers;
(F) in the Collateral case of each Incremental Term Loan (the terms of which shall be set forth in a lender joinder agreement in form and shall benefit ratably from substance satisfactory to the guarantees under the Guaranty and Collateral Agent (each, a "Lender Joinder Agreement; "): (vx) such Incremental Term Loan will mature and, if applicable, amortize in a manner reasonably acceptable to the Incremental Loans shall share no greater than ratably Lenders making such Incremental Term Loan and the Borrowers, but will not in any mandatory prepayments event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; and (viiy) the Applicable Margin and pricing grid, if applicable, for such Incremental Loans Term Loan shall be determined by the Incremental Lenders and the Borrowers on the applicable Increased Amount Date; provided, however, the Applicable Margin and pricing grid, if applicable, for such Incremental Term Loan shall not be higher than the Applicable Margin and pricing grid applicable to the Term Loan unless the Applicable Margin and pricing grid applicable to the Term Loan is increased to be equal to the higher Applicable Margin and pricing grid, if applicable, with respect to such Incremental Term Loan;
(G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in the relevant Lender Joinder Agreement): (x) such Incremental Revolving Credit Increase shall mature on the last day of the Term, shall bear interest and be entitled to fees (other than upfront fees), in each case at the applicable Contract Rate, and shall be subject to the same terms and conditions as the Initial Term LoansRevolving Advances; (y) the outstanding Revolving Advances and the pro rata share of Swing Loans and the Maximum Undrawn Amount of all outstanding Letters of Credit will be reallocated by the Agent on the applicable Increased Amount Date among the Lenders holding Revolving Commitments (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Revolving Commitment Percentages (and the Lenders holding Revolving Commitments (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all 268323208 payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs in connection with such reallocation as if such reallocation were a repayment); and (z) except as provided above, including with respect all of the other terms and conditions applicable to interest ratesuch Incremental Revolving Credit Increase shall, except as to the relevant Joinder Agreement extent otherwise providesprovided in this Section 2.24, provided that all be identical to the terms and documentation with respect conditions applicable to the Revolving Advances;
(H) any Incremental Loans which differ from those with respect to the Initial Term Loans and any Incremental Revolving Credit Commitment shall otherwise be on terms and pursuant to documentation reasonably satisfactory to the Administrative Agent; Agent and the Borrowers;
(viiiI) such Incremental Loans Loan Commitments shall be effected pursuant to one or more Lender Joinder Agreements executed and delivered by the BorrowerBorrowers, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Lenders (which Lender Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Other Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.22.24);
(J) the Borrowers shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Loan and/or Incremental Loan Commitment), as may be reasonably requested by Agent in connection with any such transaction;
(K) the Agent shall have received, prior to the consummation of such Incremental Loan and/or Incremental Loan Commitment, such “onboarding” and tax and administrative forms that are customarily provided for new lenders in syndicated facilities; and
(L) solely with respect to any Incremental Revolving Credit Commitment or Incremental Revolving Credit Increase, the Swing Loan Lender and Issuer shall have consent rights (not to be unreasonably withheld) with respect to such Incremental Lender, if such consent would be required for an assignment of Revolving Advances or Revolving Commitments, as applicable, to such Incremental Lender.
(b) The Incremental Term Loans shall be deemed to be term loans; provided that any such Incremental Term Loan that is not added to the outstanding principal balance of a pre-existing Incremental Term Loan shall be designated as a separate borrowing of Incremental Term Loans for all purposes of this Agreement.
(c) The Incremental Lenders shall be included in any determination of the Required Lenders or Required Revolving Lenders, as applicable, and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement.
(d) On any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to make, an Incremental Term Loan to the Borrowers in an amount equal to its Incremental Term Loan 268323208 Commitment and shall become a Lender hereunder with respect to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto.
(e) On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Revolving Credit Commitment shall become a Lender hereunder with respect to such Incremental Revolving Credit Commitment.
(f) On any Increased Amount Date, Borrowers shall pay all cost and expenses incurred by Agent and by each Incremental Lender in connection with the negotiations regarding, and the preparation, negotiation, execution and delivery of all agreements and instruments executed and delivered by any of Agent, Borrowers and/or Incremental Lenders in connection with, such Incremental Loans (including all fees for any supplemental or additional public filings of any Other Documents necessary to protect, preserve and continue the perfection and priority of the liens, security interests, rights and remedies of Agent and Xxxxxxx hereunder and under the Other Documents in light of such increase).
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Ati Inc)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts In addition to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof Borrowings of Revolving Credit Loans and Schedule 10.13 hereto. The Borrower may Term Loans pursuant to paragraphs (a) and (b) above, at any time or and from time to time after time, the Closing Date Company (and on a Subsidiary designated by the Company in accordance with the requirements of Section 5.02(b) or prior Section 5.02(c)) may request that the Lenders (or other financial institutions agreed to September 22, 2018, by written notice delivered to the Company and the Administrative Agent) offer to enter into commitments to make additional term loans (each such loan being herein called an “Incremental Loan”) under this paragraph (c) to the Company (or, elect to request as applicable, such Subsidiary Borrower). In the establishment of event that one or more new term loans (the “Incremental Loans”) in connection with (and as part of) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 heretoLenders (or such other financial institutions) offer, in an aggregate amount for all such Incremental Loans not to exceed $1,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered or approached to provide all or a portion of any Incremental Loans may elect or decline, in its their sole discretion, to provide enter into such Incremental Loans. For commitments, and such Lenders (or financial institutions) and the avoidance Company agree as to the amount of doubtsuch commitments that shall be allocated to the respective Lenders (or financial institutions) making such offers and the fees (if any) to be payable by the Company in connection therewith, any Eligible Stockholder purchasing such Lenders (or financial institutions) shall become obligated to make Incremental Loans under this Agreement in connection with an amount equal to the Financing amount of their respective Incremental Loan Commitments (and such financial institutions shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such become “Incremental Loan Lenders” hereunder). The Incremental Loans shall become effective as of such Increased Amount Date; provided that (i) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date before or after giving effect to such Incremental Loans; (ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted made pursuant to Section 10.6; any such agreement between the Company (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions or, as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrowerapplicable, the Administrative Agent respective Subsidiary Borrower) and one or more New Lenders (including any such new Lenders; and (ix) the Borrower shall deliver or cause in response to be delivered any customary legal opinions or other documents reasonably requested such request by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, Company shall be deemed to be Term Loansa separate “Series” of Incremental Loans for all purposes of this Agreement. Each Joinder Agreement mayAnything herein to the contrary notwithstanding, without (i) the consent minimum aggregate principal amount of Incremental Loan Commitments entered into pursuant to any such request (and, accordingly, the minimum aggregate principal amount of any other LendersSeries of Incremental Loans) shall be $50,000,000 (except that in the case of Incremental Loan Commitments made available to a Subsidiary Borrower, effect such amendments to this Agreement minimum aggregate principal amount shall be $5,000,000), (ii) the aggregate principal amount of all Incremental Loan Commitments and all outstanding Series of Incremental Loans shall not exceed $500,000,000 (excluding the $37,000,000 of Series A Incremental Loans and the other Loan Documents as $70,000,000 of additional Incremental Loans that may be necessary or appropriatemade to Subsidiary Borrowers and excluding also the $150,000,000 of Series B Incremental Loans), and (iii) the aggregate principal amount of all Incremental Loan Commitments and all outstanding Series of Incremental Loans to all Subsidiary Borrowers shall not exceed $107,000,000. Except as otherwise expressly provided herein, the Incremental Loans of any Series shall have the interest rate, amortization schedule and maturity date as shall be agreed upon by the Lenders in respect thereof and the Company (or, in the opinion case of Incremental Loans to a Subsidiary Borrower, such Subsidiary Borrower). Following the acceptance by the Company of the Administrative Agent, offers made by any one or more Lenders to effect make any Series of Incremental Loans pursuant to the foregoing provisions of this paragraph (c), each Incremental Loan Lender in respect of such Series of Incremental Loans severally agrees, on the terms and conditions of this Agreement, to make such Incremental Loans to the Company or the respective Subsidiary Borrower, as applicable, during the period from and including the date of such acceptance to and including the commitment termination date specified in the agreement entered into with respect to such Series in an aggregate principal amount up to but not exceeding the amount of the Incremental Loan Commitment of such Incremental Loan Lender in respect of such Series as in effect from time to time. Thereafter, subject to the terms and conditions of this Agreement, the Company or the respective Subsidiary Borrower, as applicable, may convert Incremental Loans of such Series of one Type into Incremental Loans of such Series of another Type (as provided in Section 2.22.06) or continue Incremental Loans of such Series of one Type as Incremental Loans of such Series of the same Type (as provided in Section 2.06). Incremental Loans of any Series that are prepaid may not be reborrowed as Incremental Loans of the same Series. Proceeds of Incremental Loans shall be available for any use permitted under the applicable provisions of Section 6.09.”
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate (a) At any time, the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of of:
(i) one or more new incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more additional term loans (any such additional term loan, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental LoansLoan Commitments”) in connection to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) after giving effect to any such Incremental Loans, the aggregate Revolving Commitments plus the aggregate principal amount of all Initial Term Loans and Incremental Term Loans outstanding as part ofof such date shall not (as of any date of incurrence thereof) exceed $250,000,000 and
(1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate amount for all such each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to exceed $1,000,000the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Loan Commitment shall be effective; provided that , which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansLoan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Loan Commitment, (ii2) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds making of any Incremental Loans shall be used as permitted pursuant to Section 10.6; thereto and (iv3) any Permitted Acquisition consummated in connection therewith;
(B) the Incremental Loans Administrative Agent and the Lenders shall share ratably in the Collateral and shall benefit ratably have received from the guarantees under the Guaranty Borrower an Officer’s Compliance Certificate demonstrating, in form and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be substance reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) that the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by is in compliance with the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise financial covenants set forth in Section 9.14 based on the relevant Joinder Agreementfinancial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), identical as applicable, both before and after giving effect (on a Pro Forma Basis) to those of the applicable Term Loans and for purposes of this Agreement, (x) any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.Commitment,
Appears in 1 contract
Samples: Credit Agreement (Fidelity National Financial, Inc.)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts In addition to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may Borrowings of Revolving Credit Loans pursuant to paragraph (a) above, at any time or and from time to time after the Closing Date and on or prior to September 22the Commitment Termination Date, 2018, by written notice delivered to the Administrative Agent, elect to Borrower may request the establishment of that one or more new of the Persons (which may include the Lenders) offer to enter into commitments to make term loans (each such loan being herein called an "Incremental Loan") under this paragraph (b), it being understood that if such offer is to be made by any Person that is not already a Lender hereunder, the “Incremental Loans”Administrative Agent shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) in connection with (and as part of) the consummation event of an assignment to such Person. In the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 heretoevent that one or more of such Persons offer, in an aggregate amount for all such Incremental Loans not to exceed $1,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered or approached to provide all or a portion of any Incremental Loans may elect or decline, in its their sole discretion, to provide enter into such Incremental Loans. For commitments, and such Persons and the avoidance Borrower agree as to the amount of doubt, any Eligible Stockholder purchasing Incremental Loans such commitments that shall be allocated to the respective Persons making such offers and the fees (if any) to be payable by the Borrower in connection with therewith and the Financing shall also amortization and maturity date to be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans shall become effective as of such Increased Amount Date; provided that (i) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date before or after giving effect to such Incremental Loans; (ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loansapplicable thereto, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, such Persons and the Administrative Agent shall execute and deliver an appropriate agreement with respect thereto, and such Persons shall become obligated to make Incremental Loans under this Agreement in an amount equal to the amount of their respective Incremental Loan Commitments as specified in such agreement. The Incremental Loans to be made pursuant to any such agreement between the Borrower and one or more New Lenders; and (ix) Lenders in response to any such request by the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loansa separate "Series" of Incremental Loans for all purposes of this Agreement. Each Joinder Agreement mayAnything herein to the contrary notwithstanding, without (i) the consent minimum aggregate principal amount of Incremental Loan Commitments entered into pursuant to any such request (and, accordingly, the minimum aggregate principal amount of any other LendersSeries of Incremental Loans) shall be $25,000,000, effect such amendments (ii) the aggregate principal amount of all Incremental Loan Commitments and Incremental Loans shall not exceed $150,000,000 and (iii) the final maturity for the Incremental Loans of any Series shall not be earlier than the Commitment Termination Date or later than the earliest regularly scheduled maturity or mandatory prepayment for any Indebtedness incurred pursuant to this Agreement and Section 6.01(g). Following the other Loan Documents as may be necessary or appropriate, in acceptance by the opinion Borrower of the Administrative Agent, offers made by any one or more Incremental Loan Lenders to effect make any Series of Incremental Loans pursuant to the foregoing provisions of this paragraph (b), and the execution and delivery of an agreement with respect thereto as described in such foregoing provisions, each Incremental Loan Lender in respect of such Series of Incremental Loans severally agrees, on the terms and conditions of this Agreement, to make such Incremental Loans to the Borrower in Dollars during the period from and including the availability period for such Loans as agreed to between the Borrower and such Incremental Loan Lenders in an aggregate principal amount up to but not exceeding the amount of the Incremental Loan Commitment of such Incremental Loan Lender in respect of such Series as in effect from time to time. Thereafter, subject to the terms and conditions of this Agreement, the Borrower may convert Incremental Loans of such Series of one Type into Incremental Loans of such Series of another Type (as provided in Section 2.22.06) or continue Incremental Loans of such Series of one Type as Incremental Loans of such Series of the same Type (as provided in Section 2.06). Incremental Loans of any Series that are prepaid or repaid may not be reborrowed as Incremental Loans of the same Series.
Appears in 1 contract
Samples: Credit Agreement (Be Aerospace Inc)
Incremental Loans. 2.2.1 The Borrower and one or more of the Lenders (or any other Person which shall use its commercially reasonable efforts become a Lender with the consent of the Administrative Agent (such consent not to consummate be unreasonably withheld) for the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may purpose of providing an Incremental Loan Commitment) may, at any time or and from time to time after during the Closing period commencing on the Amendment Effective Date and ending on or prior to September 22the date this Agreement terminates, 2018, agree that such Lender shall become an Incremental Lender with an Incremental Loan Commitment by written notice delivered executing and delivering to the Administrative Agent, elect to request the establishment of one or more new term loans Agent an Incremental Loan Amendment (the “Incremental Loans”) in connection with (and as part of) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an aggregate amount for all such Incremental Loans not to exceed $1,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered or approached to provide all or a portion of any Incremental Loans may elect or decline, in its sole discretion, to provide such Incremental Loans. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans shall become effective as of such Increased Amount Date; provided that (i) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date before or after giving effect to such Incremental Loans; (ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be form reasonably satisfactory to the Administrative Agent; ), specifying (viiii) whether such Incremental Loan Commitment shall be comprised of a commitment to make revolving loans (each an "INCREMENTAL REVOLVING CREDIT LOAN") or term loans (each an "INCREMENTAL TERM LOAN"), (ii) the Type and amount of such Incremental Loan Commitment of such Lender, (iii) with respect to an Incremental Revolving Credit Commitment, the period of availability thereof and the Incremental Revolving Credit Commitment Termination Date therefor, (iv) with respect to an Incremental Term Loan Commitment, the date(s) on which such Incremental Term Loans shall be effected available to be made, the Incremental Term Loan Maturity Date therefor and the Incremental Term Loan Principal Payment Dates thereof (if any), (v) the applicable interest rate margin that will apply to Incremental Loans made under such Incremental Loan Commitment, and (vi) the rate of the commitment fee, if any, payable by the Borrower in respect of such Incremental Loan Commitment, and otherwise duly completed. Nothing in this Agreement shall be construed to obligate any Lender to provide any Incremental Loan Commitment. The Incremental Loans to be made pursuant to one or more Joinder Agreements executed and delivered by any such agreement between the Borrower, the Administrative Agent Borrower and one or more New Lenders; and (ix) Persons in response to any such request by the Borrower shall deliver or cause each be deemed to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such a separate "SERIES" of Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for all purposes of this Agreement, and in any case an Incremental Loans, when funded, Revolving Credit Commitment and an Incremental Term Loan Commitment provided pursuant to the same Incremental Loan Amendment shall be deemed to be separate Series of Incremental Loan Commitments. Anything herein to the contrary notwithstanding, the following additional provisions shall be applicable to the Incremental Loan Commitments and Incremental Loans:
(i) the Incremental Revolving Credit Commitment Termination Date of Incremental Revolving Credit Commitments of any Series and the Incremental Term Loan Maturity Date of Incremental Term Loans of any Series shall not be earlier than the Tranche A Term Loan Maturity Date, and
(ii) the Average Life to Maturity of the Incremental Term Loans of any Series shall not be shorter than the remaining Average Life to Maturity of the Tranche A Term Loans. Each Joinder Agreement mayFollowing execution and delivery by the Borrower, without the consent of any other Lenders, effect such amendments to this Agreement one or more Incremental Lenders and the other Administrative Agent as provided above of an Incremental Loan Documents as may be necessary or appropriateAmendment then, in subject to the opinion of the Administrative Agent, to effect the provisions of this Section 2.2.terms and conditions set forth herein:
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts In addition to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof Borrowings of Revolving Credit Loans and Schedule 10.13 hereto. The Borrower may Term Loans pursuant to paragraphs (a), (b) and (c) above, at any time or and from time to time after time, the Closing Date Borrower may request that the Lenders (or other financial institutions agreed to by the Borrower and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, elect ) offer to request enter into commitments to make additional term loans (each such loan being herein called an "Incremental Loan") under this paragraph (d). In the establishment of event that one or more new term loans (the “Incremental Loans”) in connection with (and as part of) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 heretoLenders (or such other financial institutions) offer, in an aggregate amount for all such Incremental Loans not to exceed $1,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered or approached to provide all or a portion of any Incremental Loans may elect or decline, in its their sole discretion, to provide enter into such Incremental Loans. For commitments, and such Lenders (or financial institutions) and the avoidance Borrower agree as to the amount of doubtsuch commitments that shall be allocated to the respective Lenders (or financial institutions) making such offers and the fees (if any) to be payable by the Borrower in connection therewith, any Eligible Stockholder purchasing such Lenders (or financial institutions) shall become obligated to make Incremental Loans under this Agreement in connection with an amount equal to the Financing amount of their respective Incremental Loan Commitments (and such financial institutions shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such become "Incremental Loan Lenders" hereunder). The Incremental Loans shall become effective as of to be made pursuant to any such Increased Amount Date; provided that (i) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date before or after giving effect to such Incremental Loans; (ii) agreement between the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders (including any such new Lenders; and (ix) in response to any such request by the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be a separate "Series" of Incremental Loans for all purposes of this Agreement. Anything herein to the contrary notwithstanding, (i) the minimum aggregate principal amount of Incremental Loan Commitments entered into pursuant to any such request (and, accordingly, the minimum aggregate principal amount of any Series of Incremental Loans) shall be $10,000,000 and (ii) the aggregate principal amount of all Incremental Loan Commitments and all outstanding Series of Incremental Loans shall not exceed $500,000,000; provided that (A) the Incremental Loans (designated Tranche C Term Loans) made upon the Amendment No. Each Joinder Agreement may1 Effective Date shall be in addition to and not utilize such $500,000,000 limit, without so long as the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, requirements set forth in the opinion last sentence of the Administrative Agent, definition of "Incremental Loan Commitment" in Section 1.01 shall be satisfied in respect of such Loans and (B) the Additional Term A Loans made upon the Amendment No. 1 Effective Date shall not be deemed to effect be Incremental Loans for any purpose of this Agreement. Following the acceptance by the Borrower of the offers made by any one or more Lenders to make any Series of Incremental Loans pursuant to the foregoing provisions of this paragraph (d), each Incremental Loan Lender in respect of such Series of Incremental Loans severally agrees, on the terms and conditions of this Agreement, to make such Incremental Loans to the Borrower during the period from and including the date of such acceptance to and including the commitment termination date specified in the agreement entered into with respect to such Series in an aggregate principal amount up to but not exceeding the amount of the Incremental Loan Commitment of such Incremental Loan Lender in respect of such Series as in effect from time to time. The Incremental Loans (designated Tranche C Term Loans) upon the Amendment No. 1 Effective Date, may, at the option of an Incremental Loan Lender, be made through the conversion of existing Tranche B Term Loans into Incremental Loans of such Series as provided in the last sentence of the definition of "Incremental Loan Commitment" in Section 2.21.01 (and each reference in this Agreement to the making of any such Incremental Loans or words of similar import, shall in the case of such Lender be deemed to include such conversion). Thereafter, subject to the terms and conditions of this Agreement, the Borrower may convert Incremental Loans of such Series of one Type into Incremental Loans of such Series of another Type (as provided in Section 2.06) or continue Incremental Loans of such Series of one Type as Incremental Loans of such Series of the same Type (as provided in Section 2.06). Incremental Loans of any Series that are prepaid may not be reborrowed as Incremental Loans of the same Series. Proceeds of Incremental Loans shall be available for any use permitted under the applicable provisions of Section 6.09."
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate At any time during the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The first four year period following the Fifth Amendment Closing Date, the Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term increases in the Revolving Commitments (any such increase, an “Incremental Revolving Credit Commitment”) to make additional revolving credit loans (any such increase, an “Incremental Revolving Credit Increase” or the “Incremental Loans”) in connection with ); provided that (and as part ofi) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate principal amount for all such Incremental Loans Revolving Credit Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,00050,000,000 and (ii) the total aggregate amount for each Incremental Revolving Credit Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Revolving Credit Commitment shall be effective; provided that , which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Revolving Credit Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Revolving Credit Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansRevolving Credit Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Revolving Credit Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Revolving Credit Commitment, (ii2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(B) the Administrative Agent shall have received from the Borrower shall be a Compliance Certificate demonstrating, in pro forma form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenant covenants set forth in Section 11.13; 7.14 based on the financial statements most recently delivered pursuant to Section 6.01 both before and after giving effect (iiion a pro forma basis) to (1) any Incremental Revolving Credit Commitment, (2) the making of any Incremental Loans pursuant thereto (with any Incremental Revolving Credit Commitment being deemed to be fully funded) and (3) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Article V shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; for general corporate purposes of the Borrower and its Subsidiaries (ivincluding Permitted Acquisitions);
(E) each Incremental Revolving Credit Commitment (and the Incremental Loans made thereunder) shall share ratably constitute Obligations of the Borrower and shall be secured and guaranteed with the other Obligations on a pari passu basis;
(F) in the Collateral and case of each Incremental Revolving Credit Increase (the terms of which shall benefit ratably from be set forth in the guarantees under the Guaranty and Collateral relevant Lender Joinder Agreement; ):
(v1) the such Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans Revolving Credit Increase shall mature on the Term Loan Revolving Maturity Date; (vii) , shall bear interest and be entitled to fees, in each case at the Incremental Loans rate applicable to the Revolving Loans, and shall be subject to the same terms and conditions as the Initial Term Revolving Loans;
(2) the outstanding Revolving Loans and Revolving Pro Rata Shares of Swing Line Loans and L/C Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Revolving Pro Rata Shares (and the Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 3.05 in connection with such reallocation as if such reallocation were a repayment); and
(3) except as provided above, including with respect all of the other terms and conditions applicable to interest ratesuch Incremental Revolving Credit Increase shall, except to the extent otherwise provided in this Section 2.15, be identical to the terms and conditions applicable to the Revolving Loans;
(G) any Incremental Lender with an Incremental Revolving Credit Increase shall be entitled to the same voting rights as the relevant Joinder Agreement otherwise provides, provided that all terms existing Lenders under the Revolving Loans and documentation any Credit Extensions made in connection with respect to any each Incremental Revolving Credit Increase shall receive proceeds of prepayments on the same basis as the other Revolving Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; made hereunder;
(viiiH) such Incremental Loans Revolving Credit Commitments shall be effected pursuant to one or more Lender Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Lenders (which Lender 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 2.22.15); and
(I) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Revolving Credit Commitment) reasonably requested by the Administrative Agent in connection with any such transaction.
Appears in 1 contract
Samples: Credit Agreement (United States Lime & Minerals Inc)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at At any time or from time to time after the Closing 2013 Restatement Effective Date and on or prior to September 22the Latest Maturity Date, 2018the Borrower may, by written notice delivered to the Administrative AgentAgent (which shall promptly deliver a copy to each of the Lenders), elect to request the establishment addition to this Agreement of (i) an incremental revolving credit facility, (ii) Incremental Securitization Refinancing Facilities (as defined below) in the form of a new tranche of term loans or an incremental revolving credit facility, or (iii) one or more new tranches of term loans constituting Refinancing Indebtedness in respect of Existing Additional Senior Debt or Permitted First Priority Debt (an “Incremental Senior Debt Refinancing Facility”), or any combination thereof (the “Incremental Facilities”); provided, however, that both (x) at the time of any such request and (y) upon the effectiveness of any such Incremental Facility, no Default shall exist and the Borrower shall, if a Financial Covenant Effectiveness Period is then occurring, be in compliance with Section 6.12 (calculated, in the case of clause (y), on a pro forma basis to give effect to (1) any borrowing under the Incremental Facility, (2) any substantially simultaneous repayments of Revolving Loans”, Other Revolving Loans or Existing Additional Senior Debt, and (3) in connection with the case of any Incremental Securitization Refinancing Facility, any substantially simultaneous repayments or repurchases of Third Party Interests or Indebtedness incurred under Section 6.01(a)(xvi)(A) (and as part ofthe related repurchases of Securitization Assets and cessation of future purchases of Securitization Assets)). The Incremental Facilities shall (i) in the consummation case of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 heretoany incremental revolving credit facilities, be in an aggregate principal amount for all (excluding the aggregate principal amount of Incremental Securitization Refinancing Facilities) not in excess of $500,000,000, (ii) rank pari passu in right of payment and of security with the other Loans, (iii) if such Incremental Facility is a term loan facility, amortize in a manner, and be subject to mandatory prepayments (if any) on terms, acceptable to the Agents, and mature no earlier than the Tranche 6 Term Loan Maturity Date, (iv) bear interest at the market interest rate, as determined at the time such Incremental Facility becomes effective, (v) have such other pricing as may be agreed by the Borrower and the Administrative Agent and (vi) otherwise be treated hereunder no more favorably than, in the case of revolving facilities, the Revolving Loans not and Revolving Commitments, and in the case of term loans, the Tranche 6 Term Loans; provided, that the terms and provisions applicable to exceed $1,000,000. Each such notice shall specify any Incremental Facility may provide for additional or different financial or other covenants applicable only during periods after the Latest Maturity Date that is in effect on the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered or approached to provide all or a portion of any Incremental Loans may elect or decline, in its sole discretion, to provide effectiveness of such Incremental LoansFacility. For At no time shall the avoidance sum of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans shall become effective as of such Increased Amount Date; provided that (i) the conditions aggregate amount of loans outstanding under the Incremental Facilities at such time, (ii) the total Revolving Exposure at such time, (iii) the outstanding Tranche 6 Term Loans at such time, (iv) the outstanding Other Term Loans at such time, (v) the Other Revolving Exposures at such time and (vi) the Additional Senior Debt at such time exceed the Borrowing Base Amount in effect at such time, and the proceeds of the Incremental Facilities shall be used solely for the purposes set forth in Section 12.2 were satisfied or waived on such Increased Amount Date before or after giving effect to such 5.10 and the preamble, provided that the proceeds of Incremental Loans; (ii) the Borrower Securitization Refinancing Facilities shall be used solely for the purposes specified in pro forma compliance with the financial covenant set forth in penultimate sentence of this Section 11.13; (iii) 2.21 and the proceeds of any Incremental Loans Senior Debt Refinancing Facility shall be used solely to repay Existing Additional Senior Debt or Permitted First Priority Debt and interest and other amounts relating thereto that can be financed with Refinancing Indebtedness relating to such Existing Additional Senior Debt or Permitted First Priority Debt, as permitted pursuant the case may be. Such notice shall set forth the requested amount and class of Incremental Facilities, and shall offer each Lender the opportunity to Section 10.6; offer a commitment (ivthe “Incremental Commitment”) to provide a portion of the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments Facility by giving written notice of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory such offered commitment to the Administrative AgentAgent and the Borrower within a time period (the “Offer Period”) to be specified in the Borrower’s notice; (viii) provided, however, that no existing Lender will be obligated to subscribe for any portion of such commitments. In the event that, at the expiration of the Offer Period, Lenders shall have provided commitments in an aggregate amount less than the total amount of the Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered Facility initially requested by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.the
Appears in 1 contract
Samples: Credit Agreement (Rite Aid Corp)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate (a) At any time, the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term increases in the Revolving Credit Commitments, an “Incremental Revolving Credit Commitment”) to make incremental revolving credit loans (any such increase, an “Incremental Revolving Credit Increase” and, the loans made pursuant to such Incremental Revolving Credit Increase, the “Incremental Loans”) in connection with ); provided that (and as part of1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate amount for all such Incremental Loans Revolving Credit Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,00075,000,000 and (2) the total aggregate amount for each Incremental Revolving Credit Commitment shall not be less than a minimum principal amount of $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Revolving Credit Commitment shall be effective; provided that , which shall be a date not less than fifteen (15) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Revolving Credit Commitment (any such Person, an “Incremental Lender”). Any Lender or any Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Revolving Credit Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansRevolving Credit Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Revolving Credit Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such any Incremental Loans; Revolving Credit Commitment;
(ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iiiB) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; for general corporate purposes of the Borrower and its Subsidiaries;
(ivC) each Incremental Revolving Credit Commitment (and the Incremental Loans made thereunder) shall share ratably constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(D) in the Collateral and shall benefit ratably from case of each Incremental Revolving Credit Increase (the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments terms of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans which shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as set forth the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.):
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts (a) At any time prior to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The date that is six (6) months prior to the Revolving Credit Maturity Date, the Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term incremental Revolving Credit Commitments (any such incremental Revolving Credit Commitment, a “New Loan Revolving Credit Commitment”) to make incremental revolving credit loans (any such incremental revolving credit loans, the “Incremental New Loans”) in connection with ); provided that (and as part of1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate amount for all such Incremental Loans New Loan Revolving Credit Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,000300,000,000 and (2) the total aggregate amount for each New Loan Revolving Credit Commitment (and the New Loans made thereunder) shall not be less than a minimum principal amount of $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans any New Loan Revolving Credit Commitment shall be effective; provided that , which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender and/or any Affiliate of any Lender and/or any other Person reasonably satisfactory to the Administrative Agent, to provide a New Loan Revolving Credit Commitment (any such Person, a “New Lender”). Any Lender or any New Lender offered or approached to provide all or a portion of any Incremental Loans New Loan Revolving Credit Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansNew Loan Revolving Credit Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Any New Loan Revolving Credit Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Loans; (ii1) any New Loan Revolving Credit Commitment, and (2) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; making of any New Loans pursuant thereto;
(iiiB) the proceeds of any Incremental New Loans shall be used as for the purposes permitted pursuant to by Section 10.6; 8.12;
(ivC) each New Loan Revolving Credit Commitment (and the New Loans made thereunder) shall constitute Obligations of the Borrower and shall be guaranteed with the other Extensions of Credit on a pari passu basis;
(D) (x) the Incremental terms of each New Loan shall be set forth in the relevant Joinder Agreement;
(i) the Applicable Margin and pricing grid, if applicable, for such New Loans shall share ratably in be determined on the Collateral and shall benefit ratably from applicable Increased Amount Date; provided that if such Applicable Margin would exceed the guarantees under current Applicable Margin for the Guaranty and Collateral Agreement; (v) existing Revolving Credit Loans, the Incremental Applicable Margin for the existing Revolving Credit Loans shall share no greater than ratably in any mandatory prepayments of be automatically increased to equal the existing Term Loans; Applicable Margin for the New Loans and (viii) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental such New Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, Revolving Credit Loans (except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative AgentRevolving Credit Maturity Date); (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.and
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate have the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, elect right to request the establishment of one or more new term loans additional tranches of additional Loans (the “Incremental Loans”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that the aggregate amount of such Incremental Loans shall not exceed One Hundred Million Dollars ($100,000,000). Each such Incremental Loan must be an aggregate minimum amount of $10,000,000 and integral multiples of $5,000,000 in excess thereof. The Administrative Agent and the Arrangers, in consultation with the Borrower, shall manage all aspects of such Incremental Loans, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase and the allocations of Incremental Loans among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to provide an Incremental Loan, and any new Lender becoming a party to this Agreement in connection with any such requested Incremental Loan must be an Eligible Assignee. Effecting the Incremental Loans under this Section is subject to the following conditions precedent: (and as part ofw) the consummation Administrative Agent shall have consented thereto (such consent not to be unreasonably withheld or delayed), (x) no Default or Event of Default shall be in existence on the Financing with Eligible Stockholders effective date of such Incremental Loans, (y) the representations and warranties made or deemed made by the Borrower or any other Loan Party in accordance with Section 10.13 any Loan Document to which such Loan Party is a party shall be true and Schedule 10.13 hereto, in an aggregate amount for all correct on the effective date of such Incremental Loans not except to exceed $1,000,000. Each the extent that such notice shall specify the representations and warranties expressly relate solely to an earlier date (each, an “Increased Amount Date”) in which case such representations and warranties shall have been true and correct on which the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered or approached to provide all or a portion of any Incremental Loans may elect or decline, in its sole discretion, to provide such Incremental Loans. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans shall become effective and as of such Increased Amount Date; provided that earlier date) and except for changes in factual circumstances specifically and expressly permitted hereunder, and (iz) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date before or after giving effect to such Incremental Loans; (ii) the Borrower Administrative Agent shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments have received each of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms following, in form and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably substance satisfactory to the Administrative Agent; : (viiii) if not previously delivered to the Administrative Agent, copies certified by a Qualified Officer of the Borrower of (A) all partnership or other necessary action taken by the Borrower to authorize such Incremental Loans shall be effected pursuant and (B) all corporate or other necessary action taken by Guarantor authorizing the guaranty of such Incremental Loans; and (ii) an opinion of counsel to one or more Joinder Agreements executed the Borrower and delivered by the BorrowerGuarantor, and addressed to the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents Lenders covering such matters as reasonably requested by the Administrative Agent Agent; and (iii) if requested, new Notes executed by the Borrower, payable to any new Lenders and replacement Notes, if requested by any applicable Lender, executed by the Borrower, payable to any existing Lenders making Incremental Loans, in the amount of each such Lender’s Term Loan Exposure at the time of the effectiveness of the applicable Incremental Loans. In connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans pursuant to be secured thereby.
2.2.3 On this Section 2.2 any Increased Amount Date on which any Lender becoming a party hereto shall execute such documents and agreements as the Administrative Agent may reasonably request. The Incremental Loans become effective(i) shall rank pari passu in right of payment with the existing Loans, subject (ii) shall not mature earlier than the Maturity Date and (iii) shall be treated substantially the same as (and in any event no more favorably than) the existing Loans. Incremental Loans may be made hereunder pursuant to an amendment or restatement of this Agreement and, as appropriate, the foregoing terms and conditionsother Loan Documents, executed by the Borrower, each lender with an Incremental Loan new Lender participating in such tranche (eachif any), a “New Lender”each existing Lender participating in such tranche (if any) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 and the Administrative Agent. The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Joinder Agreement Administrative Agent may, without the consent of any other LendersLenders (except as expressly required pursuant to Section 14.3), effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.2.
Appears in 1 contract
Samples: Unsecured Term Loan Agreement (First Industrial Realty Trust Inc)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Any Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018Restatement Effective Date, by written notice delivered from the Company to the Administrative AgentAgent and the Lenders, elect to request the establishment of (a) one or more new additional tranches of term loans or additional Loans of the same Class of Term Loans as an existing Class of Term Loans (the “Incremental Term Loans”) or (b) one or more increases in connection with the amount of the Revolving Credit Commitments (a “Revolving Commitment Increase”), provided that:
(i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Event of Default shall exist and at the time that any such Incremental Term Loan is made (and as part ofafter giving effect thereto) the consummation no Event of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an aggregate amount for all such Incremental Loans not to exceed $1,000,000. Each such notice Default shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans shall be effectiveexist; provided that any Lender offered or approached to provide all or a portion the extent the proceeds of any Incremental Loans may elect or decline, in its sole discretion, to provide such Incremental Loans. For the avoidance of doubtTerm Loan are to be used to finance an Acquisition permitted hereunder, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans shall become effective as of such Increased Amount Date; provided that then this clause (i) shall not be applicable so long as no Event of Default existed at the conditions set forth in Section 12.2 were satisfied or waived on time the acquisition agreement relating to such Increased Amount Date before or Acquisition was entered into;
(ii) immediately after giving effect to the borrowing of such Incremental Loans; Term Loans or the establishment of such Revolving Commitment Increase (iiand (x) assuming all Revolving Commitment Increases were fully drawn and (y) excluding the Borrower cash proceeds of the Incremental Term Loans and/or Revolving Commitment Increases from cash for purposes of calculating the Secured Debt Ratio), the Secured Debt Ratio would not exceed 4.50 to 1.00;
(iii) each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans an aggregate principal amount that is not less than $25,000,000 and shall be used as permitted pursuant to Section 10.6; in an increment of $1,000,000;
(iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; [Reserved];
(v) any Incremental Term Loans (1) shall not mature earlier than the Term B Loan Maturity Date or, solely with respect to any Incremental Term Loans that the Administrative Agent determines are being syndicated primarily to regulated banks in the primary syndication thereof, shall not mature earlier than the Revolving Credit Termination Date, (2) shall not have scheduled amortization prior to the Term B Loan Maturity Date in excess of 1% per annum of the original principal amount or, solely with respect to any Incremental Term Loans that the Administrative Agent determines are being syndicated primarily to regulated banks in the primary syndication, shall not have scheduled amortization prior to final maturity in excess of 10% per annum of the original principal amount thereof, and (3) shall have the interest rates, upfront fees and OID for any Series of Incremental Term Loans as agreed between the applicable Borrower and the Incremental Lenders providing the applicable Series of Incremental Term Loans; provided that, with respect to any Incremental Term Loans established within twelve months of the Restatement Effective Date, if the Effective Yield of such Incremental Term Loans exceeds the Effective Yield on the Term B Loans by more than 50 basis points, the Applicable Rates for the Term B Loans shall share automatically be increased on the date such Incremental Term Loans are established to the extent necessary to cause the Effective Yield of the Term B Loans to be 50 basis points less than the Effective Yield of such Incremental Term Loans;
(vi) in no event shall the Incremental Term Loans of any Series be entitled to participate on a greater than ratably pro rata basis with the Term B Loans then outstanding in any mandatory prepayments of the existing Term Loansprepayment pursuant to this Agreement; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; and
(vii) the Incremental Term Loans shall be subject rank pari passu in right of payment and Collateral with the other Loans and shall have the same guarantees and Collateral as the other Loans and except to the extent contemplated above or as set forth in this Agreement, all other terms of any Incremental Term Loans shall either be substantially the same terms and conditions as the Initial terms of the Term Loans, B Loans (including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans mandatory prepayment requirements) or shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected . Each notice from the Company pursuant to one this Section 2.01(c) shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or more Joinder Agreements executed Revolving Commitment Increases. Incremental Term Loans may be made, and delivered Revolving Commitment Increases may be provided, by the Borrowerany existing Lender (but no existing Lender will have any obligation to make a portion of any Incremental Term Loan or any portion of any Revolving Commitment Increase and no Borrower shall have any obligation to offer any Series of Incremental Term Loans or any Revolving Commitment Increase to existing Lenders) or by any other bank or other financial institution (any such existing Lender or other bank or other financial institution being called an “Incremental Lender”), provided that the Administrative Agent and one or more New Lenders; and the Issuing Lender, as applicable, shall have consented (ix) the Borrower shall deliver or cause not to be delivered any customary legal opinions unreasonably withheld, conditioned or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”delayed) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases to the extent any such consent would be required under Section 10.04(b) for an assignment of the Loans or Revolving Credit Commitments, as applicable, to such Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Lender. Incremental Term Loans and for purposes of Revolving Commitment Increases shall be established pursuant to an amendment (an “Incremental Amendment”) to this AgreementAgreement and, as appropriate, the other Loan Documents, executed by the Company, any Subsidiary Borrower that will be a Borrower in respect of such Incremental Term Loans, when funded, shall be deemed to be Term Loanseach Incremental Lender and the Administrative Agent. Each Joinder Agreement The Incremental Amendment may, without the consent of any other Lendersparty, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, Agent to effect the provisions of this Section 2.22.01(c). In connection with any Incremental Amendment, the Obligors shall deliver such customary opinions and instruments as may be reasonably requested by the Administrative Agent for purposes of ensuring the enforceability of the Loan Documents after giving effect to such Incremental Amendment. Any Incremental Term Loans established pursuant to any Incremental Amendment shall constitute a separate “Series” of Incremental Term Loans hereunder. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.01, (a) each Revolving Credit 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 Revolving Commitment Increase (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Xxxxxx’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans outstanding, each Revolving Commitment Increase Lender shall purchase at par such portions of each other Revolving Credit Lender’s Revolving Credit Loans as the Administrative Agent may specify so that the Revolving Credit Loans are held by each Revolving Credit Lender (including each Revolving Commitment Increase Lender) on a pro rata basis in accordance with their respective Applicable Percentages.
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate (a) At any time, the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more additional term loans, which may be of the same tranche as the outstanding term loans, if any, with the latest maturity or a new tranche of term loans (any such increase or additional term loans, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such loan, an “Incremental Revolving Credit Loan” and, together with the Incremental Term Loans, the “Incremental Loans”) in connection with ); provided that (and as part of1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate principal amount for all such Incremental Loan Commitments and Incremental Loans shall not to (as of any date of incurrence thereof) exceed $1,000,00075,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $5,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Loan Commitment shall be effective; provided that , which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to Administrative Agent (or such later date as may be approved by the Administrative Agent). The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansLoan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that (i) that, subject to Section 1.13, each of the following conditions set forth in Section 12.2 were has been satisfied or waived as of such Increased Amount Date:
(A) no Default or Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such (1) any Incremental Loans; Loan Commitment, (ii2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(B) the Administrative Agent and the Lenders shall have received from the Borrower shall be an Officer’s Compliance Certificate demonstrating, in pro forma form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenant covenants set forth in Section 11.13; 9.14 (iiiwithout giving effect to any Leverage Ratio Increase unless such Incremental Loan Commitment is being used to finance a Material Acquisition) based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Article VII shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; for general corporate purposes of the Borrower and its Subsidiaries (ivincluding Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall share ratably constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) (1) in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the case of each Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans terms of which shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Lender Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.):
Appears in 1 contract
Samples: Credit Agreement (STAMPS.COM Inc)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. (a) The Borrower may at any time on one or from time to time after the Closing Date and on or prior to September 22, 2018more occasions, by written notice to the Administrative Agent, request the making of Incremental Loans; provided that (i) the making of any Incremental Loans shall require the prior written consent of the Required Lenders and (ii) the aggregate amount of all Incremental Loans after the Effective Date shall not exceed $10,000,000. Each such notice shall specify (A) the date on which the Borrower proposes the Incremental Loans to be made, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent and the Required Lenders) after the date on which such notice is delivered to the Administrative Agent, elect to request the establishment of one or more new term loans and (the “Incremental Loans”) in connection with (and as part ofB) the consummation amount of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an aggregate amount for all such Incremental Loans not to exceed $1,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans shall be effective; provided being requested (it being agreed that (x) any Lender offered or approached to provide all or a portion of any Incremental Loans Loan may elect or decline, in its sole discretion, to provide such Incremental Loans. For Loan and (y) any Person that the avoidance of doubtBorrower proposes to become an Incremental Lender, any Eligible Stockholder purchasing Incremental Loans in connection with if such Person is not then a Lender, must be reasonably acceptable to the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with Administrative Agent and the FinancingRequired Lenders).
2.2.2 Such (b) The terms and conditions of any Incremental Loans shall become effective be, except as otherwise set forth herein or in the applicable Incremental Amendment, identical to those of the New Money Loans that are then outstanding, provided that the only conditions to funding of such Increased Amount Date; provided that (i) Incremental Loans contained in the applicable Incremental Amendment shall be the conditions set forth in Section 12.2 were satisfied 4.02 (provided that for the purposes of determining whether or waived on not any Borrowing Base Deficiency exists or would result from the making of any Incremental Loans, such Increased Amount Date before or after giving effect Incremental Amendment shall amend the definition of Advance Rate to increase the percentage as necessary to permit such Incremental Loans), to the extent applicable at such time to such Incremental Loans; .
(iic) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Any Incremental Loans shall be effected pursuant to one or more Joinder Agreements Incremental Amendments executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents each Incremental Lender providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to and the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term LoansAdministrative Agent. Each Joinder Agreement Incremental Amendment may, without with the consent of any other the Required Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative AgentAgent and the Required Lenders, to give effect to the provisions of this Section 2.2Section.
(d) Upon the making of an Incremental Loan by any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders hereunder and under the other Loan Documents. Upon the making of any Incremental Loans, such Incremental Loans shall be deemed to be and treated as New Money Loans for all purposes of this Agreement.
(e) Incremental Roll-Up Loans shall be deemed made pursuant to such terms as provided in the Final DIP Order or any applicable order entered into by the Bankruptcy Court. After such deemed making, the terms and conditions of any Incremental Roll-Up Loans shall be identical to those of the Roll-Up Loans that are then outstanding.
Appears in 1 contract
Samples: Superpriority Senior Secured Priming Debtor in Possession Credit Agreement (Cloud Peak Energy Inc.)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at (a) At any time or and from time to time after the Closing earlier of (i) the date that is three months after the Funding Date and on or (ii) the completion of the syndication of the Facilities (as determined by the Joint Bookrunning Managers) and, with respect to Incremental Revolving Commitments, prior to September 22the Revolving Maturity Date, 2018and, with respect to Incremental Term Loans, prior to the Tranche B Maturity Date, in each case subject to the terms and conditions set forth herein, the Borrower may, by written notice delivered to the Administrative AgentAgent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), elect request to request (x) increase the establishment of existing Revolving Commitments (“Incremental Revolving Commitments” and Loans made pursuant to such Incremental Revolving Commitments, “Incremental Revolving Loans”) and/or (y) add one or more new additional tranches of term loans (the “Incremental Term Loans” and, together with Incremental Revolving Loans, “Incremental Loans”) in connection with (and as part of) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto), in an aggregate amount for all such Incremental Loans not to exceed $1,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered at the time of each such request and upon the effectiveness of each Incremental Facility Amendment, (A) no Default has occurred and is continuing or approached to provide all or a portion of any Incremental Loans may elect or declineshall result therefrom, in its sole discretion, to provide such Incremental Loans. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans shall become effective as of such Increased Amount Date; provided that (i) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date before or after giving effect to such Incremental Loans; (iiB) the Borrower shall be in pro forma compliance on a Pro Forma Basis with the financial covenant set forth covenants contained in Section 11.13; 6.12 and 6.13 recomputed as of the last day of the most-recently ended fiscal quarter of the Borrower, (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (ivC) the Incremental Loans shall share ratably constitute “Senior Indebtedness” and “Designated Senior Indebtedness” under and as defined in the Collateral Convertible Notes Documents and (D) the Borrower shall benefit ratably from have delivered a certificate of a Financial Officer to the guarantees under effect set forth in clauses (A), (B) and (C) above, together with all calculations relevant thereto, including reasonably detailed calculations demonstrating compliance with clause (B) above (which calculations shall, if made as of the Guaranty last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and Collateral Agreement; certificate of a Financial Officer required to be delivered by Section 5.01(a) or (vb) and Section 5.01(c), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Cash Interest Expense for the relevant period). Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Loans shall share no greater not exceed $400,000,000, of which not more than ratably in any mandatory prepayments $100,000,000 may be Incremental Revolving Loans. Each tranche of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $100,000,000, in the case of Incremental Term Loans, and $25,000,000, in the case of Incremental Revolving Loans, provided that such amount may be less than $100,000,000 or $25,000,000, as the case may be, if such amount represents all the remaining availability under the aggregate principal amount of Incremental Term Loans or Incremental Revolving Loans, respectively, set forth above.
(b) The Incremental Term Loans (i) shall rank pari passu in right of payment in respect of the Collateral and with the Obligations in respect of the Revolving Commitments 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 B Term Loans and (iii) other than amortization, pricing or maturity date, shall have the same terms and conditions as the Initial Tranche B Term Loans, 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) 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 B Term Loans) relating to the Tranche B Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.25%, the Applicable Rate relating to the Tranche B Term Loans 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) relating to such Incremental Term Loans minus 0.25%, (B) any Incremental Term Loan shall not have a final maturity date earlier than the Tranche B Maturity Date, and (C) any Incremental 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.
(c) The Incremental Revolving Loans and Incremental Revolving Commitments (i) shall rank pari passu in right of payment in respect of the Collateral and with the Obligations in respect of the Revolving Commitments and the Tranche B Term Loans, (ii) for purposes of prepayments, shall be treated the same as the Revolving Loans and (iii) shall have the same terms as the Revolving Loans (including without limitation with respect to interest rate, except as pricing and maturity date).
(d) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Joinder Agreement otherwise providesIncremental Loans. Any additional bank, provided financial institution, existing Lender or other Person that all terms and documentation with respect elects to any extend Incremental Loans which differ from those with respect to the Initial Term Loans or Incremental Revolving Commitments shall be reasonably satisfactory to the Borrower and the Administrative Agent; Agent (viiiany such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) such Incremental Loans and, if not already a Lender, shall be effected become a Lender under this Agreement pursuant to one or more Joinder Agreements an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed and delivered by the Borrower, such Additional Lender and the Administrative Agent and one or more New Lenders; and (ix) the Borrower Agent. No Lender shall deliver or cause be obligated to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which provide any Incremental Loans become effectiveor Incremental Revolving Commitment, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with unless it so agrees. Commitments in respect to such Incremental Loan.
2.2.4 The terms and provisions of the any Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of become Commitments under this Agreement, any . An Incremental Loans, when funded, shall be deemed to be Term Loans. Each Joinder Agreement 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 necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.2(including to provide for voting provisions applicable to the Additional Lenders comparable to the provisions of clause (B) of the second proviso of Section 9.02(b)). The effectiveness of any Incremental Facility Amendment 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 4.03 (it being understood that all references to “the date of such Borrowing” in Section 4.03 shall be deemed to refer to the Incremental Facility Closing Date). The Administrative Agent shall receive not less than 10 Business Days advance notice (or shorter, if agreed by the Administrative Agent) prior to any proposed Incremental Facility Closing Date. The proceeds of any Incremental Extensions of Credit will be used only for general corporate purposes.
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts (a) At any time prior to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Revolving Credit Maturity Date, the Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term loans increases in the Revolving Credit Commitments (the any such increase, an “Incremental LoansRevolving Credit Commitment”) in connection with to make revolving credit loans under the Revolving Credit Facility (and as part ofany such increase, an “Incremental Revolving Credit Increase”); provided that (1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate principal amount for all such Incremental Loans Revolving Credit Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,000200,000,000.00; and (2) the total aggregate amount for each Incremental Revolving Credit Commitment (and the Incremental Revolving Credit Increase made thereunder) shall not be less than a minimum principal amount of $25,000,000.00 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Revolving Credit Commitment shall be effective; provided that , which shall be a date not less than ten (10) Business Days after the date on which such notice is given to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Revolving Credit Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Revolving Credit Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansRevolving Credit Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Revolving Credit Commitment shall become effective as of such Increased Amount Date; provided that that:
(i) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Revolving Credit Commitment, and (2) the making of any Incremental Revolving Credit Increase pursuant thereto;
(ii) the Administrative Agent and the Lenders shall have received from the Borrower shall be an Officer’s Compliance Certificate, in pro forma form reasonably satisfactory to the Administrative Agent, demonstrating that the Borrower is in compliance with the financial covenant covenants set forth in Section 11.13; 8.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis determined as of the end of the period covered by such financial statements) to (1) any Incremental Revolving Credit Commitment, and (2) the making of any Incremental Revolving Credit Increase pursuant thereto (with any Incremental Revolving Credit Commitment being deemed to be fully funded);
(iii) each of the proceeds of any Incremental Loans representations and warranties contained in Article VI shall be used true and correct in all material respects (except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case such representation and warranty 4835-1758-6474.6 shall be true and correct in all respects) on such Increased Amount Date with the same effect as permitted pursuant if made on and as of such date, except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct in all material respects (except to Section 10.6; the extent any such representation or warranty is qualified by materiality or reference to Material Adverse Effect, in which case such representation or warranty shall remain true and correct in all respects) as of such earlier date;
(iv) each Incremental Revolving Credit Commitment (and the Incremental Loans Revolving Credit Increase made thereunder) shall share ratably in constitute Obligations of the Collateral Borrower and shall benefit ratably from be guaranteed with the guarantees under the Guaranty and Collateral Agreement; other Extensions of Credit on a pari passu basis;
(v) in the case of each Incremental Loans Revolving Credit Increase (the terms of which shall share no greater than ratably be set forth in any mandatory prepayments of the existing Term Loans; relevant Lender Joinder Agreement):
(viA) the such Incremental Loans Revolving Credit Increase shall mature on the Term Loan Revolving Credit Maturity Date; (vii) , shall bear interest and be entitled to fees, in each case at the Incremental Loans rate applicable to the Revolving Credit Loans, and shall be subject to the same terms and conditions as the Initial Term Revolving Credit Loans;
(B) the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Revolving Credit Commitment Percentages (and the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 4.9 in connection with such reallocation as if such reallocation were a repayment); and
(C) except as provided above, including with respect all of the other terms and conditions applicable to interest ratesuch Incremental Revolving Credit Increase shall, except to the extent otherwise provided in this Section 4.15, be identical to the terms and conditions applicable to the Revolving Credit Facility;
(vi) any Incremental Lender with an Incremental Revolving Credit Increase shall be entitled to the same voting rights as the relevant Joinder Agreement otherwise provides, provided that all terms existing Revolving Credit Lenders under the Revolving Credit Facility and documentation any Extensions of Credit made in connection with respect to any each Incremental Revolving Credit Increase shall receive proceeds of prepayments on the same basis as the other Revolving Credit Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; made hereunder;
(viiivii) such Incremental Loans Revolving Credit Commitments shall be effected pursuant to one or more Lender Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Lenders (which Lender 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 2.24.15); and
(viii) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors 4835-1758-6474.6 (or equivalent governing body) of each Credit Party authorizing such Incremental Revolving Credit Increase) reasonably requested by Administrative Agent in connection with any such transaction.
(b) The Incremental Lenders shall be included in any determination of the Required Lenders, and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement.
(c) On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Revolving Credit Commitment shall become a Revolving Credit Lender hereunder with respect to such Incremental Revolving Credit Commitment.
Appears in 1 contract
Samples: Credit Agreement (Fastenal Co)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts (a) At any time until thirty (30) days prior to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Revolving Credit Maturity Date, the Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term increases in the Revolving Credit Commitments (an “Incremental Revolving Credit Commitment”) to make incremental revolving credit loans (any such increase, an “Incremental Revolving Credit Increase” and the loan made thereunder, “Incremental Loans”) in connection with ); provided that (and as part of1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate amount for all such Incremental Loans Revolving Credit Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,00040,000,000 and (2) the total aggregate amount for each Incremental Revolving Credit Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Revolving Credit Commitment shall be effective; provided that , which shall be a date not less than twenty (20) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Revolving Credit Commitment (any such Person, an “Incremental Lender”). Any Lender or any Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Revolving Credit Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansRevolving Credit Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Revolving Credit Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Revolving Credit Commitment and (ii2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower shall an Officer’s Compliance Certificate demonstrating that the Borrower will be in compliance on a pro forma compliance basis with the financial covenant covenants set forth in Section 11.13; 8.15 (iiiprovided that the Consolidated Total Indebtedness to Consolidated Capitalization Ratio shall be less than 62.5%) both before and after giving effect to (1) any Incremental Revolving Credit Commitment and (2) the making of any Incremental Loans pursuant thereto, and assuming that all Incremental Loans under such Incremental Revolving Credit Increase have been made;
(C) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; for general corporate purposes of the Borrower and its Subsidiaries;
(ivD) each Incremental Revolving Credit Commitment (and the Incremental Loans made thereunder) shall share ratably constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(E) in the Collateral and shall benefit ratably from case of each Incremental Revolving Credit Increase (the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments terms of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans which shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as set forth the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.):
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at At any time or from time to time after the Closing Effective Date and on or prior to September 22the Facility Termination Date, 2018, the Company may by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term loans increases in the Aggregate Commitment (the any such increase, an “Incremental LoansRevolving Credit Commitment”) in connection with to make revolving credit loans under the Revolving Credit Facility (and as part ofany such increase, an “Incremental Revolving Credit Increase”); provided that (1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate principal amount for all such Incremental Loans increases during the term of this Agreement shall not to exceed $1,000,0002,000,000,000 and (2) the total aggregate amount for each Incremental Revolving Credit Increase shall not be less than $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower Company proposes that the any Incremental Loans Revolving Credit Increase shall be effective; provided that . The Company may invite any Lender, any Affiliate of any Lender offered or approached and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent to provide all or a portion of an Incremental Revolving Credit Commitment (any such Person, an “Incremental Loans may elect or decline, in its sole discretion, to provide such Lender”). Any Incremental Loans. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Revolving Credit Commitments shall become effective as of such Increased Amount Date; provided that that:
(ia) no Unmatured Default or Default shall exist on such Increased Amount Date;
(b) each of the conditions set forth representations and warranties contained in Section 12.2 were satisfied Article 5 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or waived reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date before with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall be true and correct in all material respects (except to the extent any such representation and warranty is qualified by materiality or after giving effect reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects) as of such earlier date);
(c) in the case of each Incremental Revolving Credit Increase:
(i) the outstanding Revolving Loans and Pro Rata Shares of Swingline Loans and L/C Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders (including the Incremental Lenders providing such Incremental LoansRevolving Credit Increase) in accordance with their revised Pro Rata Share (and the Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Company shall pay any and all costs required pursuant to Section 3.04 in connection with such reallocation as if such reallocation were a repayment); and
(ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans Revolving Credit Commitments shall be effected pursuant to one or more Lender Joinder Agreements executed and delivered by the BorrowerCompany, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Lenders (which Lender Joinder Agreement Agreement(s) 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 2.22.22);
(d) No existing Lender shall be obligated to participate in any Incremental Revolving Credit Increase, and each Lender’s decision to provide (or not provide) an Incremental Revolving Credit Commitment in any instance shall be made in such Xxxxxx’s sole and absolute discretion in each case.
(e) On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Revolving Credit Commitment shall become a Lender hereunder.
Appears in 1 contract
Samples: Credit Agreement (Salesforce, Inc.)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate (a) At any time following the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Closing Date, the Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment”) to make revolving credit loans under the Revolving Credit Facility (the “Incremental LoansLoans ”) in connection with ); provided that (and as part ofi) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate principal amount for all such Incremental Loans Revolving Credit Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,00075,000,000 and (ii) the total aggregate amount for each Incremental Revolving Credit Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Revolving Credit Commitment shall be effective; provided that , which shall be a date not less than five Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Revolving Credit Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Revolving Credit Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansRevolving Credit Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Revolving Credit Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Revolving Credit Commitment, (ii2) the making of any Incremental Loans pursuant thereto, and (3) any Permitted Acquisition consummated in connection therewith;
(B) the Administrative Agent and the Lenders shall have received from the Borrower shall be an Officer’s Compliance Certificate demonstrating, in pro forma form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenant covenants set forth in Section 11.13; 8.12 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (iiion a Pro Forma Basis) to (x) the making of any Incremental Loans pursuant thereto, and (y) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Article VI shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; for general corporate purposes of the Borrower and its Subsidiaries (ivincluding Permitted Acquisitions);
(E) each Incremental Revolving Credit Commitment (and the Incremental Loans made thereunder) shall share ratably constitute Obligations of the Borrower and shall be guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the Collateral and shall benefit ratably from case of each Incremental Revolving Credit Commitment (the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments terms of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans which shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Lender Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.):
Appears in 1 contract
Samples: Credit Agreement (SolarWinds, Inc.)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate (a) At any time during the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Revolving Commitment Period the Borrower may at any time or request from time to time after the Closing Date and on from one or prior to September 22, 2018, by written notice delivered more existing Lenders or from other Eligible Assignees reasonably acceptable to the Administrative Agent, elect the Issuing Bank, the Swingline Lender and the Borrower (but subject to the 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, an “Increase”); provided that the Borrower may not request an Increase on more than three occasions during the establishment of one or more new term loans (the “Incremental Loans”) Revolving Commitment Period. No Lender shall be obligated to increase its Revolving Commitments in connection with (and as part of) the consummation a proposed Increase. The Administrative Agent shall invite each Lender to provide a portion of the Financing with Eligible Stockholders Increase ratably in accordance with Section 10.13 and Schedule 10.13 hereto, in an aggregate amount for all such Incremental Loans not to exceed $1,000,000. Each such notice shall specify the date its Revolving Percentage of each requested Increase (each, an “Increased Amount Date”) on which the Borrower proposes it being agreed that the Incremental Loans no Lender shall be effective; provided obligated to provide an Increase and that any Lender offered may elect to participate in such Increase in an amount that is less than its Revolving Percentage of such requested Increase or approached 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, 10 Business Days after receipt of invitation, sufficient Lenders do not agree to provide all or the full amount of such Increase, then the Administrative Agent may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a portion Lender in connection with the proposed Increase. Any Increase shall be in an amount of any Incremental Loans may elect or declineat 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 its sole discretionexcess thereof. Additionally, to provide such Incremental Loans. For for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of the Increases to the Revolving Commitments exceed the Available Revolving Increase Amount during the term of the Agreement. Each request for an Increase delivered by the Borrower to the Administrative Agent shall set forth the amount and proposed terms of the Increase.
(b) Each of the following shall be conditions precedent to any Eligible Stockholder purchasing Incremental Loans Increase of the Revolving Commitments in connection with therewith:
(i) any Increase shall be on the Financing same terms (including the interest rate, and maturity date), 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 at the time of such Increase are also provided the benefit of such more favorable terms (and the consent of any existing Revolving Lender shall also not be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with implement such terms); provided, further, that any fees shall be agreed between the Financing.Borrower and the lenders providing such Increase;
2.2.2 Such Incremental Loans shall become effective as of such Increased Amount Date; provided that (i) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date before or after giving effect to such Incremental Loans; (ii) the Borrower shall have delivered a written request for such Increase at least 10 Business Days prior to the requested establishment of such Increase (or such later date as may be in pro forma compliance with reasonably approved by the financial covenant Administrative Agent), which request shall set forth in Section 11.13the amount and proposed terms of the Increase; sf-5589619
(iii) each lender agreeing to such Increase, the proceeds Borrower and the Administrative Agent shall have signed an Increase Joinder (any Increase Joinder may, with the consent of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent Borrower and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect lenders agreeing to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Joinder Agreement may, without the consent of any other LendersIncrease, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, appropriate to effect effectuate the provisions of this Section 2.22.28 (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 pro forma effect to such Increase and the use of proceeds thereof, each of the conditions precedent in Section 4.2(a) are satisfied;
(v) immediately after giving pro forma effect to such Increase and the use of proceeds thereof, no Default or Event of Default shall have occurred and be continuing at the time of such Increase, the Borrower shall be in compliance with the financial covenant set forth in Section 6.1(a) hereof, the Borrower shall be in compliance with the financial covenant set forth in Section 6.1(b) hereof (after giving effect to the Covenant Adjustment Amount) as of the end of the most recently ended quarter for which financial statements are required to be delivered prior to such Increase, and the Borrower shall have delivered to the Administrative Agent a Compliance Certificate evidencing compliance with the requirements of this clause (v);
(vi) in connection with such Increase, the Borrower shall pay to the Administrative Agent, for the benefit of the Administrative Agent or the Increase lenders, as applicable, all fees that the Borrower has agreed to pay in connection with such Increase (including pursuant to the Fee Letter); and
(vii) upon each Increase in accordance with this Section 2.28, 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 in consultation with the Borrower; provided that, with respect to any Increase incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), clauses (iv) and (v) of this sentence shall be deemed to have been satisfied so long as (A) as of the date of effectiveness of the acquisition agreement related to such Limited Condition Acquisition, no Default or Event of Default is in existence or would result from entry into such agreement, (B) as of the date of effectiveness of such Increase, no Event of Default under clause (a) or (f) of Section 7.1 is in existence immediately before or immediately after giving effect (including on a Pro Forma Basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (C) the representations and warranties set forth in Section 3 shall be true and correct in all material respects (or in all respects if qualified by materiality) as of the date of effectiveness of the acquisition agreement related to such Limited Condition Acquisition, and (D) as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and the Borrower) shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the incurrence of such Acquisition-Related Incremental Commitment.
(c) Upon the effectiveness of any Increase, (i) all references in this Agreement and any other Loan Document to the Revolving Loans shall be deemed, unless the context otherwise requires, to include such Increase advanced pursuant to this Section 2.28 and any amendments effected through the Increase Joinder and (ii) all references in this Agreement and any other Loan Document to the Revolving 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 2.28. sf-5589619 The Revolving Loans and Revolving Commitments established pursuant to this Section 2.28 shall constitute Revolving 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 Borrower 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 establishment of any such new Revolving Commitments.
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate (a) At any time, the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term loans increases in the Revolving Credit Commitments (the any such increase, an “Incremental LoansRevolving Credit Commitment”) in connection with to make revolving credit loans under the Revolving Credit Facility (and as part ofany such increase, an “Incremental Loan”); provided that (1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate amount for all such Incremental Loans Revolving Credit Commitments shall not to exceed $1,000,000125,000,000 and (2) the total aggregate amount for each Incremental Revolving Credit Commitment (and the Incremental Loan made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Revolving Credit Commitment shall be effective; provided that , which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Revolving Credit Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Revolving Credit Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansRevolving Credit Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Revolving Credit Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Revolving Credit Commitment, (ii2) the making of any Incremental Loan pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(B) the Administrative Agent and the Lenders shall have received from the Borrower an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that (1) the Borrower will be in compliance on a pro forma basis with the Financial Covenants both before and after giving effect to (1) any Incremental Revolving Credit Commitment, (2) the making of any Incremental Loan pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Article VII shall be true and correct in pro forma compliance all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the financial covenant set forth in Section 11.13; same effect as if made on and as of such date (iiiexcept for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; for general corporate purposes of the Borrower and its Subsidiaries (ivincluding Permitted Acquisitions);
(E) each Incremental Revolving Credit Commitment (and the Incremental Loans made thereunder) shall share ratably constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the Collateral and case of each Incremental Loan (the terms of which shall benefit ratably from be set forth the guarantees under the Guaranty and Collateral relevant Lender Joinder Agreement; ):
(vx) the such Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans Loan shall mature on the Term Loan Maturity Date; (vii) , shall bear interest at the Incremental rate applicable to the Revolving Credit Loans and shall be subject to the same terms and conditions as the Initial Term Revolving Credit Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; ;
(viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ixy) the Borrower shall deliver or cause to outstanding Revolving Credit Loans and Commitment Percentages of Swingline Loans and L/C Obligations will be delivered any customary legal opinions or other documents reasonably requested reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders (including the Incremental Lenders providing such Incremental Loan) in accordance with their revised Commitment Percentages (and the Lenders (including the Incremental Lenders providing such Incremental Loan) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 5.9 in connection with any such transactionreallocation as if such reallocation were a repayment); and
(z) except as provided above, including any supplements or amendments to all of the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing other terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect conditions applicable to such Incremental Loan.
2.2.4 The Loan shall, except to the extent otherwise provided in this Section 5.13, be identical to the terms and provisions of conditions applicable to the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Joinder Agreement may, without the consent of any Revolving Credit Facility (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 2.2.than upfront fees);
Appears in 1 contract
Incremental Loans. 2.2.1 The (a) Subject to the terms of the Intercreditor Agreement and the conditions set forth below, the Borrower shall use its commercially reasonable efforts have the option, exercisable on no more than three (3) occasions following the Closing Date until the Maturity Date to consummate incur additional indebtedness under this Agreement in the Financing form of Incremental Loans in an aggregate principal amount of up to (i) $50,000,000 less (ii) the aggregate principal amount of any prior Incremental Loans made pursuant to this Section 2.5. In the event the Borrower desires to exercise the above-described option, the Borrower shall deliver to the Administrative Agent an Incremental Notification pursuant to which the Borrower may request that additional Loans be made on the Incremental Loan Effective Date.
(b) Each Incremental Loan shall be obtained from existing Lenders or from other banks, financial institutions or investment funds that qualify as Eligible Assignees, in each case in accordance with Eligible Stockholders in a manner consistent with this Section 10.13 hereof and Schedule 10.13 hereto2.5. No Lender shall have any obligation to provide any portion of such Incremental Loans. The Borrower may at any time or from time invite other banks, financial institutions and investment funds which meet the requirements of an Eligible Assignee to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, elect to request the establishment of one or more new term loans (the “Incremental Loans”) in connection with (and join this Agreement as part of) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an aggregate amount for all such Incremental Loans not to exceed $1,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered or approached Lenders to provide all or a portion of such Incremental Loans (each such other bank, financial institution or investment fund, a “New Lender” and collectively with the existing Lenders providing Incremental Loans, the “ Incremental Lenders”). The Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Agreement or any other Loan Document as may be necessary to incorporate the terms of any Incremental Loan herein or therein; provided that such amendment shall not modify this Agreement or any other Loan Document in any manner materially adverse to any Lender and shall otherwise be in accordance with Section 9.2.
(c) The following terms and conditions shall apply to each Incremental Loan: (i) the Incremental Loans may elect made under this Section 2.5 shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Loans on a pari passu basis, (ii) any New Lender making Incremental Loans shall be entitled to the same voting rights as the existing Lenders and the Incremental Loans shall receive proceeds of prepayments on the same basis as the Initial Loans, (iii) the Borrower shall, upon the request of any Incremental Lender, execute such Notes as are necessary to reflect such Incremental Lender’s Incremental Loans, (iv) the Administrative Agent and the Lenders shall have received from the Borrower a certificate executed by a Responsible Officer of the Borrower, demonstrating in reasonable detail that, after giving effect to any such Incremental Loan, the Borrower will be in pro forma compliance with the Leverage Ratio set forth in Section 6.23, (v) no Default or decline, in its sole discretion, Event of Default shall have occurred and be continuing hereunder as of the Incremental Loan Effective Date or after giving effect to provide the making of any such Incremental Loans. For , (vi) the avoidance representations and warranties contained in Article V and in the other Loan Documents shall be true and correct on and as of doubtthe Incremental Loan Effective Date with the same effect as if made on and as of such date (other than those representations and warranties that by their terms speak as of a particular date, which representations and warranties shall be true and correct as of such particular date), (vii) the amount of such Incremental Loan shall not be less than a minimum principal amount of $10,000,000, or any Eligible Stockholder purchasing whole multiple of $5,000,000 in excess thereof, or if less, the maximum amount permitted pursuant to clause (a) above, (viii) the Borrower and each Incremental Loans Lender shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, a written agreement acknowledged by the Administrative Agent and each other Credit Party, in form and substance satisfactory to the Administrative Agent (a “Lender Addition and Acknowledgement Agreement”), and (ix) the Administrative Agent shall have received any documents or information, including any joinder agreements, in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financingsuch Incremental Loans as it may reasonably request.
2.2.2 (d) Upon the execution, delivery, acceptance and recording of the applicable Lender Addition and Acknowledgement Agreement, from and after the applicable Incremental Loan Effective Date, each Incremental Lender shall have a Commitment as set forth in the Register and all the rights and obligations of a Lender with such a Commitment hereunder. The Incremental Lenders shall make the Incremental Loans to the Borrower on the Incremental Loan Effective Date in an amount equal to each such Incremental Lender’s commitment in respect of Incremental Loans as agreed upon pursuant to clause (b) above.
(e) The Administrative Agent shall maintain a copy of each Lender Addition and Acknowledgment Agreement delivered to it in accordance with Section 9.10(c).
(f) Within five (5) Business Days after receipt of notice, the Borrower shall execute and deliver to the Administrative Agent, in exchange for any surrendered Note or Notes of any existing Lender or with respect to any New Lender, a new Note or Notes to the order of the applicable Lenders in amounts equal to the Commitment of such Lenders as set forth in the Register. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such Commitments, shall be dated as of the Incremental Loan Effective Date and shall otherwise be in substantially the form of the existing Notes. Each surrendered Note and/or Notes shall be canceled and returned to the Borrower.
(g) The Incremental Maturity Date, Applicable Margin, amortization and pricing grid, if applicable, for each Incremental Loans shall become effective as of such Increased Amount be determined on the applicable Incremental Loan Effective Date; provided that (i) no Incremental Maturity Date shall be prior to the conditions set forth in Section 12.2 were satisfied Maturity Date or waived on such Increased Amount Date before any other Incremental Maturity Date, (ii) the applicable Incremental Loan shall not have a weighted average life that is shorter than the weighted average life of the longer of (A) the Initial Loan, or (B) any other Incremental Loan, as applicable, and (iii) if the all-in-yield, after giving effect to any offering of the applicable Incremental Loan at a discount from par or any fees paid to the Incremental Lenders in connection with such Incremental Loans; Loans (iithe “All-in-Yield”) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest ratethe applicable Incremental Loan, except as exceeds the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those All-in-Yield with respect to the Initial Term Loans Loan or any prior Incremental Loan by more than 0.50%, then the fees payable by the Borrower with respect to the Initial Loan and/or any prior Incremental Loan shall be reasonably satisfactory increased to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant extent necessary to one or more Joinder Agreements executed and delivered by cause the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection All-in-Yield with any such transaction, including any supplements or amendments respect to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject no more than 0.50% higher than the All-in-Yield with respect to the foregoing terms and conditions, each lender with an Initial Loan and/or any prior Incremental Loan (each, a “New Lender”) the amount of any increase shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions be determined as of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2Effective Date).
Appears in 1 contract
Samples: Credit Agreement (Hhgregg, Inc.)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts (a) At any time prior to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Expiration Date, the Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of of:
(i) one or more new incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more additional term loans (any such additional term loan, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans”) in connection with ); provided that (and as part ofi) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate principal amount for all such Incremental Loans shall not to (as of any date of incurrence thereof) exceed $1,000,000500,000,000.00 and (ii) the total aggregate principal amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Loan Commitment shall be effective, which shall be a date not less than fifteen (15) Business Days after the date on which such notice is delivered to the Administrative Agent or such shorter period as may be agreed to by the Administrative Agent. The Borrower shall invite existing Lenders and may invite any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”); provided that both each Swingline Loan Lender and Issuing Lender shall consent to each Incremental Lender providing any portion of an Incremental Revolving Credit Commitment. Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansLoan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(i1) the conditions set forth in Section 12.2 were satisfied no Potential Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Loan Commitment, and (ii2) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; making of any Loans pursuant thereto;
(iii2) the proceeds of any Incremental Loans Administrative Agent and the Lenders shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably have received from the guarantees under the Guaranty Borrower a Compliance Certificate demonstrating, in form and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be substance reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected , that the Loan Parties are in compliance with the financial covenants specified in Sections 9.10 [Maximum Leverage Ratio], 9.11 [Minimum Fixed Charge Coverage Ratio], 9.12 [Maximum Secured Indebtedness], 9.13 [Maximum Unsecured Leverage] and 9.14 [Minimum Unsecured Interest Coverage] based on the financial statements most recently delivered pursuant to one Section 8.12(a) [Quarterly Financial Statements] or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.NAI-0000000000v16
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. (a) The Borrower may at any time or and from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, elect Agent (whereupon the Administrative Agent shall make such notice available to each of the Lenders) request the establishment of one or more additional new term loans revolving loan tranches (the an “Incremental LoansLoan”) in connection with (and as part of) increasing the consummation aggregate amount of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 heretocommitments hereunder (each such increase, a “Commitment Increase”) in an aggregate amount for all such Incremental Loans not to exceed $1,000,000250,000,000 from any existing Lender or an Additional Incremental Lender (which Additional Incremental Lender shall become a “Lender” hereunder subject to the prior consent of the Administrative Agent and the Borrower, such consent not to be unreasonably withheld, conditioned or delayed). Each such written notice shall specify specify: (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans Commitment Increase shall be effective; provided that effective (the “Loan Increase Effective Date”), which shall be a date not less than ten (10) Banking Days after the date on which such notice is delivered to the Administrative Agent, (ii) the amount of such proposed Commitment Increase (which shall not exceed an aggregate of $250,000,000 for all Commitment Increases), and (iii) the identity of each Lender (including each Additional Incremental Lender) to whom the Borrower proposes each portion of such Commitment Increase and related Incremental Loan be allocated and the amount of each such allocation. No existing Lender will have any Lender offered obligation to accept or approached to provide all or a make any portion of any Incremental Loans may elect Loan or declineto make any Loan associated with any Commitment Increase. Each Lender, in its sole discretion, to provide such Incremental Loans. For the avoidance of doubt, may either grant or deny any Eligible Stockholder purchasing Incremental Loans increase in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financingits respective commitment.
2.2.2 Such Incremental Loans (b) A Commitment Increase shall become effective as of such Increased Amount the Loan Increase Effective Date; provided that each of the following conditions precedent is satisfied:
(i) no Default or Event of Default shall have occurred and be continuing or would result from any borrowing to be made as of the conditions set forth in Section 12.2 were satisfied Loan Increase Effective Date or waived on such Increased Amount Date before or after giving effect otherwise with respect to such Incremental Loans; the Commitment Increase;
(ii) the representations and warranties made by the Borrower herein shall be true and correct in pro forma compliance with all material respects (or in all respects to the financial covenant set forth extent otherwise qualified by materiality or Material Adverse Effect) on and as of the Loan Increase Effective Date as if made on and as of such date, except for representations and warranties expressly stated to relate to a specific earlier date (in Section 11.13; which event such representations and warranties shall have been true and correct in all material respects (or in all respects to the extent otherwise qualified by materiality or Material Adverse Effect) on and as of such earlier date);
(iii) the proceeds Borrower shall have delivered to the Administrative Agent a certificate of any Incremental Loans shall be used as permitted pursuant to Section 10.6a Responsible Officer certifying clauses (i) and (ii); and
(iv) the Commitment Increase has been accepted by one or more Lenders or Additional Incremental Loans shall share ratably in the Collateral Lenders.
(c) The terms and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the conditions of any Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans made pursuant to a Commitment Increase shall be as follows:
(i) on and after each Loan Increase Effective Date, each Lender (including Additional Incremental Lender(s)) shall be obligated, to the extent of its commitment, in accordance with the requirements set forth in this Agreement to provide Loans to the Borrower under each Incremental Loan subject to the same Borrower’s compliance with the terms and conditions as the Initial Term of this Agreement applicable to all Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that borrowing procedures and conditions precedent to all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans Loans;
(ii) each Commitment Increase shall be in a minimum amount of $5,000,000 and in integral multiples of $1,000,000 in excess thereof; and
(iii) each Commitment Increase shall be documented pursuant to an incremental joinder agreement (the “Incremental Joinder”) reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements , executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to making such Incremental Loan.
2.2.4 . The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Joinder Agreement may, without the consent of any other LendersLender, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.22.5. In addition, unless otherwise specifically provided herein, all references in this Agreement or any other Credit Document to Loans shall be deemed to include a reference to Incremental Loans that are Loans made pursuant to this Agreement.
(d) Prior to each respective Loan Increase Effective Date, the Administrative Agent shall receive from each Additional Incremental Lender an administrative questionnaire in the form reasonably satisfactory to the Administrative Agent or, in the case of an existing Lender, an update to such administrative questionnaire and the Administrative Agent shall adjust each Lender’s Pro Rata Share to account for each such Lender and/or Additional Incremental Lender and each Commitment Increase and related Incremental Loan.
(e) The Incremental Loans and Commitment Increases established pursuant to this Section 2.5 shall constitute Loans and Commitments for all purposes under, and shall be entitled to all the rights, benefits and remedies afforded by this Agreement and the other Credit Documents, and shall, without limiting the foregoing, benefit equally and ratably, on a pari passu basis, from all security interests created by each Pledge Agreement and the guarantees of the Guarantors. The Obligors shall take any actions and execute and deliver any instrument reasonably required by the Administrative Agent to evidence and ensure that the Liens and security interests granted by the Pledge Agreements extend to and benefit the Incremental Loans and continue to be effective and perfected following the establishment of any such Incremental Loan or Commitment Increase.
(f) Each Lender providing an Incremental Loan or a Commitment Increase on the Loan Increase Effective Date shall make a Loan, the proceeds of which will be used to prepay the Loans of the other Lenders immediately prior to such Loan Increase Effective Date, so that, after giving effect thereto, the Loans outstanding are held by the Lenders pro rata based on their Individual Commitments after giving effect to such Loan Increase Effective Date. If there is a new borrowing of Loans on such Loan Increase Effective Date, the Lenders after giving effect to such Loan Increase Effective Date shall make such Loans in accordance with Article 3.
Appears in 1 contract
Samples: Loan Agreement (Royal Gold Inc)
Incremental Loans. 2.2.1 The (a) Subject to the terms of the Intercreditor Agreement and the conditions set forth below, the Borrower shall use its commercially reasonable efforts have the option, exercisable on no more than three (3) occasions following the Closing Date until the Maturity Date to consummate incur additional indebtedness under this Agreement in the Financing form of Incremental Loans in an aggregate principal amount of up to (i) $50,000,000 less (ii) the aggregate principal amount of any prior Incremental Loans made pursuant to this Section 2.5. In the event the Borrower desires to exercise the above-described option, the Borrower shall deliver to the Administrative Agent an Incremental Notification pursuant to which the Borrower may request that additional Loans be made on the Incremental Loan Effective Date.
(b) Each Incremental Loan shall be obtained from existing Lenders or from other banks, financial institutions or investment funds that qualify as Eligible Assignees, in each case in accordance with Eligible Stockholders in a manner consistent with this Section 10.13 hereof and Schedule 10.13 hereto2.5. No Lender shall have any obligation to provide any portion of such Incremental Loans. The Borrower may at any time or from time invite other banks, financial institutions and investment funds which meet the requirements of an Eligible Assignee to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, elect to request the establishment of one or more new term loans (the “Incremental Loans”) in connection with (and join this Agreement as part of) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an aggregate amount for all such Incremental Loans not to exceed $1,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered or approached Lenders to provide all or a portion of such Incremental Loans (each such other bank, financial institution or investment fund, a “New Lender” and collectively with the existing Lenders providing Incremental Loans, the “Incremental Lenders”). The Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Agreement or any other Loan Document as may be necessary to incorporate the terms of any Incremental Loan herein or therein; provided that such amendment shall not modify this Agreement or any other Loan Document in any manner materially adverse to any Lender and shall otherwise be in accordance with Section 9.2.
(c) The following terms and conditions shall apply to each Incremental Loan: (i) the Incremental Loans may elect made under this Section 2.5 shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Loans on a pari passu basis, (ii) any New Lender making Incremental Loans shall be entitled to the same voting rights as the existing Lenders and the Incremental Loans shall receive proceeds of prepayments on the same basis as the Initial Loans, (iii) the Borrower shall, upon the request of any Incremental Lender, execute such Notes as are necessary to reflect such Incremental Lender’s Incremental Loans, (iv) the Administrative Agent and the Lenders shall have received from the Borrower a certificate executed by a Responsible Officer of the Borrower, demonstrating in reasonable detail that, after giving effect to any such Incremental Loan, the Borrower will be in pro forma compliance with the Leverage Ratio set forth in Section 6.23, (v) no Default or decline, in its sole discretion, Event of Default shall have occurred and be continuing hereunder as of the Incremental Loan Effective Date or after giving effect to provide the making of any such Incremental Loans. For , (vi) the avoidance representations and warranties contained in Article V and in the other Loan Documents shall be true and correct on and as of doubtthe Incremental Loan Effective Date with the same effect as if made on and as of such date (other than those representations and warranties that by their terms speak as of a particular date, which representations and warranties shall be true and correct as of such particular date), (vii) the amount of such Incremental Loan shall not be less than a minimum principal amount of $10,000,000, or any Eligible Stockholder purchasing whole multiple of $5,000,000 in excess thereof, or if less, the maximum amount permitted pursuant to clause (a) above, (viii) the Borrower and each Incremental Loans Lender shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, a written agreement acknowledged by the Administrative Agent and each other Credit Party, in form and substance satisfactory to the Administrative Agent (a “Lender Addition and Acknowledgement Agreement”), and (ix) the Administrative Agent shall have received any documents or information, including any joinder agreements, in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financingsuch Incremental Loans as it may reasonably request.
2.2.2 (d) Upon the execution, delivery, acceptance and recording of the applicable Lender Addition and Acknowledgement Agreement, from and after the applicable Incremental Loan Effective Date, each Incremental Lender shall have a Commitment as set forth in the Register and all the rights and obligations of a Lender with such a Commitment hereunder. The Incremental Lenders shall make the Incremental Loans to the Borrower on the Incremental Loan Effective Date in an amount equal to each such Incremental Lender’s commitment in respect of Incremental Loans as agreed upon pursuant to clause (b) above.
(e) The Administrative Agent shall maintain a copy of each Lender Addition and Acknowledgment Agreement delivered to it in accordance with Section 9.10(c).
(f) Within five (5) Business Days after receipt of notice, the Borrower shall execute and deliver to the Administrative Agent, in exchange for any surrendered Note or Notes of any existing Lender or with respect to any New Lender, a new Note or Notes to the order of the applicable Lenders in amounts equal to the Commitment of such Lenders as set forth in the Register. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such Commitments, shall be dated as of the Incremental Loan Effective Date and shall otherwise be in substantially the form of the existing Notes. Each surrendered Note and/or Notes shall be canceled and returned to the Borrower.
(g) The Incremental Maturity Date, Applicable Margin, amortization and pricing grid, if applicable, for each Incremental Loans shall become effective as of such Increased Amount be determined on the applicable Incremental Loan Effective Date; provided that (i) no Incremental Maturity Date shall be prior to the conditions set forth in Section 12.2 were satisfied Maturity Date or waived on such Increased Amount Date before any other Incremental Maturity Date, (ii) the applicable Incremental Loan shall not have a weighted average life that is shorter than the weighted average life of the longer of (A) the Initial Loan, or (B) any other Incremental Loan, as applicable, and (iii) if the all-in-yield, after giving effect to any offering of the applicable Incremental Loan at a discount from par or any fees paid to the Incremental Lenders in connection with such Incremental Loans; Loans (iithe “All-in-Yield”) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest ratethe applicable Incremental Loan, except as exceeds the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those All-in-Yield with respect to the Initial Term Loans Loan or any prior Incremental Loan by more than 0.50%, then the fees payable by the Borrower with respect to the Initial Loan and/or any prior Incremental Loan shall be reasonably satisfactory increased to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant extent necessary to one or more Joinder Agreements executed and delivered by cause the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection All-in-Yield with any such transaction, including any supplements or amendments respect to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject no more than 0.50% higher than the All-in-Yield with respect to the foregoing terms and conditions, each lender with an Initial Loan and/or any prior Incremental Loan (each, a “New Lender”) the amount of any increase shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions be determined as of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2Effective Date).
Appears in 1 contract
Samples: Credit Agreement (Hhgregg, Inc.)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts (a) At any time prior to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The date that is six (6) months prior to the Revolving Credit Maturity Date, the Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term incremental Revolving Credit Commitments (any such incremental Revolving Credit Commitment, a “New Loan Revolving Credit Commitment”) to make incremental revolving credit loans (any such incremental revolving credit loans, the “Incremental New Loans”) in connection with ); provided that (and as part of1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate amount for all such Incremental Loans New Loan Revolving Credit Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,000150,000,000 and (2) the total aggregate amount for each New Loan Revolving Credit Commitment (and the New Loans made thereunder) shall not be less than a minimum principal amount of $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans any New Loan Revolving Credit Commitment shall be effective; provided that , which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender and/or any Affiliate of any Lender and/or any other Person reasonably satisfactory to the Administrative Agent, to provide a New Loan Revolving Credit Commitment (any such Person, a “New Lender”). Any Lender or any New Lender offered or approached to provide all or a portion of any Incremental Loans New Loan Revolving Credit Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansNew Loan Revolving Credit Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Any New Loan Revolving Credit Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Loans; (ii1) any New Loan Revolving Credit Commitment, and (2) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; making of any New Loans pursuant thereto;
(iiiB) [Intentionally Omitted];
(C) the proceeds of any Incremental New Loans shall be used as for the purposes permitted pursuant to by Section 10.69.13(b);
(D) each New Loan Revolving Credit Commitment (and the New Loans made thereunder) shall constitute Obligations of the Borrower and shall be guaranteed with the other Extensions of Credit on a pari passu basis; LEGAL02/32557961v11
(ivE) (x) the Incremental terms of each New Loan shall be set forth the relevant Joinder Agreement;
(i) [intentionally omitted], (ii) the Applicable Margin and pricing grid, if applicable, for such New Loans shall share ratably in be determined on the Collateral and shall benefit ratably from applicable Increased Amount Date; provided that if such Applicable Margin would exceed the guarantees under current Applicable Margin for the Guaranty and Collateral Agreement; (v) existing Revolving Credit Loans, the Incremental Applicable Margin for the existing Revolving Credit Loans shall share no greater than ratably in any mandatory prepayments of be automatically increased to equal the existing Term Loans; Applicable Margin for the New Loans and (viiii) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental such New Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, Revolving Credit Loans (except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative AgentRevolving Credit Maturity Date); (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.and
Appears in 1 contract
Incremental Loans. 2.2.1 (a) The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018may, by written notice delivered to the Administrative Agent, elect from time to time, request the establishment of Incremental Loan Commitments from one or more new term loans (Incremental Lenders, which may include any proposed Lender, for the “Incremental Loans”) in connection with (and as part of) purpose of financing one or more acquisitions permitted under the consummation terms of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an aggregate amount for all such Incremental Loans not to exceed $1,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered or approached to provide all or a portion of any Incremental Loans may elect or decline, in its sole discretion, to provide such Incremental Loans. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans shall become effective as of such Increased Amount Datethis Agreement; provided that (i) the conditions set forth sum of the Incremental Loan Commitments and the outstanding Loans shall in Section 12.2 were satisfied no event exceed $500,000,000 (or waived on such Increased Amount Date before or after giving effect to such Incremental Loans; $550,000,000 if the Exxxxxxxx Facility shall have been drawn) and (ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any each Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans Lender, if not already a Lender hereunder, shall be subject to the same approval of the Administrative Agent (which approval shall not be unreasonably withheld or delayed). Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days or more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from those applicable to the Loans (“Other Loans”).
(b) The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Lender. Each Incremental Loan Assumption Agreement shall specify the terms of the Incremental Loans to be made thereunder; provided that (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, (ii) the Average Life of any Other Loans shall be no shorter than the Average Life of the Loans, (iii) to the extent inconsistent with the terms of this Agreement, the other terms and conditions as the Initial Term Loans, including with in respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to of any Incremental Loans which differ from those with respect to the Initial Term Other Loans shall be reasonably satisfactory to the Administrative Agent; , and (viiiiv) if the initial yield on any Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the Average Life of such Other Loans and (B) four) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) the Applicable Margin for Eurodollar Loans, then the Applicable Margin for all Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans. The Administrative Agent shall promptly notify each Lender of the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent appropriate in the judgment of the Administrative Agent to reflect the existence and terms of the Incremental Loan Commitments and the Incremental Loans established or provided for therein, as well as, to the extent applicable, any modifications to the covenants or other provisions set forth herein that shall apply to such Incremental Loans, as contemplated above in this Section 2.23(b).
(c) Notwithstanding the foregoing, no Incremental Loans shall be effected pursuant made or Incurred under this Section 2.23 unless (i) at the time of and after giving effect to one or more Joinder Agreements such Incurrence, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed and delivered by a Financial Officer of the Borrower, (ii) the Consolidated Coverage Ratio of the Borrower would not be less than 3.0 to 1.0 for the most recent period of four fiscal quarters for which financial statements shall have been delivered to the Lenders, giving pro forma effect to the Incurrence of such Incremental Loans and other events customarily adjusted for in pro forma financial computations (including any acquisitions or dispositions after the beginning of the relevant determination period but prior to or simultaneous with the Incurrence of such Incremental Loans) in a manner satisfactory to the Administrative Agent and (iii) except as otherwise specified in the applicable Incremental Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Lenders to the extent requested thereby) legal opinions, board resolutions and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Article IV (and relevant thereto).
(d) Each of the parties hereto agrees that the Administrative Agent may, in connection consultation with the Borrower, take any such transactionand all actions as it shall deem reasonably necessary to ensure that all Incremental Loans (other than Other Loans), including when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurodollar Borrowing on a pro rata basis. Any conversion of Eurodollar Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.16. If any supplements or amendments Incremental Loan is to be allocated to an existing Interest Period for a Eurodollar Borrowing, then the Collateral Documents providing interest rate thereon for such Incremental Loans to Interest Period and the other economic consequences thereof shall be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder applicable Incremental Loan Assumption Agreement. In addition, identical to those of the applicable Term Loans and for purposes of this Agreement, extent any Incremental Loans are not Other Loans, when funded, the scheduled amortization payments under Sections 2.11(a)(i) and (ii) required to be made after the making of such Incremental Loans shall be deemed to be Term ratably increased by the aggregate principal amount of such Incremental Loans. 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 2.2.
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at At any time or from time to time after the Closing 2014 Restatement Effective Date and on or prior to September 22the Latest Maturity Date, 2018the Borrower may, by written notice delivered to the Administrative AgentAgent (which shall promptly deliver a copy to each of the Lenders), elect to request the establishment addition to this Agreement of (i) an incremental revolving credit facility, (ii) Incremental Securitization Refinancing Facilities (as defined below) in the form of a new tranche of term loans or an incremental revolving credit facility, or (iii) one or more new tranches of term loans constituting Refinancing Indebtedness in respect of Existing Additional Senior Debt or Permitted First Priority Debt (an “Incremental Senior Debt Refinancing Facility”), or any combination thereof (the “Incremental Facilities”); provided, however, that both (x) at the time of any such request and (y) upon the effectiveness of any such Incremental Facility, no Default shall exist and the Borrower shall, if a Financial Covenant Effectiveness Period is then occurring, be in compliance with Section 6.12 (calculated, in the case of clause (y), on a pro forma basis to give effect to (1) any borrowing under the Incremental Facility, (2) any substantially simultaneous repayments of Revolving Loans”, Other Revolving Loans or Existing Additional Senior Debt, and (3) in connection with the case of any Incremental Securitization Refinancing Facility, any substantially simultaneous repayments or repurchases of Third Party Interests or Indebtedness incurred under Section 6.01(a)(xvi)(A) (and as part ofthe related repurchases of Securitization Assets and cessation of future purchases of Securitization Assets)). The Incremental Facilities shall (i) in the consummation case of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 heretoany incremental revolving credit facilities, be in an aggregate principal amount for all such (excluding the aggregate principal amount of Incremental Loans Securitization Refinancing Facilities) not to exceed in excess of $1,000,000. Each such notice shall specify the date (each500,000,000, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered or approached to provide all or a portion of any Incremental Loans may elect or decline, in its sole discretion, to provide such Incremental Loans. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans shall become effective as of such Increased Amount Date; provided that (i) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date before or after giving effect to such Incremental Loans; (ii) the Borrower shall be rank pari passu in pro forma compliance right of payment and of security with the financial covenant set forth in Section 11.13; other Loans, (iii) the proceeds of any if such Incremental Loans shall Facility is a term loan facility, amortize in a manner, and be used as permitted pursuant subject to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of (if any) on terms, acceptable to the existing Term Loans; (vi) Agents, and mature no earlier than the Incremental Loans shall mature on the Tranche 7 Term Loan Maturity Date; , (viiiv) bear interest at the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to market interest rate, except as determined at the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) time such Incremental Loans shall Facility becomes effective, (v) have such other pricing as may be effected pursuant to one or more Joinder Agreements executed and delivered agreed by the Borrower, Borrower and the Administrative Agent and one or (vi) otherwise be treated hereunder no more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 appropriatefavorably than, in the opinion case of revolving facilities, the Administrative AgentRevolving Loans and Revolving Commitments, to effect and in the provisions case of this Section 2.2.term loans, the Tranche 7 Term Loans; provided, that the terms and provisions
Appears in 1 contract
Samples: Credit Agreement (Rite Aid Corp)
Incremental Loans. 2.2.1 (a) The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018may, by written notice to the Administrative Agent from time to time, request Incremental Commitments in an amount not to exceed the Incremental Loan Amount determined as of the date of such request from one or more Incremental Lenders, which may include any existing Lender; provided that each Incremental Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or such lesser amount equal to the remaining Incremental Loan Amount), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days (or such shorter period as the Administrative Agent and the relevant Incremental Lenders may agree) nor more than 60 days after the date of such notice), and (iii) whether such Incremental Commitments are commitments to make additional Loans or commitments to make loans with terms different from the Loans (“Other Loans”), in which case such notice shall specify the terms of such Other Loans.
(b) The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement, an Incremental Joinder Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Each Incremental Loan Assumption Agreement shall specify the terms of the Incremental Loans to be made thereunder; provided that, without the prior written consent of the Majority Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, (ii) the Average Life of any Other Loans shall be no shorter than the Average Life of the Loans, (iii) if the yield on such Other Loans (as determined by the Administrative Agent and reasonably acceptable to the Majority Lenders to be equal to the sum of (x) the interest rate per annum on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the Average Life of such Other Loans and (B) four and (z) any transaction fees, commitment fees, exit fees (other than any prepayment premium) or other similar fees payable in respect of the Other Loans and the fair market value of any warrants, options, stock or other non-cash consideration payable in respect thereof) exceeds by more than 25 basis points the interest rate per annum then in effect for existing Loans (the amount of such excess being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for such Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that for purposes of determination in this clause (iii) if the interest rate with respect to such Other Loans is fixed, the Administrative Agent shall convert the interest rate on such Other Loans to its swap equivalent floating rate or convert the interest rate on the existing Loans to its swap equivalent fixed rate and taking into account any floor included in such floating rate, and (iv) if the optional prepayment of such Other Loans during any period is subject to a prepayment premium that would exceed the Applicable Prepayment Premium in respect of the Loans during such period (without regard to the amount of any Applicable Prepayment Premium applicable to the Loans in prior periods) by more than 25 basis points, then the Applicable Prepayment Premium shall be increased by an amount equal to the amount by which such prepayment premium exceeds the Applicable Prepayment Premium in respect of the Loans. The other terms of the Incremental Loans and the Incremental Loan Assumption Agreement, to the extent not consistent with the terms applicable to the Loans hereunder, shall otherwise be reasonably satisfactory to the Administrative Agent and, to the extent that such Incremental Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower and the Restricted Subsidiaries or are more favorable to the Lenders making such Other Loans, the existing Lenders shall be entitled to the benefit of such rights and provisions so long as such Other Loans remain outstanding and such additional rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitment and the Incremental Loans evidenced thereby.
(c) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.08 unless (i) at the time thereof and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (ii) except as otherwise specified in the applicable Incremental Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 6.01 of the Original Credit Agreement and (iii) all fees and expenses owing in respect of such Incremental Commitment to the Administrative Agent, elect to request the establishment of one or more new term loans Collateral Agent and the Lenders shall have been paid.
(d) To the “Incremental Loans”) in connection with (and as part of) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an aggregate amount for all such extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 3.01(a) required to exceed $1,000,000. Each be made after the making of such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered or approached ratably increased to provide all or a portion for the pro rata payment of any Incremental Loans may elect or decline, in its sole discretion, to provide the principal of such Incremental Loans.
(e) The Borrower hereby agrees that if the Borrower obtains commitments from any bank or financial institution (other than any Initial Lender) to provide Incremental Commitments (the “Proposed Incremental Commitments”), the Borrower shall, without regard to whether the terms on which such Proposed Incremental Commitments are offered to it by any such institution are more or less favorable to it than any previously offered by the Initial Lenders, provide written notice thereof (an “Incremental Offer Notice”) to the Initial Lenders setting forth such terms and shall offer the Initial Lenders the right (a “Participation Right”) to provide (on such terms) the portion of the Proposed Incremental Commitments that, after giving effect to the provision of the Proposed Incremental Commitments and the making of the Incremental Loans thereunder, would result in the Initial Lenders (taken together) holding Loans representing no less than 51% of the outstanding principal amount of all Loans. Within three Business Days following receipt of such notice, one or more Initial Lenders shall provide written notice to the Borrower in the event that such Initial Lenders elect to exercise such Participation Right (in whole or in part). If any Initial Lender elects to exercise such Participation Rights through one or more of its Affiliates or Approved Funds, the portion of the Proposed Incremental Commitments to be provided by such Initial Lender shall be allocated among such Affiliates or Approved Funds as such Initial Lender shall designate to the Borrower in writing. If the Initial Lenders elect not to exercise all or any portion of such Participation Right to provide the Proposed Incremental Commitments, such Proposed Incremental Commitments and Incremental Loans to be made thereunder and the portion of the Proposed Incremental Commitments and Incremental Loans not subject to such Participation Right shall be made by the bank or other financial institutions that originally agreed to make such Proposed Incremental Loans, in each case on terms no more favorable to such Incremental Lenders than those specified in the Incremental Offer Notice, on or before the date that is 60 days after the date on which the Initial Lender’s right to exercise the Participation Right expired. For the avoidance of doubt, the Borrower shall not be obligated to offer any Eligible Stockholder purchasing Incremental Loans in connection with Participation Right to the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans shall become effective as of such Increased Amount Date; provided that (i) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date before or Initial Lenders, if, after giving effect to such Incremental Loans; (ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments provision of the existing Term Loans; (vi) Proposed Incremental Commitments and the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions making of the Incremental Loans shall bethereunder, except as otherwise set forth in each case by one or more other Incremental Lenders, the relevant Joinder Agreement, identical to those Initial Lenders would nevertheless hold Loans representing at least 51% of the applicable Term Loans and for purposes outstanding principal amount of this Agreement, all Loans. The acceptance or rejection of any offer to the Initial Lenders by the Borrower in respect of the Proposed Incremental Commitments contemplated by any Incremental Loans, when funded, Offer Notice shall be deemed to be Term Loans. Each Joinder Agreement may, without the consent not operate as a waiver or affect in any other manner such party’s rights hereunder in respect of any other Lenders, effect such amendments to this Agreement and Incremental Offer Notice or the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.2Proposed Incremental Commitments contemplated thereby.
Appears in 1 contract
Samples: Amendment and Restatement and Incremental Loan Assumption Agreement (Atp Oil & Gas Corp)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts (i) At any time prior to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The date that is six (6) months prior to the Maturity Date, the Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of of:
(A) one or more new incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans (any such term loan, an “Incremental Term Loan”); or
(B) one or more increases in the Aggregate Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental LoansLoan Commitments”) in connection to make revolving credit loans under the revolving credit facility hereunder (any such increase, an “Incremental Revolving Increase” and, together with the Incremental Term Loans, the “Incremental Loans “); provided that (and as part of1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate principal amount for all such Incremental Loans Loan Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,000200,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 and in integral multiples of $5,000,000 in excess thereof (or such other amounts as may be agreed by the Borrower and the Administrative Agent) or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Loan Commitment shall be effective; provided that , 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. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansLoan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Loan Commitment, (ii2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that (1) the Borrower shall be is in pro forma compliance with the financial covenant covenants set forth in Section 11.13; 8.11 and (iii2) the Consolidated Leverage Ratio will be less than the maximum Consolidated Leverage Ratio in effect as of the end of the fiscal quarter during which the Increase Amount Date occurs pursuant to Section 8.11(a), in each case based on the financial statements most recently delivered pursuant to Section 7.01(a) or 7.0.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Article VI shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; for general corporate purposes of the Borrower and its Subsidiaries (ivincluding Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall share ratably constitute Obligations of the Borrower and shall be secured and guaranteed with the other Loans or extensions of credit hereunder on a pari passu basis;
(1) in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the case of each Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans terms of which shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Lender Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.):
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at At any time or from time to time after the Closing 2015 Restatement Effective Date and on or prior to September 22the Latest Maturity Date, 2018the Borrower may, by written notice delivered to the Administrative AgentAgent (which shall promptly deliver a copy to each of the Lenders), elect to request the establishment addition to this Agreement of (i) an incremental revolving credit facility, (ii) Incremental Securitization Refinancing Facilities (as defined below) in the form of a new tranche of term loans or an incremental revolving credit facility, or (iii) one or more new tranches of term loans constituting Refinancing Indebtedness in respect of Existing Additional Senior Debt or Permitted First Priority Debt (an “Incremental Senior Debt Refinancing Facility”), or any combination thereof (the “Incremental Facilities”); provided, however, that both (x) at the time of any such request and (y) upon the effectiveness of any such Incremental Facility, no Default shall exist and the Borrower shall, if a Financial Covenant Effectiveness Period is then occurring, be in compliance with Section 6.12 (calculated, in the case of clause (y), on a pro forma basis to give effect to (1) any borrowing under the Incremental Facility, (2) any substantially simultaneous repayments of Revolving Loans, Other Revolving Loans or Existing Additional Senior Debt, and (3) in the case of any Incremental Securitization Refinancing Facility, any substantially simultaneous repayments or repurchases of Third Party Interests or Indebtedness incurred under Section 6.01(a)(xvi)(A) (and the related repurchases of Securitization Assets and cessation of future purchases of Securitization Assets)) and provided, further, that no Split-Priority Term Loan Debt may be incurred as an Incremental Facility hereunder. The Incremental Facilities shall (i) be in an aggregate principal amount (excluding the aggregate principal amount of Incremental Securitization Refinancing Facilities) not in excess of $300,000,000, (ii) rank pari passu in right of payment and of security with the other Loans, (iii) if such Incremental Facility is a term loan facility, amortize in a manner, and be subject to mandatory prepayments (if any) on terms, acceptable to the Agents, and mature no earlier than the latest maturity date of any outstanding Term Loans (if any), (iv) bear interest at the market interest rate, as determined at the time such Incremental Facility becomes effective, (v) have such other pricing as may be agreed by the Borrower and the Administrative Agent and (vi) otherwise be treated hereunder no more favorably than, in the case of revolving facilities, the Revolving Loans and Revolving Commitments, and in the case of term loans, the outstanding Term Loans (if any); provided, that the terms and provisions applicable to any Incremental Facility may provide for additional or different financial or other covenants applicable only during periods after the Latest Maturity Date that is in effect on the date of effectiveness of such Incremental Facility. At no time shall the sum of (i) the aggregate amount of loans outstanding under the Incremental Facilities at such time, (ii) the total Revolving Exposure at such time, (iii) the outstanding Term Loans at such time, (iv) the Other Revolving Exposures at such time and (v) the Additional Senior Debt at such time exceed the Borrowing Base Amount in effect at such time, and the proceeds of the Incremental Facilities shall be used solely for the purposes set forth in Section 5.10 and the preamble, provided that the proceeds of Incremental Securitization Refinancing Facilities shall be used solely for the purposes specified in the penultimate sentence of this Section 2.21 and the proceeds of any Incremental Senior Debt Refinancing Facility shall be used solely to repay Existing Additional Senior Debt or Permitted First Priority Debt and interest and other amounts relating thereto that can be financed with Refinancing Indebtedness relating to such Existing Additional Senior Debt or Permitted First Priority Debt, as the case may be. Such notice shall set forth the requested amount and class of Incremental Facilities, and shall offer each Lender the opportunity to offer a commitment (the “Incremental Commitment”) in connection with (and as part of) the consummation to provide a portion of the Financing with Eligible Stockholders Incremental Facility by giving written notice of such offered commitment to the Administrative Agent and the Borrower within a time period (the “Offer Period”) to be specified in accordance with Section 10.13 and Schedule 10.13 heretothe Borrower’s notice; provided, however, that no existing Lender will be obligated to subscribe for any portion of such commitments. In the event that, at the expiration of the Offer Period, Lenders shall have provided commitments in an aggregate amount less than the total amount of the Incremental Facility initially requested by the Borrower, the Borrower may request that Incremental Facility commitments be made in a lesser amount equal to such commitments and/or shall have the right to arrange for all one or more Additional Lenders to extend commitments to provide a portion of the Incremental Facility in an aggregate amount equal to the unsubscribed amount of the initial request; provided that the Additional Lenders shall be offered the opportunity to provide the Incremental Facility only on terms previously offered to the existing Lenders pursuant to the immediately preceding sentence. Commitments in respect of Incremental Facilities will become Commitments under this Agreement pursuant to an amendment to this Agreement (such Incremental Loans not to exceed $1,000,000. Each such notice shall specify the date (eachan amendment, an “Increased Amount DateIncremental Facility Amendment”) on which executed by each of the Borrower proposes that the Incremental Loans shall be effective; provided that any and each Subsidiary Loan Party, each Lender offered or approached agreeing to provide all or a portion such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The effectiveness of any Incremental Loans may elect or declineFacility Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 of this Agreement as in effect on the 2015 Restatement Effective Date, in its sole discretion, to provide such Incremental LoansFacility being permitted under each indenture or other agreement governing any Material Indebtedness and such other conditions as are specified in the applicable Incremental Facility Amendment. For purposes of this Section 2.21, “Incremental Securitization Refinancing Facility” means any Incremental Facility to the extent that the proceeds of the Loans incurred thereunder are used by the Borrower or a Subsidiary Guarantor on the date such Loans are made to repay or repurchase Third Party Interests or Indebtedness incurred pursuant to Section 6.01(a)(xvi)(A) (or repurchase Securitization Assets that have been sold, conveyed or otherwise transferred pursuant to any Securitization), provided that, upon such repayment or repurchase, (x) no Third Party Interests or Indebtedness incurred pursuant to Section 6.01(a)(xvi)(A) remains outstanding, (y) all commitments of the Borrower and the Subsidiaries to sell, convey or otherwise transfer Securitization Assets pursuant to any Securitization are terminated and (z) all Securitization Assets that remain outstanding and were previously sold, conveyed or otherwise transferred pursuant to any Securitization are repurchased by the Borrower or a Subsidiary Guarantor. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing Securitization Refinancing Indebtedness shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans shall become effective as of such Increased Amount Date; provided that (i) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date before or after giving effect to such Incremental Loans; (ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with not constitute an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental LoanFacility.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.
Appears in 1 contract
Samples: Credit Agreement (Rite Aid Corp)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate (a) At any time during the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The four year period following the Closing Date, the Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term incremental revolving credit commitments (any such incremental revolving credit commitment, an “Incremental Loan Commitments”) to make incremental revolving credit loans (the any such incremental revolving credit loans, an “Incremental Loans”) in connection with ); provided that (and as part of1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate amount for all such Incremental Loans Loan Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,00050,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Loan Commitment shall be effective; provided that , which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, the Issuing Lender and the Swing Line Lender, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any Lender or any Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansLoan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Loan Commitment, (ii2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(B) the Administrative Agent and the Lenders shall have received from the Borrower shall an Officer’s Compliance Certificate demonstrating that the Borrower will be in compliance on a pro forma compliance CREDIT AGREEMENT – Page 66 basis with the financial covenant covenants set forth in Section 11.13; 8.15 both before and after giving effect to (iii1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(C) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; for general corporate purposes of the Borrower and its Subsidiaries (ivincluding Permitted Acquisitions);
(D) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall share ratably in constitute Obligations of the Collateral Borrower and shall benefit ratably from be secured and guaranteed with the guarantees under the Guaranty other Extensions of Credit on a pari passu basis;
(E) each Incremental Loan Commitment (and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vimade thereunder) the Incremental Loans shall mature on the Term Loan Revolving Credit Maturity Date; (vii) , shall bear interest at a rate determined by the Administrative Agent, the applicable Incremental Loans Lenders and the Borrower and shall be subject to the same terms and conditions as the Initial Term Revolving Credit Loans, including with respect to ; interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation rate margins and/or unused fees with respect to any Incremental Loans which differ from those with respect Loan Commitment may be higher than the interest rate margins and/or unused fees applicable to the Initial Term Loans then existing Revolving Credit Commitments; provided that if the interest rate margins and/or unused fees, as applicable, in respect of any Incremental Loan Commitment exceed the interest rate margins and/or unused fees, as applicable, for the initial Revolving Credit Facility, then the interest rate margins and/or unused fees, as applicable, for the initial Revolving Credit Facility shall be reasonably satisfactory increased so that the interest rate margins and/or unused fees, as applicable, are equal to the interest rate margins and/or unused fees for such Incremental Loan Commitment (and the Incremental Loans made thereunder); provided further that, in determining the interest rate margins and unused fees applicable to the Incremental Loan Commitment and the then existing Revolving Credit Commitments, (1) any upfront fees payable by the Borrower to the Lenders under the then existing Revolving Credit Commitments or any Incremental Loan Commitment, in each case in the initial primary syndication thereof and the effects of any and all interest rate floors, shall be included (with such upfront fees being equated to interest based on an assumed four-year life to maturity), (2) customary arrangement or commitment fees payable to any Arranger (or its affiliates) or to one or more arrangers (or their affiliates) in connection with the then existing Revolving Credit Commitments or to one or more arrangers (or their affiliates) of any Incremental Loan Commitment shall be excluded and (3) in the event that, at the time of determination, the Applicable Margin is determined based on a pricing grid, the interest rate margins and unused fees shall be measured for purposes of this clause (E) by reference to each level of the pricing grid;
(F) the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by the Administrative Agent; Agent on the applicable Increased Amount Date among the Revolving Credit Lenders (viiiincluding the Incremental Lenders providing such Incremental Loan Commitments) in accordance with their revised Revolving Credit Commitment Percentages (and the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Loan Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 4.9 in connection with such reallocation as if such reallocation were a repayment);
(G) except as provided above, all of the other terms and conditions applicable to such Incremental Loan Commitments shall, except to the extent otherwise provided in this Section 4.13, be identical to the terms and conditions applicable to the Revolving Credit Facility;
(H) any Incremental Lender with an Incremental Loan Commitment shall be entitled to the same voting rights as the existing Revolving Credit Lenders under the Revolving Credit Facility and any Extensions of Credit made in connection with each Incremental Loan Commitment shall receive proceeds of prepayments on the same basis as the other Revolving Credit Loans made hereunder;
(I) such Incremental Loans Loan Commitments shall be effected pursuant to one or more Lender Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Lenders (which Lender 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 2.24.13); and
(J) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Credit Party authorizing such Incremental Loan) reasonably requested by Administrative Agent in connection with any such transaction.
(b) The Incremental Lenders shall be included in any determination of the Required Lenders, and the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement.
(c) On any Increased Amount Date on which any Incremental Loan Commitments become effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Loan Commitment shall become a Revolving Credit Lender hereunder with respect to such Incremental Loan Commitment.
Appears in 1 contract
Samples: Credit Agreement (Global Power Equipment Group Inc.)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The (a) Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018time, by written notice delivered to the Administrative Agent, elect request that, subject to request the establishment of following conditions and otherwise in accordance with this Agreement, Lenders and/or New Lenders provide (w) one or more new term loans loan facilities (the “Incremental LoansTerm Facilities”), (x) one or more delayed draw term loan facilities (the “Incremental Delayed Draw Term Facilities”), (y) additional Revolving Credit Commitments (the “Incremental Revolving Credit Commitments”) in connection and/or (z) one or more additional revolving credit facilities (the “Incremental Revolving Facilities” and, together with (the Incremental Term Facilities, the Incremental Delayed Draw Term Facilities and as part of) the consummation of Incremental Revolving Credit Commitments, collectively, the Financing with Eligible Stockholders in accordance with Section 10.13 “Incremental Facilities” and Schedule 10.13 heretoindividually an “Incremental Facility”); provided, in an aggregate amount for all that on the date that any such Incremental Loans not to exceed $1,000,000. Each such notice shall specify becomes effective (the date (each, an “Increased Amount Incremental Facility Effective Date”): (i) on which the Borrower proposes that no Default or Event of Default shall have occurred and be continuing or result from such Incremental Facility and/or the Incremental Loans shall be effective; provided that any Lender offered or approached made pursuant to provide all or a portion of any Incremental Loans may elect or decline, in its sole discretion, to provide such Incremental Loans. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans shall become effective as of such Increased Amount DateFacility; provided that (iii) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date before or after giving effect to all Incremental Loans made under such Incremental Loans; (ii) Facility of the applicable Incremental Facility Effective Date, the Borrower shall will be in compliance on a pro forma compliance basis with the provisions of Section 7.1(a) and Section 7.1(b) (determined as of the last day of the most recent fiscal quarter for which financial covenant set forth in statements are required to be delivered under Section 11.136.1(a) or Section 6.1(b) as if such Incremental Loans had been funded and the application of such proceeds had occurred on such last day); (iii) the proceeds terms of any such Incremental Facility and the applicable Incremental Loans shall be used as permitted pursuant to are in compliance with Section 10.62.8(c) below; (iv) the Incremental Loans Borrower shall share ratably have received all approvals from all applicable Governmental Authorities necessary or, in the Collateral and shall benefit ratably from discretion of the guarantees under the Guaranty and Collateral AgreementAdministrative Agent, advisable in connection with such Incremental Facility; (v) the Incremental Loans Borrower shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory have delivered to the Administrative Agent; (viii) Agent a legal opinion of each such Incremental Loans shall special or local counsel as may be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms Facility and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans Incremental Facility Amendments; (vi) the Borrower shall have delivered to the Administrative Agent title and extended coverage insurance for purposes each real property Collateral covering the amount of this Agreement, any such Incremental Loans, when funded, Facility containing such endorsements and affirmative coverage as the Administrative Agent may reasonably request; (vii) the Administrative Agent and the Borrower shall be deemed to be Term Loans. Each Joinder Agreement may, without the consent of any other Lenders, effect such execute conforming amendments to this Agreement and the other Loan Documents as may be necessary or appropriate(collectively, the “Incremental Facility Amendments”) to reflect such Incremental Facility without the consent of any Lender, including, without limitation, to provide for the terms set forth in the opinion of the Administrative AgentIncremental Facility Activation Notice described below or Section 2.8(c), to effect the provisions of this Section 2.2.and
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at At any time or from time to time after the Closing First Restatement Effective Date and on or prior to September 22the Maturity Date, 2018the Borrower may, by written notice delivered to the Administrative AgentAgent (which shall promptly deliver a copy to each of the Lenders), elect to request the establishment addition to this Agreement of one a new tranche of term loans, or more new term loans an incremental revolving credit facility or any combination thereof (the “"Incremental Facilities"); provided, however, that both (x) at the time of any such request and (y) upon the effectiveness of any such Incremental Facility, no Default shall exist and the Borrower shall, if a Financial Covenant Effectiveness Period is then occurring, be in compliance with Section 6.12 (calculated, in the case of clause (y), on a pro forma basis to give effect to any borrowing under the Incremental Facility and any substantially simultaneous repayments of Revolving Loans”). The Incremental Facilities shall (i) be in connection an aggregate principal amount not in excess of $350,000,000, (ii) rank pari passu in right of payment and of security with the other Loans, (iii) if such Incremental Facility is a term loan facility, amortize in a manner, and be subject to mandatory prepayments (if any) on terms, acceptable to the Agents, and mature no earlier than the Maturity Date, (iv) bear interest at the market interest rate, as part ofdetermined at the time such Incremental Facility becomes effective, (v) have such other pricing as may be agreed by the Borrower and the Administrative Agent and (vi) otherwise be treated hereunder no more favorably than the Revolving Loans; provided, that the terms and provisions applicable to the Incremental Facilities may provide for additional or different financial or other covenants applicable only during periods after the Maturity Date. At no time shall the sum of (i) the consummation aggregate amount of loans outstanding under the Incremental Facilities at such time, (ii) the total Revolving Exposure at such time and (iii) the outstanding Tranche 1 Term Loans at such time exceed the Borrowing Base Amount in effect at such time, and the proceeds of the Financing with Eligible Stockholders Incremental Facilities shall be used solely for the purposes set forth in accordance with Section 10.13 5.10. Such notice shall set forth the requested amount and Schedule 10.13 heretoclass of Incremental Facilities, and shall offer each Lender the opportunity to offer a commitment (the "Incremental Commitment") to provide a portion of the Incremental Facility by giving written notice of such offered commitment to the Administrative Agent and the Borrower within a time period (the "Offer Period") to be specified in the Borrower's notice; provided, however, that no existing Lender will be obligated to subscribe for any portion of such commitments. In the event that, at the expiration of the Offer Period, Lenders shall have provided commitments in an aggregate amount for all such less than the total amount of the Incremental Loans not to exceed $1,000,000. Each such notice shall specify Facility initially requested by the date (eachBorrower, an “Increased Amount Date”) on which the Borrower proposes may request that Incremental Facility commitments be made in a lesser amount equal to such commitments and/or shall have the right to arrange for one or more banks or other financial institutions (any such bank or other financial institution being called an "Additional Lender") to extend commitments to provide a portion of the Incremental Loans shall be effectiveFacility in an aggregate amount equal to the unsubscribed amount of the initial request; provided that any each Additional Lender shall be subject to the approval of the Administrative Agent (such consent not to be unreasonably withheld); and provided further that the Additional Lenders shall be offered or approached the opportunity to provide all or a portion the Incremental Facility only on terms previously offered to the existing Lenders pursuant to the immediately preceding sentence. Commitments in respect of Incremental Facilities will become Commitments under this Agreement pursuant to an amendment to this Agreement (such an amendment, an "Incremental Facility Amendment") executed by each of the Borrower and each Subsidiary Loan Party, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The effectiveness of any Incremental Loans may elect or decline, in its sole discretion, Facility Amendment shall be subject to provide such Incremental Loans. For the avoidance satisfaction on the date thereof of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion each of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans shall become effective as of such Increased Amount Date; provided that (i) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date before or after giving effect to such Incremental Loans; (ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments 4.02 of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject Original Agreement as in effect immediately prior to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured therebyFirst Restatement Effective Date.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.
Appears in 1 contract
Samples: Credit Agreement (Rite Aid Corp)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts (a) At any time until 30 days prior to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Revolving Credit Maturity Date, the Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term increases in the Revolving Credit Commitments (an “Incremental Revolving Credit Commitment”) to make incremental revolving credit loans (any such increase, an “Incremental Revolving Credit Increase” and the loan made thereunder, “Incremental Loans”) in connection with ); provided that (and as part of1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate amount for all such Incremental Loans Revolving Credit Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,00040,000,000 and (2) the total aggregate amount for each Incremental Revolving Credit Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Revolving Credit Commitment shall be effective; provided that , which shall be a date not less than 20 Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Revolving Credit Commitment (any such Person, an “Incremental Lender”). Any Lender or any Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Revolving Credit Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansRevolving Credit Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Revolving Credit Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Revolving Credit Commitment and (ii2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower shall an Officer’s Compliance Certificate demonstrating that the Borrower will be in compliance on a pro forma compliance basis with the financial covenant covenants set forth in Section 11.13; 8.15 (iiiprovided that the Consolidated Total Indebtedness to Consolidated Capitalization Ratio shall be less than 62.5%) both before and after giving effect to (1) any Incremental Revolving Credit Commitment and (2) the making of any Incremental Loans pursuant thereto, and assuming the all Incremental Loans under such Incremental Revolving Credit Increase have been made;
(C) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; for general corporate purposes of the Borrower and its Subsidiaries;
(ivD) each Incremental Revolving Credit Commitment (and the Incremental Loans made thereunder) shall share ratably constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(E) in the Collateral and shall benefit ratably from case of each Incremental Revolving Credit Increase (the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments terms of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans which shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as set forth the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.):
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower Subject to the terms and conditions set forth herein, the Borrowers shall use its commercially reasonable efforts to consummate have the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may right, at any time or and from time to time after (but not to exceed three (3) increases in the aggregate) prior to the date that is eighteen months following the Closing Date and on or prior Date, to September 22, 2018, by written notice delivered incur additional Indebtedness under this Agreement in the form of an increase to the Administrative Agent, elect to request Commitments of the establishment of Lenders hereunder or one or more new tranches of term loans (the each an “Incremental LoansFacility”) in connection with (and as part of) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in by an aggregate amount for all of up to $25,000,000. The following terms and conditions shall apply to each Incremental Facility: (i) the loans made under any such Incremental Loans not Facility shall constitute Obligations and shall be secured and guaranteed with the other Obligations on a pari passu basis, (ii) if the initial all-in yield (including interest rate margins, any interest rate floors, original issue discount and upfront fees (based on the lesser of a four-year average life to exceed $1,000,000. Each maturity or the remaining life to maturity), but excluding reasonable and customary arrangement, structuring and underwriting fees with respect to such notice shall specify Incremental Facility) applicable to any Incremental Facility exceeds by more than 0.50% per annum the date corresponding all-in yield (determined on the same basis) applicable to the Loan, the then outstanding initial Loans, or any outstanding prior Incremental Facility (each, an “Increased Amount DateExisting Facility” and the amount of such excess above 0.50% being referred to herein as the “Yield Differential”) on which ), then the Borrower proposes that Applicable Margin with respect to each Existing Facility, as the Incremental Loans case may be, shall automatically be effective; provided that any Lender offered or approached to provide all or a portion increased by the Yield Differential, effective upon the making of any Incremental Loans may elect or decline, in its sole discretion, to provide such Incremental Loans. For Facility (it being agreed that to the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection extent the all-in-yield with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans shall become effective as of such Increased Amount Date; provided that (i) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date before or after giving effect respect to such Incremental Loans; Facility is greater than the all-in-yield of an Existing Facility solely as a result of a higher LIBOR floor, then the increased interest rate applicable to an Existing Facility shall be effected solely by increasing the LIBOR floor applicable thereto). (iiiii) any such Incremental Facility shall have a maturity date no sooner than the Borrower Maturity Date and a weighted average life to maturity no shorter than the weighted average life to maturity of the Loan, respectively, (iv) any such Incremental Facility shall be entitled to the same voting rights as the existing Loan and shall be entitled to receive proceeds of prepayments on the same basis as the existing Loan, (v) 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, (vi) any such Incremental Facility shall be in pro forma compliance with the financial covenant set forth a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in Section 11.13; excess thereof, (iiivii) the proceeds of any Incremental Loans shall Facility will be used as permitted pursuant to Section 10.6; finance Permitted Acquisitions and to finance Capital Expenditures (ivviii) the Incremental Loans Borrower shall share ratably execute a promissory note in favor of any new Lender or any existing Lender requesting a promissory note whose Commitment hereunder is increased as provided in Section 2.5(b), (ix) each of the Collateral conditions set forth on Schedule 3.1 and Section 3.6 shall benefit ratably have been satisfied, (x) the Agent shall have received (A) an opinion or opinions (including, if reasonably requested by the Agent, local counsel opinions) of counsel for the Loan Parties, addressed to the Agent and the Lenders, in form and substance acceptable to the Agent, (B) any authorizing corporate documents as the Agent may reasonably request and (C) a duly executed Notice of Borrowing, and (xi) the Agent shall have received from the guarantees under the Guaranty Borrowers updated Projections and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably an officer’s certificate, in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms each case in form and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be substance reasonably satisfactory to the Administrative Agent; , demonstrating or certifying that, (viiiy) the representations and warranties set forth in Section 4 are true, correct and complete, in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof), as of the closing date of any such Incremental Loans Facility, and (z) after giving effect to any such Incremental Facility on a Pro Forma Basis, the Borrower will be in compliance with the financial covenants set forth in Section 7 and no Default or Event of Default shall exist. Participation in the Incremental Facility shall be effected pursuant offered first to one each of the existing Lenders on a pro rata basis, but each such Lender shall have no obligation to provide all or more Joinder Agreements executed and delivered by any portion of the Borrower, Incremental Facility. If the Administrative Agent and one or more New Lenders; and (ix) amount of the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably Incremental Facility requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments Borrowers shall exceed the commitments which the existing Lenders are willing to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder provide with respect to such Incremental Loan.
2.2.4 Facility, then the Borrowers may invite other banks, financial institutions and investment funds reasonably acceptable to the Administrative Agent to join this 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 Agent may reasonably request. The terms and provisions Agent is authorized to enter into, on behalf of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this AgreementLenders, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments amendment to this Agreement and the or any other Loan Documents Document as may be necessary or appropriate, in to incorporate the opinion terms of the Administrative Agent, to effect the provisions of this Section 2.2any new Incremental Facility therein.
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate (a) At any time, the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of of:
(i) one or more new incremental term loans loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental LoansLoan Commitments”) in connection to make incremental revolving credit loans (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loan, the “Incremental Loans ”); provided that (and as part of1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate amount for all such Incremental Loans Loan Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,000150,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Loan Commitment shall be effective; provided that , which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent and the Issuing Lenders, to provide an Incremental Loan Commitment (each, an “Incremental Lender”). Any Lender or any Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansLoan Commitment. For The Borrower’s ability to request an Incremental Loan Commitment shall not be affected by an election the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required Borrower may have otherwise made under Section 2.5 to purchase voluntarily reduce a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Revolving Commitments. Any Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Loan Commitment, (ii2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(B) the Administrative Agent and the Lenders shall have received from the Borrower shall an Officer’s Compliance Certificate demonstrating that the Borrower will be in compliance on a pro forma compliance basis with the financial covenant covenants set forth in Section 11.13; 9.15 both before and after giving effect to (iii1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(C) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; for general corporate purposes of the Borrower and its Subsidiaries (ivincluding Acquisitions and Restricted Payments);
(D) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall share ratably constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(1) in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the case of each Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans terms of which shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Lender Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.):
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate At any time, the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of of:
(a) [reserved];
(b) one or more new term increases in the Revolving Credit Commitments (such increases, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (such increases, the “Incremental Loans”) in connection with ); provided that (and as part ofi) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate principal amount for all such Incremental Loans Loan Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,000300,000,000 and (ii) the total aggregate principal amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Loan Commitment 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 Administrative Agent. The Borrower shall invite existing Lenders and may invite any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”); provided that both the Swingline Loan Lender and the Issuing Lender shall consent to each Incremental Lender providing any portion of an Incremental Loan Commitment (such consents not to be unreasonably withheld). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansLoan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(i) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Loan Commitment, and (2) the making of any Incremental Loans pursuant thereto;
(ii) the Administrative Agent and the Lenders shall have received from the Borrower shall be a Compliance Certificate demonstrating, in pro forma form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenant set forth covenants specified in Sections 9.14 and 9.15, in each case based on the financial statements most recently delivered pursuant to Section 11.13; 8.12(a) [Quarterly Financial Statements] or 8.12(b) [Annual Financial Statements], as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto and (z) any Permitted Acquisition consummated in connection therewith;
(iii) each of the representations and warranties contained in Article 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Change, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(iv) the proceeds of any Incremental Loans shall be used for any purpose permitted hereunder;
(v) any proposed Incremental Lender shall join this Agreement as permitted a Lender pursuant to Section 10.6; a Lender Joinder Agreement;
(ivvi) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall share ratably constitute Obligations of the Borrower and shall be guaranteed with the other Obligations on a pari passu basis;
(1) [reserved];
(2) in the Collateral and case of each Incremental Loan:
(I) such Incremental Loan shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments be part of the existing Term Loans; (vi) the Incremental Loans Revolving Credit Facility, shall mature on the Term Loan Maturity Expiration Date; (vii) , shall bear interest and be entitled to fees, in each case at the Incremental Loans rate applicable to the Revolving Credit Facility, and shall otherwise be subject to the same terms and conditions as the Initial Term Loans, including with respect Revolving Credit Facility;
(II) any Incremental Lender making any Incremental Loan shall be entitled to interest rate, except the same voting rights as the relevant Joinder Agreement existing Lenders under the Revolving Credit Facility and (unless otherwise provides, agreed by the applicable Incremental Lenders; provided that all terms and documentation with respect to any Incremental Loans which differ from those no such agreement shall allow the Revolving Credit Commitments with respect to the Initial Term Incremental Loan to be terminated prior to termination of the existing Revolving Credit Commitments) each Revolving Credit Loan funded by an Incremental Loan shall receive proceeds of prepayments on the same basis as the existing Revolving Credit Loans shall (such prepayments to be reasonably satisfactory shared pro rata on the basis of the original aggregate funded amount thereof); and
(III) the outstanding Revolving Credit Loans and Ratable Shares of Swingline Loans and Letter of Credit Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders to the Administrative Agent; Revolving Credit Facility (viii) including the Incremental Lenders providing such Incremental Loans Loan) in accordance with their revised Ratable Shares (and the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Loan) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required.
(3) Incremental Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.22.11, without the consent of any other Lenders; and
(4) the Borrower shall deliver or cause to be delivered any customary legal opinions (to be addressed to the Administrative Agent and all Incremental Lenders) or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Loans and/or Incremental Loan Commitments) reasonably requested by Administrative Agent in connection with any such transaction.
(c) The Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement.
(d) [Reserved.]
(e) On any Increased Amount Date on which any Incremental Loan becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Loan Commitment shall become a Lender under the Revolving Credit Facility hereunder with respect to such Incremental Loan Commitment.
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. (a) The Borrower may at any time on one or from time to time after the Closing Date and on or prior to September 22, 2018more occasions, by written notice to the Administrative Agent, request the making of Incremental Loans; provided that (i) the making of any Incremental Loans shall require the prior written consent of the Required Lenders and (ii) the aggregate amount of all Incremental Loans after the Effective Date shall not exceed $10,000,000. Each such notice shall specify (A) the date on which the Borrower proposes the Incremental Loans to be made, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent and the Required Lenders) after the date on which such notice is delivered to the Administrative Agent, elect to request the establishment of one or more new term loans and (the “Incremental Loans”) in connection with (and as part ofB) the consummation amount of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an aggregate amount for all such Incremental Loans not to exceed $1,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans shall be effective; provided being requested (it being agreed that (x) any Lender offered or approached to provide all or a portion of any Incremental Loans Loan may elect or decline, in its sole discretion, to provide such Incremental Loans. For Loan and (y) any Person that the avoidance of doubtBorrower proposes to become an Incremental Lender, any Eligible Stockholder purchasing Incremental Loans in connection with if such Person is not then a Lender, must be reasonably acceptable to the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with Administrative Agent and the FinancingRequired Lenders).
2.2.2 Such (b) The terms and conditions of any Incremental Loans shall become effective be, except as otherwise set forth herein or in the applicable Incremental Amendment, identical to those of the New Money Loans that are then outstanding, provided that the only conditions to funding of such Increased Amount Date; provided that (i) Incremental Loans contained in the applicable Incremental Amendment shall be the conditions set forth in Section 12.2 were satisfied 4.02 (provided that for the purposes of determining whether or waived on not any Borrowing Base Deficiency exists or would result from the making of any Incremental Loans, such Increased Amount Date before or after giving effect Incremental Amendment shall amend the definition of Advance Rate to increase the percentage as necessary to permit such Incremental Loans), to the extent applicable at such time to such Incremental Loans; .
(iic) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Any Incremental Loans shall be effected pursuant to one or more Joinder Agreements Incremental Amendments executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents each Incremental Lender providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to and the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term LoansAdministrative Agent. Each Joinder Agreement Incremental Amendment may, without with the consent of any other the Required Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative AgentAgent and the Required Lenders, to give effect to the provisions of this Section 2.2Section.
(d) Upon the making of an Incremental Loan by any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders hereunder and under the other Loan Documents. Upon the making of any Incremental Loans, such Incremental Loans shall be deemed to be and treated as New Money Loans for all purposes of this Agreement.
(e) Incremental Roll-Up Loans shall be deemed made pursuant to such terms as provided in the Final DIP Order. After such deemed making, the terms and conditions of any Incremental Roll-Up Loans shall be identical to those of the Roll-Up Loans that are then outstanding.
Appears in 1 contract
Samples: Superpriority Senior Secured Priming Debtor in Possession Credit Agreement (Cloud Peak Energy Inc.)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate (a) At any time the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term loans increases in the Aggregate Commitment (each such increase, an “Incremental Commitment Increase” and, all such increases, collectively, the “Incremental LoansCommitment Increases”) in connection with to make incremental Revolving Credit Loans (and as part ofany such incremental Revolving Credit Loan, an “Incremental Loan”); provided that (1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate amount for all such Incremental Commitment Increases shall not (as of any date of incurrence thereof) exceed the amount of $50,000,000 and (2) the total aggregate amount for each Incremental Commitment Increase (and the Incremental Loans made thereunder) shall not be less than the amount of $10,000,000 or, if less, the remaining amount permitted pursuant to exceed $1,000,000the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Commitment Increase shall be effective; provided that , which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Commitment Increase (any such Person, an “Incremental Lender”). Any Lender or any Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Commitment Increase may elect or decline, in its sole discretion, to provide such Incremental LoansCommitment Increase. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Commitment Increase shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such any Incremental Loans; Commitment Increase;
(iiB) the Administrative Agent and the Lenders shall have received from the Borrower shall an Officer’s Compliance Certificate demonstrating that the Borrower will be in compliance on a pro forma compliance basis with the financial covenant covenants set forth in Section 11.13; (iii) 9.14 both before and after giving effect to any Incremental Commitment Increase and the proceeds making of any Incremental Loans shall be used as permitted pursuant to Section 10.6; on such Increased Amount Date;
(ivC) each Incremental Commitment Increase (and the Incremental Loans made thereunder) shall share ratably constitute Obligations of the Borrower and shall be guaranteed, and to the extent a Perfection Trigger Event has occurred or thereafter occurs, secured with the other Extensions of Credit on a pari passu basis;
(D) in the Collateral and case of each Incremental Commitment Increase (the terms of which shall benefit ratably from be set forth the guarantees under relevant Lender Joinder Agreement to the Guaranty and Collateral Agreement; (v) extent the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become Lender is not a Lender hereunder with respect to at the time of such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.increase):
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Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. i. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term loans loan or revolving commitments (the “Incremental LoansNew Commitments”) in connection with (and as part of) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 heretohereunder, in an aggregate amount for all such New Commitments not in excess of the Maximum Incremental Loans not to exceed $1,000,000Facilities Amount. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans New Commitments shall be effective, which date shall be reasonably acceptable to the Administrative Agent; provided that any Lender offered or approached to provide all or a portion of any Incremental Loans New Commitments may elect or decline, in its sole discretion, to provide such Incremental LoansNew Commitments. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans New Commitments shall become effective as of such Increased Amount Date; provided that (i) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental LoansNew Commitments and to the making of any Tranche of New Loans pursuant thereto and after giving effect to any Permitted Acquisition or similar Investment consummated in connection therewith (provided, however, that, if the proceeds of any New Loans shall be used for a Permitted Acquisition, the Lenders providing such New Loans may waive any such Default or Event of Default existing on the applicable Increased Amount Date); (ii) the Borrower proceeds of any New Loans shall be in pro forma compliance with used for general corporate purposes of the financial covenant set forth in Borrower and its Subsidiaries (including, without limitation, Permitted Acquisitions and Investments permitted under Section 11.137.7 and prepayments or refinancing of Permitted Other Indebtedness); (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental New Loans shall share ratably in the Collateral and Collateral; (iv) no Lender shall benefit ratably from the guarantees under the Guaranty and Collateral Agreementbe obligated to provide any portion of any New Commitment; (v) the Incremental New Loans that are term loans (“New Term Loans”) shall share no greater than ratably or less in any mandatory prepayments of the existing Term Loans; (vi) in the Incremental Loans case of any New Term Loans, the maturity date thereof shall mature on not be earlier than the Term Loan B2 Maturity DateDate and the weighted average life to maturity shall be equal to or greater than the weighted average life to maturity of Term B2 Loans; (vii) in the Incremental case of any New Loans that are revolving loans or commitments (“New Revolving Loans”) the maturity date or commitment termination date thereof shall not be earlier than the Revolving Termination Date and such New Revolving Loans shall be subject not require any scheduled commitment reductions prior to the same terms and conditions as Revolving Termination Date; (viii) the Initial Term New Revolving Loans shall share ratably or less in any mandatory prepayments of the existing Revolving Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that ; (ix) all terms and documentation with respect to any Incremental New Loans which differ from those with respect to the Initial Term Loans under the applicable Facility shall be reasonably satisfactory to the Administrative AgentAgent (except to the extent permitted by clauses (vi) and (vii) above and the last sentence of this paragraph); (viiix) such Incremental New Loans or New Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; (xi) with respect to any Mortgages that exist at the time of such New Loans, modifications to such Mortgages may be recorded and the Borrower shall deliver or cause to be delivered any title endorsements reasonably requested by Administrative Agent; (ixxii) the Borrower shall deliver or cause to be delivered any customary legal opinions, including legal opinions from local counsel with respect to any mortgage modifications, or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Security Documents providing for such Incremental New Loans to be secured thereby; (xiii) with respect to any New Term Loans incurred on or prior to the date that is 18 months after the Closing Date, if the All-In Yield relating to the New Term Loans exceeds the All-In Yield then in effect with respect to the Term B2 Loans by more than 50 basis points the Applicable Margin relating to (x) the existing Term B2 Loans shall be adjusted so that the All-In Yield relating to such New Term Loans does not exceed the All-In Yield applicable to the existing Term B2 Loans by more than 50 basis points (the amount of any such adjustment, the “MFN Adjustment”) and (y) the All-In Yield applicable to the existing Term B1 Loans shall be adjusted by an amount equal to the MFN Adjustment; (xiv) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such New Loans; and (xv) the New Loans shall not be secured by any asset of the Borrower and its subsidiaries other than the Collateral. Any New Loans made on an Increased Amount Date that have terms and provisions that differ from those of the Term Loans or Revolving Loans, as applicable, outstanding on the date on which such New Loans are made shall be designated as a separate tranche (a “Tranche”) of Term Loans or Revolving Loans, as applicable, for all purposes of this Agreement, except as the relevant Joinder Agreement otherwise provides. For the avoidance of doubt, the rate of interest and the amortization schedule (if applicable) of any New Commitments shall be determined by the Borrower and the applicable New Lenders and shall be set forth in the applicable Joinder Agreement.
2.2.3 ii. On any Increased Amount Date on which any Incremental Loans New Commitment become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan a New Commitment (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental LoanNew Commitment.
2.2.4 iii. The terms and provisions of the Incremental Loans New Commitments of any Tranche shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, New Loans or New Commitments shall be deemed to be Term Loans, Revolving Loans or Revolving Commitments, as applicable. 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 2.22.25.
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Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at (a) At any time or from time to time after the Closing Effective Date and on or prior to September 22the Maturity Date, 2018, the Borrower may by written notice delivered to the Administrative Agent, Agent elect to request the establishment of commitments (any such 36 commitment, an “Incremental Term Loan Commitment”) for one or more new term loans increases in the aggregate principal amount of the Term Loan (the any such increase, an “Incremental LoansTerm Loan Increase”) in connection with ); provided that (and as part of1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate principal amount for all such Incremental Loans Term Loan Increases during the term of this Agreement shall not to exceed $1,000,000250,000,000 and (2) the total aggregate amount for each Incremental Term Loan Increase shall not be less than a minimum principal amount of $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Term Loan Increase shall be effective; provided that , 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. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Term Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansTerm Loan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Term Loan Commitments shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) all Incremental Term Loan Commitments on such Incremental Loans; Increased Amount Date, (ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv2) the Incremental Loans Term Loan Increase pursuant thereto, (3) any Permitted Acquisition consummated in connection therewith and (4) any permanent repayment of Indebtedness in connection therewith;
(B) the Administrative Agent shall share ratably in the Collateral and shall benefit ratably have received from the guarantees under the Guaranty Borrower a Compliance Certificate demonstrating, in form and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be substance reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected , that the Borrower is in compliance with the financial covenants set forth in Section 9.10 based on the financial statements most recently delivered pursuant to one Section 8.01(a) or more Joinder Agreements executed 8.01(b), as applicable, both before and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and after giving effect (ixon a Pro Forma Basis) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any (x) all Incremental Term Loan Commitments on such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which and the Incremental Term Loan Increase pursuant thereto, (y) any Incremental Loans become effectivePermitted Acquisition consummated in connection therewith and (z) any permanent repayment of Indebtedness in connection therewith;
(C) each of the representations and warranties contained in Article VII shall be true and correct in all material respects, subject except to the foregoing extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and conditions, warranty shall remain true and correct as of such earlier date);
(D) each lender with an Incremental Term Loan Commitment (each, a “New Lender”and the Loans made thereunder) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions constitute Obligations of the Incremental Borrower and shall be guaranteed with the other Loans shall be, except as otherwise set forth on a pari passu basis;
(E) in the relevant Joinder Agreement, identical to those case of the applicable each Incremental Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.Increase:
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Incremental Loans. 2.2.1 The Borrower and one or more of the Lenders (or any other Person which shall use its commercially reasonable efforts become a Lender pursuant to consummate the Financing with Eligible Stockholders an assumption agreement in a manner consistent with Section 10.13 hereof form and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered substance satisfactory to the Administrative Agent, elect to request for the establishment purpose of one or more new term loans (providing an Incremental Loan Commitment) may, with the “Incremental Loans”) in connection with (and as part of) the consummation consent of the Financing with Eligible Stockholders in accordance with Section 10.13 Administrative Agent, at any time and Schedule 10.13 heretofrom time to time during the period from and including the Effective Date to but excluding December 31, in an aggregate amount for all 2009, agree that such Incremental Loans not to exceed $1,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered or approached to provide all or a portion of any Incremental Loans may elect or decline, in its sole discretion, to provide such Incremental Loans. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans shall become effective as of such Increased Amount Date; provided that (i) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date before or after giving effect to such an Incremental Loans; (ii) the Borrower shall be in pro forma compliance Lender with the financial covenant set forth in Section 11.13; (iii) the proceeds of any an Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral Loan Commitment by executing and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject delivering to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Administrative Agent an Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably Loan Amendment (in form reasonable satisfactory to the Administrative Agent; ), specifying (viiii) whether such Incremental Loan Commitment shall be comprised of a commitment to make revolving loans (each an “Incremental Revolving Loan”) or term loans (each an “Incremental Term Loan”), (ii) the Type and amount of such Incremental Loan Commitment of such Lender, (iii) with respect to an Incremental Revolving Commitment, the period of availability thereof and the Incremental Revolving Maturity Date therefor, (iv) with respect to an Incremental Term Loan Commitment, the date(s) on which such Incremental Term Loans shall be effected available to be made, the Incremental Term Loan Maturity Date therefor and the Incremental Term Loan Principal Payment Dates thereof (if any), (v) the Applicable Rate that will apply to Incremental Loans made under such Incremental Loan Commitment, and (vi) the rate of the commitment fee, if any, payable by the Borrower in respect of such Incremental Loan Commitment, and otherwise duly completed. Nothing in this Agreement shall be construed to obligate any Lender to provide any Incremental Loan Commitment. The Incremental Loans to be made pursuant to one or more Joinder Agreements executed and delivered by any such agreement between the Borrower, the Administrative Agent Borrower and one or more New Lenders; and (ix) Persons in response to any such request by the Borrower shall deliver or cause each be deemed to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such a separate “Series” of Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for all purposes of this Agreement, and in any case an Incremental Loans, when funded, Revolving Commitment and an Incremental Term Loan Commitment provided pursuant to the same Incremental Loan Agreement shall be deemed to be Term separate Series of Incremental Loan Commitments. Anything herein to the contrary notwithstanding, the following additional provisions shall be applicable to the Incremental Loan Commitments and Incremental Loans. Each Joinder Agreement may, without :
(i) the consent minimum aggregate amount of Incremental Loan Commitments of any other LendersSeries entered into pursuant to any such request (and, effect accordingly, the minimum aggregate principal amount of Incremental Loans of such amendments Series) shall be $25,000,000,
(ii) the Incremental Revolving Maturity Date of the Incremental Revolving Commitments of any Series shall not be earlier than the Term Loan Maturity Date (but such commitment termination date may be accelerated pursuant to this Agreement Section 2.07(b)), and
(iii) the Incremental Term Loan Maturity Date of the Incremental Term Loans of any Series shall not be earlier than the Term Loan Maturity Date (but such final maturity may be accelerated pursuant to Section 2.08(b)), and the other Loan Documents as may Average Life to Maturity of the Incremental Term Loans shall be necessary or appropriategreater than the combined Average Life to Maturity of the Term Loans and the Revolving Loans (except that Incremental Term Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments). Following execution and delivery by the opinion of Borrower, one or more Incremental Lenders and the Administrative AgentAgent as provided above of an Incremental Loan Amendment then, subject to effect the provisions of this Section 2.2.terms and conditions set forth herein:
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Incremental Loans. 2.2.1 (a) The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018Representative may, by written notice delivered to to, and with the Administrative Agentconsent of, elect to request the establishment of one or more new term loans Agent (the “Incremental LoansLoan Request”) one time at any time prior to the date which is two (2) years following the Closing Date, request an increase to the Revolving Loan Commitments (such increase, the “Incremental Facility”) in connection with (and as part of) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an aggregate amount for all such Incremental Loans not to exceed $1,000,00015,000,000 in the aggregate from (i) existing Lenders, (ii) any Affiliate or Approved Fund of any existing Lender or (iii) to the extent the Persons under clause (i) and (ii) above elect not to participate, any other Person acceptable (which acceptance shall not be unreasonably withheld or delayed) to the Agent. Each such notice The Incremental Loan Request shall specify set forth (i) the amount of the Incremental Facility being requested (which shall be in minimum increments of $1,000,000 up to the maximum amount of $15,000,000), and (ii) the date (each, an “Increased Amount Date”) on which the Borrower proposes that Incremental Facility is requested to become effective (which shall not be less than 30 Business Days nor more than 180 days after the date of the Incremental Loans Loan Request).
(b) Agent will seek commitments from Lenders and, to the extent necessary, other financial institutions and institutional lenders who will become Lenders in connection the Incremental Facility (each of which shall be effective; provided that any Lender offered entitled to agree or approached decline to provide all or a portion of any Incremental Loans may elect or decline, participate in its sole discretion). The Borrowers and each Lender participating in the Incremental Facility (including existing Lenders and new lenders, as applicable) shall execute and deliver to provide the Agent such documentation as the Agent shall reasonably specify to evidence the commitments with respect to the Incremental Facility of each such participating Lender. The terms and provisions of the Incremental Facility shall be identical to those of the Revolving Loans (all such Loans under the Incremental Facility, “New Loans”), as reflected in the documentation evidencing the New Loans. For Without limiting the avoidance generality of doubtthe foregoing, any Eligible Stockholder purchasing Incremental Loans in connection with without the Financing shall also be required to purchase a portion prior written consent of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans shall become effective as of such Increased Amount Date; provided that Required Lenders, (a) (i) the final maturity date of any New Loans shall be the date set forth in clause (a) of the definition of “Revolving Termination Date”, and (ii) the proceeds of the New Loans shall be used solely by Borrowers in accordance with the terms hereof, and (b) if the initial yield on such New Loans (to be equal to the sum of (x) the margin above LIBOR (taking into account any floor) on such New Loans and (y) if such New Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from any Credit Party or any Affiliate thereof for doing so (the amount of such discount or fee, expressed as a percentage of the New Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such New Loans and (B) four) exceeds the Applicable Margin then in effect for LIBOR Rate Loans (taking into account any floor and the original issue discount or closing or upfront fee with respect Winnebago Credit Agreement 41858764 thereto (with original issue discount and closing or upfront fees being equated to a rate assuming a 4 year average life to maturity)) (the amount of such excess being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for all Loans shall automatically be increased by the Yield Differential, effective upon the making of the New Loans. The Agent shall promptly notify each Lender as to the effectiveness of the Incremental Facility. Each of the parties hereto hereby agrees that, upon the effectiveness of the Incremental Facility, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Facility and the New Loans evidenced thereby and the Agent and the Borrower Representative may revise this Agreement to evidence such amendments.
(c) Notwithstanding the foregoing, the Incremental Facility shall not become effective under this Section 1.7 unless (i) on the date of such effectiveness, the conditions set forth in Section 12.2 were 2.2 shall be satisfied or waived and the Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower Representative, (ii) the Agent shall have received legal opinions, board resolutions and other closing certificates reasonably requested by the Agent and consistent with those delivered on such Increased Amount the Closing Date before or under Section 2.1, (iii) after giving effect to the Incremental Facility and the New Loans to be made thereunder and the application of the proceeds therefrom, the Indebtedness arising under such Incremental Loans; Facility would be permitted hereunder, (iiiv) the Borrower Credit Parties shall be in pro forma compliance with the financial covenant covenants set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant Article VI after giving effect to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral Facility, and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans Borrowers shall share no greater than ratably in any mandatory prepayments have delivered, at the reasonable request of the existing Term Agent, to the Agent all items reasonably necessary to maintain the continuing priority of the Lien on the Collateral as security for the Obligations.
(d) Each of the parties hereto hereby agrees that the Agent may, in consultation with the Borrower Representative, take any and all action as may be reasonably necessary to ensure that all New Loans; (vi) , when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by allocating a portion of the Incremental Facility to each outstanding Borrowing of LIBOR Rate Loans shall mature on a pro rata basis. Any conversion of LIBOR Rate Loans to Base Rate Loans required by the Term Loan Maturity Date; (vii) the Incremental Loans preceding sentence shall be subject to the same terms and conditions as the Initial Term Section 10.4. If any New Loan is to be allocated to an existing Interest Period for a Borrowing of LIBOR Rate Loans, including with respect to then the interest rate, except as rate thereon for such Interest Period and the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans other economic consequences thereof shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of documentation evidencing the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2Facility.
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Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The (a) At any time, Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term loans increases in the Revolving Credit Commitments (the any such increase, an “Incremental LoansLoan Commitment”) in connection with to make revolving credit loans under the Revolving Credit Facility (and as part ofany such increase, an “Incremental Loan”); provided that (1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate principal amount for all such Incremental Loans Loan Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,000150,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Loan Commitment shall be effective; provided that , which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansLoan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Loan Commitment, (ii2) the Borrower making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition or other transaction consummated in connection therewith (or, to the extent constituting an Incremental Loan to finance a Limited Condition Acquisition, the foregoing condition, other than with respect to the absence of an Event of Default pursuant to Section 10.1(a), (b), (h) or (i), shall be satisfied at the LCA Test Date related to such Limited Condition Acquisition);
(B) the Administrative Agent and the Lenders shall have received from Borrower an Officer’s Compliance Certificate demonstrating, in pro forma form and substance reasonably satisfactory to the Administrative Agent, that the (1) Borrower is in compliance with the financial covenant covenants set forth in Section 11.13; 9.15 and (iii2) Total Leverage Ratio will be not greater than 3.00 to 1.00, in each case based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition or other transaction consummated in connection therewith;
(C) each of the representations and warranties contained in Article VII shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date) and to the extent constituting an Incremental Loan to finance a Limited Condition Acquisition, the foregoing other than with respect to the absence of an Event of Default pursuant to Section 10.1(a), (b), (h) or (i), shall be satisfied at the LCA Test Date related to such Limited Condition Acquisition);
(D) the proceeds of any Incremental Loans shall be used as for general corporate purposes of Borrower and its Subsidiaries (including Permitted Acquisitions, joint venture Investments permitted pursuant to Section 10.6; hereunder, Capital Expenditures permitted hereunder, Restricted Payments permitted hereunder and repurchases of Equity Interests permitted hereunder);
(ivE) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall share ratably in the Collateral constitute Obligations of Borrower and shall benefit ratably from be secured and guaranteed with the guarantees under other Extensions of Credit on a pari passu basis;
(F) in each case (the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments terms of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans which shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Lender Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.):
Appears in 1 contract
Samples: Credit Agreement (Kforce Inc)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts (a) At any time prior to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Maturity Date, the Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term loans incremental revolving credit commitments (the any such incremental revolving credit commitment, an “Incremental LoansLoan Commitment”) in connection with to make incremental Loans (and as part ofany such incremental Loans, an “Incremental Loan”); provided that (i) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate amount for all such Incremental Loans Loan Commitments established pursuant hereto shall not to exceed $1,000,000150,000,000, (ii) the Borrower shall be permitted to request an Incremental Commitment only once per calendar year and (iii) the total aggregate amount for each Incremental Loan Commitment shall not be less than $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Loan Commitment shall be effective; provided that , which shall be a date not less than fifteen (15) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any Lender or any Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansLoan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such any Incremental Loans; Loan Commitment or Incremental Loan;
(iiB) the Borrower each Incremental Loan shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral a “Loan” for all purposes hereof and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as all other Loans;
(C) the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental outstanding Loans which differ from those with respect to the Initial Term Loans shall will be reasonably satisfactory to reallocated by the Administrative Agent; Agent on the applicable Increased Amount Date among the Lenders (viiiincluding the Incremental Lenders providing such Credit Loans) in accordance with their revised Commitment Percentages (and the Lenders (including the Incremental Lenders providing such Incremental Loans) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 5.9 in connection with such reallocation as if such reallocation were a repayment);
(D) such Incremental Loans Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Lenders (which 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 2.23.13); and
(E) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of the Borrower authorizing such Incremental Loan) reasonably requested by Administrative Agent in connection with any such transaction.
(b) On any Increased Amount Date on which any Incremental Loan Commitment becomes effective, each Incremental Lender with an Incremental Loan Commitment shall become a Lender hereunder with respect to such Incremental Loan Commitment. Thereafter it shall be entitled to the same voting rights as the existing Lenders under the Facility and shall be included in any determination of the Required Lenders. The Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement.
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts Notwithstanding anything to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may contrary herein, at any time or from time to time after the Closing Date and on or prior to September 22the Maturity Date, 2018, Parent may by written notice delivered to the Administrative Agent, Lender on not more than two occasions elect to request the establishment of one or more new term incremental revolving credit commitments (any such incremental revolving credit commitment, an “Incremental Loan Commitment”) to make incremental revolving credit loans (the any such incremental revolving credit loans, an “Incremental LoansLoan”) in connection with ); provided that (and as part ofi) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate amount for all such Incremental Loans Loan Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,00010,000,000 and (ii) the total aggregate amount for each Incremental Loan Commitment shall not be less than $1,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower Parent proposes that the any Incremental Loans Loan Commitment shall be effective; provided that any , which shall be a date not less than thirty (30) days after the date on which such notice is delivered to the Lender. The Lender offered or approached to provide all or a portion of any Incremental Loans may elect or decline, in its sole discretion, to provide such Incremental LoansLoan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(ia) the conditions set forth in Section 12.2 were satisfied Lender elects to provide such Incremental Loan Commitment;
(b) no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such any Incremental Loans; Loan Commitment;
(iic) the Borrower each Incremental Loan shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral a “Loan” for all purposes hereof and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms Loans and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to guaranteed with the Administrative Agent; other Extensions of Credit on a pari passu basis;
(viiid) such Incremental Loans Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed agreements in form and delivered by substance satisfactory to the Borrower, the Administrative Agent Lender and one or more New LendersParent; and and
(ixe) the Borrower Parent shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of Parent authorizing such Incremental Loan Commitment (for the avoidance of doubt, resolutions duly adopted by the board of directors (or equivalent governing body) of Parent delivered pursuant to Section 5.1(b)(ii) which authorize such Incremental Loan Commitment shall be sufficient so long as such resolutions are certified as of the applicable Increased Amount Date as remaining in full force and effect) reasonably requested by the Administrative Agent Lender in connection with any such transaction, including . For the avoidance of any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreementdoubt, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to Loan Commitment under this Agreement and shall increase the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.2Revolving Credit Commitment on a dollar for dollar basis.
Appears in 1 contract
Samples: Credit Agreement (Twin Disc Inc)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. (a) The Borrower may at any time or from time to time after the Closing Date and on or time, upon prior to September 22, 2018, by written notice delivered by the Borrower to the Administrative Agent, elect request Incremental Commitments to request the establishment of make term loans from one or more new term loans (the “Incremental Loans”) in connection with (and as part of) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, Lenders in an aggregate amount for all such Incremental Loans not to exceed $1,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans shall be effective; Amount (provided that any each Incremental Lender offered or approached to provide all or a portion of any Incremental Loans may elect or decline, in its sole discretion, to provide such Incremental Loans. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans shall become effective as of such Increased Amount Date; provided that (i) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date before or after giving effect to such Incremental Loans; (ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the is not an existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans Lender shall be subject to the same terms consent requirements of Section 12.01(b)(iii)(A), mutatis mutandis; provided, further that:
(i) any such Incremental Commitments shall be in a minimum principal amount of $10,000,000 and conditions as in integral multiples of $1,000,000 in excess thereof;
(ii) no Default or Unmatured Default shall exist and be continuing at the Initial Term Loanstime of incurrence of any such Incremental Commitments or, including with respect to interest rateif different, except as at the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to time of making any Incremental Loans which differ from those with respect to the Initial Term Loans pursuant thereto;
(iii) no existing Lender shall be under any obligation to provide such Incremental Commitments and any such decision whether to provide such Incremental Commitments shall be in such Lender’s sole and absolute discretion;
(iv) (A) any new Lender shall join this Agreement by executing an Incremental Assumption Agreement or such other joinder documents required by the Administrative Agent and/or (B) any existing Lender electing to provide Incremental Commitments shall have executed an Incremental Assumption Agreement or such other commitment agreement reasonably satisfactory to the Administrative Agent; and
(viiiv) as a condition precedent to the incurrence of any Incremental Commitments, the Borrower shall:
(A) deliver to the Administrative Agent a certificate dated as of the date of the incurrence of such Incremental Commitments signed by an Authorized Officer of the Borrower (I) certifying and attaching the resolutions adopted by the Borrower approving or consenting to such increase and (II) certifying that, before and after giving effect to such Incremental Commitments, (1) the representations and warranties contained in Article V are true and correct in all material respects (except to the extent such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties shall be true and correct in all respects) on and as of the date of the incurrence of such Incremental Commitments, 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 (except to the extent such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties shall be true and correct in all respects) on and as of such earlier date and (2) no Default or Unmatured Default exists after giving effect to the incurrence of such Incremental Commitments; provided that if the borrowing of any Incremental Loans occurs subsequent to the date of the incurrence of the related Incremental Commitments, any Borrowing Notice delivered in connection therewith shall constitute a representation and warranty by the Borrower as of such date as to the accuracy of the certifications described in sub-clauses (II)(1) and (II)(2), except that, in the case of subclause (II)(1) no such representation and warranty shall be required, made or deemed with respect to the representations and warranties contained in Section 5.05 and 5.06; and
(B) pay any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(b) The Incremental Loans shall be effected in the form of term loans, and shall be made pursuant to one or more Joinder Agreements executed and delivered by an agreement among the Borrower, each applicable Incremental Lender and the Administrative Agent and one or more New Lenders; and (ix) each, an “Incremental Assumption Agreement”). Each Incremental Assumption Agreement shall specify the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by terms of the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured therebymade thereunder, and the Incremental Loans thereunder shall be made on terms and conditions substantially identical to the then outstanding Loans (including pricing, covenants, defaults and maturity date).
2.2.3 On any Increased Amount Date on which any (c) The Incremental Loans become effectiveshall be made by the applicable Incremental Lenders at the time, in the manner and subject to the foregoing terms and conditions, each lender with an conditions set forth herein and in the applicable Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Assumption Agreement. Each request for Incremental Loans shall be, except be accompanied by a Borrowing Notice as otherwise set forth in required by Section 2.08.
(d) In accordance with the relevant Joinder Agreement, identical to those terms of the applicable Term Loans and for purposes last paragraph of this AgreementSection 8.02, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Joinder Assumption Agreement may, without the consent of any other LendersLender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to effect implement the provisions of this Section 2.22.03, a copy of which shall be made available to each Lender.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Walgreens Boots Alliance, Inc.)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at (a) At any time or and from time to time after the Closing Date and on or prior to September 22the Latest Maturity Date, 2018, by written notice delivered subject to the terms and express conditions set forth herein, the Borrower may by no less than three (3) Business Days’ prior notice to the applicable Administrative Agent (or such lesser number of days reasonably acceptable to such Administrative Agent), elect request to request the establishment of add one or more new term loans (the “Incremental Loans”) in connection with (and as part of) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an aggregate amount for all such Incremental Loans not to exceed $1,000,000. Each such notice shall specify the date credit facilities (each, an “Increased Amount DateIncremental Facility”) on which denominated, in the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered or approached to provide all or a portion case of any Incremental Loans may elect or declineTerm Facility, in its sole discretionDollars or, in the case of any Incremental Revolving Facility, at the option of the Borrower, in Dollars or any Alternative Currency, and consisting of one or more additional tranches of term loans or an increase to provide an existing Class of Term Loans (each, an “Incremental Term Facility”) or one or more additional tranches of revolving commitments or an increase in an existing Class of Revolving Commitments (each, an “Incremental Revolving Facility”) (all such Incremental Loans. For Revolving Facilities not to exceed $150,000,000 in the avoidance of doubtaggregate), any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase or a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans shall become effective as of such Increased Amount Date; combination thereof, provided that (i) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date immediately before or and after giving effect to such each Incremental Loans; Facility Amendment and the applicable Incremental Facility, no Event of Default has occurred and is continuing or would result therefrom (ii) except in the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) case that the proceeds of any Incremental Loans are being used to finance a Permitted Acquisition or other permitted Investments, in which case the standard will be (A) no Event of Default at the time of entering into a definitive agreement with respect thereto and (B) no Event of Default under Sections 7.01(a), (b), (h) or (i) on the date of incurrence thereof), (ii) subject to the provisos to this sentence, immediately after giving effect to each Incremental Facility Amendment and the applicable Incremental Facility, the Total Secured Net Leverage Ratio computed on a Pro Forma Basis shall not exceed 3.00:1.00 (provided, however, that if the proceeds of Incremental Facilities will be used to finance a Permitted Acquisition (or a similar Investment permitted hereunder), the Total Secured Net Leverage Ratio shall be tested as of the date of entering into a definitive written agreement with respect thereto) (assuming, solely for purposes of this Section 2.20 at the time of incurrence and not for any other provision hereunder, that (I) all Incremental Facilities, all Additional Term Notes and all Additional Debt secured by Liens under Section 6.02(hh), in each case established on or prior to such date are (x) fully drawn and (y) secured, whether or not so secured and (II) the proceeds of such Incremental Loans are not included as unrestricted cash and Cash Equivalents in clause (i) of the definition of “Total Secured Net Leverage Ratio”; provided that to the extent the proceeds of such Incremental Loans are to be used as permitted to prepay Indebtedness, the use of such proceeds for the prepayment of such Indebtedness may be given pro forma effect), provided that the financial incurrence test set forth in clause (ii) of this paragraph (a) shall not apply to the incurrence of an aggregate principal amount of Indebtedness under Incremental Facilities and Unrestricted Additional Term Notes after the Closing Date not to exceed an amount the Dollar Equivalent (calculated using the Exchange Rate on the date of effectiveness of such Incremental Facility Amendment and Incremental Facility) of which equals $300,000,000 plus the amount of any voluntary prepayments of the Term Loans and voluntary permanent reductions of the Revolving Commitments effected after the Closing Date that are not financed with the incurrence of Credit Agreement Refinancing Indebtedness and that do not reduce the amount of any payment otherwise due pursuant to Section 10.6; 2.11(d) by operation of the proviso to such clause (ivsuch Indebtedness, the “Unrestricted Incremental First Lien Indebtedness”) (it being understood and agreed that (I) the Borrower shall designate any such Indebtedness as Unrestricted Incremental Loans shall share ratably First Lien Indebtedness on or prior to the date of such incurrence by notice to the applicable Administrative Agent and (II) the Borrower may redesignate any such Indebtedness originally designated as Unrestricted Incremental First Lien Indebtedness if, at the time of such redesignation, the Borrower would be permitted to incur under this Section 2.20 the aggregate principal amount of Indebtedness being so redesignated (for purposes of clarity, with any such redesignation having the effect of increasing the Borrower’s ability to incur Unrestricted Incremental First Lien Indebtedness as of the date of such redesignation by the amount of such Indebtedness so redesignated) and (iii) (I) in the Collateral and shall benefit ratably from event that the guarantees under Yield for any Incremental Term Facility is higher than the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as Yield for the Initial Term LoansLoans by more than 50 basis points, including with respect to interest rate, except as then the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to Applicable Margin for the Initial Term Loans shall be increased to the extent necessary so that the Yield for such Initial Term Loans is equal to the Yield for such Incremental Term Facility minus 50 basis points and (II) in the event that the Yield for any Incremental Revolving Facility is higher than the Yield for the Initial Revolving Loans by more than 50 basis points, then the Applicable Margin for the Initial Revolving Loans shall be increased to the extent necessary so that the Yield for such Initial Revolving Loans is equal to the Yield for such Incremental Revolving Facility minus 50 basis points. Each Incremental Facility shall be in an integral multiple of $5,000,000 and be in an aggregate principal amount 112 that is not less than $25,000,000, provided that such amount may be less than $25,000,000 and need not be in an integral multiple of $5,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Facilities set forth above.
(b) Each Incremental Term Facility (i) if made a part of the existing tranche of Initial Term Loans, shall have terms identical to those applicable to such Initial Term Loans or (ii) if consisting of an additional tranche of term loans shall have such terms as determined by the Borrower and the lenders providing such Incremental Term Facility; provided that (A) such Incremental Term Facility shall rank pari passu in right of payment in respect of the Collateral with the Initial Term Loans, (B) no Restricted Subsidiary is a borrower or a guarantor with respect to such Indebtedness unless such Restricted Subsidiary is a Loan Party which shall have previously or substantially concurrently guaranteed or borrowed, as applicable, the Obligations, (C) no Incremental Term Facility shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Term Loans, (D) no Incremental Term Facility shall have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the then-remaining Initial Term Loans (without giving effect to nominal amortization for periods where amortization has been eliminated as a result of a prepayment of the applicable Initial Term Loans), (E) for purposes of prepayments, shall be treated no more favorably than the Initial Term Loans of the Borrower except those that only apply after the then existing Latest Maturity Date with respect to Term Loans, and (F) the covenants, events of default and guarantees (other than maturity fees, discounts, interest rate, redemption terms and redemption premiums) of such Incremental Term Loans, if not consistent with the terms of the Term Loans, shall not be materially more restrictive to the Loan Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Term Loans unless (x) the Lenders of the Term Loans receive the benefit of such more restrictive terms or (y) any such provisions apply only after the Term Loan Maturity Date.
(c) Each Incremental Revolving Facility (i) if made a part of the existing tranche of Initial Revolving Commitments shall have terms identical to those applicable to such Class of Initial Revolving Commitments or (ii) if consisting of an additional tranche of revolving loans and commitments shall be subject to substantially the same terms as the Initial Revolving Commitments (other than pricing, fees, maturity and other immaterial terms which shall be determined by the Borrower and the lenders providing such Incremental Revolving Facility); provided that no Incremental Revolving Facility shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Commitments.
(d) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Facility. Any additional bank, financial institution, existing Lender or other Person that elects to provide Commitments under an Incremental Facility shall be reasonably satisfactory to the Administrative Agent; (viii) Borrower and, in the case of any Incremental Revolving Facility and, to the extent such Incremental consent would be required for an assignment of such Loans shall be effected or Commitments pursuant to one Section 9.04, the Issuing Bank (such consent not to be unreasonably withheld, delayed or more Joinder Agreements conditioned) (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed and delivered by the Borrower, such Additional Lender (in the case of this Agreement and, as appropriate, any other Loan Document, as applicable) and (to the extent it directly adversely amends or modifies the rights or duties of any Administrative Agent and one or more New Lenders; and (ix) and/or the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Collateral Agent, each Administrative Agent in connection with any such transaction, including any supplements or amendments to and/or the Collateral Documents providing for such Agent). No Lender shall be obligated to provide any Commitments under an Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which Facility, unless it so agrees. Commitments in respect of any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) Facilities shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of Commitments under this Agreement, any . An Incremental Loans, when funded, shall be deemed to be Term Loans. Each Joinder Agreement 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 necessary necessary, advisable or appropriate, in the reasonable opinion of the Administrative AgentAgents and the Borrower, to effect the provisions of this Section 2.2(including to provide for voting provisions applicable to the Additional Lenders comparable to the provisions of clause (B) of the second proviso of Section 9.02(b)). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Additional Lenders, be subject to the satisfaction (or waiver) on the date thereof (each, an “Incremental Facility Closing Date”) of the express conditions in respect of such Incremental Facility Amendment to be mutually agreed upon by the Additional Lenders and the Borrower customary for transactions of the type in respect of which the applicable Incremental Facility relates. The proceeds of any Loans under an Incremental Facility will be used, directly or indirectly, for working capital and/or general corporate purposes and/or any other purposes not prohibited hereunder (including, without limitation, Restricted Payments, Acquisitions and other Investments). This Section 2.20 shall supersede any provisions in Section 2.11, Section 2.18 and Section 9.02 to the contrary.
(e) Upon each increase in the Revolving Commitments under any Revolving Credit Facility pursuant to this Section 2.20, 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 Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) in respect of such increase, and each such Incremental Revolving Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit under such Revolving Credit Facility such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in such Letters of Credit under such Revolving Credit Facility held by each Revolving Lender (including each such Incremental Revolving Lender), as applicable, will equal the percentage of the aggregate Revolving Commitments of all Revolving Lenders under such Revolving Credit Facility. Additionally, if any Revolving Loans are outstanding under a Revolving Credit Facility at the time any Incremental Revolving Commitments are established, the applicable Revolving Lenders immediately after effectiveness of such Incremental Revolving Commitments shall purchase and assign at par such amounts of the Revolving Loans outstanding under such Revolving Credit Facility at such time as the Revolving Facility Administrative Agent may require such that each Revolving Lender holds its Applicable Percentage of all Revolving Loans outstanding under such Revolving Credit Facility immediately after giving effect to all such assignments. The Revolving Facility 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 transactions effected pursuant to the immediately preceding sentence.
Appears in 1 contract
Samples: Credit Agreement
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate (a) At any time, the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make up to three (3) additional term loans (the any such additional term loan, an “Incremental LoansTerm Loan”) in connection with ); provided that (and as part ofi) the consummation total aggregate principal amount for all Incremental Term Loan Commitments shall not (as of any date of incurrence thereof) exceed $60,000,000 and (ii) the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate amount for all such each Incremental Term Loan Commitment (and the Incremental Term Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to exceed $1,000,000the foregoing clause (i). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Term Loan Commitment shall be effective; provided that , which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Term Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansTerm Loan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Term Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such (x) any Incremental Loans; Term Loan Commitment and the making of any Incremental Term Loans pursuant thereto, (iiy) any permanent repayment of Indebtedness consummated in connection therewith and (z) any Permitted Acquisition consummated in connection therewith;
(B) the Administrative Agent and the Lenders shall have received from the Borrower shall be an Officer’s Compliance Certificate demonstrating, in pro forma form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenant covenants set forth in Section 11.13; 7.14 based on the financial statements most recently delivered pursuant to Section 6.1(a) or 6.1(b), as applicable, both before and after giving effect (iiion a Pro Forma Basis) to (x) any Incremental Term Loan Commitment and the making of any Incremental Term Loans pursuant thereto (with any Incremental Term Loan Commitment being deemed to be fully funded), (y) any permanent repayment of Indebtedness consummated in connection therewith and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Articles V and VIII shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Term Loans shall be used as permitted pursuant to Section 10.6; for general corporate purposes of the Credit Parties (ivincluding Permitted Acquisitions);
(E) each Incremental Term Loan Commitment (and the Incremental Term Loans made thereunder) shall share ratably constitute Obligations of the Borrower and shall be secured and guaranteed with the other Term Loans on a pari passu basis;
(F) in the Collateral case of each Incremental Term Loan (the terms of which shall be set forth in the relevant Lender Joinder Agreement):
(1) such Incremental Term Loan will mature and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) amortize in a manner reasonably acceptable to the Incremental Loans shall share no greater than ratably Lenders making such Incremental Term Loan and the Borrower, but will not in any mandatory prepayments event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of the existing Initial Term Loans; (vi) the Incremental Loans shall mature on Loan or a maturity date earlier than the Term Loan Maturity Date; ;
(vii2) the Applicable Margin and pricing grid, if applicable, for such Incremental Loans Term Loan shall be subject determined by the applicable Incremental Lenders and the Borrower on the applicable Increased Amount Date; provided that if the Applicable Margin in respect of any Incremental Term Loan exceeds the Applicable Margin for the Initial Term Loan by more than 0.50%, then the Applicable Margin for the Initial Term Loan shall be increased so that the Applicable Margin in respect of such Initial Term Loan is equal to the same Applicable Margin for the Incremental Term Loan minus 0.50%; provided further in determining the Applicable Margin(s) applicable to each Incremental Term Loan and the Applicable Margin(s) for the Initial Term Loan, (A) 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 such Incremental Term Loan or the Initial 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) and (B) customary arrangement or commitment fees payable to any Lead Arranger (or its affiliates) in connection with the Initial Term Loan or to one or more arrangers (or their affiliates) of any Incremental Term Loan shall be excluded (it being understood that the effects of any and all interest rate floors shall be included in determining Applicable Margin(s) under this provision); and
(3) except as provided above, all other terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect applicable to any Incremental Loans which differ from those Term Loan, to the extent not consistent with respect the terms and conditions applicable to the Initial Term Loans Loan, shall be reasonably satisfactory to the Administrative AgentAgent and the Borrower (provided that such other terms and conditions shall not be materially more favorable to the Lenders under any Incremental Term Loans than such other terms and conditions under the Initial Term Loans);
(G) any Incremental Lender making any Incremental Term Loan shall be entitled to the same voting rights as the existing Lenders under the Term Loan Facility; and
(viiiH) such Incremental Loans Term Loan Commitments shall be effected pursuant to one or more Lender Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Lenders (which Lender 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 2.23.13); and
(I) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Credit Party authorizing such Incremental Term Loan and/or Incremental Term Loan Commitment) and such written consent or acknowledgement, if any, from each Agency with respect to such Incremental Term Loan as may be reasonably requested by Administrative Agent in connection with any such transaction (which such consents or acknowledgments shall be in form and substance reasonably satisfactory to the Administrative Agent and the Incremental Lenders).
(i) The Incremental Term Loans shall be deemed to be Term Loans; provided that such Incremental Term Loan shall be designated as a separate tranche of Term Loans for all purposes of this Agreement.
(ii) The Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement.
(c) On any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to make, an Incremental Term Loan to the Borrower in an amount equal to its Incremental Term Loan Commitment and shall become a Lender hereunder with respect to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto.
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts (a) At any time prior to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The date that is one (1) year prior to the Revolving Credit Maturity Date, the Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term incremental revolving credit commitments (any such incremental revolving credit commitment, a “New Loan Commitment”) to make incremental revolving credit loans (the any such incremental revolving credit loans, a “Incremental New Loans”) in connection with ); provided that (and as part ofi) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate amount for all such Incremental Loans New Loan Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,00075,000,000, (ii) the total aggregate amount for each New Loan Commitment (and the New Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i) and (iii) no more than three (3) New Loan Commitments shall be permitted during the term of this Agreement. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans any New Loan Commitment shall be effective; provided that , which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide a New Loan Commitment (any such Person, a “New Lender”). Any Lender or any New Lender offered or approached to provide all or a portion of any Incremental Loans New Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansNew Loan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Any New Loan Commitment shall become effective as of such Increased Amount Date; provided that further that:
(iA) the conditions set forth in Section 12.2 were satisfied or waived no Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Loans; (ii1) any New Loan Commitment, (2) the making of any tranche of New Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(B) the Administrative Agent and the Lenders shall have received from the Borrower shall an Officer’s Compliance Certificate demonstrating that the Borrower will be in pro forma compliance with the financial covenant covenants set forth in Section 11.13; Article X (iiiit being agreed and acknowledged that, notwithstanding anything to the contrary contained in this Agreement, (1) the proceeds covenant contained in Section 10.1 shall be calculated on a Pro Forma Basis both before and after giving effect to (x) any New Loan Commitment, (y) the making of any Incremental tranche of New Loans shall be used as permitted pursuant to Section 10.6; thereto and (ivz) the Incremental Loans shall share ratably any Permitted Acquisition consummated in the Collateral connection therewith and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v2) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.covenant contained in
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts (a) At any time prior to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The date that is six (6) months prior to the Stated Maturity Date, the Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term incremental Revolving Credit Commitments (any such incremental Revolving Credit Commitment, a “New Loan Revolving Credit Commitment”) to make incremental revolving credit loans (any such incremental revolving credit loans, the “Incremental New Loans”) in connection with ); provided that (and as part of1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate amount for all such Incremental Loans New Loan Revolving Credit Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,000300,000,000 and (2) the total aggregate amount for each New Loan Revolving Credit Commitment (and the New Loans made thereunder) shall not be less than a minimum principal amount of $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans any New Loan Revolving Credit Commitment shall be effective; provided that , which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender and/or any Affiliate of any Lender and/or any other Person reasonably satisfactory to the Administrative Agent, to provide a New Loan Revolving Credit Commitment (any such Person, a “New Lender”). Any Lender or any New Lender offered or approached to provide all or a portion of any Incremental Loans New Loan Revolving Credit Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansNew Loan Revolving Credit Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Any New Loan Revolving Credit Commitment shall become effective as of such Increased Amount Date; provided that that: (iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Loans; (ii1) any New Loan Revolving Credit Commitment, and (2) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds making of any Incremental New Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.thereto;
Appears in 1 contract
Samples: Credit Agreement (Ugi Corp /Pa/)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof (a) So long as no Default has occurred and Schedule 10.13 hereto. The Borrower may is continuing, at any time or from time to time after the Closing Date and on or prior to September 22the Maturity Date, 2018the Borrower may request, by written notice delivered to through the Administrative Agent and upon the Administrative Agent’s consent, elect pursuant to request the establishment of one or more new term loans (the “Incremental Loans”) in connection with (procedure set forth in, and as part of) the consummation of the Financing with Eligible Stockholders in accordance with the terms of, Section 10.13 and Schedule 10.13 hereto2.20, in the addition of an aggregate amount for all such Incremental Loans not Facility consisting of either an increase to exceed $1,000,000. Each such notice shall specify the date existing revolving facility (each, an “Increased Amount DateIncremental Revolving Loan”) on which or an increase to the existing term loan or a new tranche of term loans (each, an “Incremental Term Loan”); provided, however, that the Borrower proposes that may not make a request for an Incremental Facility if after giving effect thereto the sum of all then outstanding Incremental Revolving Loans, unused Incremental Revolving Commitments, outstanding Incremental Term Loans shall be effective; provided that any Lender offered or approached to provide all or a portion of any and unused Incremental Loans may elect or decline, in its sole discretion, to provide such Term Commitments would exceed $500,000,000. Each Incremental Loans. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.Facility shall:
2.2.2 Such Incremental Loans shall become effective as of such Increased Amount Date; provided that (i) be in an amount not less than $50,000,000;
(ii) upon the conditions set forth effectiveness of the Incremental Revolving Commitment or Incremental Term Commitment relating thereto as provided in Section 12.2 were satisfied 2.06(b), be deemed to be a Revolving Loan or waived an Aggregate Term Loan, as applicable, and part of the Obligations for all purposes under this Agreement, including for purposes of the sharing of Collateral and guarantees under the Guarantee and Collateral Agreement, all on such Increased Amount Date before or after giving effect a pari passu basis with all other Obligations;
(iii) with respect to such Incremental Term Loans; (ii) , have such pricing or other terms as may be agreed by the Borrower shall be in pro forma compliance with and the financial covenant set forth in Section 11.13; (iii) the proceeds of any Lenders providing such Incremental Term Loans shall be used as permitted pursuant to this Section 10.62.06 and 2.20; and
(iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments otherwise have all of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Revolving Loans that are not Incremental Revolving Loans (if such Incremental Loans are Incremental Revolving Loans), including with respect to interest rateor, except as specifically provided in this clause (iv) and clause (iii) above or in Section 2.04, otherwise have all of the relevant Joinder Agreement otherwise provides, same terms and conditions as the Term Loans (if such Incremental Loans are Term Loans); provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect notwithstanding anything to the Initial contrary contained herein, (A) Incremental Term Loans shall not have a maturity date prior to the Maturity Date and (B) the amortization of the Incremental Term Loans shall not be more accelerated than as provided pursuant to Section 2.04 without the consent of all of the Lenders. In addition, unless otherwise specifically provided in this Agreement, all references in the other Loan Documents to (i) Term Loans shall be deemed to include references to Incremental Term Loans made pursuant to this Agreement where applicable and appropriate, and (ii) Revolving Loans shall be deemed to include references to Incremental Revolving 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. Subject to the proviso at the end of Section 2.20(a), Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to (x) an amendment (each, an “Incremental Loan Amendment”) to this Agreement executed by the Borrower, each Lender or other approved financial institution agreeing to provide such Commitment (and no other Lender shall be required to execute such amendment), and the Administrative Agent, and (y) any amendments to the other Loan Documents (executed by the relevant Loan Party and the Administrative Agent only) as the Administrative Agent shall reasonably satisfactory deem appropriate to effect such purpose. Notwithstanding anything to the contrary contained herein, the effectiveness of such Incremental Loan Amendment shall be subject to the receipt by the Administrative Agent of a certificate of the Borrower executed by an authorized officer of the Borrower certifying that immediately prior to and after giving effect to the incurrence of the Indebtedness then to be incurred under such Incremental Facility (A) each of the representations and warranties made by the Loan Parties in or pursuant to the Loan Documents shall be true and correct in all material respects, (B) the Borrower is in compliance with each of the financial covenants contained in Section 6.01 and set forth in a Compliance Certificate delivered to the Administrative Agent; , based on financial projections of the Borrower and its Subsidiaries attached to such certificate which have been prepared on a pro-forma basis giving effect to any Borrowing made hereunder on such date and the consummation of any related transaction and (viiiC) such Incremental Loans no Default shall have occurred and be effected pursuant to one continuing or more Joinder Agreements executed and delivered be caused by the Borrower, the Administrative Agent and one or more New Lenders; and incurrence of such Indebtedness.
(ixb) So long as (x) the Borrower shall deliver or cause have given the Administrative Agent no less than five Business Days’ prior notice of the effectiveness thereof and (y) any financial institution not theretofore a Lender which is providing an Incremental Revolving Commitment and/or an Incremental Term Commitment shall have become a Lender under this Agreement pursuant to be delivered any customary legal opinions or other documents reasonably an Incremental Loan Amendment, the Incremental Revolving Commitment and/or Incremental Term Commitment being requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to Borrower shall become effective under this Agreement upon the Collateral Documents providing for effectiveness of such Incremental Loans Loan Amendment. Upon such effectiveness, Schedule 2.01 shall be deemed amended to be secured thereby.
2.2.3 On any Increased Amount Date on which any reflect such Commitments. In the event that an Incremental Loans Facility shall have become effective, the Lender or Lenders providing such Incremental Revolving Commitments or Incremental Term Commitments shall be deemed to have agreed, severally and not jointly, upon the terms and subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes conditions of this Agreement, any (A) with respect to Incremental LoansTerm Commitments, when funded, shall be deemed to be make an Incremental Term Loans. 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 amount of the Administrative AgentIncremental Term Commitment of such Lender on the effective date of the applicable Incremental Loan Amendment and (B) with respect to Incremental Revolving Commitments, to effect make from time to time during the period from the date of the effectiveness of the applicable Incremental Loan Amendment through the Maturity Date, one or more Incremental Revolving Loans to the Borrower pursuant to the provisions of this Section 2.22.02 in an aggregate principal amount not exceeding at any time the Incremental Revolving Commitment of such Lender at such time.
(c) The Incremental Term Commitments under any Incremental Facility shall terminate effective as of the day after the effective date of the Incremental Loan Amendment relating thereto.
Appears in 1 contract
Samples: Credit Agreement (Radio One Inc)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate (i) At any time, the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term loans increases in the Revolving Credit Commitments (the any such increase, an “Incremental LoansLoan Commitment”) in connection with for the advancing of incremental Revolving Credit Loans under the Revolving Credit Facility (and as part ofeach such advance of Revolving Credit Loans under the Incremental Loan Commitment, an “Incremental Loan”); provided that (a) the consummation total aggregate principal amount of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an aggregate amount for all such Incremental Loans Loan Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,000100,000,000, and (b) the minimum principal amount of each such Incremental Loan Commitment shall not be less than $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (a). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Loan Commitment 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 Administrative Agent (or such shorter period acceptable to the Administrative Agent). The Borrower may invite existing Lenders, any Affiliate of any Lender and/or any Approved Fund, and/or any other Eligible Assignee reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”); provided that the Issuing Lender shall consent to each Incremental Lender providing any portion of an Incremental Loan Commitment (such consent not to be unreasonably withheld or delayed). Any proposed or prior Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansLoan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Potential Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Loan Commitment, (ii2) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds making of any Incremental Loans pursuant thereto on the applicable Increased Amount Date and (3) any Permitted Acquisition consummated in connection therewith;
(B) Administrative Agent and the Lenders shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably have received from the guarantees under the Guaranty Borrower a Compliance Certificate demonstrating, in form and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be substance reasonably satisfactory to the Administrative Agent; , that the Borrower is in compliance with the Net Leverage Ratio based on the financial statements most recently delivered pursuant to Section 8.2.16 both before and after giving effect (viiion a pro-forma basis) such to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto on the applicable Increased Amount Date and (3) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Article 6 shall be effected pursuant true and correct in all material respects, except to one the extent any such representation and warranty is qualified by materiality or more Joinder Agreements executed reference to a Material Adverse Change, in which case, such representation and delivered warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by the Borrowerits terms is made only as of an earlier date, the Administrative Agent which representation and one or more New Lenders; warranty shall remain true and correct as of such earlier date);
(ixD) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Loan Commitments and Incremental Loans) reasonably requested by the Administrative Agent in connection with any such transaction; and
(E) each proposed Incremental Lender shall join this Agreement as a Lender pursuant to a Lender Joinder Agreement.
(ii) Each Incremental Loan Commitment (and Incremental Loan) shall (a) constitute Obligations of the Borrower and, including any supplements or amendments to the Collateral Documents providing for extent the other Obligations are guaranteed, shall be guaranteed with the other Obligations on a pari passu basis, and (b) be part of the Revolving Credit Facility, shall mature on the Expiration Date, shall bear interest and be entitled to fees, in each case at the rate applicable to the Revolving Credit Facility, and shall otherwise be subject to the same terms and conditions as the Revolving Credit Facility.
(iii) Unless otherwise agreed by the applicable Incremental Lenders (provided that no such agreement shall allow the Incremental Loans Loan Commitments to be secured therebyterminated prior to termination of the existing Revolving Credit Commitments), each Incremental Loan shall receive proceeds of prepayments on the same basis as the existing Revolving Credit Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof).
2.2.3 On any (iv) The outstanding Revolving Credit Loans and Ratable Shares of Letter of Credit Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date on which any Incremental Loans become effective, subject among the Lenders to the foregoing terms and conditions, each lender with an Revolving Credit Facility (including the Incremental Lenders providing Incremental Loan Commitments) in accordance with their revised Ratable Shares and the Lenders to the Revolving Credit Facility (each, including the Incremental Lenders providing Incremental Loan Commitments) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 5.10 in connection with such reallocation as if such reallocation were a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loanrepayment).
2.2.4 The terms and provisions of the (v) Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical Loan Commitments may be effected pursuant to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.22.11, without the consent of any other Lenders.
(vi) The Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement.
(vii) On each Increased Amount Date, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Loan Commitment shall become a Lender under the Revolving Credit Facility hereunder with respect to such Incremental Loan Commitment.
Appears in 1 contract
Samples: Credit Agreement (Pegasystems Inc)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts (a) At any time prior to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Commitment Increase Expiration Date, the Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of of:
(i) one or more new incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Credit Commitments, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make incremental revolving credit loans (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loan, the “Incremental Loans”) in connection with ); provided that (and as part of1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate amount for all such Incremental Loans Loan Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,000200,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $25,000,000 (or such lesser amount to which the Administrative Agent may agree). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Loan Commitment shall be effective; provided that , 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. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent (and, in the case of an Incremental Revolving Credit Commitment, the L/C Issuer and Swingline Lender), to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any Lender or any Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansLoan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied or waived no Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Loan Commitment and (ii2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower shall an officer’s compliance certificate demonstrating that the Borrower will be in compliance on a pro forma compliance basis with the financial covenant covenants set forth in Section 11.13; 7.11 both before and after giving effect to (iii1) any Incremental Loan Commitment and (2) the making of any Incremental Loans on the Increased Amount Date pursuant thereto;
(C) the proceeds of any Incremental Loans shall be used as permitted pursuant to in compliance with Section 10.6; 6.11;
(ivD) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall share ratably in the Collateral guarantees and shall benefit ratably from security, if any, supporting the guarantees under other extensions of credit hereunder on a pari passu basis;
(1) in the Guaranty and Collateral Agreement; (v) the case of each Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans terms of which shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Lender Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.):
Appears in 1 contract
Samples: Credit Agreement (Meredith Corp)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate have the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, elect right to request the establishment of one or more new term loans additional tranches of additional Loans (the “Incremental Loans”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that the aggregate amount of such Incremental Loans shall not exceed Two Hundred Sixty Million Dollars ($260,000,000). Each such Incremental Loan must be an aggregate minimum amount of $20,000,000 and integral multiples of $5,000,000 in excess thereof. The Administrative Agent and the Arrangers, in consultation with the Borrower, shall manage all aspects of such Incremental Loans, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase and the allocations of Incremental Loans among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to provide an Incremental Loan, and any new Lender becoming a party to this Agreement in connection with any such requested Incremental Loan must be an Eligible Assignee. Effecting the Incremental Loans under this Section is subject to the following conditions precedent: (and as part ofw) the consummation Administrative Agent shall have consented thereto (such consent not to be unreasonably withheld or delayed), (x) no Default or Event of Default shall be in existence on the Financing with Eligible Stockholders effective date of such Incremental Loans, (y) the representations and warranties made or deemed made by the Borrower or any other Loan Party in accordance with Section 10.13 any Loan Document to which such Loan Party is a party shall be true and Schedule 10.13 hereto, in an aggregate amount for all correct on the effective date of such Incremental Loans not except to exceed $1,000,000. Each the extent that such notice shall specify the representations and warranties expressly relate solely to an earlier date (each, an “Increased Amount Date”) in which case such representations and warranties shall have been true and correct on which the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered or approached to provide all or a portion of any Incremental Loans may elect or decline, in its sole discretion, to provide such Incremental Loans. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans shall become effective and as of such Increased Amount Date; provided that earlier date) and except for changes in factual circumstances specifically and expressly permitted hereunder, and (iz) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date before or after giving effect to such Incremental Loans; (ii) the Borrower Administrative Agent shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments have received each of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms following, in form and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably substance satisfactory to the Administrative Agent; : (viiii) if not previously delivered to the Administrative Agent, copies certified by a Qualified Officer of the Borrower of (A) all partnership or other necessary action taken by the Borrower to authorize such Incremental Loans shall be effected pursuant and (B) all corporate or other necessary action taken by Guarantor authorizing the guaranty of such Incremental Loans; and (ii) an opinion of counsel to one or more Joinder Agreements executed the Borrower and delivered by the BorrowerGuarantor, and addressed to the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents Lenders covering such matters as reasonably requested by the Administrative Agent Agent; and (iii) if requested, new Notes executed by the Borrower, payable to any new Lenders and replacement Notes, if requested by any applicable Lender, executed by the Borrower, payable to any existing Lenders making Incremental Loans, in the amount of each such Lender’s Xxxx Loan Exposure at the time of the effectiveness of the applicable Incremental Loans. In connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans pursuant to be secured thereby.
2.2.3 On this Section 2.2 any Increased Amount Date on which any Lender becoming a party hereto shall execute such documents and agreements as the Administrative Agent may reasonably request. The Incremental Loans become effective(i) shall rank pari passu in right of payment with the existing Loans, subject (ii) shall not mature earlier than the Maturity Date and (iii) shall be treated substantially the same as (and in any event no more favorably than) the existing Loans. Incremental Loans may be made hereunder pursuant to an amendment or restatement of this Agreement and, as appropriate, the foregoing terms and conditionsother Loan Documents, executed by the Borrower, each lender with an Incremental Loan new Lender participating in such tranche (eachif any), a “New Lender”each existing Lender participating in such tranche (if any) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 and the Administrative Agent. The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Joinder Agreement Administrative Agent may, without the consent of any other LendersLenders (except as expressly required pursuant to Section 14.3), effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.2.
Appears in 1 contract
Samples: Unsecured Term Loan Agreement (First Industrial Lp)
Incremental Loans. 2.2.1 (a) The Borrower shall use (upon receipt of requisite authorization from its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof board of directors) and Schedule 10.13 hereto. The Borrower any one or more Lenders (including New Lenders) may at any time or from time to time after the Closing Date and on or prior to September 22agree that such Lenders (each such Lender, 2018, by written notice delivered an “Incremental Lender”) shall (x) make available to the Administrative AgentBorrower an additional revolving credit facility (the “Incremental Revolving Facility” and any loans thereunder, elect the “Incremental Revolving Loans”) and/or increase the amount of their Commitment under the Revolving Credit Facility, or (in the case of a New Lender) make available a Commitment under the Revolving Credit Facility and (y) make available to request the establishment of Borrower one or more new term loan facilities (each, an “Incremental Term Loan Facility” and together with the Incremental Revolving Facility, the “Incremental Facilities”; any loans (under the Incremental Term Loan Facility, the “Incremental Term Loans” and together with any Incremental Revolving Loans, the “Incremental Loans”) in connection with (and as part of) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto), in an aggregate amount for all either such Incremental Loans not case by executing and delivering to exceed $1,000,000. Each such the Administrative Agent a notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered or approached to provide all or a portion of any Incremental Loans may elect or decline, in its sole discretion, to provide such Incremental Loans. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans shall become effective as of such Increased Amount Date; provided that specifying (i) the conditions aggregate principal amount of such increase (including whether it is an Incremental Revolving Facility or Incremental Term Facility) and (ii) the proposed Incremental Facility Closing Date. Notwithstanding the foregoing, (I) no increase pursuant to this paragraph may be obtained after the occurrence and during the continuation of a Default or Event of Default or if a Default or Event of Default would result therefrom (except in the case of an Incremental Facility incurred to finance an Investment permitted under Section 6.7, if so agreed by the Borrower and the applicable Incremental Lenders, no Event of Default pursuant to Section 7.1(a), Section 7.1(e) or Section 7.1(f) has occurred and is continuing or would result from such increase pursuant to this Section 2.21), (II) any increase effected pursuant to this Section 2.21 shall be in a minimum amount of at least $10,000,000, (III) the Incremental Facilities shall rank pari passu in right of payment and security with the Revolving Credit Facility (provided that any Incremental Term Facility may be subject to an excess cash flow sweep and mandatory prepayments in respect of debt issuances in addition to any mandatory prepayments applicable to the Revolving Credit Facility), (IV) on any Incremental Facility Closing Date, the representations and warranties set forth in this Agreement shall be true and correct in all material respects (or certain specified representations and warranties set forth in this Agreement shall be true and correct in all material respects, in the case of an Investment permitted under Section 12.2 were satisfied 6.7, if so agreed by the Borrower and any applicable Incremental Lender), except for any representation or waived warranty expressly stated to have been made as of a specified date (which shall be true and correct in all material respects as of such date), (V) on such Increased Amount Date before or after giving effect to such any Incremental Loans; (ii) Facility Closing Date, the Borrower shall be in pro forma compliance with a Senior Secured Leverage Ratio (assuming all commitments under the financial covenant set forth in Section 11.13; Revolving Credit Facility and any such Incremental Facility are fully drawn) of 1.75:1.00 as of the last day of the most recently ended Test Period, (iiiVI) any Incremental Revolving Facility will have a final maturity no earlier than the latest final maturity of the Revolving Credit Facility and any Incremental Revolving Facility, and any Incremental Term Facility will have a final maturity no earlier than the latest final maturity of the Revolving Credit Facility and any Incremental Facility, (VII) the proceeds weighted average life to maturity of any Incremental Loans Revolving Facility shall be used as permitted pursuant no shorter than the weighted average life to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments maturity of the existing Revolving Credit Facility and any Incremental Revolving Facility, and the weighted average life to maturity of any Incremental Term Facility shall be no shorter than the weighted average life to maturity of any other Incremental Term Facility, (VIII) other than amortization (solely with respect to Incremental Term Loans; (vi) the ), pricing, fees and maturity date, each Incremental Loans Facility shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to have the same terms and conditions as the Initial Term LoansRevolving Credit Facility, or such terms as are reasonably satisfactory to the Administrative Agent and the Borrower, and, except as set forth above, shall be treated substantially the same as the existing Revolving Credit Facility (including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, mandatory and voluntary prepayments (provided that all terms any Incremental Term Facility may be subject to an excess cash flow sweep and documentation with mandatory prepayments in respect of debt issuances in addition to any Incremental Loans which differ from those with respect mandatory prepayments applicable to the Initial Term Loans Revolving Credit Facility)) and (IX) any Incremental Facility shall be effected pursuant to documentation (including but not limited to customary legal opinions, board resolutions and officers’ certificates reasonably satisfactory to the Administrative Agent; ) and procedures reasonably acceptable to the Administrative Agent and the Borrower (viii) such including, if applicable, procedures to ensure that outstandings are held ratably by the applicable Lenders). Notwithstanding anything to the contrary in Section 9.1, in connection with any Incremental Loans Facility, this Agreement and the other Loan Documents may be amended in writing (which shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one the Incremental Lenders) in order to establish the Incremental Revolving Facility or more New Lenders; Incremental Term Facility, as applicable, and to reflect any technical changes necessary or appropriate to give effect to such Incremental Facility in accordance with its terms as set forth herein. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(ixb) Any additional bank, financial institution or other entity which, with the consent of the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan Facility shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit F hereto, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender hereunder with respect for all purposes and to such Incremental Loan.
2.2.4 The terms the same extent as if originally a party hereto and provisions of shall be bound by and entitled to the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes benefits of this Agreement.
(c) The Borrower may utilize availability under the Incremental Facilities in respect of one or more series of senior unsecured notes or term loans or senior secured first lien notes or term loans or senior secured junior lien (as compared to the Liens securing the Obligations) notes or term loans, in each case, if secured, that will be secured by Liens on the Collateral on an equal priority or junior priority basis (as applicable) with the Liens on Collateral securing the Obligations, and issued in a public offering, Rule 144A or other private placement or loan origination pursuant to an indenture, credit agreement or otherwise, in an aggregate amount not to exceed the amount permitted under Section 2.21(a)(V) (“Incremental Equivalent Debt”); provided that such Incremental Equivalent Debt (i) does not mature prior to the Maturity Date, or have a shorter weighted average life to maturity than the weighted average life to maturity of the Revolving Credit Facility or any Incremental LoansFacility outstanding at such time, when funded(ii) has terms and conditions (other than pricing and fees) no more restrictive than those under the Revolving Credit Facility (except for covenants or other provisions applicable only to periods after the Maturity Date of the Facility), (iii) does not require mandatory prepayments to be made except to the extent required to be applied first pro rata to the Revolving Credit Facility and any pari passu secured Incremental Equivalent Debt (provided that any term loans may be subject to an excess cash flow sweep and mandatory prepayments in respect of debt issuances in addition to any mandatory prepayments applicable to the Revolving Credit Facility), (iv) to the extent secured, shall not be secured by any Lien on any asset that does not also secure the existing Revolving Credit Facility, or to the extent guaranteed, shall not be guaranteed by any Person other than the Guarantors and (v) to the extent secured, shall be deemed subject to be Term Loans. Each Joinder a First Lien Intercreditor Agreement mayor a Second Lien Intercreditor Agreement, 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 2.2applicable.
Appears in 1 contract
Samples: Credit Agreement (Gannett Co., Inc.)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate (a) At any time, the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new (x) incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more additional term loans (any such additional term loans, an “Incremental Term Loan”) and/or (y) increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans”) in connection with ); provided that (and as part ofi) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate principal amount for all such Incremental Loans Loan Commitments shall not (as of any date of incurrence thereof) exceed $300,000,000 or, if greater, an amount equal to the amount of additional Indebtedness that would cause the Consolidated Total Leverage Ratio as of the Fiscal Quarter most recently ended prior to the incurrence of such additional Indebtedness, calculated on a Pro Forma Basis after giving effect to the incurrence of such additional Indebtedness, not to exceed 2.00 to 1.00; and (ii) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $1,000,0005,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Loan Commitment 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 Administrative Agent.
(b) The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”); provided provided, however, that any no such Person may be an Incremental Lender unless such Person meets all of the requirements of an assignee of the rights and obligations of a Lender under Section 14.9 of this Agreement. Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loans. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the FinancingLoan Commitment.
2.2.2 Such (c) Any Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(i) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(ii) the Administrative Agent and the Lenders shall have received from the Borrower shall be an Officer’s Compliance Certificate demonstrating, in pro forma form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenant covenants set forth in Article X, in each case based on the financial statements most recently delivered pursuant to Section 11.13; 8.1(a) or 8.1(b), as applicable, both before and after giving effect (iiion a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the proceeds making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(iii) each of the representations and warranties contained in Article VII shall be used true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as permitted pursuant to Section 10.6; if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(iv) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall share ratably in constitute Obligations of the Collateral Borrower and shall benefit ratably from be secured and guaranteed with the guarantees under the Guaranty and Collateral Agreement; other Extensions of Credit on a pari passu basis;
(v) in the case of each Incremental Term Loan (the terms of which shall be set forth in the relevant Incremental Agreement):
(A) such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Loans shall share no greater than ratably Lenders making such Incremental Term Loan and the Borrower, but will not in any mandatory prepayments event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of the existing Initial Term Loans; (vi) the Incremental Loans shall mature on Loan or a maturity date earlier than the Term Loan Maturity Date; ;
(viiB) the Applicable Margin for such Incremental Loans Term Loan shall be determined by the Administrative Agent, the applicable Incremental Lenders and the Borrower on the applicable Increased Amount Date; and
(C) except as provided above, all other terms and conditions applicable to any Incremental Term Loan, to the extent not consistent with the terms and conditions applicable to the Initial Term Loan, shall be reasonably satisfactory to the Administrative Agent and the Borrower;
(vi) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in the relevant Incremental Agreement):
(A) such Incremental Revolving Credit Increase shall mature on the Revolving Credit Maturity Date, shall bear interest and be entitled to fees, in each case at the rate applicable to the Revolving Credit Loans, and shall be subject to the same terms and conditions as the Initial Term Revolving Credit Loans, except for the payment of arrangement fees, upfront fees or similar fees which may be required in connection with or as a condition to any Lender’s or Incremental Lender’s agreement to provide an Incremental Revolving Credit Commitment; provided that if the upfront fees paid on such Revolving Credit Increase (calculated as a percentage of the principal amount thereof) exceed the upfront fees paid in respect of the existing Revolving Credit Commitments on the Closing Date (calculated as a percentage of the principal amount thereof), the Borrower shall pay additional upfront fees to the Revolving Credit Lenders holding such existing Revolving Credit Commitments so that the upfront fees paid in respect of such Revolving Credit Increase are not higher than the upfront fees paid in respect of the existing Revolving Credit Commitments on the Closing Date;
(B) the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with respect their revised Revolving Credit Commitment Percentages (and the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to interest ratemake all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 5.9 in connection with such reallocation as if such reallocation were a repayment); and
(C) except as provided above, all of the other terms and conditions applicable to such Incremental Revolving Credit Increase shall, except as to the relevant Joinder Agreement extent otherwise providesprovided in this Section 5.13, provided that all be identical to the terms and documentation with respect to any Incremental Loans which differ from those with respect conditions applicable to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; Revolving Credit Facility;
(viiivii) such Incremental Loans Loan Commitments shall be effected pursuant to one or more Joinder Incremental Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Joinder Lenders (which Incremental 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 2.25.13); and
(viii) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Credit Party authorizing such Incremental Loan and/or Incremental Term Loan Commitment) reasonably requested by Administrative Agent in connection with any such transaction.
(d) Any Incremental Lender making any Incremental Term Loan shall be entitled to the same voting rights as the existing Term Loan Lenders under the Term Loan Facility and each Incremental Term Loan shall receive proceeds of prepayments on the same basis as the Initial Term Loan (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof among the Initial Term Loan and the Incremental Term Loans). The Incremental Term Loans shall be deemed to be Term Loans; provided that such Incremental Term Loan shall be designated as a separate tranche of Term Loans for all purposes of this Agreement. The Incremental Lenders shall be included in any determination of the Required Lenders, and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement.
(e) Any Incremental Lender with an Incremental Revolving Credit Increase shall be entitled to the same voting rights as the existing Revolving Credit Lenders under the Revolving Credit Facility and any Extensions of Credit made in connection with each Incremental Revolving Credit Increase shall receive proceeds of prepayments on the same basis as the other Revolving Credit Loans made hereunder.
(f) Subject to the foregoing terms and conditions, on any Increased Amount Date on which (i) any Incremental Term Loan Commitment becomes effective, each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to make, an Incremental Term Loan to the Borrower in an amount equal to its Incremental Term Loan Commitment and shall become a Term Loan Lender hereunder with respect to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto, or (ii) any Incremental Revolving Credit Increase becomes effective, each Incremental Lender with an Incremental Revolving Credit Commitment shall become a Revolving Credit Lender hereunder with respect to such Incremental Revolving Credit Commitment.
Appears in 1 contract
Samples: Credit Agreement (Fossil Inc)
Incremental Loans. 2.2.1 (i) The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower Borrowers may at any time or from time to time time, after the Closing Date and on or prior to September 22Fifth AmendmentRestatement Agreement Effective Date, 2018, by upon not less than five (5) Business Days written notice delivered to each Administrative Agent (whereupon the applicable Administrative AgentAgent shall promptly deliver a copy of such notice to each of the applicable Lenders), elect to request the establishment of that one or more new term loans tranche of Term Loans (the “Incremental Term Loans”) or one or more new tranche of Revolving Loans be made available to the Borrowers (the “Incremental Revolving Loans”, together the “Incremental Loans”) in connection with (and as part of) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an aggregate amount for all such Incremental Loans amount, together with any Funded Debt incurred pursuant to Section 8.1(r) or 8.1(t) on or after the Fifth AmendmentRestatement Agreement Effective Date, not to exceed (A) $1,000,000. Each such notice shall specify the date (each750,000,000, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered or approached to provide all or a portion of any Incremental Loans may elect or declinethat, in its sole discretionimmediately prior to, to provide such Incremental Loans. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans shall become effective as of such Increased Amount Date; provided that (i) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date before or and after giving effect to the incurrence of such Incremental Loans; Loans and any transaction consummated in connection therewith, (iix) the Borrower representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects, (y) no Default or Event of Default shall have occurred and be in continuing and (z) the Senior Secured Leverage Ratio is no greater, calculated on a pro forma compliance with basis, than 4.50 to 1.00,750,000,000 plus (B) an aggregate additional amount of Incremental Loans, provided that, immediately prior to, and after giving effect to the financial covenant set forth in Section 11.13; (iii) the proceeds incurrence of any such aggregate additional amount of Incremental Loans shall be used as permitted and any transaction consummated in connection therewith, the Senior Secured Leverage Ratio is no greater, calculated on a pro forma basis, than 4.50 to 1.00 (assuming that all Funded Debt incurred pursuant to this Section 10.6; 2.17(b)(i) on such date of determination would be included in clause (iva) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the definition of Senior Secured Leverage Ratio, whether or not such Funded Debt would otherwise be so included). Each incurrence of Incremental Loans shall be subject to the same terms following conditions: (x) the representations and conditions as warranties contained in Article V and the other Loan Documents are true and correct in all material respects, and (y) no Default or Event of Default shall have occurred and be continuing and (z) the Senior Secured Leverage Ratio is no greater, calculated on a pro forma basis, than 4.00 to 1.00.. Each incurrence of Incremental Loans shall be in an aggregate principal amount that is not less than $5,000,000. Incremental Loans (w) shall rank pari passu in right of payment and of security with the initial2021 Term Loans incurred on the Agreement Date (the “Initial Term Loans, including with respect to interest rate, except as ”) and the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any existing Revolving Loan Commitments (though such Incremental Loans which differ from those may be secured by less than all of the Collateral), (x) shall not mature earlier than the Maturity Date with respect to the Initial Initial2021 Term Loans or existing Revolving Loan Commitments, (y) shall be reasonably satisfactory treated substantially the same as the Initial2021 Term Loans and the existing Revolving Loan Commitments, as applicable, (including, without limitation, with respect to mandatory and voluntary prepayments) and (z) shall have interest rates and amortization schedules as determined by the Borrowers and the lenders thereof; provided further that, (1) as of the date of the incurrence of any Incremental Term Loan (1) the Weighted Average Life to Maturity of such Incremental Term Loan shall not be shorter than that of the Initial2021 Term Loans and (2) in the event that the All-In Yield applicable to such Incremental Term Loans exceeds the All-In Yield of the Initialany class of existing Term Loans by more than 50 basis points, the interest rate margins for such existing such Initial class of Term Loans to the extent necessary so that the All-In Yield of such existing Term Loans is equal to the All-In Yield of the applicable Incremental Term Loans minus 50 basis points; provided that after the Restatement Agreement Effective Date, an amount of Incremental Term Loans (together with the aggregate principal amount of any Funded Debt incurred pursuant to Section 8.1(t)) not in excess of $400,000,000 shall not be subject to terms of this clause (2).
(ii) Each notice from the Borrowers pursuant to this Section 2.17 shall set forth the requested amount and proposed terms of the relevant Incremental Loans. Incremental Loans may be made by any applicable existing Lender (and each applicable existing Lender will have the right, but not an obligation, on terms permitted in this Section 2.17 and otherwise on terms reasonably acceptable to the applicable Administrative Agent; , to make a portion of any Incremental Loan equal to the amount of Incremental Loans so requested by the Borrowers multiplied by such Lender’s Commitment Ratio) or by any other bank or other financial institution reasonably acceptable to the Borrowers and the applicable Administrative Agent (viii) any such other bank or other financial institution being called an “Additional Lender”). Incremental Loans shall be effected become Loans under this Agreement pursuant to one or more Joinder Agreements an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditionsBorrowers, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect agreeing to provide such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when fundedif any, shall be deemed to be Term Loanseach Additional Lender, if any, and each Administrative Agent. Each Joinder Agreement 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 necessary or appropriate, in the reasonable opinion of each Administrative Agent and the Administrative AgentBorrowers, to effect the provisions of this Section 2.22.17. The effectiveness of any Incremental Amendment and the borrowings of Incremental Loans under this Agreement (as amended by such Incremental Amendment) shall be subject to the satisfaction of such conditions as the parties thereto shall agree. The Borrowers will use the proceeds of any Incremental Loans for any purposes not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Loans unless it so agrees.
(iii) This Section 2.17 shall supersede any provisions in Section 2.10 or Section 11.12 to the contrary.
Appears in 1 contract
Samples: Credit Agreement (Zayo Group LLC)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at At any time or from time to time after the Closing Date and on or prior to September 22the Facility Termination Date, 2018, the Borrower may by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term loans increases in the Aggregate Commitment (the any such increase, an “Incremental LoansRevolving Credit Commitment”) in connection with to make revolving credit loans under the Revolving Credit Facility (and as part ofany such increase, an “Incremental Revolving Credit Increase”); provided that (1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate principal amount for all such Incremental Loans increases during the term of this Agreement shall not to exceed $1,000,000200,000,000 and (2) the total aggregate amount for each Incremental Revolving Credit Increase shall not be less than $15,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Revolving Credit Increase shall be effective; provided that . The Borrower may invite any Lender, any Affiliate of any Lender offered or approached and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent to provide all or a portion of an Incremental Revolving Credit Commitment (any such Person, an “Incremental Loans may elect or decline, in its sole discretion, to provide such Lender”). Any Incremental Loans. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Revolving Credit Commitments shall become effective as of such Increased Amount Date; provided that that:
(ia) no Unmatured Default or Default shall exist on such Increased Amount Date;
(b) each of the conditions set forth representations and warranties contained in Section 12.2 were satisfied Article 5 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or waived reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date before with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall be true and correct in all material respects (except to the extent any such representation and warranty is qualified by materiality or after giving effect reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects) as of such earlier date);
(c) in the case of each Incremental Revolving Credit Increase:
(i) the outstanding Revolving Loans and L/C Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders (including the Incremental Lenders providing such Incremental LoansRevolving Credit Increase) in accordance with their revised Pro Rata Share (and the Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 3.04 in connection with such reallocation as if such reallocation were a repayment); and
(ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans Revolving Credit Commitments shall be effected pursuant to one or more Lender Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Lenders (which Lender Joinder Agreement Agreement(s) 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 2.22.22);
(d) No existing Lender shall be obligated to participate in any Incremental Revolving Credit Increase, and each Lender’s decision to provide (or not provide) an Incremental Revolving Credit Commitment in any instance shall be made in such Lender’s sole and absolute discretion in each case.
(e) On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Revolving Credit Commitment shall become a Lender hereunder.
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate At any time, the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term increases in the Commitments, an “Incremental Loan Commitment”) to make incremental revolving credit loans (the any such increase, an “Incremental LoansLoan”) in connection with ); provided that (and as part of1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate amount for all such Incremental Loans Loan Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,000100,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 and increments of $5,000,000 in excess thereof or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Loan Commitment shall be effective; provided that , which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any Lender or any Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansLoan Commitment, and any Lender or Incremental Lender which has not responded to such offer within five (5) Business Days after the date such invitation is received shall be deemed to have declined such offer. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Potential Event of Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Loan Commitment and (ii2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower shall (i) an Officer’s Compliance Certificate demonstrating that the Borrower will be in compliance on a pro forma compliance basis with the financial covenant covenants set forth in Section 11.13; 9.9 both before and after giving effect to (iii1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto and (ii) an Officer’s Certificate confirming that the representations and warranties contained in Article VI are true and correct in all material respects, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect;
(C) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; for general corporate purposes of the Borrower and its Subsidiaries;
(ivD) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments constitute Obligations of the existing Term Loans; Borrower;
(viE) the such Incremental Loans shall mature on the Term Loan Maturity Date; (vii) , shall bear interest at the Incremental rate applicable to the Revolving Credit Loans and shall be subject to the same terms and conditions as the Initial Term Revolving Credit Loans;
(F) the outstanding Revolving Credit Loans and Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders (including the Incremental Lenders providing such Incremental Loan) in accordance with their revised Commitment Percentages (and the Lenders (including the Incremental Lenders providing such Incremental Loan) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 4.9 in connection with such reallocation as if such reallocation were a repayment);
(G) except as provided above, including with respect all of the other terms and conditions applicable to interest ratesuch Incremental Loan shall, except to the extent otherwise provided in this Section 4.13, be identical to the terms and conditions applicable to the Revolving Credit Facility;
(H) any Incremental Lender shall be entitled to the same voting rights as the relevant Joinder Agreement otherwise provides, provided that all terms existing Lenders under the Revolving Credit Facility and documentation any Extensions of Credit made in connection with respect to any each Incremental Loan shall receive proceeds of prepayments on the same basis as the other Revolving Credit Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; made hereunder;
(viiiI) such Incremental Loans Commitments shall be effected pursuant to one or more Lender Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Lenders (which Lender 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 2.24.13); and
(J) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including a resolution duly adopted by the board of directors (or equivalent governing body) of the Borrower authorizing such Incremental Loan) reasonably requested by Administrative Agent in connection with any such transaction.
Appears in 1 contract
Incremental Loans. 2.2.1 (a) The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower Company may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new commitments (the “New Term Commitments”) to make additional term loans (the “Incremental New Term Loans”) in connection with ); provided that the sum of (and as part ofi) the consummation aggregate principal amount of all such New Term Loans made during the Financing with Eligible Stockholders in accordance with Section 10.13 term of this Agreement and Schedule 10.13 hereto(ii) the aggregate principal amount of all Incremental Equivalent Debt Incurred (or, in an the case of any Incremental Equivalent Debt Incurred under a revolving credit facility, the aggregate principal amount for of all such Incremental Loans revolving credit commitments established thereunder) during the term of this Agreement shall not to exceed $1,000,000100,000,000; provided, further, that each lender of New Term Loans (each, a “New Term Holder”) shall be an Eligible Holder. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower Company proposes that the Incremental Loans New Term Commitments shall be effective; provided that any Lender Holder offered or approached to provide all or a portion of any Incremental Loans New Term Commitments may elect or decline, in its sole discretion, to provide such Incremental Loans. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the FinancingNew Term Commitments.
2.2.2 (b) Such Incremental Loans New Term Commitments shall become effective and the related New Term Loans shall be made as of such Increased Amount Date; provided that (i) the conditions set forth in Section 12.2 4.02 were satisfied or waived by the Required Holders on such Increased Amount Date before or after giving effect to such Incremental LoansNew Term Commitments and to the making of any New Term Loans pursuant thereto and after giving effect to any transaction consummated in connection therewith and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Company; (ii) after giving effect to such New Term Commitments and the Borrower making of the New Term Loans thereunder and after giving effect to any transaction consummated in connection therewith, the Total Leverage Ratio shall be in less than or equal to 4.50 to 1.00 on a pro forma compliance with the financial covenant set forth in Section 11.13basis; (iii) the proceeds of any Incremental New Term Loans shall be used as permitted pursuant to Section 10.6for a Permitted Use; (iv) the Incremental New Term Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral AgreementSubsidiary Guaranty; (v) the Incremental New Term Loans shall share no greater than ratably in any mandatory prepayments of the existing Initial Term Loans and the Delayed Draw Term Loans; (vi) if the Incremental Loans shall mature on maturity date of the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial New Term Loans is earlier than the Scheduled Maturity Date of any then existing Facility, this Agreement shall be have been amended in a manner reasonably satisfactory to the Administrative AgentAgent to shorten the Scheduled Maturity Date of such Facility to a date which is no later than the maturity date of the New Term Loans, (vii) if the New Term Loans have any amortization of principal prior to the Scheduled Maturity Date of any then existing Facility (in each case, as determined prior to giving effect to the foregoing clause (vi)), this Agreement shall have been amended in an manner reasonably satisfactory to the Administrative Agent to provide for the amortization of principal of the Term Loans of such Facility such that the weighted average life to maturity of such Term Loans shall be equal to or less than that of the New Term Loans; (viii) such Incremental New Term Loans or New Term Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the BorrowerCompany, the Administrative Agent and one or more New LendersTerm Holders; and (ix) the Borrower Company shall deliver or cause to be delivered any customary corporate resolutions, corporate documentation, legal opinions opinions, reaffirmations or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents Security Agreement providing for such Incremental New Term Loans to be secured thereby; and (x) the terms of the New Term Loans shall be substantially the same as (and in any event no more favorable to the New Term Holders than the terms of the Initial Term Loans are to the Initial Term Holders and the terms of the Delayed Draw Term Loans are to the Delayed Draw Term Holders) the Initial Term Loans and the Delayed Draw Term Loans, provided that
(A) the terms and conditions applicable to any New Term Loans maturing after the latest Scheduled Maturity Date may provide for material additional or different financial or other covenants applicable only during periods after such Scheduled Maturity Date; and
(B) the applicable interest rate margins and (subject to the foregoing clauses (vi) and (vii)), the maturity date and amortization schedule applicable to any New Term Loans shall be determined by the Company and the New Term Holders and shall be set forth in the applicable Joinder Agreements, provided that, if the initial “spread” (for purposes of this Section 2.09, the “spread” with respect to any Loan shall be calculated as the sum of the Applicable Margin on the relevant Loan plus any original issue discount or upfront fees in lieu of original issue discount (other than any arranging fees, underwriting fees and commitment fees) (based on an assumed four-year average life for the applicable Facilities (e.g., 100 basis points in original issue discount or upfront fees equals 25 basis points of interest rate margin))) relating to the New Term Loans exceeds the spread then in effect with respect to the Term Loans of any then existing Facility by more than 0.50%, the Applicable Margin relating to the Term Loans of such Facility shall be adjusted so that the spread relating to such New Term Loans does not exceed the then existing spread applicable to such Term Loans by more than 0.50%; provided further that if the New Term Loans include an interest rate floor greater than the interest rate floor applicable to the Term Loans of any Facility, 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 of any then existing Facility shall be required, to the extent an increase in the interest rate floor for the such 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 such Term Loans shall be increased by such amount. Any New Term Loans made on an Increased Amount Date that have terms and provisions that differ from those of the Term Loans outstanding on the date on which such New Term Loans are made shall be designated as a separate tranche (a “Tranche”) of Term Loans for all purposes of this Agreement, except as the relevant Joinder Agreement otherwise provides.
2.2.3 (c) On any Increased Amount Date on which any Incremental Loans become New Term Commitments becomes effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) Term Commitment shall become a Lender Holder hereunder with respect to such Incremental LoanNew Term Commitment.
2.2.4 (d) The terms and provisions of the Incremental Loans New Term Commitments of any Tranche shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental LoansNew Term Loans or New Term Commitments, when funded, shall be deemed to be Term Loans. Each Joinder Agreement may, without the consent of any other LendersHolders, 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 2.22.09.
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts (a) At any time prior to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The date that is six (6) months prior to the Revolving Credit Maturity Date, the Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term incremental Revolving Credit Commitments (any such incremental Revolving Credit Commitment, a “New Loan Revolving Credit Commitment”) to make incremental revolving credit loans (any such incremental revolving credit loans, the “Incremental New Loans”) in connection with ); provided that (and as part of1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate amount for all such Incremental Loans New Loan Revolving Credit Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,000300,000,000 and (2) the total aggregate amount for each New Loan Revolving Credit Commitment (and the New Loans made thereunder) shall not be less than a minimum principal amount of $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans any New Loan Revolving Credit Commitment shall be effective; provided that , which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender and/or any Affiliate of any Lender and/or any other Person reasonably satisfactory to the Administrative Agent, to provide a New Loan Revolving Credit Commitment (any such Person, a “New Lender”). Any Lender or any New Lender offered or approached to provide all or a portion of any Incremental Loans New Loan Revolving Credit Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansNew Loan Revolving Credit Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Any New Loan Revolving Credit Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Loans; (ii1) any New Loan Revolving Credit Commitment, and (2) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; making of any New Loans pursuant thereto;
(iiiB) the proceeds of any Incremental New Loans shall be used as for the purposes permitted pursuant to by Section 10.6; 8.12;
(ivC) each New Loan Revolving Credit Commitment (and the New Loans made thereunder) shall constitute Obligations of the Borrower and shall be guaranteed with the other Extensions of Credit on a pari passu basis;
(D) (x) the Incremental terms of each New Loan shall be set forth the relevant Joinder Agreement;
(i) the Applicable Margin and pricing grid, if applicable, for such New Loans shall share ratably in be determined on the Collateral and shall benefit ratably from applicable Increased Amount Date; provided that if such Applicable Margin would exceed the guarantees under current Applicable Margin for the Guaranty and Collateral Agreement; (v) existing Revolving Credit Loans, the Incremental Applicable Margin for the existing Revolving Credit Loans shall share no greater than ratably in any mandatory prepayments of be automatically increased to equal the existing Term Loans; Applicable Margin for the New Loans and (viii) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental such New Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, Revolving Credit Loans (except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative AgentRevolving Credit Maturity Date); (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.and
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts (a) At any time prior to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Maturity Date, as applicable, the Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term incremental revolving credit commitments (any such incremental revolving credit commitment, an “Incremental Revolving Credit Commitment”) to make incremental revolving credit loans (the any such incremental revolving credit loans, an “Incremental LoansRevolving Credit Loan”) in connection with (and as part of) ); provided that the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate amount for all such Incremental Loans Revolving Credit Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,000100 million. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Revolving Credit Commitment shall be effective; provided that , which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Revolving Credit Commitment (any such Person, a “New Lender”). Any Lender or any New Lender offered or approached to provide all or a portion of any Incremental Loans Revolving Credit Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansRevolving Credit Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Revolving Credit Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Revolving Credit Commitment and (2) to the extent occurring substantially simultaneously with the increase in Revolving Credit Commitments, (i) the making of any tranche of Incremental Revolving Credit Loans pursuant thereto and (ii) any Permitted Acquisition consummated in connection therewith;
(B) the Administrative Agent and the Lenders shall have received from the Borrower shall an Officer’s Compliance Certificate demonstrating that the Borrower will be in pro forma compliance on a Pro Forma Basis with the financial covenant covenants set forth in Section 11.13; Article VIII both before and after giving effect to (iii1) any Incremental Revolving Credit Commitment (and assuming for these purposes that all Incremental Revolving Credit Commitments are fully drawn as Incremental Revolving Credit Loans) and (2) to the extent occurring substantially simultaneously with the increase in Revolving Credit Commitments, (i) the making of any tranche of Incremental Revolving Credit Loans pursuant thereto and (ii) any Permitted Acquisition consummated in connection therewith;
(C) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of such Increase Amount Date (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date;
(D) the proceeds of any Incremental Revolving Credit Loans shall be used as permitted pursuant to Section 10.6; for general corporate purposes of the Borrower and its Subsidiaries (ivincluding Permitted Acquisitions);
(E) each Incremental Revolving Credit Commitment (and the Incremental Revolving Credit Loans made thereunder) shall share ratably constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(1) in the Collateral and shall benefit ratably from case of each Incremental Revolving Credit Loan (the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments terms of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans which shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.):
Appears in 1 contract
Incremental Loans. 2.2.1 The (a) At any time prior to (i) the Latest Term Loan Maturity Date, the Borrower shall use its commercially reasonable efforts may add one or more additional tranches of incremental term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new term loan commitments to consummate provide such Term Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) the Financing Latest Revolving Credit Maturity Date, the Borrower may add one or more additional tranches of incremental revolving facilities and/or increase the aggregate amount of the Revolving Credit Commitments of any existing Class by requesting new revolving loan commitments to provide Revolving Loans (any such new tranche or increase, an “Incremental Revolving Facility” and, together with Eligible Stockholders in a manner consistent any Incremental Term Facility, the “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and any Incremental Revolving Loans, together with Section 10.13 hereof and Schedule 10.13 heretoany Incremental Term Loans, “Incremental Loans”); provided that the Aggregate Incremental Amount does not exceed the Incremental Cap. The Borrower may at invite (A) any time or from time to time after the Closing Date and on or prior to September 22Lender, 2018, by written notice delivered to the Administrative Agent, elect to request the establishment any Affiliate of one or more new term loans (the “Incremental Loans”) in connection with (and as part of) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an aggregate amount for all such Incremental Loans not to exceed $1,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered or approached and/or any Approved Fund, and/or (B) any other Person that would be an Eligible Assignee to provide all or a portion of the Incremental Commitments (any such Person, an “Incremental Lender”); provided, that the Administrative Agent shall have a right to consent to any Person becoming an Incremental Lender pursuant to clause (B) above (such consent not to be unreasonably withheld or delayed) to the extent such consent would be required under Section 12.07(i)(B). Any existing Lender offered or approached to provide a portion of the Incremental Commitments or any Incremental Loans Loan may elect or decline, in its sole discretion, to provide such Incremental Loans. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the FinancingIncremental Commitments or any Incremental Loans and any existing Lender may elect to provide Incremental Commitments or Incremental Loan without the consent of any other Lender.
2.2.2 Such (b) The Incremental Loans Facilities shall become effective be subject to the following provisions, as of such Increased Amount Date; provided that applicable:
(i) the conditions set forth in Section 12.2 were satisfied subject to, and except as otherwise provided in, clause (ix) below, (A) no Default or waived on such Increased Amount Date before Event of Default shall exist immediately prior to or after giving effect to such Incremental Loans; Facility and (iiB) the Borrower shall be in pro forma compliance with the financial covenant condition set forth in Section 11.13; 4.02(b) shall be satisfied;
(ii) [reserved];
(iii) the Incremental Loans shall (A) constitute Obligations, (B) rank pari passu with or junior to the other Secured Obligations with respect to security, (C) rank pari passu or junior in right of payment, (D) not be (x) guaranteed by any Person who is not a Credit Party or (y) secured by any assets other than the Collateral, (E) if secured on a junior lien basis or if unsecured, be documented in a separate facility and (F) to the extent secured and documented in a separate facility, be subject to the provisions of an Acceptable Intercreditor Agreement;
(iv) any Incremental Term Loans will not have (A) a maturity date earlier than the Latest Term Loan Maturity Date or (B) a shorter Average Life to maturity than the remaining Average Life to maturity of the Term Loans;
(v) any Incremental Revolving Loans will not have a maturity date earlier than the Latest Revolving Credit Maturity Date;
(vi) the All-in-Yield (and the components thereof) applicable to any Incremental Facility shall be determined by the applicable Incremental Lenders providing such Incremental Facility and the Borrower; provided, that the All-in-Yield in respect of any such Incremental Term Facility that is pari passu with the Initial Term Loans in right of payment and with respect to security and incurred in reliance on clause (c) of the definition of “Incremental Cap” (and not by virtue of any re-classification of such Incremental Term Facility pursuant to clause (iii) of the proviso at the end of the definition of “Incremental Cap”) shall not exceed the All-in-Yield for the Initial Term Loans as in effect on the date of such calculation, plus 0.50% per annum, unless the All-in-Yield then in effect for such Initial Term Loans is increased by an amount equal to the difference between (A) the All-in-Yield in respect of such Incremental Term Facility and (B) the All-in-Yield for each of the Initial Term Loans less 0.50% per annum in each case; provided, further, that this Section 2.23(b)(vi) shall not apply in respect of any Incremental Term Facility that is incurred in connection with an acquisition or similar Investment;
(vii) (A) all terms (other than with respect to margin, pricing, maturity and/or fees) applicable to any Incremental Term Facility (other than any terms which are applicable only after the Latest Term Loan Maturity Date) shall be as agreed between the Borrower and the Lenders providing such Incremental Term Facility and shall be substantially consistent with the terms of the Initial Term Loans and (B) the terms of any Incremental Revolving Facility (other than any terms which are applicable only after the Latest Revolving Credit Maturity Date) shall be as agreed between the Borrower and the Lenders providing such Incremental Revolving Facility and shall be substantially consistent with the terms of the Initial Revolving Credit Commitments, unless, in each case, otherwise reasonably acceptable to the Administrative Agent, and, to the extent such Xxxxxx’s respective Commitments will be extended therewith, the Issuing Lender;
(viii) any prepayment (other than scheduled amortization payments) of Incremental Term Loans that are pari passu in right of payment and pari passu with respect to security shall be made on a pro rata basis with all Initial Term Loans (and all then-existing Additional Term Loans requiring ratable prepayment), except that the Borrower and the Lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis); and
(ix) notwithstanding anything to the contrary in this Section 2.23 or in any other provision of any Credit Document, if the proceeds of any Incremental Loans shall Facility are intended to be used as permitted pursuant applied to Section 10.6; finance an acquisition or other similar Investment and the Lenders providing such Incremental Facility so agree (iv) the Incremental Loans shall share ratably and, in the Collateral and case of any Incremental Revolving Facility, the Required Revolving Lenders so agree), the availability thereof shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (vx) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall not be subject to the same terms and conditions as the Initial Term Loans, including with respect requirements set forth in clause (i) above and/or (y) be subject to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any customary “SunGard” or “certain funds” conditionality.
(c) Any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans Facility shall be effected pursuant to one or more Joinder Agreements an Incremental Facility Agreement executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this AgreementIncremental Lenders, any which Incremental Loans, when funded, shall be deemed to be Term Loans. Each Joinder Facility Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to effect the provisions of this Section 2.22.23. The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Agreement and any amendment to any of the other Credit Documents with the Credit Parties as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or Commitments increased or extended pursuant to this Section 2.23 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.23, including any changes to Section 2.06(a) necessary to ensure such Incremental Term Facilities are fungible with the existing Term Facility if such facility is intended to be of the same Class as the relevant existing Term Facility.
(d) The Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by its Board of Directors authorizing the applicable Incremental Facility) reasonably requested by Administrative Agent in connection with any Incremental Facility.
(e) On the effective date of any Incremental Commitment, each Incremental Lender that has agreed to provide such Incremental Commitments shall become a Lender hereunder.
(f) On the date of the making of any Incremental Term Loans that will be of the same Class as any then-existing Class of Term Loans, and notwithstanding anything to the contrary set forth in Section 2.08, such Incremental Term Loans shall be added to (and constitute a part of and be of the same Type as and have, if applicable, the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then outstanding Borrowing of Term Loans of such Class.
(g) To the extent the Borrower elects to implement any Incremental Revolving Facility that establishes Revolving Credit Commitments of a new Class, then notwithstanding any other provision of this Agreement to the contrary, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on the Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Maturity Date of any Revolving Loan, and (C) repayments made in connection with a permanent repayment and termination of the Revolving Loans or Revolving Credit Commitments (subject to clause (3) below)) of Revolving Loans after the effective date of such Incremental Revolving Facility shall be made on a pro rata basis with all other Revolving Loans, (2) all Letters of Credit shall be participated on a pro rata basis by all Revolving Credit Lenders and (3) the permanent repayment of Revolving Loans with respect to, and reduction and termination of Revolving Credit Commitments after the effective date of such Incremental Revolving Facility shall be made on a pro rata basis with all other Revolving Loans, except that the Borrower shall be permitted to permanently repay the Revolving Loans of any Class and reduce or terminate the Revolving Credit Commitments of any Class on a greater than pro rata basis as compared to the Revolving Loans of any other Class or Revolving Credit Commitments of any other Class with a later Maturity Date than such Revolving Loans of such Class or such Revolving Credit Commitments of such Class.
(h) Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.23 that establishes Revolving Credit Commitments of the same Class as any then-existing Class of the Revolving Credit Commitments, (i) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Credit Lender, and each relevant Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit, if applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Revolving Credit Lenders’ (including each Incremental Revolving Credit Lender) participations hereunder in Letters of Credit shall be held on a pro rata basis on the basis of their respective Revolving Credit Commitments (after giving effect to any increase in the Revolving Credit Commitment pursuant to Section 2.23) and (ii) the existing Revolving Credit Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Credit Lenders of such Class (including the Revolving Credit Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Credit Lenders (including the Revolving Credit Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Credit Lenders of such Class participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitments pursuant to this Section 2.23); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(i) Effective on the date of each Incremental Revolving Facility, the maximum amount of Letter of Credit Exposure permitted hereunder shall increase by an amount, if any, agreed upon by the Administrative Agent, the Issuing Lenders and the Borrower.
(j) This Section 2.23 shall supersede any provisions in Section 2.15 or 12.06 to the contrary.
Appears in 1 contract
Samples: Credit Agreement
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. (a) The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment increases of one or more new term loans existing Revolving Commitments (the each, a “Incremental LoansSupplemental Revolving Commitment”) in connection with (and as part of) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 heretohereunder, in an aggregate amount for all such Supplemental Revolving Commitments not in excess of, at the time the respective Supplemental Revolving Commitments become effective, the Maximum Incremental Loans not to exceed $1,000,000Facilities Amount. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans Supplemental Revolving Commitments shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as the Administrative Agent may agree) after the date on which such notice is delivered to the Administrative Agent and (ii) if applicable, the Tranche (or Tranches) of Revolving Commitments to be so increased (and, if more than one Tranche of Revolving Commitments will be increased, the amount of the aggregate Supplemental Revolving Commitment to be allocated to each such Tranche); provided provided, that (x) any Lender offered or approached to provide all or a portion of any Incremental Loans Supplemental Revolving Commitments may elect or decline, in its sole discretion, to provide such Incremental Loans. For Supplemental Revolving Commitments, and (y) any Person that the avoidance of doubtBorrower proposes to become a New Lender, any if such Person is not then a Lender, must be an Eligible Stockholder purchasing Incremental Loans in connection with Assignee and must be reasonably acceptable to the Financing shall also Administrative Agent, and to the extent its consent would be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with assign Loans to any such Eligible Assignee, each Issuing Lender and the FinancingSwingline Lender.
2.2.2 (b) Such Incremental Loans Supplemental Revolving Commitments shall become effective as of such Increased Amount Date; provided that provided, that:
(i) the conditions set forth in Section 12.2 were satisfied or waived no Event of Default shall exist on such Increased Amount Date before or immediately after giving effect to such Incremental Loans; Supplemental Revolving Commitments and the making of any New Loans pursuant thereto and any transaction consummated in connection therewith subject to the Permitted Acquisition Provisions (as defined below) and the Limited Condition Acquisition Provision, in connection with any acquisition or investment being made with the proceeds thereof;
(ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans Supplemental Revolving Commitments shall be used as permitted pursuant to Section 10.6; used, at the discretion of the Borrower, for any purpose not prohibited by this Agreement;
(iviii) the Incremental Loans shall share ratably in the Collateral and Supplemental Revolving Commitments shall benefit ratably from the guarantees under the Guaranty Guarantee and Collateral Agreement; Agreement and shall only be guaranteed by the Guarantors;
(iv) the Supplemental Revolving Commitments shall be secured by the Collateral on a pari passu basis with the Liens securing the Obligations;
(v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; [reserved];
(vi) (A) the Incremental maturity date of such Supplemental Revolving Commitment shall be the Revolving Termination Date of the Tranche of Revolving Commitments or Revolving Loans so increased, (B) such Supplemental Revolving Commitment shall mature require no scheduled amortization or mandatory commitment reduction prior to such Revolving Termination Date and (C) such Supplemental Revolving Commitment shall be on the Term Loan Maturity Date; same terms as the Tranche being so increased (other than with respect to upfront fees) and pursuant to the same documentation applicable to such Tranche;
(vii) the Incremental Loans such Supplemental Revolving Commitments (other than Supplemental Revolving Commitments related to existing Tranche(s) of Revolving Commitments at such time, which shall be subject to the same terms and conditions as the Initial Term Loans, including effected in accordance with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viiiSection 2.25(e)) such Incremental Loans shall be effected pursuant to one or more Lender Joinder Agreements Agreements, executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and and
(ixviii) to the extent reasonably requested by the Administrative Agent, the Borrower shall deliver or cause to be delivered any (A) customary legal opinions with respect to the due authorization, execution and delivery by the Borrower and each other Loan Party to be party thereto and the enforceability of the applicable Increase Supplement or Lender Joinder Agreement, as applicable, the non-conflict of the execution, delivery of and performance of payment obligations under such documentation with this Agreement and with the organizational documents of the Loan Parties and the effectiveness of the Guarantee and Collateral Agreement to create a valid security interest, and the effectiveness of specified other Security Documents to perfect such security interests, in specified Collateral to secure the Obligations, including the Supplemental Revolving Commitments and the extensions of credit thereunder and (B) certified copies of the resolutions or other applicable corporate action of each applicable Loan Party approving its entry into such documents reasonably requested by and the Administrative Agent transactions contemplated thereby. Notwithstanding anything to the contrary above, in connection with the incurrence of any Supplemental Revolving Commitment, if the proceeds of such transactionSupplemental Revolving Commitment are, including substantially concurrently with the receipt thereof, to be used, in whole or in part, by the Borrower or any supplements Restricted Subsidiary to finance, in whole or amendments in part, a Permitted Acquisition, then to the Collateral Documents providing extent so required by the applicable New Lenders, (A) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Increase Amount Date shall be (x) the Specified Representations (conformed as necessary for such Incremental Loans Permitted Acquisition) and (y) such of the representations and warranties made by or on behalf of the applicable acquired company or business in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that Holdings or the Borrower (or any Affiliate of Holdings or the Borrower) has the right to terminate the obligations of Holdings, the Borrower or such Affiliate under such acquisition agreement or not consummate such acquisition as a result of a breach of such representations or warranties in such acquisition agreement and (B) there need not be secured therebya condition to borrowing that there be no Default or Event of Default other than there shall be no Event of Default under Sections 8.1(a) or (f) after giving effect to such incurrence (“Permitted Acquisition Provisions”).
2.2.3 (c) On any Increased Amount Date on which any Incremental Loans become Supplemental Revolving Commitment becomes effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan a Supplemental Revolving Commitment (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental LoanSupplemental Revolving Commitment.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for (d) For purposes of this Agreement, any Incremental Loans, when funded, New Loans or Supplemental Revolving Commitments shall be deemed to be Term LoansRevolving Loans or Revolving Commitments, respectively. Each Joinder Agreement Increase Supplement 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 Borrower and the Administrative Agent, to effect the provisions of this Section 2.22.25.
(e) Supplemental Revolving Commitments related to existing Tranche(s) of Revolving Commitments at such time shall become commitments under this Agreement pursuant to a supplement specifying the Revolving Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit L-1 (the “Increase Supplement”) or by each New Lender (if not already a Lender) substantially in the form attached hereto as Exhibit L-2 (the “Lender Joinder Agreement”), as the case may be, or, in each case, such other form as may be reasonably acceptable to the Administrative Agent and the Borrower, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement or Increase Supplement, as applicable, each New Lender shall be a Lender for all intents and purposes of this Agreement and the commitments made pursuant to such Supplemental Revolving Commitment shall be Revolving Commitments of the such increased Tranche.
(f) Upon the effectiveness of each Supplemental Revolving Commitment pursuant to this Section 2.25, (i) each Lender under the applicable Tranche immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lender providing a portion of such Supplemental Revolving Commitment, and each such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit, Swingline Loans, Local Loans, Acceptances and Protective Advances under such Tranche such that, after giving effect to such Supplemental Revolving Commitment and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit, Swingline Loans, Local Loans, Acceptances and Protective Advances under such Tranche held by each Lender (including each such New Lender) will equal such Lender’s Revolving Percentage thereof and (ii) if, on the date of such Supplemental Revolving Commitment, there are any Revolving Loans outstanding under such Tranche, such Revolving Loans shall on or prior to the effectiveness of such Supplemental Revolving Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such Supplemental Revolving Commitment), which prepayment 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.
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (Revlon Inc /De/)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate (a) At any time, the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term loans increases in the Revolving Credit Commitments (the any such increase, an “Incremental LoansRevolving Credit Commitment”) in connection with to make revolving credit loans under the Revolving Credit Facility (and as part ofany such increase, an “Incremental Loan”); provided that (1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate principal amount for all such Incremental Loans Revolving Credit Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,00030,000,000 and (2) the total aggregate amount for each Incremental Revolving Credit Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $5,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Revolving Credit Commitment shall be effective; provided that , which shall be a date not less than fifteen (15) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Revolving Credit Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansLoan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Revolving Credit Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Revolving Credit Commitment, (ii2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(B) the Administrative Agent and the Lenders shall have received from the Borrower shall be an Officer’s Compliance Certificate demonstrating, in pro forma form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenant covenants set forth in Section 11.13; 8.11 based on the most recent Financial Statements, both before and after giving effect (iiion a Pro Forma Basis) to (x) any Incremental Revolving Credit Commitment, (y) the making of any Incremental Loans pursuant thereto and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Article VI shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; for general corporate purposes of the Borrower and its Subsidiaries (ivincluding Permitted Acquisitions);
(E) each Incremental Revolving Credit Commitment (and the Incremental Loans made thereunder) shall share ratably constitute Obligations of the Borrower and shall be guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the Collateral and case of each Incremental Loan (the terms of which shall benefit ratably from be set forth in the guarantees under the Guaranty and Collateral relevant Lender Joinder Agreement; ):
(vx) the such Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans Loan shall mature on the Term Loan Maturity Date; (vii) , shall bear interest at the Incremental rate applicable to the Revolving Credit Loans and shall be subject to the same terms and conditions as the Initial Term Revolving Credit Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; ;
(viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ixy) the Borrower shall deliver or cause to outstanding Revolving Credit Loans and Commitment Percentages of Swingline Loans and L/C Obligations will be delivered any customary legal opinions or other documents reasonably requested reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders (including the Incremental Lenders providing such Incremental Loan) in accordance with their revised Commitment Percentages (and the Lenders (including the Incremental Lenders providing such Incremental Loan) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 4.9 in connection with any such transactionreallocation as if such reallocation were a repayment); and
(z) except as provided above, including any supplements or amendments to all of the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing other terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect conditions applicable to such Incremental Loan.
2.2.4 The Loan shall, except to the extent otherwise provided in this Section 4.13, be identical to the terms and provisions of conditions applicable to the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.Revolving Credit Facility;
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at At any time or and from time to time after time, the Closing Date Borrower may request that the Lenders (or other financial institutions agreed to by the Borrower and on or prior to September 22, 2018, by written notice delivered reasonably acceptable to the Administrative Agent, elect the consent of the Administrative Agent in respect thereof not to request be unreasonably withheld) offer to enter into commitments to (x) make additional term loans (each such loan being herein called an “Incremental Term Loan”) and/or (y) provide additional revolving credit commitments in the establishment form of an increase in the amount of Revolving Commitments (each such increase, a “Revolving Commitment Increase”), in each case, under this paragraph (c). In the event that one or more new term loans (the “Incremental Loans”) in connection with (and as part of) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 heretoLenders (or such other financial institutions) offer, in an aggregate amount for all such Incremental Loans not to exceed $1,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered or approached to provide all or a portion of any Incremental Loans may elect or decline, in its their sole discretion, to provide enter into such Incremental Loans. For commitments, and such Lenders (or financial institutions) and the avoidance Borrower agree as to the amount of doubt, any Eligible Stockholder purchasing Incremental Loans such commitments that shall be allocated to the respective Lenders (or financial institutions) making such offers and the fees (if any) to be payable by the Borrower in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans therewith, such Lenders (or financial institutions) shall become effective obligated to make Incremental Term Loans or provide Revolving Commitment Increases, as applicable, under this Agreement in an amount equal to the amount of such Increased Amount Date; provided that (i) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date before or after giving effect to such their respective Incremental Loans; (ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; Commitments or Additional Revolving Commitments, as applicable (viiand such financial institutions shall become (x) “Incremental Term Loan Lenders” or (y) “Revolving Commitment Increase Lenders” and “Revolving Lenders” hereunder). The Borrower, such Lenders (or financial institutions) and the Administrative Agent shall enter into an amendment (each such amendment being herein called an “Incremental Loans shall be subject Loan Amendment”) to this Agreement and, as appropriate, the same terms other Loan Documents, in form and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably substance satisfactory to the Administrative Agent; . The Incremental Loan Amendment may (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments notwithstanding anything to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth contrary in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Joinder Agreement maySection 9.02), 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 reasonable opinion of the Administrative AgentAgent and the Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Loan Amendment for an Incremental Term Loan, the borrowing under) any Incremental Loan Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.24.02 and such other conditions as the parties thereto shall agree. The Incremental Term Loans to be made pursuant to any Incremental Loan Amendment between the Borrower and one or more Lenders (including any such new Lenders) in response to any such request by the Borrower shall be deemed to be a separate “Series” of Incremental Term Loans for all purposes of this Agreement. Nothing contained in this Agreement shall be construed to obligate any Lender to provide any Incremental Term Loan Commitment or any Revolving Commitment Increase or to obligate the Borrower to request an Incremental Term Loan Commitment or a Revolving Commitment Increase from any Lender. Incremental Term Loans (and extensions of credit under any Revolving Commitment Increase) will share in the Collateral under the Security Documents and the guarantees under the Guarantee Agreements to the same extent as each other Loan. Anything herein to the contrary notwithstanding, the following additional provisions shall be applicable to Incremental Term Loans and Revolving Commitment Increases:
(i) the aggregate number of separate Series of Incremental Term Loans pursuant to all such requests hereunder shall not exceed five, and the minimum aggregate principal amount of Incremental Term Loan Commitments of any Series entered into pursuant to any single such request (and, accordingly, the minimum aggregate principal amount of Incremental Term Loans of such Series) shall be at least equal to $5,000,000;
(ii) the aggregate number of separate Revolving Commitment Increases pursuant to all such requests hereunder shall not exceed two, and the minimum aggregate principal amount of any such Revolving Commitment Increase entered into pursuant to any single such request shall be at least equal to $5,000,000;
(iii) the aggregate principal amount of all Incremental Term Loan Commitments and all outstanding Series of Incremental Term Loans (including any increase in Term Loans as provided in clause (viii) below) shall not exceed $50,000,000 (and once such limit is reached, no further Incremental Term Loan Commitments may be established hereunder notwithstanding that the aggregate principal amount of outstanding Incremental Term Loans shall have subsequently been reduced below such limit);
(iv) the aggregate amount of all Revolving Commitment Increases shall not exceed $10,000,000;
(v) the maturity date for the Incremental Term Loans of any Series as specified in the Incremental Loan Amendment for such Series shall not be earlier than the Term Maturity Date;
(vi) the weighted average life to maturity of the Incremental Term Loans of any Series shall not be shorter than that of the Term Loans;
(vii) in the case of any Revolving Commitment Increase, such Revolving Commitment Increase shall be on the same terms and conditions as the Revolving Facility (and be deemed to be added to, and made part of, the Revolving Facility);
(viii) any Series of Incremental Term Loans may be effected through an increase in the Term Loans, in which case (v) any Incremental Term Loan Lender not already a Term Lender hereunder shall become a Term Lender, (w) the Applicable Rate for such Incremental Term Loans shall be the Applicable Rate for Term Loans in effect at the time the respective Incremental Loan Amendment is executed, (x) anything in Section 2.18(c) to the contrary notwithstanding, the initial Term Loans made under the respective Incremental Loan Amendment shall be made solely by the Incremental Term Loan Lenders executing such Incremental Loan Amendment (but thereafter the provisions of Section 2.18(c) shall be applicable), (y) the initial Term Loans made under such Incremental Loan Amendment shall be either ABR Loans or Eurodollar Loans with an Interest Period ending on the last day of the earliest expiring then-outstanding Interest Period for Term Loans (so long as the same is at least one month after the date such Incremental Term Loans are made) and (z) as promptly as practicable following the making of such Incremental Term Loans (but in any event not later than the last day of such earliest-expiring then-outstanding Interest Period for Term Loans), such Incremental Term Loans shall be coordinated with all other Term Loans so that all outstanding Term Loans (including the portion thereof represented by Incremental Term Loans) of each Type are allocated ratably among the Term Lenders (including any Incremental Term Loan Lenders that have become Term Lenders) as required by Section 2.18(c);
(ix) the Applicable Rate with respect to Terms Loans (including any Incremental Term Loans deemed an increase to the Term Loans) that are in existence on the date of each request for an Incremental Term Loan pursuant to this Section 2.01(c) shall be increased pursuant to xxxx-to-market procedures set forth at the end of the definition of Applicable Rate, to the extent applicable;
(x) both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment and the borrowing of any Incremental Term Loans thereunder (if applicable), no Default or Event of Default shall have occurred and be continuing (it being agreed, however, that the Administrative Agent and any Lender providing Incremental Term Loans or Revolving Commitment Increases may rely for all purposes of this Section 2.01(c) on a certificate of the Borrower to the effect that this condition is satisfied); and
(xi) upon the effectiveness of any Incremental Loan Amendment and the borrowing of any Incremental Term Loans thereunder (if applicable), the Borrower shall be in compliance, on a pro forma basis with Sections 6.12(b) and 6.12(c) (assuming that the Total Leverage Ratio and the Senior Secured Leverage Ratio set forth in Sections 6.12(b) and 6.12(c), respectively, were 0.50x lower than the then-applicable ratios set forth in Sections 6.12(b) and 6.12(c), respectively), in each case recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available or required to have been delivered pursuant to Section 5.01 (determined after giving effect to any amounts to be drawn under the Revolving Facility immediately after giving effect to any Revolving Commitment Increase) and giving pro forma effect to any Permitted Acquisitions (including giving pro forma effect to any Permitted Cost-Savings) to be financed by such incurrence, or consummated after the referenced four-fiscal quarter period but before such incurrence. Following the acceptance by the Borrower of the offers made by any one or more Lenders to make any Series of Incremental Term Loans pursuant to the foregoing provisions of this paragraph (c), each Incremental Term Loan Lender in respect of such Series of Incremental Term Loans severally agrees, subject to the terms and conditions set forth herein, to make such Incremental Term Loans to the Borrower during the period from and including the date of such acceptance to and including the commitment termination date specified in the Incremental Loan Amendment entered into with respect to such Series in an aggregate principal amount up to but not exceeding the amount of the Incremental Term Loan Commitment of such Incremental Term Loan Lender in respect of such Series as in effect from time to time. Thereafter, subject to the terms and conditions of this Agreement, the Borrower may convert Incremental Term Loans of such Series of one Type into Incremental Term Loans of such Series of another Type (as provided in Section 2.07) or continue Incremental Term Loans of such Series of one Type as Incremental Term Loans of such Series of the same Type (as provided in Section 2.07). Incremental Term Loans of any Series that are prepaid may not be reborrowed as Incremental Term Loans of the same Series. Upon each increase in the Revolving Commitments pursuant to this Section, 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 Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Revolving Commitment Increase Lender) will equal such Revolving Lender’s Applicable Percentage and (b) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.16. 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 transactions effected pursuant to the immediately preceding sentence. Proceeds of Incremental Term Loans and extensions of credit under any Revolving Commitment Increase shall be available for any use permitted under the applicable provisions of Section 5.11.
Appears in 1 contract
Samples: Credit Agreement (Alaska Communications Systems Group Inc)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate (a) At any time, the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of of:
(i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more additional term loans, which may be of the same tranche as the outstanding Term Loans with the latest maturity or a new tranche of Term Loans (any such increase or additional term loans loan, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental LoansLoan Commitments”) in connection to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (and as part of1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate principal amount for all such Incremental Loan Commitments and Incremental Loans shall not to (as of any date of incurrence thereof) exceed $1,000,00075,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $15,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Loan Commitment shall be effective; provided that , which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to Administrative Agent (or such later date as may be approved by the Administrative Agent). The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansLoan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such (1) any Incremental Loans; Loan Commitment, (ii2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(B) the Administrative Agent and the Lenders shall have received from the Borrower shall be an Officer’s Compliance Certificate demonstrating, in pro forma form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenant covenants set forth in Section 11.139.14 based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith; Confidential Portions of this Exhibit marked as [***] have been omitted pursuant to a request for confidential treatment and have been filed separately with the Securities and Exchange Commission.
(iiiC) each of the representations and warranties contained in Article VII shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; for general corporate purposes of the Borrower and its Subsidiaries (ivincluding Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall share ratably constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) (1) in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the case of each Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans terms of which shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Lender Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.):
Appears in 1 contract
Samples: Credit Agreement (STAMPS.COM Inc)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate (a) At any time following the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Closing Date, the Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of of:
(i) one or more new incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more additional term loans (any such additional term loan, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental LoansLoan Commitments”) in connection to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (and as part ofi) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate principal amount for all such Incremental Loans Loan Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,000100,000,000 and (ii) the total aggregate principal amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $5,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Loan Commitment shall be effective, which shall be a date not less than twenty (20) Business Days after the date on which such notice is delivered to Administrative Agent.
(b) The Borrower shall invite existing Lenders and may invite any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”); provided that both the Swing Loan Lender and the Issuing Lender shall consent to each Incremental Lender providing any portion of an Incremental Revolving Credit Commitment. Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loans. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the FinancingLoan Commitment.
2.2.2 Such (c) Any Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(i) the conditions set forth in Section 12.2 were satisfied no Potential Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(ii) each of the Borrower representations and warranties contained in Section 6.1 shall be true, correct and complete in pro forma compliance all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Change, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the financial covenant set forth in Section 11.13; same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(iv) any proposed Incremental Lender shall join this Agreement as a Lender pursuant to a joinder substantially in the form of Exhibit 2.11 delivered to the Administrative Agent on or before the Increased Amount Date; and
(v) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall share ratably constitute Obligations of the Borrower and shall be secured and guaranteed with the other Obligations on a pari passu or junior basis and will rank pari passu or junior in right of payment with respect to the other Obligations.
(d) In the case of each Incremental Term Loan:
(i) such Incremental Term Loan will mature on such date and be subject to customary mandatory prepayment provisions as is reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a scheduled maturity date earlier than the Termination Date;
(ii) the amortization schedule for any such Incremental Term Loan shall be 5% of the initial principal amount for each of the first two loan years, 7.5% of the initial principal amount for the third loan year and 10% of the initial principal amount for each loan year thereafter, payable in equal quarterly installments and with all outstanding principal and interest due and payable on the maturity date for such Incremental Term Loan;
(iii) the Applicable Margin and pricing grid, if applicable, for such Incremental Term Loan shall be determined by the Administrative Agent, the applicable Incremental Lenders and the Borrower on the applicable Increased Amount Date; provided that if the Applicable Margin in respect of any Incremental Term Loan exceeds the Applicable Margin for the Revolving Credit Loans by more than 0.50%, then the Applicable Margin for the Revolving Credit Loans shall be increased (including at each tier of the pricing grid) so that the Applicable Margin in respect of such Revolving Credit Loans is equal to the Applicable Margin for the Incremental Term Loan minus 0.50%; provided further in determining the Applicable Margin(s) applicable to each Incremental Term Loan and the Applicable Margin(s) for the Revolving Credit Loans, (x) 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 such Incremental Term Loan or the Revolving Credit Loans in the Collateral initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity) and (y) customary arrangement or commitment fees payable to any lead arranger (or its Affiliates) in connection with the Revolving Credit Loans or to one or more arrangers (or their affiliates) of any Incremental Term Loan shall benefit ratably from be excluded (it being understood that the guarantees effects of any and all interest rate floors shall be included in determining Applicable Margin(s) under this provision); and
(iv) except as provided above, all other terms and conditions applicable to such Incremental Term Loan shall, except to the Guaranty extent otherwise provided in this Section 2.11, be identical to the terms and Collateral Agreement; conditions applicable to the Revolving Credit Loans.
(ve) In the case of each Incremental Loans Revolving Credit Increase:
(i) such Incremental Revolving Credit Increase shall share no greater than ratably in any mandatory prepayments be part of the existing Term Loans; (vi) the Incremental Loans Revolving Credit Facility, shall mature on the Term Loan Maturity Expiration Date; (vii) , shall bear interest and be entitled to fees, in each case at the Incremental Loans rate applicable to the Revolving Credit Facility, and shall otherwise be subject to the same terms and conditions as the Initial Term Loans, including with respect Revolving Credit Facility;
(ii) any Incremental Lender making any Incremental Revolving Credit Increase shall be entitled to interest rate, except the same voting rights as the relevant Joinder Agreement existing Revolving Credit Lenders under the Revolving Credit Facility and (unless otherwise provides, agreed by the applicable Incremental Lenders; provided that all terms and documentation with respect to any Incremental Loans which differ from those no such agreement shall allow the Revolving Credit Commitments with respect to the Initial Term Incremental Revolving Credit Increase to be terminated prior to termination of the existing Revolving Credit Commitments) each Revolving Credit Loan funded by an Incremental Revolving Credit Increase shall receive proceeds of prepayments on the same basis as the existing Revolving Credit Loans shall (such prepayments to be reasonably satisfactory shared pro rata on the basis of the original aggregate funded amount thereof); and
(iii) the outstanding Revolving Credit Loans and Ratable Shares of Swing Loans and Letter of Credit Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders to the Administrative Agent; Revolving Credit Facility (viii) including the Incremental Lenders providing such Incremental Loans Revolving Credit Increase) in accordance with their revised Ratable Shares (and the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required.
(f) Incremental Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.22.11, without the consent of any other Lenders.
(g) The Borrower shall deliver or cause to be delivered (1) any Notes evidencing any Incremental Loans or Incremental Loan Commitments requested by any Incremental Lender and (2) customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Loans and/or Incremental Loan Commitments) reasonably requested by Administrative Agent in connection with any such transaction.
(h) The Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement.
(i) On any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to make, an Incremental Term Loan to the Borrower in an amount equal to its Incremental Term Loan Commitment and shall become a Lender hereunder with respect to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto.
(j) On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Revolving Credit Commitment shall become a Lender under the Revolving Credit Facility hereunder with respect to such Incremental Revolving Credit Commitment.
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate have the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, elect right to request the establishment of one or more new term loans additional tranches of additional Loans (the “Incremental Loans”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that the aggregate amount of such Incremental Loans shall not exceed One Hundred Million Dollars ($100,000,000). Each such Incremental Loan must be an aggregate minimum amount of $25,000,00020,000,000 and integral multiples of $5,000,000 in excess thereof. The Administrative Agent and the Arrangers, in consultation with the Borrower, shall manage all aspects of such Incremental Loans, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase and the allocations of Incremental Loans among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to provide an Incremental Loan, and any new Lender becoming a party to this Agreement in connection with any such requested Incremental Loan must be an Eligible Assignee. Effecting the Incremental Loans under this Section is subject to the following conditions precedent: (and as part ofw) the consummation Administrative Agent shall have consented thereto (such consent not to be unreasonably withheld or delayed), (x) no Default or Event of Default shall be in existence on the Financing with Eligible Stockholders effective date of such Incremental Loans, (y) the representations and warranties made or deemed made by the Borrower or any other Loan Party in accordance with Section 10.13 any Loan Document to which such Loan Party is a party shall be true and Schedule 10.13 hereto, in an aggregate amount for all correct on the effective date of such Incremental Loans not except to exceed $1,000,000. Each the extent that such notice shall specify the representations and warranties expressly relate solely to an earlier date (each, an “Increased Amount Date”) in which case such representations and warranties shall have been true and correct on which the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered or approached to provide all or a portion of any Incremental Loans may elect or decline, in its sole discretion, to provide such Incremental Loans. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans shall become effective and as of such Increased Amount Date; provided that earlier date) and except for changes in factual circumstances specifically and expressly permitted hereunder, and (iz) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date before or after giving effect to such Incremental Loans; (ii) the Borrower Administrative Agent shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments have received each of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms following, in form and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably substance satisfactory to the Administrative Agent; : (viiii) if not previously delivered to the Administrative Agent, copies certified by a Qualified Officer of the Borrower of (A) all partnership or other necessary action taken by the Borrower to authorize such Incremental Loans shall be effected pursuant and (B) all corporate or other necessary action taken by Guarantor authorizing the guaranty of such Incremental Loans; and (ii) an opinion of counsel to one or more Joinder Agreements executed the Borrower and delivered by the BorrowerGuarantor, and addressed to the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents Lenders covering such matters as reasonably requested by the Administrative Agent Agent; and (iii) if requested, new Notes executed by the Borrower, payable to any new Lenders and replacement Notes, if requested by any applicable Lender, executed by the Borrower, payable to any existing Lenders making Incremental Loans, in the amount of each such Lender’s Term Loan Exposure at the time of the effectiveness of the applicable Incremental Loans. In connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans pursuant to be secured thereby.
2.2.3 On this Section 2.2 any Increased Amount Date on which any Lender becoming a party hereto shall execute such documents and agreements as the Administrative Agent may reasonably request. The Incremental Loans become effective(i) shall rank pari passu in right of payment with the existing Loans, subject (ii) shall not mature earlier than the Maturity Date and (iii) shall be treated substantially the same as (and in any event no more favorably than) the existing Loans. Incremental Loans may be made hereunder pursuant to an amendment or restatement of this Agreement and, as appropriate, the foregoing terms and conditionsother Loan Documents, executed by the Borrower, each lender with an Incremental Loan new Lender participating in such tranche (eachif any), a “New Lender”each existing Lender participating in such tranche (if any) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 and the Administrative Agent. The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Joinder Agreement Administrative Agent may, without the consent of any other LendersLenders (except as expressly required pursuant to Section 14.3), effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.2.
Appears in 1 contract
Samples: Unsecured Term Loan Agreement (First Industrial Lp)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at At any time or from time to time after the Closing Date and on or prior to September 22the Facility Termination Date, 2018, the Borrower may by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term loans increases in the Aggregate Commitment (the any such increase, an “Incremental LoansRevolving Credit Commitment”) in connection with to make revolving credit loans under the Revolving Credit Facility (and as part ofany such increase, an “Incremental Revolving Credit Increase”); provided that (1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate principal amount for all such Incremental Loans increases during the term of this Agreement shall not to exceed $1,000,000200,000,000 and (2) the total aggregate amount for each Incremental Revolving Credit Increase shall not be less than $15,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Revolving Credit Increase shall be effective; provided that . The Borrower may invite any Lender, any Affiliate of any Lender offered or approached and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent to provide all or a portion of an Incremental Revolving Credit Commitment (any such Person, an “Incremental Loans may elect or decline, in its sole discretion, to provide such Lender”). Any Incremental Loans. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Revolving Credit Commitments shall become effective as of such Increased Amount Date; provided that that:
(ia) no Unmatured Default or Default shall exist on such Increased Amount Date;
(b) each of the conditions set forth representations and warranties contained in Section 12.2 were satisfied Article 5 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or waived reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date before with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall be true and correct in all material respects (except to the extent any such representation and warranty is qualified by materiality or after giving effect reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects) as of such earlier date);
(c) in the case of each Incremental Revolving Credit Increase:
(i) the outstanding Revolving Loans and L/C Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders (including the Incremental Lenders providing such Incremental LoansRevolving Credit Increase) in accordance with their revised Pro Rata Share (and the Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 3.04 in connection with such reallocation as if such reallocation were a repayment); and
(ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans Revolving Credit Commitments shall be effected pursuant to one or more Lender Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Lenders (which Lender Joinder Agreement Agreement(s) 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 2.22.22);
(d) No existing Lender shall be obligated to participate in any Incremental Revolving Credit Increase, and each Lender’s decision to provide (or not provide) an Incremental Revolving Credit Commitment in any instance shall be made in such Lender’s sole and absolute discretion in each case.
(e) On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Revolving Credit Commitment shall become a Lender hereunder.
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at (a) At any time or from time to time after the Closing Date and on or prior to September 22Date, 2018, the Borrower Agent may by written notice delivered to the Administrative Agent, Agent elect to request prior to the Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Loans (a “Loan Increase”) or a separate tranche of new term loans (collectively with any Loan Increase, the “Incremental LoansCommitments”) in connection with (and as part of) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, ). Each Incremental Commitment shall be in an aggregate principal amount for all such that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Loans Commitments shall not to exceed exceed, $1,000,00075,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower Agent proposes that the such Incremental Loans Commitments shall be effective, which shall be a date after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Lender,” as applicable) to whom the Borrower Agent proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (x) any Lender offered or approached to provide all or a portion of any the Incremental Loans Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (y) the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent would be required under Section 10.6 for an assignment of Loans or Commitments to such Person and (z) any Affiliated Lender providing an Incremental Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Loans. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Commitments shall become effective effective, as of such Increased Amount Date; provided that (i1) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on or prior to such Increased Amount Date before or after giving effect to such Incremental LoansCommitments; (ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv2) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions Commitments, as the Initial Term Loansapplicable, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the BorrowerBorrowers, the New Lender, and the Administrative Agent and one Agent, or more New Lendersanother form of incremental amendment, each of which shall be recorded in the Register; and (ix3) the Borrower Borrowers shall deliver be in pro forma compliance with the Financial Condition Covenants, and in any event, after giving effect to any acquisitions, Dispositions or repayments of Indebtedness during the relevant determination period or simultaneously with the borrowing of the Incremental Loans; (4) the Consolidated Senior Secured Leverage Ratio of the Borrowers and the Restricted Subsidiaries shall be less than 2.25 to 1.00 calculated on a Pro Forma Basis as of the most recently completed period of four consecutive fiscal quarters ending prior to such transaction for which the financial statements and certificates required by Section 5.1(a) or 5.1(b), as the case may be, and 5.1(c) have been delivered, as if such transaction had occurred as of the first day of such period, (5) the Borrowers shall pay, or cause to be delivered paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders, (6) the representations and warranties of the Parent Companies, the Borrowers and their respective Subsidiaries set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects (or, in the case of any customary such representation or warranty already qualified as to materiality, in all respects) on and as of such Increased Amount Date as if made on and as of such date (or, in the case of any such representation or warranty expressly stated to have been made as of a specific date, as of such specific date) and (7) the Administrative Agent shall have received such legal opinions or and other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such therewith.
(b) Any Incremental Loans to effected through the establishment of one or more new Loans made on an Increased Amount Date shall be secured thereby.
2.2.3 designated a separate tranche of Incremental Loans, for all purposes of this Agreement. On any Increased Amount Date on which Incremental Commitments of any Incremental Loans become effectivetranche are effected (including through any Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each lender with an Incremental New Lender of such tranche shall make a Loan to the Borrowers (each, a “New LenderIncremental Loan”) in an amount equal to its Incremental Commitment of such tranche, and (ii) each New Lender of such tranche shall become a Lender hereunder with respect to the Incremental Commitment of such Incremental Loan.
2.2.4 The terms tranche and provisions of the Incremental Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, Incremental Loans may have identical terms to the Loans and be treated as the same tranche as the Loans.
(c) The Administrative Agent shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those notify Lenders promptly upon receipt of the applicable Term Loans Borrower Agent’s notice of each Increased Amount Date and for purposes in respect thereof the tranche of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement Commitments and the other Loan Documents as may be necessary or appropriate, in the opinion New Lenders of the Administrative Agent, to effect the provisions of this Section 2.2such tranche.
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Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at (a) At any time or from time to time after the Closing Date and on or prior to September 22the Revolving Credit Maturity Date, 2018, the Borrowers may by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term loans increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” or the “Incremental LoansLoan Commitments”) in connection with to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase” and as part ofthe “Incremental Loans “); provided that (i) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate principal amount for all such Incremental Loans Loan Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,000100,000,000 and (ii) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes Borrowers propose that the any Incremental Loans Loan Commitment shall be effective; provided that , which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Agent. The Borrowers may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansLoan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Loan Commitment, (ii2) the Borrower making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(B) the Agent and the Lenders shall be have received from KMG an Officer’s Compliance Certificate demonstrating, in pro forma form and substance reasonably satisfactory to the Agent, that the Borrowers are in compliance with the financial covenant covenants set forth in Section 11.13; 9.11 based on the financial statements most recently delivered pursuant to Section 8.1(a) or Section 8.1(b), as applicable, both before and after giving effect (iiion a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Article VII shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Loans shall be used as permitted pursuant to set forth in Section 10.6; 8.15;
(ivE) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall share ratably constitute Credit Agreement Obligations and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) in the Collateral and case of each Incremental Revolving Credit Increase (the terms of which shall benefit ratably from be set forth in the guarantees under the Guaranty and Collateral relevant Lender Joinder Agreement; ):
(v1) the such Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans Revolving Credit Increase shall mature on the Term Loan Revolving Credit Maturity Date; (vii) the Incremental Loans , shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to (other than interest rate, unused fees and upfront fees) as the Revolving Credit Loans; provided that if the interest rate margins and/or unused fees, as applicable, in respect of any Incremental Revolving Credit Increase exceed the interest rate margins and/or unused fees, as applicable, for the initial Revolving Credit Facility by more than 0.25% or 0.05%, respectively, then the interest rate margins and/or unused fees, as applicable, for the initial Revolving Credit Facility shall be increased so that the interest rate margins and/or unused fees, as applicable, are equal to the interest rate margins and/or unused fees for such Incremental Revolving Credit Increase;
(2) the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by the Agent on the applicable Increased Amount Date among the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Revolving Credit Commitment Percentages (and the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 5.9 in connection with such reallocation as if such reallocation were a repayment); and
(3) except as provided above, all of the relevant Joinder Agreement otherwise provides, provided that all other terms and documentation with respect conditions applicable to such Incremental Revolving Credit Increase shall, except to the extent otherwise provided in this Section 5.13, be identical to the terms and conditions applicable to the Revolving Credit Facility;
(G) any Incremental Loans which differ from those Lender with respect an Incremental Revolving Credit Increase shall be entitled to the Initial Term same voting rights as the existing Revolving Credit Lenders under the Revolving Credit Facility and any Extensions of Credit made in connection with each Incremental Revolving Credit Increase shall receive proceeds of prepayments on the same basis as the other Revolving Credit Loans shall be reasonably satisfactory to the Administrative Agent; made hereunder;
(viiiH) such Incremental Loans Loan Commitments shall be effected pursuant to one or more Lender Joinder Agreements executed and delivered by the BorrowerBorrowers, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Lenders (which Lender 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 2.25.13); and
(I) the Borrowers shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Borrower Party authorizing such Incremental Loan) reasonably requested by the Agent in connection with any such transaction.
(b) The Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement.
(c) On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Revolving Credit Commitment shall become a Revolving Credit Lender hereunder with respect to such Incremental Revolving Credit Commitment.
Appears in 1 contract
Samples: Credit Agreement (KMG Chemicals Inc)
Incremental Loans. 2.2.1 The (a) Subject to the terms and conditions and in reliance upon the representations and warranties set forth herein, each First Incremental Lender hereby agrees (severally and not jointly) to make an Incremental Loan to the Borrower shall use its commercially reasonable efforts to consummate on the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the First Incremental Amendment Closing Date in an aggregate principal amount equal to its First Incremental Commitment (each, a “First Incremental Loan” and on or prior to September 22collectively, 2018, by written notice delivered to the Administrative Agent, elect to request the establishment of one or more new term loans (the “First Incremental Loans”) ); provided that each First Incremental Loan made on the First Incremental Amendment Closing Date shall be funded net of additional interest in connection with (and as part of) the consummation an amount equal to 1.0% of the Financing with Eligible Stockholders in accordance with principal amount of such First Incremental Loan. Amounts borrowed under this Section 10.13 2(a) and Schedule 10.13 hereto, in an aggregate amount repaid or prepaid may not be reborrowed. The Incremental Loan Maturity Date for all such Incremental Loans not to exceed $1,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the First Incremental Loans shall be effective; provided that any Lender offered or approached to provide all or a portion of any Incremental Loans may elect or declineJanuary 15, in its sole discretion, to provide such Incremental Loans. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing2015.
2.2.2 Such (b) Unless the context shall otherwise require, the First Incremental Lenders shall constitute “Lenders” and the First Incremental Loans shall become effective as constitute “Loans”, in each case for all purposes of such Increased Amount Date; provided that the Credit Agreement and the other Loan Documents.
(ic) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date before or after giving effect to such Incremental Loans; (ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the The proceeds of any the First Incremental Loans shall be used as permitted pursuant by the Borrower to Section 10.6; pay fees and expenses incurred in connection with this Amendment, to provide working capital for exploration and production operations and for general corporate purposes.
(ivd) Unless previously terminated, the First Incremental Commitments shall terminate upon the earlier to occur of (i) the making of the First Incremental Loans on the First Incremental Amendment Closing Date and (ii) 5:00 p.m., New York City time, on April 15, 2011.
(e) This Amendment shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; constitute (vi) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of written notice required to be delivered by the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those Borrower with respect to the Initial Term Loans shall be reasonably satisfactory First Incremental Commitments pursuant to Section 2.08(a) of the Administrative Agent; Credit Agreement and (viiiii) such an Incremental Loan Assumption Agreement for purposes of Section 2.08(b) of the Credit Agreement.
(f) Upon the making of the First Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by on the BorrowerFirst Incremental Amendment Closing Date, the Administrative Agent and one or more New Lenders; and (ix) will provide a copy of Annex I as in effect on such date to the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, and each Lender (including any supplements or amendments to the Collateral Documents providing for such each First Incremental Loans to be secured therebyLender).
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.
Appears in 1 contract
Samples: Incremental Loan Assumption Agreement and Amendment No. 1 to Credit Agreement (Atp Oil & Gas Corp)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate (a) At any time, the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term loans increases in the Revolving Credit Commitments (the any such increase, an “Incremental LoansLoan Commitment”) in connection with for the advancing of incremental Loans under the Revolving Credit Facility (and as part ofeach such advance of Loans under the Incremental Loan Commitment, an “Incremental Loan”); provided that (a) the consummation total aggregate principal amount of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an aggregate amount for all such Incremental Loans Loan Commitments shall not (as of any date of incurrence thereof) exceed an amount equal to exceed the result of (i) $1,000,000500,000,000.00 minus (ii) the aggregate amount of Indebtedness incurred pursuant to Section 9.3(f), and (b) the minimum principal amount of each such Incremental Loan Commitment shall not be less than $25,000,000.00 or, if less, the remaining amount permitted pursuant to the foregoing clause (a). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Loan Commitment 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 Administrative Agent (or such shorter period acceptable to the Administrative Agent). The Borrower may invite existing Lenders, any Affiliate of any Lender and/or any Approved Fund, and/or any other Eligible Assignee reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”); provided that both the Swing Loan Lender and the Issuing Lender shall consent to each Incremental Lender providing any portion of an Incremental Loan Commitment (such consent not to be unreasonably withheld). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansLoan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(i) the conditions set forth in Section 12.2 were satisfied no Potential Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (a) any Incremental Loans; Loan Commitment, (b) the making of any Incremental Loans pursuant thereto on the applicable Increased Amount Date and (c) any Permitted Acquisition consummated in connection therewith;
(ii) the Borrower Administrative Agent and the Lenders shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably have received from the guarantees under the Guaranty Borrower a Compliance Certificate demonstrating, in form and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be substance reasonably satisfactory to the Administrative Agent; , that the Borrower is in compliance with the Maximum Consolidated Net Leverage Ratio based on the financial statements most recently delivered pursuant to Section 8.1 both before and after giving effect (viiion a pro-forma basis) such to (a) any Incremental Loan Commitment, (b) the making of any Incremental Loans pursuant thereto on the applicable Increased Amount Date and (c) any Permitted Acquisition consummated in connection therewith;
(iii) each of the representations and warranties contained in Article 7 shall be effected pursuant true and correct in all material respects, except to one the extent any such representation and warranty is qualified by materiality or more Joinder Agreements executed reference to a Material Adverse Change, in which case, such representation and delivered warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by the Borrowerits terms is made only as of an earlier date, the Administrative Agent which representation and one or more New Lenders; warranty shall remain true and correct as of such earlier date);
(ixiv) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Loan Commitments and Incremental Loans) reasonably requested by the Administrative Agent in connection with any such transaction; and
(v) each proposed Incremental Lender shall join this Agreement as a Lender pursuant to a Lender Joinder Agreement.
(b) Each Incremental Loan Commitment (and Incremental Loan) shall (i) constitute Obligations of the Borrower and, including any supplements or amendments to the Collateral Documents providing for extent the other Obligations are guaranteed, shall be guaranteed with the other Obligations on a pari passu basis, and (ii) be part of the Revolving Credit Facility, shall mature on the Expiration Date, shall bear interest and be entitled to fees, in each case at the rate applicable to the Revolving Credit Facility, and shall otherwise be subject to the same terms and conditions as the Revolving Credit Facility.
(c) Unless otherwise agreed by the applicable Incremental Lenders (provided that no such agreement shall allow the Incremental Loans Loan Commitments to be secured therebyterminated prior to termination of the existing Revolving Credit Commitments), each Incremental Loan shall receive proceeds of prepayments on the same basis as the existing Revolving Credit Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof).
2.2.3 On any (d) The outstanding Revolving Credit Loans and Ratable Shares of Swing Loans and Letter of Credit Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date on which any Incremental Loans become effective, subject among the Lenders to the foregoing terms and conditions, each lender with an Revolving Credit Facility (including the Incremental Lenders providing Incremental Loan Commitments) in accordance with their revised Ratable Shares (each, and the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing Incremental Loan Commitments) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 5.10 in connection with such reallocation as if such reallocation were a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loanrepayment).
2.2.4 The terms and provisions of the (e) Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical Loan Commitments may be effected pursuant to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.22.10, without the consent of any other Lenders.
(f) The Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement.
(g) On each Increased Amount Date, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Loan Commitment shall become a Lender under the Revolving Credit Facility hereunder with respect to such Incremental Loan Commitment.
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018may, by written notice delivered to the have consented to such additional banks, financial institutions and other institutional lenders to the Administrative Agent and the Person appointed by the Borrower to arrange Incremental Loan extent the consent of the Borrower or the Administrative Agent, elect as applicable, would be required Commitments (such Person (who may be (i) the Administrative Agent, if it so agrees, or (ii) any if such institution were receiving an assignment of Loans pursuant to request Section 9.04 (provided, other Person appointed by the establishment Borrower after consultation with the Administrative Agent), the further, that the consent of the Administrative Agent shall not be required with respect to an Incremental Arranger ore existing or additional additional bank, financial institution, or other institutional lender that is an Affiliate of a Lender or Lenders, all of which must be Eligible Assignees: (A) one or more new term loans (the “Incremental Loans”) in connection with (and as part of) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 heretocommitments for new a Related Fund), in an aggregate amount for all such Incremental Loans not to exceed $1,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered or approached to provide all or a portion of any Incremental Loans may elect or decline, in its sole discretion, to provide such Incremental Loans. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans shall become effective as of such Increased Amount Date; provided that (i) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date before or after giving effect to such Incremental Loans; (ii) the Borrower shall with respect to Incremental Term Loan Commitments, any Affiliated Lender Term Loans which may be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing same Class as any outstanding Class of Term Loans; (vi) the Loans or a new providing an Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans Commitment shall be subject to the same terms and conditions restrictions set Class of Term Loans ( Incremental Term Loan Commitments (B) the establishment forth in Section 9.04 as the Initial Term Loans, including with respect they would otherwise be subject to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any purchase by or Incremental Loans which differ from those with respect assignment to the Initial such Affiliated Lender of Term Loans and (iii) Affiliated Lenders may not provide Revolving Credit Commitments Commitments, Incremental Revolving Credit Commitments. The Borrower and each Incremental Lender shall be reasonably satisfactory Incremental Loan execute and deliver to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one the Incremental Arranger an Incremental Loan Commitments Assumption Agreement and such other documentation as the Incremental Arranger shall Incremental Revolving Credit Commitments, assuming a borrowing of the maximum amount of reasonably specify to evidence the Incremental Loan Commitment of each Incremental Lender. Incremental Revolving Credit Loans available); provided that Incremental Loan Commitments The Other Loans and any Incremental Revolving Credit Commitments providing for Incremental may be incurred in the Available Currency or more New Lenders; an alternative currency pursuant to procedures and Other Revolving Credit Loan on terms to be agreed with the applicable Incremental Arranger and the Administrative Agent. Commitments Other Revolving Credit Loans (i) shall have fees and margin The Incremental Arranger shall promptly deliver a copy of such notice to each of the Lenders and and/or interest rate determined by the Borrower and the Incremental Lenders providing such the Administrative Agent. Such notice shall set forth (i) the amount of the Incremental Loan Loans, (ii) shall rank pari passu in right of payment with the Loans or Commitments existing prior Commitments being requested (which shall be in minimum increments of, $1,000,000 and a the incurrence of such Other Loans and Other Revolving Credit Loan Commitments and be minimum amount of $5,000,000 (or in such lower minimum amounts or multiples as agreed to by secured by the Collateral on a pari passu basis and (ixiii) (A) in the case of Incremental Term Loans, the Incremental Arranger in its reasonable discretion), or such lesser amount equal to the (x) may participate on a pro rata basis, less than pro rata basis or greater than pro rata basis in any Incremental Loan Amount at such time), (ii) the Borrower date on which such Incremental Loan mandatory prepayment of Term Loans (except that, unless otherwise permitted under this Commitments are requested to become effective (which shall deliver not be less than 10 Business Days Agreement, such Incremental Term Loans may not participate on a greater than pro rata basis as (or cause such shorter period as agreed by the Incremental Arranger) after the date of such notice), and compared to any earlier maturing Class of Term Loans) and (y) may participate on a pro rata basis, (iii) whether such Incremental Loan Commitments are commitments to make additional Loans of less than pro rata basis or greater than pro rata basis in any voluntary prepayment of Term Loans the same Class which shall be extended in a manner so as to be delivered fungible with an existing Class of and (B) in the case of Incremental Revolving Credit Commitments and Incremental Revolving Loans hereunder or commitments to make Loans with terms different from such Loans which shall Loans, (x) shall provide that the borrowing and repayment (except for (A) payments of interest Other Loans and fees at different rates on Incremental Revolving Credit Commitments (and related in any customary legal opinions or other documents reasonably requested by Incremental Loan Assumption Agreemen Incremental Facility Closing Date outstandings), (B) repayments required upon the Administrative Agent Maturity Date of the Incremental Revolving subject only to the satisfaction of the terms and conditions in this Section 2.22 and in the applicable Credit Commitments and (C) repayment made in connection with any a permanent repayment and Incremental Loan Assumption Agreement, (A) (1) each Incremental Term Lender of such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, Class termination of commitments (subject to clause (y) below)) of Loans with respect to Incremental Incremental Term Loan Revolving Credit Commitments after the foregoing terms associated Incremental Facility Closing Date shall be Incremental Term Loan Commitment of such Class and conditions, (2) each lender Incremental Term Lender of such made on a pro rata basis or less than pro rata basis (but not more than a pro rata basis) with an Incremental Loan (each, a “New Lender”) all Class shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in Term Loan Commitment other Revolving Credit Commitments then existing on the relevant Joinder Agreement, identical to those Incremental Facility Closing Date and of such Class and the applicable Incremental Term Loans of such Class made pursuant thereto and for purposes (B) (1) (y) may provide that the permanent repayment of this AgreementRevolving Credit Loans with respect to, any and each Incremental LoansRevolving Credit Lender of such Class shall make its Commitment available to termination or reduction of, Incremental Revolving Credit Commitments after the associated the Borrower (when fundedborrowed, shall an Incremental Revolving Loan Incremental Facility Closing Date be deemed to be Term Loansmade on a pro rata basis, less than pro rata basis or greater Incremental Loan than pro rata basis with all other Revolving Credit Commitments. Each Joinder Agreement may, without Without the prior written Credit Commitment of such Class and (2) each Incremental Revolving Credit Lender of such Class 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, (A) the final maturity date of any Other Loans that are Term shall become a Lender hereunder with respect to effect the provisions Incremental Revolving Credit Commitment Other Term Loans of this Section 2.2.such Class and the Incremental Revolving Loans of such Class made pursuant thereto. the final maturity date of any Other Revolving Credit Loans or Other Revolving Credit Loan Commitments shall be no earlier than the Initial Revolving Credit Commitment Maturity Date, (a) The Borrower may seek Incremental Loan Commitments from existing Lenders (C) the Weighted Average Life to Maturity of the Other Term Loans shall be no shorter than the (each of which shall be entitled to agree or decline to participate in its sole discretion) and remaining Weighted Average Life to Maturity of the Initial Term Loans, (D) the All-In Yield additional banks, financial institutions and other institutional lenders who will become Incremental applicable to the Other Loans shall be determined by the Borrower and the applicable Incremental Lenders in connection therewith; provided that (i) the Borrower and the Administrative Agent shall Lenders and shall be set forth in each applicable Incremental Loan Assumption Agreement; 90 91 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
Appears in 1 contract
Samples: Credit Agreement (Sothebys)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate (a) At any time, the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower Company may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of of:
(i) one or more new incremental term loans loan commitments (any such incremental term loan commitment which may be part of an existing tranche, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Commitments, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make incremental Revolving Loans (any such increase, an “Incremental Revolving Commitment Increase” and, together with the Incremental Term Loan, the “Incremental Loans”) in connection with (and as part of) ); provided that the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate amount for all such Incremental Loans Loan Commitments shall not to exceed $1,000,000750,000,000 (of which no more than $250,000,000 may be an Incremental Revolving Commitment). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Loan Commitment shall be effective; provided that , which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any Lender or any Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansLoan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(B) the representations and warranties made by the Credit Parties herein or in any other Credit Document or which are contained in any certificate furnished at any time under or in connection herewith or therewith shall be true and correct in all material respects (except to the extent that any such representation or warranty is qualified by materiality, in which case such representation and warranty shall be true and correct) on and as of the date of such Increased Amount Date as if made on and as of such date (except for those which expressly relate to an earlier date).
(C) the Administrative Agent and the Lenders shall have received from the Company an Officer’s Compliance Certificate demonstrating that (i) the Company will be in compliance on a pro forma basis with the financial covenants set forth in Section 6.1 both before and after giving effect to (1) any Incremental Loans; Loan Commitment (assuming the full drawing of any Incremental Revolving Commitment), (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith and (ii) the Borrower shall be Senior Secured Leverage Ratio is less than 2.75:1.00, or if the Company has achieved Investment Grade Status, the Leverage Ratio is less than 2.75:1.00, in pro forma compliance with each case both before and after giving effect to (1) any Incremental Loan Commitment (assuming the financial covenant set forth full drawing of any Incremental Revolving Commitment), (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in Section 11.13; connection therewith;
(iiiD) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; for general corporate purposes of the Borrower and its Subsidiaries (ivincluding Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall share ratably constitute obligations of the Company and shall be guaranteed with the other Extensions of Credit on a pari passu basis;
(1) in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the case of each Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans terms of which shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Lender Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.):
Appears in 1 contract
Samples: Credit Agreement (Rock-Tenn CO)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate (a) At any time following the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Closing Date, the Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term loans increases in the Commitments (the any such increase, an “Incremental LoansCommitment Increase”) in connection with to make revolving credit loans under the Revolving Credit Facility (and as part ofany such loan, an “Incremental Loan”); provided that (1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate principal amount for all such Incremental Loans Commitment Increases shall not to (as of any date of incurrence thereof) exceed $1,000,00025,000,000 and (2) the total aggregate amount for each Incremental Commitment Increase shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Commitment Increase shall be effective; provided that , which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person approved by the Administrative Agent in its sole discretion, to provide an Incremental Commitment Increase (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Commitment Increase may elect or decline, in its sole discretion, to provide such Incremental LoansCommitment Increase. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Commitment Increase shall become effective as of such Increased Amount Date; provided that that:
(i) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Commitment Increase, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(ii) the Administrative Agent and the Lenders shall have received from the Borrower shall an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that both before and after giving effect to any Incremental Commitment Increase and the making of any Incremental Loans pursuant thereto (with any Incremental Commitment Increase being deemed to be fully funded) and to any Permitted Acquisition consummated in pro forma compliance connection therewith, the Borrower is in Pro Forma Compliance with the financial covenant covenants set forth in Section 11.13; 8.14;
(iii) each of the representations and warranties contained in Article VI shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(iv) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; for general corporate purposes of the Borrower and its Subsidiaries (ivincluding Permitted Acquisitions);
(v) each Incremental Commitment Increase (and the Incremental Loans made thereunder) shall share ratably in constitute Obligations of the Collateral Borrower and shall benefit ratably from be secured and guaranteed with the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments other Extensions of the existing Term Loans; Credit on a pari passu basis;
(vi) the (A) each Incremental Loans Commitment Increase and Incremental Loan shall mature on the Term Loan Maturity Date; (vii) , shall bear interest and be entitled to fees, in each case at the Incremental Loans rate applicable to the Loans, and shall be subject to the same terms and conditions as the Initial Term Loans; (B) the outstanding Loans and Commitment Percentages of L/C Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders (including the Incremental Lenders providing such Incremental Commitment Increases) in accordance with their revised Commitment Percentages (and the Lenders (including the Incremental Lenders providing such Incremental Commitment Increases) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 4.9 in connection with such reallocation as if such reallocation were a repayment); and (C) except as provided above, including with respect all of the other terms and conditions applicable to interest ratesuch Incremental Commitment Increase and Incremental Loan shall, except to the extent otherwise provided in this Section 4.13, be identical to the terms and conditions applicable to the Revolving Credit Facility;
(vii) any Incremental Lender shall be entitled to the same voting rights as the relevant Joinder Agreement otherwise provides, provided that all terms existing Lenders under the Revolving Credit Facility and documentation any Extensions of Credit made in connection with respect to any each Incremental Loan shall receive proceeds of prepayments on the same basis as the other Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; made hereunder;
(viii) such Incremental Loans Commitment Increases shall be effected pursuant to one or more Lender Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Lenders (which Lender 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 2.24.13); and
(ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Credit Party authorizing such Incremental Commitment Increase) reasonably requested by Administrative Agent in connection with any such transaction.
(b) The Incremental Lenders shall be included in any determination of the Required Lenders, and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement. On any Increased Amount Date on which any Incremental Commitment Increase becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Commitment Increase shall become a Lender hereunder with respect to such Incremental Commitment Increase.
Appears in 1 contract
Samples: Credit Agreement (OMNICELL, Inc)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate (a) At any time the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of of:
(i) one or more new incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more additional term loans (any such additional term loan, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental LoansLoan Commitments”) in connection to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans “); provided that (and as part of1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate principal amount for all such Incremental Loans Loan Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,000125,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Loan Commitment shall be effective; provided that , which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansLoan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied either (x) no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith or (y) if the Lenders providing such Incremental Loans; Term Loan in order to finance a Permitted Acquisition have agreed to a “funds certain” provision (iiwhich provision does not require as a condition to funding thereof that no Default or Event of Default has occurred), then no no Event of Default under Section 10.1(a), (b), (h) or (i) exists at the time such Permitted Acquisition is consummated);
(B) the Administrative Agent and the Lenders shall have received from the Borrower shall be an Officer’s Compliance Certificate demonstrating, in pro forma form and substance reasonably satisfactory to the Administrative Agent, that the (1) Borrower is in compliance with the financial covenant set forth in Section 11.139.13 (whether or not then applicable) based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Article VII shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); provided in the case of an Incremental Term Loan the proceeds of which will be used to finance a Permitted Acquisition, if the Lenders providing such Incremental Term Loan have agreed to a “funds certain” provision, only the Specified Representations shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects on such Increased Amount Date with the same effect as if made on and as of such date (iiiexcept for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct in all material respects as of such earlier date (except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct as of such earlier date in all respects));
(D) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; for general corporate purposes of the Borrower and its Subsidiaries (ivincluding Permitted Acquisitions);
(E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall share ratably constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(F) (1) in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the case of each Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans terms of which shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Lender Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.):
Appears in 1 contract
Samples: Credit Agreement (Us Ecology, Inc.)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts In addition to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may Borrowings of Revolving Credit Loans pursuant to paragraph (a) above, at any time or and from time to time after the Closing Date and on or prior to September 22second anniversary of the Effective Date, 2018, by written notice delivered to the Administrative Agent, elect to Company may request the establishment of that one or more new Persons (which may include the Lenders) offer to enter into commitments to make term loans (each such loan being herein called an "Incremental Loan") under this paragraph (b), it being understood that if such offer is to be made by any Person that is not already a Lender hereunder, the “Incremental Loans”Administrative Agent shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 10.04(b) in connection with (and as part of) the consummation event of an assignment to such Person. In the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 heretoevent that one or more of such Persons offer, in an aggregate amount for all such Incremental Loans not to exceed $1,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered or approached to provide all or a portion of any Incremental Loans may elect or decline, in its their sole discretion, to provide enter into such Incremental Loans. For commitments, and such Persons and the avoidance Company agree as to the amount of doubt, any Eligible Stockholder purchasing Incremental Loans such commitments that shall be allocated to the respective Persons making such offers and the fees (if any) to be payable by the Company in connection with therewith and the Financing shall also amortization, interest rate and maturity date to be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with applicable thereto, the Financing.
2.2.2 Such Incremental Loans shall become effective as of Company, such Increased Amount Date; provided that (i) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date before or after giving effect to such Incremental Loans; (ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral Persons and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent shall execute and deliver an appropriate agreement with respect thereto, and such Persons shall become obligated to make Incremental Loans under this Agreement in an amount equal to the amount of their respective Incremental Loan Commitments as specified in such agreement. The Incremental Loans to be made pursuant to any such agreement between the Company and one or more New Lenders; and (ix) the Borrower shall deliver or cause Lenders in response to be delivered any customary legal opinions or other documents reasonably requested such request by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, Company shall be deemed to be Term a separate "Series" of Incremental Loans for all purposes of this Agreement. Credit Agreement Anything herein to the contrary notwithstanding, the following additional provisions shall be applicable to the Incremental Loan Commitments, and Incremental Loans. Each Joinder Agreement may, without the consent of any other LendersSeries:
(i) the minimum aggregate principal amount of Incremental Loan Commitments entered into pursuant to any such request (and, effect accordingly, the minimum aggregate principal amount of any Series of Incremental Loans) shall be $10,000,000 and the maximum aggregate principal amount of the Incremental Loans of all Series shall not, taken together with the aggregate amount of Indebtedness incurred pursuant to Section 7.01(h) and the aggregate amount by which the Revolving Credit Commitments have been increased pursuant to Section 2.01(c), exceed the New Senior Secured Debt Limit then in effect; and
(ii) the final maturity date of the Incremental Loans of any Series shall not be earlier than the Revolving Credit Commitment Termination Date and the weighted average life to maturity of such amendments Incremental Loans shall not be earlier than the weighted average life to maturity of the Revolving Credit Commitments. Following execution and delivery by the Company, one or more Lenders and the Administrative Agent as provided above of an Amendment to this Agreement with respect to the Incremental Loans of any Series then, subject to the terms and conditions set forth herein, each Incremental Loan Lender of such Series severally agrees to make Incremental Loans of such Series to the other Loan Documents as may be necessary or appropriateCompany in Dollars during the availability period for such Loans set forth in such Amendment, in a principal amount up to but not exceeding the opinion Incremental Loan Commitment of the Administrative Agent, to effect the provisions such Series of this Section 2.2such Lender.
Appears in 1 contract
Samples: Credit Agreement (Advo Inc)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at At any time or and from time to time after time, the Closing Date Borrower may request that the Lenders (or other financial institutions agreed to by the Borrower and on or prior to September 22, 2018, by written notice delivered reasonably acceptable to the Administrative Agent, elect the consent of the Administrative Agent in respect thereof not to request be unreasonably withheld) offer to enter into commitments to make additional term loans (each such loan being herein called an “Incremental Loan”) under this paragraph (c). In the establishment of event that one or more new term loans (the “Incremental Loans”) in connection with (and as part of) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 heretoLenders (or such other financial institutions) offer, in an aggregate amount for all such Incremental Loans not to exceed $1,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered or approached to provide all or a portion of any Incremental Loans may elect or decline, in its their sole discretion, to provide enter into such Incremental Loans. For commitments, and such Lenders (or financial institutions) and the avoidance Borrower agree as to the amount of doubtsuch commitments that shall be allocated to the respective Lenders (or financial institutions) making such offers and the fees (if any) to be payable by the Borrower in connection therewith, any Eligible Stockholder purchasing such Lenders (or financial institutions) shall become obligated to make Incremental Loans under this Agreement in connection with an amount equal to the Financing shall also be required to purchase a portion amount of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such their respective Incremental Loans Loan Commitments (and such financial institutions shall become effective as of “Incremental Loan Lenders” hereunder). The Borrower, such Increased Amount Date; provided that Lenders (ior financial institutions) and the conditions set forth Administrative Agent shall enter into an agreement (each such agreement being herein called an “Incremental Loan Amendment”) in Section 12.2 were satisfied or waived on such Increased Amount Date before or after giving effect to such Incremental Loans; (ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral form and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably substance satisfactory to the Administrative Agent. The Incremental Loans to be made pursuant to any Incremental Loan Amendment between the Borrower and one or more Lenders (including any such new Lenders) in response to any such request by the Borrower shall be deemed to be a separate “Series” of Incremental Loans for all purposes of this Agreement. Nothing contained in this Agreement shall be construed to obligate any Lender to provide any Incremental Loan Commitment or to obligate the Borrower to request an Incremental Loan Commitment from any Lender. Anything herein to the contrary notwithstanding, the following additional provisions shall be applicable to Incremental Loans:
(1) the aggregate number of separate Series of Incremental Loans pursuant to all such requests hereunder shall not exceed five, and the minimum aggregate principal amount of Incremental Loan Commitments of any Series entered into pursuant to any single such request (and, accordingly, the minimum aggregate principal amount of Incremental Loans of such Series) shall be at least equal to $1,000,000;
(2) the aggregate principal amount of all Incremental Loan Commitments and all outstanding Series of Incremental Loans (including any increase in Tranche B Term Loans as provided in clause (5) below) shall not exceed $125,000,000 (and once such limit is reached, no further Incremental Loan Commitments may be established hereunder notwithstanding that the aggregate principal amount of outstanding Incremental Loans shall have subsequently been reduced below such limit);
(3) the maturity date for the Incremental Loans of any Series as specified in the Incremental Loan Amendment for such Series shall not be earlier than the Maturity Date;
(4) no scheduled payments or repayments of principal of the Incremental Loans of any Series shall be required prior to the Maturity Date (but Incremental Loans shall be entitled to participate, to the extent provided in Section 2.10, in voluntary and mandatory prepayments); and
(viii5) any Series of Incremental Loans may be effected through an increase in the Tranche B Term Loans, in which case (w) any Lender not already a Tranche B Lender hereunder shall become a Tranche B Lender, (x) anything in Section 2.17(c) to the contrary notwithstanding, the initial Tranche B Term Loans made under the respective Incremental Loan Amendment shall be made solely by the Incremental Lenders executing such Incremental Loan Amendment (but thereafter the provisions of Section 2.17(c) shall be applicable), (y) the initial Tranche B Term Loans made under such Incremental Loan Amendment shall be either ABR Loans or Eurodollar Loans with an Interest Period ending on the last day of the earliest expiring then-outstanding Interest Period for Tranche B Term Loans (so long as the same is at least one-month after the date such Incremental Loans are made) and (z) as promptly as practicable following the making of such Incremental Loans (but in any event not later than the last day of such earliest-expiring then-outstanding Interest Period for Tranche B Term Loans), such Incremental Loans shall be effected pursuant to coordinated with all other Tranche B Term Loans so that all outstanding Tranche B Term Loans (including the portion thereof represented by Incremental Loans) of each Type are allocated ratably among the Tranche B Lenders (including any Incremental Lenders that have become Tranche B Lenders) as required by Section 2.17(c). Following the acceptance by the Borrower of the offers made by any one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause Lenders to be delivered make any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments Series of Incremental Loans pursuant to the Collateral Documents providing for foregoing provisions of this paragraph (c), each Incremental Loan Lender in respect of such Series of Incremental Loans severally agrees, subject to the terms and conditions set forth herein, to make such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any the Borrower during the period from and including the date of such acceptance to and including the commitment termination date specified in the Incremental Loans become effectiveLoan Amendment entered into with respect to such Series in an aggregate principal amount up to but not exceeding the amount of the Incremental Loan Commitment of such Incremental Loan Lender in respect of such Series as in effect from time to time. Thereafter, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes conditions of this Agreement, the Borrower may convert Incremental Loans of such Series of one Type into Incremental Loans of such Series of another Type (as provided in Section 2.06) or continue Incremental Loans of such Series of one Type as Incremental Loans of such Series of the same Type (as provided in Section 2.06). Incremental Loans of any Series that are prepaid may not be reborrowed as Incremental Loans, when funded, Loans of the same Series. Proceeds of Incremental Loans shall be deemed to be Term Loans. Each Joinder Agreement may, without available for any use permitted under 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 applicable provisions of this Section 2.25.11.
Appears in 1 contract
Samples: Credit Agreement (Iowa Telecommunications Services Inc)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at (a) At any time or from time to time after the Closing Date and on or prior to September 22Fourth Amendment Effective Date, 2018, the applicable Borrowers may by written notice delivered from the Borrowing Agent to the Administrative Agent, Agent elect to request the establishment of of:
(i) one or more new incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more additional term loans (any such additional term loan, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to increase the maximum principal amount of revolving credit loans permitted hereunder (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans”) in connection with ); provided that (and as part of1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed Twenty Million and 00/100 Dollars ($20,000,000.00) and (2) the total aggregate principal amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of Five Million and 00/100 Dollars ($5,000,000) or, if less, the remaining amount permitted pursuant to exceed $1,000,000the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes applicable Borrowers propose that the any Incremental Loans Loan Commitment shall be effective, which shall be a date not less than twenty (20) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrowers shall invite existing Lenders and may invite any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”); provided that the Administrative Agent, the Swing Loan Lender and each Issuing Lender shall consent to each Incremental Lender (including any existing Lender) providing any portion of an Incremental Revolving Credit Commitment. Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansLoan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Potential Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Loan Commitment, (ii2) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds making of any Incremental Loans shall be used as permitted pursuant to Section 10.6; thereto and (iv3) any Permitted Acquisition consummated in connection therewith;
(B) the Incremental Loans Administrative Agent and the Lenders shall share ratably in the Collateral and shall benefit ratably have received from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments Borrowing Agent on behalf of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms applicable Borrowers a Compliance Certificate demonstrating, in form and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be substance reasonably satisfactory to the Administrative Agent; , that the Loan Parties are in compliance with the financial covenants specified in Sections 9.2.13 [Minimum Consolidated Fixed Charge Coverage Ratio] and 9.2.14 [Maximum Leverage Ratio] (viii) such Incremental Loans shall be effected pursuant subject to one or more Joinder Agreements executed and delivered any additional conditions imposed by the BorrowerSection 9.2.6 [Liquidations, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent Mergers, Consolidations, Acquisitions] in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 appropriatePermitted Acquisition), in each case based on the opinion of the Administrative Agent, financial statements most recently delivered pursuant to effect the provisions of this Section 2.29.3.1 [Quarterly Financial Statements] or 9.
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate (a) At any time, the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new incremental term loans loan commitments (the any such incremental term loan commitment, an “Incremental LoansTerm Loan Commitment”) in connection with to make an incremental term loan (and as part of) any such incremental term loan, an “Incremental Term Loan”); provided that the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate amount for all such Incremental Loans Term Loan Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,000100.0 million. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Term Loan Commitment shall be effective; provided that , which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Term Loan Commitment (any such Person, an “Incremental Lender”). Any Lender or any Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansTerm Loan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Term Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(i) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Term Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(ii) the Administrative Agent and the Lenders shall have received from the Borrower shall a compliance certificate of the chief financial officer or treasurer in form reasonably acceptable to the Administrative Agent demonstrating that the Borrower will be in pro forma compliance on a Pro Forma Basis with a Consolidated Senior Secured Leverage Ratio of 2.50 to 1.00 both before and after giving effect to (1) any Incremental Term Loan Commitment, (2) the financial covenant set forth making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in Section 11.13; connection therewith;
(iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(iv) each Incremental Term Loan Commitment (and the Incremental Loans made thereunder) shall share ratably in constitute Obligations of the Collateral Borrower and shall benefit ratably from be secured and guaranteed with the guarantees under the Guaranty and Collateral Agreement; other Extensions of Credit on a pari passu basis;
(v) in the case of each Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans terms of which shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as set forth the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.):
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts (a) At any time prior to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Maturity Date, the Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term up to three (3) incremental revolving credit commitments (any such incremental revolving credit commitment, an “Incremental Loan Commitment”) to make incremental revolving credit loans (the any such incremental revolving credit loans, an “Incremental LoansLoan”) in connection with ); provided that (and as part of1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate amount for all such Incremental Loans Loan Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,00050,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment shall not be less than $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Loan Commitment shall be effective; provided that , which shall be a date not less than thirty (30) days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, the Issuing Lenders and the Swingline Lender, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any Lender or any Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansLoan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such any Incremental Loans; Loan Commitment;
(iiB) the Borrower each Incremental Loan shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral a “Revolving Credit Loan” for all purposes hereof and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms Revolving Credit Loans and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to guaranteed and secured with the other Extensions of Credit on a pari passu basis;
(C) the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by the Administrative Agent; Agent on the applicable Increased Amount Date among the Lenders (viiiincluding the Incremental Lenders providing such Credit Loans) in accordance with their revised Revolving Credit Commitment Percentages (and the Lenders (including the Incremental Lenders providing such Incremental Loans) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 4.9 in connection with such reallocation as if such reallocation were a repayment);
(D) such Incremental Loans Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Lenders (which 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 2.24.13); and
(E) the Borrower shall deliver or cause to be delivered any other documents reasonably requested by the Administrative Agent in connection with any such transaction.
(b) On any Increased Amount Date on which any Incremental Loan Commitment becomes effective, each Incremental Lender with an Incremental Loan Commitment shall become a Lender hereunder with respect to such Incremental Loan Commitment. Thereafter it shall be entitled to the same voting rights as the existing Lenders under the Revolving Credit Facility and shall be included in any determination of the Required Lenders. The Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement.
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower (a) Provided there exists no Default or Event of Default, upon notice to the Agent (which shall use its commercially reasonable efforts to consummate promptly notify the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof then-existing Lenders and Schedule 10.13 hereto. The potential new Lenders), Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, elect to request the establishment of one or more new term loans incremental Loans (the “Incremental Loans”) in an aggregate principal amount of $40,000,000. At the time of sending such notice, Borrower (in consultation with the 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 Lenders).
(b) Each Lender shall notify the Agent within such time period whether or not it agrees to fund such requested Incremental Loan. Any Lender not responding within such time period shall be deemed to have declined such request. The Agent shall notify Borrower and each Lender of Lenders’ responses to each request made hereunder. In connection with such a request, Borrower may also invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and substance satisfactory to the Agent and its counsel.
(and as part ofc) the consummation of the Financing with Eligible Stockholders If Incremental Loans are to be funded in accordance with this Section 10.13 2.14, Agent and Schedule 10.13 hereto, in an aggregate amount for all such Incremental Loans not to exceed $1,000,000. Each such notice Borrower shall specify determine the effective date (each, an the “Increased Amount Increase Effective Date”) on which and the Borrower proposes that final allocation of the Incremental Loans shall be effective; provided that any Lender offered or approached to provide all or a portion of any Incremental Loans may elect or decline, in its sole discretion, to provide commitments for such Incremental Loans. For Agent shall promptly notify Borrower and Lenders of the avoidance final allocation of doubtsuch increase and the Increase Effective Date. All Incremental Loans, any Eligible Stockholder purchasing when funded in accordance with this Section 2.14, shall be deemed to be “Committed Loans” under Section 2.01.
(d) As a condition precedent to such Incremental Loans, Borrower shall deliver to Agent a certificate of each Loan Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such Incremental Loans, and, (ii) in the case of Borrower, including a Compliance Certificate demonstrating pro forma compliance with Section 7.12 after giving effect to such Incremental Loans and (iii) certifying that, before and after giving effect to such Incremental Loans, the representations and warranties contained in connection with Article V are true and correct on and as of the Financing shall also be required Increase Effective Date (except to purchase a portion of HCP-FVA’s Series A Preferred Stock the extent that such representations and warranties specifically refer to an earlier date, in connection with the Financing.
2.2.2 Such Incremental Loans shall become effective which case they are true and correct as of such Increased Amount Dateearlier date, and except that for purposes of this Section 2.14, the representation and warranties contained in subsections (a), (b) and (c) of Section 5.05 shall be deemed to refer to the most recent statement furnished pursuant to clauses (a), (b) and (c), respectively, of Section 6.01) and no Default or Event of Default exists. Borrower shall deliver new or amended Committed Loan Notes reflecting the increased outstanding Loans of any Lender holding or requesting a Note.
(e) This Section shall supersede any provisions in Section 10.01 to the contrary. No consent of any Lender (other than the Lenders participating in any Incremental Loan) shall be required for any Incremental Loans pursuant to this Section 2.14. The Incremental Loans (a) shall rank pari passu in right of payment with the initial Loans made on the Closing Date (the “Closing Date Loans”), (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date), (c) shall be treated substantially the same as (and in any event no more favorably than) the Closing Date Loans and (d) shall not have a weighted average life that is shorter than that of the then-remaining weighted average life of the Closing Date Loans; provided that (i) the terms and conditions set forth in Section 12.2 were satisfied applicable to any tranche of Incremental Loans maturing after the Maturity Date may provide for material additional or waived on such Increased Amount different financial or other covenants or prepayment requirements applicable only during periods after the Maturity Date before or after giving effect to such Incremental Loans; and (ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall may be used as permitted priced differently than the Closing Date Loans. Incremental Loans may be made hereunder pursuant to Section 10.6; an amendment or restatement (ivan “Incremental Loan Amendment”) of this Agreement and, as appropriate, the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term other Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term LoansDocuments, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent each Lender participating in such tranche, if any, and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Agent. The Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Joinder Agreement Amendment may, without the consent of any other Lenders, effect such technical amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.22.14.
Appears in 1 contract
Samples: Loan Agreement (Littelfuse Inc /De)
Incremental Loans. 2.2.1 (a) The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018may, by written notice to the Administrative Agent from time to time, request Incremental Commitments in an amount not to exceed the Incremental Loan Amount determined as of the date of such request from one or more Incremental Lenders, which may include any existing Lender; provided that each Incremental Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or such lesser amount equal to the remaining Incremental Loan Amount), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days (or such shorter period as the Administrative Agent and the relevant Incremental Lenders may agree) nor more than 60 days after the date of such notice), and (iii) whether such Incremental Commitments are commitments to make additional Loans or commitments to make loans with terms different from the Loans (“Other Loans”), in which case such notice shall specify the terms of such Other Loans.
(b) The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement, an Incremental Joinder Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Each Incremental Loan Assumption Agreement shall specify the terms of the Incremental Loans to be made thereunder; provided that, without the prior written consent of the Majority Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, (ii) the Average Life of any Other Loans shall be no shorter than the Average Life of the Loans, (iii) if the yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the interest rate per annum applicable to such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the Average Life of such Other Loans and (B) four and (z) any transaction fees, commitment fees, exit fees (other than any prepayment premium) or other similar fees payable in respect of the Other Loans and the fair market value of any warrants, options, stock or other non-cash consideration payable in respect thereof) exceeds the Applicable Rate by more than 25 basis points (the amount of such excess above the Applicable Rate being referred to herein as the “Yield Differential”), then the Applicable Rate shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans and (iv) if the optional prepayment of such Other Loans during any period is subject to a prepayment premium that would exceed the Applicable Prepayment Premium in respect of the Loans during such period (without regard to the amount of any Applicable Prepayment Premium applicable to the Loans in prior periods) by more than 25 basis points, then the Applicable Prepayment Premium shall be increased by an amount equal to the amount by which such prepayment premium exceeds the Applicable Prepayment Premium in respect of the Loans. The other terms of the Incremental Loans and the Incremental Loan Assumption Agreement, to the extent not consistent with the terms applicable to the Loans hereunder, shall otherwise be reasonably satisfactory to the Administrative Agent and, to the extent that such Incremental Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower and the Restricted Subsidiaries or are more favorable to the Lenders making such Other Loans, the existing Lenders shall be entitled to the benefit of such rights and provisions so long as such Other Loans remain outstanding and such additional rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitment and the Incremental Loans evidenced thereby.
(c) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.08 unless (i) at the time thereof and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (ii) except as otherwise specified in the applicable Incremental Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 6.01 and (iii) all fees an expenses owing in respect of such Incremental Commitment to the Administrative Agent, elect to request the establishment of one or more new term loans Collateral Agent and the Lenders shall have been paid.
(d) To the “Incremental Loans”) in connection with (and as part of) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an aggregate amount for all such extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 3.01(a) required to exceed $1,000,000. Each be made after the making of such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered or approached ratably increased to provide all or a portion for the pro rata payment of any Incremental Loans may elect or decline, in its sole discretion, to provide the principal of such Incremental Loans.
(e) The Borrower hereby agrees that if the Borrower obtains commitments from any bank or financial institution (other than any Initial Lender) to provide Incremental Commitments (the “Proposed Incremental Commitments”), the Borrower shall, without regard to whether the terms on which such Proposed Incremental Commitments are offered to it by any such institution are more or less favorable to it than any previously offered by the Initial Lenders, provide written notice thereof (an “Incremental Offer Notice”) to the Initial Lenders setting forth such terms and shall offer the Initial Lenders the right (a “Participation Right”) to provide (on such terms) the portion of the Proposed Incremental Commitments that, after giving effect to the provision of the Proposed Incremental Commitments and the making of the Incremental Loans thereunder, would result in the Initial Lenders (taken together) holding Loans representing no less than 51% of the outstanding principal amount of all Loans. Within three Business Days following receipt of such notice, one or more Initial Lenders shall provide written notice to the Borrower in the event that such Initial Lenders elect to exercise such Participation Right (in whole or in part). If any Initial Lender elects to exercise such Participation Rights through one or more of its Affiliates or Approved Funds, the portion of the Proposed Incremental Commitments to be provided by such Initial Lender shall be allocated among such Affiliates or Approved Funds as such Initial Lender shall designate to the Borrower in writing. If the Initial Lenders elect not to exercise all or any portion of such Participation Right to provide the Proposed Incremental Commitments, such Proposed Incremental Commitments and Incremental Loans to be made thereunder and the portion of the Proposed Incremental Commitments and Incremental Loans not subject to such Participation Right shall be made by the bank or other financial institutions that originally agreed to make such Proposed Incremental Loans, in each case on terms no more favorable to such Incremental Lenders than those specified in the Incremental Offer Notice, on or before the date that is 60 days after the date on which the Initial Lender’s right to exercise the Participation Right expired. For the avoidance of doubt, the Borrower shall not be obligated to offer any Eligible Stockholder purchasing Incremental Loans in connection with Participation Right to the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans shall become effective as of such Increased Amount Date; provided that (i) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date before or Initial Lenders, if, after giving effect to such Incremental Loans; (ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments provision of the existing Term Loans; (vi) Proposed Incremental Commitments and the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions making of the Incremental Loans shall bethereunder, except as otherwise set forth in each case by one or more other Incremental Lenders, the relevant Joinder Agreement, identical to those Initial Lenders would nevertheless hold Loans representing at least 51% of the applicable Term Loans and for purposes outstanding principal amount of this Agreement, all Loans. The acceptance or rejection of any offer to the Initial Lenders by the Borrower in respect of the Proposed Incremental Commitments contemplated by any Incremental Loans, when funded, Offer Notice shall be deemed to be Term Loans. Each Joinder Agreement may, without the consent not operate as a waiver or affect in any other manner such party’s rights hereunder in respect of any other Lenders, effect such amendments to this Agreement and Incremental Offer Notice or the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.2Proposed Incremental Commitments contemplated thereby.
Appears in 1 contract
Incremental Loans. 2.2.1 The (a) At any time prior to (i) the Latest Term Loan Maturity Date, the Borrower shall use its commercially reasonable efforts may add one or more additional tranches of incremental term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new term loan commitments to consummate provide such Term Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) the Financing Latest Revolving Credit Maturity Date, the Borrower may add one or more additional tranches of incremental revolving facilities and/or increase the aggregate amount of the Revolving Credit Commitments of any existing Class by requesting new revolving loan commitments to provide Revolving Loans (any such new tranche or increase, an “Incremental Revolving Facility” and, together with Eligible Stockholders in a manner consistent any Incremental Term Facility, the “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and any Incremental Revolving Loans, together with Section 10.13 hereof and Schedule 10.13 heretoany Incremental Term Loans, “Incremental Loans”); provided that the Aggregate Incremental Amount does not exceed the Incremental Cap. The Borrower may at invite (A) any time or from time to time after the Closing Date and on or prior to September 22Lender, 2018, by written notice delivered to the Administrative Agent, elect to request the establishment any Affiliate of one or more new term loans (the “Incremental Loans”) in connection with (and as part of) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an aggregate amount for all such Incremental Loans not to exceed $1,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered or approached and/or any Approved Fund, and/or (B) any other Person that would be an Eligible Assignee to provide all or a portion of the Incremental Commitments (any such Person, an “Incremental Lender”); provided, that the Administrative Agent shall have a right to consent to any Person becoming an Incremental Lender pursuant to clause (B) above (such consent not to be unreasonably withheld or delayed) to the extent such consent would be required under Section 12.07(a)(i)(B). Any existing Lender offered or approached to provide a portion of the Incremental Commitments or any Incremental Loans Loan may elect or decline, in its sole discretion, to provide such Incremental Loans. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the FinancingIncremental Commitments or any Incremental Loans and any existing Lender may elect to provide Incremental Commitments or Incremental Loan without the consent of any other Lender.
2.2.2 Such (b) The Incremental Loans Facilities shall become effective be subject to the following provisions, as of such Increased Amount Date; provided that applicable:
(i) the conditions set forth in Section 12.2 were satisfied subject to, and except as otherwise provided in, clause (ix) below, no Default or waived on such Increased Amount Date before Event of Default shall exist immediately prior to or after giving effect to such Incremental Loans; Facility;
(ii) solely in the Borrower case of an Incremental Facility that is being incurred pursuant to clause (c) of the definition of “Incremental Cap,” the Administrative Agent shall be in pro forma compliance have received reasonable supporting detail (including a reconciliation of consolidated net income on a GAAP basis to Consolidated Net Income and Consolidated EBITDA) with respect to the financial covenant set forth in Section 11.13; calculation of the applicable leverage ratio;
(iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (ivA) the Incremental Loans shall share ratably may rank pari passu or junior in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments right of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including payment and/or with respect to interest ratesecurity with the Secured Obligations or may be unsecured (subject, except as the relevant Joinder Agreement otherwise providesif applicable, provided that all to an intercreditor agreement on customary terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent), (B) if secured, may not be secured by any assets other than Collateral and (C) if guaranteed, may not be guaranteed by any Person who is not a Credit Party. Any Incremental Facility that is secured on a second lien or junior lien basis to the Secured Obligations or is unsecured will be documented in a separate facility;
(iv) any Incremental Term Loans will not have (A) a maturity date earlier than the Latest Term Loan Maturity Date or (B) a shorter Average Life to maturity than the remaining Average Life to maturity of the Term Loans;
(v) any Incremental Revolving Loans will not have a maturity date earlier than the Latest Revolving Credit Maturity Date;
(vi) the All-in-Yield (and the components thereof) applicable to any Incremental Term Facility shall be determined by the applicable Incremental Lenders providing such Incremental Term Facility and the Borrower; provided, that the All-in-Yield in respect of such Incremental Term Facility shall not exceed the All-in-Yield for the Initial Term Loans as in effect on the date of such calculation, plus 0.50% per annum, unless the All-in-Yield then in effect for such Initial Term Loans, is increased by an amount equal to the difference between (A) the All-in-Yield in respect of such Incremental Term Facility and (B) the All-in-Yield for each of the Initial Term Loans, less 0.50% per annum in each case;
(vii) (A) all terms (other than with respect to margin, pricing, maturity or fees) applicable to any Incremental Term Facility (other than any terms which are applicable only after the Latest Term Loan Maturity Date) shall be no more favorable to the Lenders providing such Incremental Facility (taken as a whole) than to the Lenders providing the Initial Term Loans and (B) the terms of any Incremental Revolving Facility (other than any terms which are applicable only after the Latest Revolving Credit Maturity Date) shall be no more favorable to the Lenders providing such Incremental Facility (taken as a whole) than to the Lenders providing the Initial Revolving Credit Commitments, unless, in each case, otherwise reasonably acceptable to the Administrative Agent, and, to the extent such Lender’s respective Commitments will be extended therewith, the Swingline Lender and the Issuing Lender;
(viii) any prepayment (other than scheduled amortization payments) of Incremental Term Loans that are pari passu in right of payment and pari passu with respect to security shall be made on a pro rata basis with all Initial Term Loans (and all then-existing Additional Term Loans requiring ratable prepayment), except that the Borrower and the Lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis); and
(ix) notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Credit Document, if the proceeds of any Incremental Facility are intended to be applied to finance an acquisition or other similar Investment and the Lenders providing such Incremental Facility so agree (and, in the case of any Incremental Revolving Facility, the Required Revolving Lenders so agree), the availability thereof shall (x) not be subject to the requirements set forth in clause (i) above and/or (y) be subject to customary “SunGard” or “certain funds” conditionality.
(c) Any Incremental Facility shall be effected pursuant to one or more Joinder Agreements an Incremental Facility Agreement executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this AgreementIncremental Lenders, any which Incremental Loans, when funded, shall be deemed to be Term Loans. Each Joinder Facility Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to effect the provisions of this Section 2.22.22. The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Agreement and any amendment to any of the other Credit Documents with the Credit Parties as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or Commitments increased or extended pursuant to this Section 2.22 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.22, including any changes to Section 2.06(a) necessary to ensure such Incremental Term Facilities are fungible with the existing Term Facility if such facility is intended to be of the same Class as the relevant existing Term Facility.
(d) The Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by its Board of Directors authorizing the applicable Incremental Facility) reasonably requested by Administrative Agent in connection with any Incremental Facility.
(e) On the effective date of any Incremental Commitment, each Incremental Lender that has agreed to provide such Incremental Commitments shall become a Lender hereunder.
(f) On the date of the making of any Incremental Term Loans that will be of the same Class as any then-existing Class of Term Loans, and notwithstanding anything to the contrary set forth in Section 2.08, such Incremental Term Loans shall be added to (and constitute a part of and be of the same Type as and have, if applicable, the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then outstanding Borrowing of Term Loans of such Class.
(g) To the extent the Borrower elects to implement any Incremental Revolving Facility that establishes Revolving Credit Commitments of a new Class, then notwithstanding any other provision of this Agreement to the contrary, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on the Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Maturity Date of any Revolving Loan, and (C) repayments made in connection with a permanent repayment and termination of the Revolving Loans or Revolving Credit Commitments (subject to clause (3) below)) of Revolving Loans after the effective date of such Incremental Revolving Facility shall be made on a pro rata basis with all other Revolving Loans, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Revolving Lenders and (3) the permanent repayment of Revolving Loans with respect to, and reduction and termination of Revolving Credit Commitments after the effective date of such Incremental Revolving Facility shall be made on a pro rata basis with all other Revolving Loans, except that the Borrower shall be permitted to permanently repay the Revolving Loans of any Class and reduce or terminate the Revolving Credit Commitments of any Class on a greater than pro rata basis as compared to the Revolving Loans of any other Class or Revolving Credit Commitments of any other Class with a later Maturity Date than such Revolving Loans of such Class or such Revolving Credit Commitments of such Class.
(h) Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.22 that establishes Revolving Credit Commitments of the same Class as any then-existing Class of the Revolving Credit Commitments, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans, if applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental Revolving Lender) (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans shall be held on a pro rata basis on the basis of their respective Revolving Credit Commitments (after giving effect to any increase in the Revolving Credit Commitment pursuant to Section 2.22) and (ii) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitments pursuant to this Section 2.22); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(i) Effective on the date of each Incremental Revolving Facility, (i) the maximum amount of Letter of Credit Exposure permitted hereunder shall increase by an amount, if any, agreed upon by the Administrative Agent, the Issuing Lenders and the Borrower and (ii) the maximum amount of Swingline Loans permitted hereunder shall increase by an amount, if any, agreed upon by the Administrative Agent, the Swingline Lender and the Borrower.
(j) This Section 2.22 shall supersede any provisions in Section 2.15 or 12.06 to the contrary.
Appears in 1 contract
Samples: Credit Agreement (Metaldyne Performance Group Inc.)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts (a) At any time prior to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Maturity Date, the U.S. Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term incremental revolving credit commitments (any such incremental revolving credit commitment, an “Incremental Loan Commitment”) to make incremental revolving credit loans (the any such incremental revolving credit loans, an “Incremental LoansLoan”) in connection with ); provided that (and as part of1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate amount for all such Incremental Loans Loan Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,000200,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment shall not be less than $20,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the U.S. Borrower proposes that the any Incremental Loans Loan Commitment shall be effective; provided that , which shall be a date not less than thirty (30) days after the date on which such notice is delivered to Administrative Agent. The U.S. Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, the Issuing Lender and the Swingline Lender, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any Lender or any Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansLoan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such any Incremental Loans; Loan Commitment;
(iiB) the Borrower each Incremental Loan shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral a “Revolving Credit Loan” for all purposes hereof and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms Revolving Credit Loans and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to guaranteed with the Administrative Agent; other Extensions of Credit on a pari passu basis;
(viiiC) such Incremental Loans Loan Commitments shall be effected pursuant to one or more Joinder Agreements agreements in form and substance satisfactory to the Administrative Agent and the U.S. Borrower executed and delivered by the U.S. Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Joinder Agreement Lenders (which agreement or agreements 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 2.24.14); and
(D) the U.S. Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of the U.S. Borrower authorizing such Incremental Loan (for the avoidance of doubt, resolutions duly adopted by the board of directors (or equivalent governing body) of the U.S. Borrower delivered pursuant to Section 5.1(b)(ii) which authorize such Incremental Loan shall be sufficient so long as such resolutions are certified as of the applicable Increased Amount Date as remaining in full force and effect) reasonably requested by the Administrative Agent in connection with any such transaction.
(b) The outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders (including the Incremental Lenders providing such Credit Loans) in accordance with their revised Revolving Credit Commitment Percentages (and the Lenders (including the Incremental Lenders providing such Incremental Loans) agree to make all payments and adjustments necessary to effect such reallocation and the U.S. Borrower shall pay any and all costs required pursuant to Section 4.9 in connection with such reallocation as if such reallocation were a repayment).
(c) On any Increased Amount Date on which any Incremental Loan Commitment becomes effective, each Incremental Lender with an Incremental Loan Commitment shall become a Lender hereunder with respect to such Incremental Loan Commitment. Thereafter it shall be entitled to the same voting rights as the existing Lenders under the Revolving Credit Facility and shall be included in any determination of the Required Lenders. The Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Owens Corning)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate (a) At any time, the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of of:
(i) one or more new Incremental Term Loan commitments (any such incremental term loans loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Credit Commitments (an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make incremental Revolving Credit Loans (any Revolving Credit Loans made pursuant to such Incremental Revolving Credit Commitments, the “Incremental Revolving Credit Increase”, and together with the Incremental Term Loans, the “Incremental Loans”) in connection with ); provided that (and as part of1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an aggregate amount for all such Incremental Loans Loan Commitments shall not to exceed $1,000,000200,000,000 and (2) the aggregate amount for each Incremental Loan Commitment shall not be less than a minimum principal amount of $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Loan Commitment shall be effective; provided , which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person that provides an Incremental Loan Commitment, an “Incremental Lender”). Any Lender or any Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansLoan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Loan Commitment and (ii2) the making of any Incremental Loans pursuant thereto;
(B) the Borrower shall have delivered to the Administrative Agent (which shall promptly make such information available to the Lenders in accordance with its customary practice) an Officer’s Compliance Certificate demonstrating that the Borrower will be in compliance on a pro forma compliance basis with the financial covenant covenants set forth in Section 11.13; 9.15 after giving effect to (iii1) any Incremental Loan Commitment (and assuming that the Revolving Credit Commitments (including any Incremental Revolving Credit Commitments) are fully drawn), (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition or other contemplated use of proceeds consummated in connection therewith;
(C) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; for ongoing working capital requirements and other general corporate purposes of the Borrower and its Restricted Subsidiaries (ivincluding Permitted Acquisitions);
(D) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall share ratably constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(1) in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the case of each Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans terms of which shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as set forth the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.):
Appears in 1 contract
Samples: Credit Agreement (CST Brands, Inc.)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate (a) At any time following the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Closing Date, the Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of of:
(i) one or more new incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more additional term loans (any such additional term loan, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans”) in connection with ); provided that (and as part ofi) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate principal amount for all such Incremental Loans Loan Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,000100,000,000 and (ii) the total aggregate principal amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $5,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Loan Commitment shall be effective, which shall be a date not less than twenty (20) Business Days after the date on which such notice is delivered to Administrative Agent.
(b) The Borrower shall invite existing Lenders and may invite any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”); provided that both the Swing Loan Lender and the Issuing Lender shall consent to each Incremental Lender providing any portion of an Incremental Revolving Credit Commitment. Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loans. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the FinancingLoan Commitment.
2.2.2 Such (c) Any Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(i) the conditions set forth in Section 12.2 were satisfied no Potential Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(ii) each of the Borrower representations and warranties contained in Section 6.1 shall be true, correct and complete in pro forma compliance all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Change, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the financial covenant set forth in Section 11.13; same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(iv) any proposed Incremental Lender shall join this Agreement as a Lender pursuant to a joinder substantially in the form of Exhibit 2.11 delivered to the Administrative Agent on or before the Increased Amount Date; and
(v) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall share ratably constitute Obligations of the Borrower and shall be secured and guaranteed with the other Obligations on a pari passu or junior basis and will rank pari passu or junior in right of payment with respect to the other Obligations.
(d) In the case of each Incremental Term Loan:
(i) such Incremental Term Loan will mature on such date and be subject to customary mandatory prepayment provisions as is reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a scheduled maturity date earlier than the Termination Date;
(ii) the amortization schedule for any such Incremental Term Loan shall be 5% of the initial principal amount for each of the first two loan years, 7.5% of the initial principal amount for the third loan year and 10% of the initial principal amount for each loan year thereafter, payable in equal quarterly installments and with all outstanding principal and interest due and payable on the maturity date for such Incremental Term Loan;
(iii) the Applicable Margin and pricing grid, if applicable, for such Incremental Term Loan shall be determined by the Administrative Agent, the applicable Incremental Lenders and the Borrower on the applicable Increased Amount Date; provided that if the Applicable Margin in respect of any Incremental Term Loan exceeds the Applicable Margin for the Revolving Credit Loans by more than 0.50%, then the Applicable Margin for the Revolving Credit Loans shall be increased (including at each tier of the pricing grid) so that the Applicable Margin in respect of such Revolving Credit Loans is equal to the Applicable Margin for the Incremental Term Loan minus 0.50%; provided further in determining the Applicable Margin(s) applicable to each Incremental Term Loan and the Applicable Margin(s) for the Revolving Credit Loans, (x) 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 such Incremental Term Loan or the Revolving Credit Loans in the Collateral initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity) and (y) customary arrangement or commitment fees payable to any lead arranger (or its Affiliates) in connection with the Revolving Credit Loans or to one or more arrangers (or their affiliates) of any Incremental Term Loan shall benefit ratably from be excluded (it being understood that the guarantees effects of any and all interest rate floors shall be included in determining Applicable Margin(s) under this provision); and
(iv) except as provided above, all other terms and conditions applicable to such Incremental Term Loan shall, except to the Guaranty extent otherwise provided in this Section 2.11, be identical to the terms and Collateral Agreement; conditions applicable to the Revolving Credit Loans.
(ve) In the case of each Incremental Loans Revolving Credit Increase:
(i) such Incremental Revolving Credit Increase shall share no greater than ratably in any mandatory prepayments be part of the existing Term Loans; (vi) the Incremental Loans Revolving Credit Facility, shall mature on the Term Loan Maturity Expiration Date; (vii) , shall bear interest and be entitled to fees, in each case at the Incremental Loans rate applicable to the Revolving Credit Facility, and shall otherwise be subject to the same terms and conditions as the Initial Term Loans, including with respect Revolving Credit Facility;
(ii) any Incremental Lender making any Incremental Revolving Credit Increase shall be entitled to interest rate, except the same voting rights as the relevant Joinder Agreement existing Revolving Credit Lenders under the Revolving Credit Facility and (unless otherwise provides, agreed by the applicable Incremental Lenders; provided that all terms and documentation with respect to any Incremental Loans which differ from those no such agreement shall allow the Revolving Credit Commitments with respect to the Initial Term Incremental Revolving Credit Increase to be terminated prior to termination of the existing Revolving Credit Commitments) each Revolving Credit Loan funded by an Incremental Revolving Credit Increase shall receive proceeds of prepayments on the same basis as the existing Revolving Credit Loans shall (such prepayments to be reasonably satisfactory shared pro rata on the basis of the original aggregate funded amount thereof); and
(iii) the outstanding Revolving Credit Loans and Ratable Shares of Swing Loans and Letter of Credit Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders to the Administrative Agent; Revolving Credit Facility (viii) including the Incremental Lenders providing such Incremental Loans Revolving Credit Increase) in accordance with their revised Ratable Shares (and the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required.
(f) Incremental Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.22.11, without the consent of any other Lenders.
(g) The Borrower shall deliver or cause to be delivered (1) any Notes evidencing any Incremental Loans or Incremental Loan Commitments requested by any Incremental Lender and (2) customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Loans and/or Incremental Loan Commitments) reasonably requested by Administrative Agent in connection with any such transaction.
(h) The Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement.
(i) On any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to make, an Incremental Term Loan to the Borrower in an amount equal to its Incremental Term Loan Commitment and shall become a Lender hereunder with respect to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto.
(j) On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Revolving Credit Commitment shall become a Lender under the Revolving Credit Facility hereunder with respect to such Incremental Revolving Credit Commitment.
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate have the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, elect right to request the establishment of one or more new term loans additional tranches of additional Loans (the “Incremental Loans”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that the aggregate amount of such Incremental Loans shall not exceed One Hundred Million Dollars ($100,000,000). Each such Incremental Loan must be an aggregate minimum amount of $10,000,00020,000,000 and integral multiples of $5,000,000 in excess thereof. The Administrative Agent and the Arrangers, in consultation with the Borrower, shall manage all aspects of such Incremental Loans, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase and the allocations of Incremental Loans among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to provide an Incremental Loan, and any new Lender becoming a party to this Agreement in connection with any such requested Incremental Loan must be an Eligible Assignee. Effecting the Incremental Loans under this Section is subject to the following conditions precedent: (and as part ofw) the consummation Administrative Agent shall have consented thereto (such consent not to be unreasonably withheld or delayed), (x) no Default or Event of Default shall be in existence on the Financing with Eligible Stockholders effective date of such Incremental Loans, (y) the representations and warranties made or deemed made by the Borrower or any other Loan Party in accordance with Section 10.13 any Loan Document to which such Loan Party is a party shall be true and Schedule 10.13 hereto, in an aggregate amount for all correct on the effective date of such Incremental Loans not except to exceed $1,000,000. Each the extent that such notice shall specify the representations and warranties expressly relate solely to an earlier date (each, an “Increased Amount Date”) in which case such representations and warranties shall have been true and correct on which the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered or approached to provide all or a portion of any Incremental Loans may elect or decline, in its sole discretion, to provide such Incremental Loans. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans shall become effective and as of such Increased Amount Date; provided that earlier date) and except for changes in factual circumstances specifically and expressly permitted hereunder, and (iz) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date before or after giving effect to such Incremental Loans; (ii) the Borrower Administrative Agent shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments have received each of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms following, in form and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably substance satisfactory to the Administrative Agent; : (viiii) if not previously delivered to the Administrative Agent, copies certified by a Qualified Officer of the Borrower of (A) all partnership or other necessary action taken by the Borrower to authorize such Incremental Loans shall be effected pursuant and (B) all corporate or other necessary action taken by Guarantor authorizing the guaranty of such Incremental Loans; and (ii) an opinion of counsel to one or more Joinder Agreements executed the Borrower and delivered by the BorrowerGuarantor, and addressed to the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents Lenders covering such matters as reasonably requested by the Administrative Agent Agent; and (iii) if requested, new Notes executed by the Borrower, payable to any new Lenders and replacement Notes, if requested by any applicable Lender, executed by the Borrower, payable to any existing Lenders making Incremental Loans, in the amount of each such Lender’s Term Loan Exposure at the time of the effectiveness of the applicable Incremental Loans. In connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans pursuant to be secured thereby.
2.2.3 On this Section 2.2 any Increased Amount Date on which any Lender becoming a party hereto shall execute such documents and agreements as the Administrative Agent may reasonably request. The Incremental Loans become effective(i) shall rank pari passu in right of payment with the existing Loans, subject (ii) shall not mature earlier than the Maturity Date and (iii) shall be treated substantially the same as (and in any event no more favorably than) the existing Loans. Incremental Loans may be made hereunder pursuant to an amendment or restatement of this Agreement and, as appropriate, the foregoing terms and conditionsother Loan Documents, executed by the Borrower, each lender with an Incremental Loan new Lender participating in such tranche (eachif any), a “New Lender”each existing Lender participating in such tranche (if any) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 and the Administrative Agent. The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Joinder Agreement Administrative Agent may, without the consent of any other LendersLenders (except as expressly required pursuant to Section 14.3), effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.2.
Appears in 1 contract
Samples: Unsecured Term Loan Agreement (First Industrial Lp)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate (a) At any time, the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of of:
(i) one or more new Incremental Term Loan commitments (any such incremental term loans loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Credit Commitments (an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make incremental Revolving Credit Loans (any Revolving Credit Loans made pursuant to such Incremental Revolving Credit Commitments, the “Incremental Revolving Credit Increase”, and together with the Incremental Term Loans, the “Incremental Loans”) in connection with ); provided that (and as part of1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an aggregate amount for all such Incremental Loans Loan Commitments shall not to exceed $1,000,000200,000,000 and (2) the aggregate amount for each Incremental Loan Commitment shall not be less than a minimum principal amount of $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Loan Commitment shall be effective; provided , which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person that provides an Incremental Loan Commitment, an “Incremental Lender”). Any Lender or any Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansLoan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Loan Commitment and (ii2) the making of any Incremental Loans pursuant thereto;
(B) the Borrower shall have delivered to the Administrative Agent (which shall promptly make such information available to the Lenders in accordance with its customary practice) an Officer’s Compliance Certificate demonstrating that the Borrower will be in compliance on a pro forma compliance basis with the financial covenant covenants set forth in Section 11.13; 9.15 after giving effect to (iii1) any Incremental Loan Commitment (and assuming that the Revolving Credit Commitments (including any Incremental Revolving Credit Commitments) are fully drawn), (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition or other contemplated use of proceeds consummated in connection therewith;
(C) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; for ongoing working capital requirements and other general corporate purposes of the Borrower and its Subsidiaries (ivincluding Permitted Acquisitions);
(D) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall share ratably constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(1) in the Collateral case of each Incremental Term Loan (the terms of which shall be set forth the relevant Lender Joinder Agreement):
(x) such Incremental Term Loan will mature and shall benefit ratably from amortize in a manner reasonably acceptable to the guarantees under the Guaranty and Collateral Agreement; (v) Administrative Agent, the Incremental Loans shall share no greater than ratably Lenders making such Incremental Term Loan and the Borrower, but will not in any mandatory prepayments event have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the existing Initial Term Loans; (vi) Loan or a maturity date earlier than the Incremental Loans shall mature on the then latest Term Loan Maturity Date; ;
(viiy) the Applicable Margin and pricing grid, if applicable, for such Incremental Loans Term Loan shall be subject determined by the Administrative Agent, the applicable Incremental Lenders and the Borrower on the applicable Increased Amount Date; provided that if the Applicable Margin in respect of any Incremental Term Loan exceeds the Applicable Margin for the Initial Term Loan by more than 0.50%, then the Applicable Margin for the Initial Term Loan shall be increased so that the Applicable Margin in respect of such Initial Term Loan is equal to the same Applicable Margin for the Incremental Term Loan minus 0.50%; provided further in determining the Applicable Margin(s) applicable to each Incremental Term Loan and the Applicable Margin(s) for the Initial Term Loan, (1) 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 such Incremental Term Loan or the Initial Term Loan in the initial primary syndication thereof (with OID being equated to interest based on assumed four-year life to maturity) and the effects of any and all interest rate floors shall be included and (2) customary arrangement or commitment fees payable to any Lead Arranger (or its affiliates) in connection with the Initial Term Loan or to one or more arrangers (or their affiliates) of any Incremental Term Loan shall be excluded; and
(z) except as provided above, all other terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect applicable to any Incremental Loans which differ from those Term Loan, to the extent not consistent with respect the terms and conditions applicable to the Initial Term Loans Loan, shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed Agent and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.;
Appears in 1 contract
Samples: Credit Agreement (CST Brands, Inc.)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at (i) At any time or commencing on the day following the Closing Date through but excluding the Term Loan Maturity Date, provided that no Event of Default has occurred and is continuing, Borrower may, from time to time after the Closing Date and on or prior to September 22time, 2018, by written notice delivered to the Administrative Agent, elect to request the establishment of one or more increases to the Term Loan and/or the funding of a new term loans Loan from one or more existing Lenders or, subject to Section 2.1(d)(iii), from other assignees acceptable to Agent and Borrower (the each, an “Incremental LoansTerm Loan”) in connection with (and as part of) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto), in an aggregate amount for all such Incremental Term Loans not to exceed $1,000,00020,000,000. Each Incremental Term Loan shall increase the Initial Loan, Credit Line or Late Withdrawal Loan as designated in writing by Borrower and shall be governed by the terms of Section 2.1(a), 2.1(b) or 2.1(c), as applicable. Any Incremental Term Loan shall be in the amount of at least $1,000,000 (or such notice lower amount that represents all remaining availability pursuant to this Section 2.1(d)) and integral multiples of $1,000,000 in excess thereof (or such lower amount that represents all remaining availability pursuant to this Section 2.1(d)).
(ii) Upon the funding of each Incremental Term Loan, the scheduled amortization payments set forth in Section 2.1(a), (b) or (c) (as applicable) shall specify be recalculated and increased, commencing in the date (eachfirst full quarter after such Incremental Term Loan is funded, an “Increased Amount Date”) by aggregating the Term Loans made on which or after the Borrower proposes that Closing Date with all Incremental Term Loans, and such amended amortization schedule shall be effective commencing on the last day of the first full fiscal quarter after the Incremental Loans Term Loan is funded.
(iii) To the extent any Incremental Term Loan shall be effective; provided by any assignee, it shall be a condition precedent to the funding of the applicable Incremental Term Loan that any prospective Lender, Borrower and Agent have signed a joinder agreement to this Agreement (a “Joinder”), in form and substance reasonably satisfactory to Agent, to which such prospective Lender, Borrower, and Agent are party.
(iv) No Lender offered or approached shall be obligated to participate in any Incremental Term Loan, and each such Lender’s determination to participate shall be in such Lender’s sole and absolute discretion. Agent may invite each Lender to provide all or a portion of any an Incremental Loans may elect or decline, in its sole discretion, Term Loan (it being understood that no Lender shall be obligated to provide such an Incremental Loans. For the avoidance of doubt, Term Loan) or Agent and Borrower may invite any Eligible Stockholder purchasing Incremental Loans prospective lender that is acceptable to Agent and Borrower to become a Lender in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financingproposed Incremental Term Loan.
2.2.2 Such (v) Upon the funding of any Incremental Term Loan, all references in this Agreement and any other Loan Document to the Loans shall become effective as of such Increased Amount Date; provided that (ibe deemed, unless the context otherwise requires, to include the Incremental Term Loan, advanced pursuant to this Section 2.1(d) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date before or after giving effect to such Incremental Loans; and (ii) all references in this Agreement and any other Loan Document to the Borrower Term Loan shall be in pro forma compliance with deemed, unless the financial covenant set forth in Section 11.13; (iii) context otherwise requires, to include the proceeds of any commitment to advance an amount equal to the Incremental Term Loans shall be used as permitted contemplated pursuant to this Section 10.6; 2.1(d).
(ivvi) Any Incremental Term Loan established pursuant to this Section 2.1(d) shall constitute a Loan and Term Loan, under the Incremental Loans Loan Documents, and shall share ratably rank pari passu in right of payment in respect of the Collateral and shall benefit ratably from with the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably Secured Obligations in any mandatory prepayments respect of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.
Appears in 1 contract
Samples: Loan and Security Agreement (ProQR Therapeutics N.V.)
Incremental Loans. 2.2.1 (a) The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018may, by written notice to the Administrative Agent from time to time, request Incremental Loan Commitments in an amount not to exceed the Incremental Loan Amount from one or more Incremental Lenders, all of which must be Eligible Assignees. Such notice shall set forth (i) the amount of the Incremental Loan 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 Incremental Loan Amount), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”).
(b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Lenders in connection therewith; provided that the Borrower and the Administrative Agent shall have consented to such additional banks, financial institutions and other institutional lenders to the extent the consent of the Borrower or the Administrative Agent, as applicable, would be required if such institution were receiving an assignment of Loans pursuant to Section 9.04 (provided, further, that the consent of the Administrative Agent shall not be required with respect to an additional bank, financial institution, or other institutional lender that is an Affiliate of a Lender or a Related Fund). The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Lender. Without the prior written consent of the Administrative Agent, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, (ii) the average life to maturity of the Other Loans shall be no shorter than the remaining average life to maturity of the Loans, (iii) if the initial yield on such Other Loans (as reasonably determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans (taking into account any interest rate floors with respect to such Other Loans) and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee being referred to herein as “OID”), the amount of such OID (expressed as a percentage of the Other Loans) divided by the lesser of (A) the average life to maturity of such Other Loans and (B) four (4) exceeds the sum of (I) the Applicable Margin above the Adjusted LIBO Rate (taking into account any interest rate floors) then in effect for Eurodollar Loans and (II) the amount of OID with respect to existing Loans (expressed as a percentage of the existing Loans) divided by four, by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans and (iv) if the covenants, events of default and guarantees of any such Indebtedness (excluding, for the avoidance of doubt, interest rates, interest margins, rate floors, fees, funding discounts, original issue discounts and voluntary prepayment or voluntary redemption premiums and terms) (when taken as a whole) are materially more favorable to the lenders or holders providing such Other Loans than those applicable to the Loans (when taken as a whole) (other than covenants or other provisions applicable only to periods after the Latest Maturity Date at the time of incurrence, issuance or obtainment of such Other Loans), the Loans will be modified to reflect such more favorable terms (taken as a whole) and the Borrower and the Administrative Agent may amend this Agreement for such purpose without the consent of any other party hereto. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Notwithstanding anything in Section 9.08 to the contrary, each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. Incremental Loans and Other Loans shall have the same guarantees as, and be secured on a pari passu basis with, the Loans.
(c) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.22 unless (i) on the date of such effectiveness, (x) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects to the extent qualified by materiality or Material Adverse Effect) on and as of such date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (or in all respects to the extent qualified by materiality or Material Adverse Effect) on and as of such earlier date and (y) at the time of and immediately after the giving effect to the Borrowing of Incremental Loans, no Default or Event of Default shall have occurred and be continuing, 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) all fees and expenses owing to the Administrative Agent and the Incremental Lenders in respect of such increase shall have been paid, (iii) except as otherwise specified in the applicable Incremental Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.01 of the Original Credit Agreement and (iv) to the extent reasonably necessary to maintain the continuing priority of the Lien of the Mortgages on the Real Estate Collateral Properties as security for the Obligations, as determined by the Administrative Agent in its reasonable discretion, (x) the applicable Loan Party to any Mortgages shall have entered into, and delivered to the Administrative Agent, elect to request at the establishment of one or more new term loans (direction and in the “Incremental Loans”) in connection with (and as part of) the consummation sole discretion of the Financing with Eligible Stockholders Administrative Agent a mortgage modification or new Mortgage in accordance with Section 10.13 and Schedule 10.13 hereto, in an aggregate amount proper form for all such Incremental Loans not to exceed $1,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loans shall be effective; provided that any Lender offered or approached to provide all or a portion of any Incremental Loans may elect or decline, in its sole discretion, to provide such Incremental Loans. For the avoidance of doubt, any Eligible Stockholder purchasing Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans shall become effective as of such Increased Amount Date; provided that (i) the conditions set forth in Section 12.2 were satisfied or waived on such Increased Amount Date before or after giving effect to such Incremental Loans; (ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably recording in the Collateral relevant jurisdiction and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be a form reasonably satisfactory to the Administrative Agent; , (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ixy) the Borrower shall deliver or cause have caused to be delivered any customary legal opinions or other documents reasonably requested by to the Administrative Agent in connection with any such transaction, including any supplements or amendments for the benefit of the Lenders an endorsement to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effectivetitle insurance policy, subject date down(s) or other evidence reasonably satisfactory to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions Administrative Agent insuring that the priority of the Incremental Loans shall be, except Lien of such Mortgages as otherwise set forth security for the Obligations has not changed and confirming and/or insuring that since the issuance of the title insurance policy there has been no change in the relevant Joinder Agreementcondition of title and there are no intervening liens or encumbrances that may then or thereafter take priority over the Lien of such Mortgages (other than Permitted Encumbrances) and (z) the Borrower shall have delivered, identical to those of at the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 request of the Administrative Agent, to effect the provisions Administrative Agent and/or all other relevant third parties all other items reasonably necessary to maintain the continuing priority of this the Lien of such Mortgages as security for the Obligations.
(d) Each of the parties hereto hereby agrees that the Administrative 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 Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurodollar Borrowing on a pro rata basis. Any conversion of Eurodollar Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.22.16. 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 Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.11(a)(i) required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.
Appears in 1 contract
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Borrower may at A. At any time or from time to time after following the Closing Date and on or prior to September 22Date, 2018, Company may by written notice delivered to the Administrative Agent, Agent elect to request the establishment of of:
(i) one or more new incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”); or
(ii) one or more increases in the Revolving Loan Commitments (any such increase, an “Incremental Revolving Loan Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make incremental revolving credit loans (any such increase, an “Incremental Revolving Loan Increase” and, together with the Incremental Term Loans, the “Incremental Loans”) in connection with ); provided that (and as part of1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate amount for all such Incremental Loans Loan Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,000100,000,000 (which amount shall be reduced by any secured Indebtedness issued or incurred pursuant to subsection 7.1(vi)(b) or 7.1(x)) (the “Incremental Amount”) and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $5,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower Company proposes that the any Incremental Loans Loan Commitment shall be effective; provided that , which shall be a date not less than five Business Days after the date on which such notice is delivered to Administrative Agent. Company may invite any Lender, Incremental Lender or any other Person eligible to be an Incremental Lender to provide an Incremental Loan Commitment. Any Lender or any Incremental Lender offered or approached to provide all or a portion of any an Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansLoan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(ia) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Loans; Loan Commitment, (ii2) the Borrower making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith;
(b) Administrative Agent and the Lenders shall have received from Company an Officer’s Compliance Certificate demonstrating that Company will be in pro forma compliance Pro Forma Compliance (calculated solely with respect to subsection 7.6B) after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any acquisition or disposition made after the commencement of the most recent four Fiscal Quarter period for which financial covenant set forth in Section 11.13; results have been provided on or prior to the Increased Amount Date;
(iiic) the proceeds of any Incremental Loans shall be used as for working capital and other general corporate purposes (including Permitted Acquisitions, any other Investments permitted pursuant hereunder and Restricted Junior Payments), which may include the making of intercompany loans to Section 10.6; any of Company’s wholly-owned Restricted Subsidiaries, in accordance with subsection 7.1(iv), for their own general corporate purposes;
(ivd) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall share ratably constitute Obligations of Company and shall be secured and guaranteed with the other Obligations on a pari passu basis;
(1) in the Collateral and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the case of each Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans terms of which shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as set forth the relevant Joinder Agreement otherwise provides, provided that all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to the Administrative Agent; (viii) such Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. 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 2.2.):
Appears in 1 contract
Samples: Credit Agreement (United Online Inc)
Incremental Loans. 2.2.1 The Borrower shall use its commercially reasonable efforts (a) At any time prior to consummate the Financing with Eligible Stockholders in a manner consistent with Section 10.13 hereof and Schedule 10.13 hereto. The Maturity Date, the Borrower may at any time or from time to time after the Closing Date and on or prior to September 22, 2018, by written notice delivered to the Administrative Agent, Agent elect to request the establishment of one or more new term up to two (2) incremental revolving credit commitments (any such incremental revolving credit commitment, an “Incremental Loan Commitment”) to make incremental revolving credit loans (the any such incremental revolving credit loans, an “Incremental LoansLoan”) in connection with ); provided that (and as part of1) the consummation of the Financing with Eligible Stockholders in accordance with Section 10.13 and Schedule 10.13 hereto, in an total aggregate amount for all such Incremental Loans Loan Commitments shall not to (as of any date of incurrence thereof) exceed $1,000,00040,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment shall not be less than $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the any Incremental Loans Loan Commitment shall be effective; provided that , which shall be a date not less than thirty (30) days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, the Issuing Lenders and the Swingline Lender, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any Lender or any Incremental Lender offered or approached to provide all or a portion of any Incremental Loans Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental LoansLoan Commitment. For the avoidance of doubt, any Eligible Stockholder purchasing Any Incremental Loans in connection with the Financing shall also be required to purchase a portion of HCP-FVA’s Series A Preferred Stock in connection with the Financing.
2.2.2 Such Incremental Loans Loan Commitment shall become effective as of such Increased Amount Date; provided that that:
(iA) the conditions set forth in Section 12.2 were satisfied no Default or waived Event of Default shall exist on such Increased Amount Date before or after giving effect to such any Incremental Loans; Loan Commitment;
(iiB) the Borrower each Incremental Loan shall be in pro forma compliance with the financial covenant set forth in Section 11.13; (iii) the proceeds of any Incremental Loans shall be used as permitted pursuant to Section 10.6; (iv) the Incremental Loans shall share ratably in the Collateral a “Revolving Credit Loan” for all purposes hereof and shall benefit ratably from the guarantees under the Guaranty and Collateral Agreement; (v) the Incremental Loans shall share no greater than ratably in any mandatory prepayments of the existing Term Loans; (vi) the Incremental Loans shall mature on the Term Loan Maturity Date; (vii) the Incremental Loans shall be subject to the same terms and conditions as the Initial Term Loans, including with respect to interest rate, except as the relevant Joinder Agreement otherwise provides, provided that all terms Revolving Credit Loans and documentation with respect to any Incremental Loans which differ from those with respect to the Initial Term Loans shall be reasonably satisfactory to guaranteed and secured with the other Extensions of Credit on a pari passu basis;
(C) the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by the Administrative Agent; Agent on the applicable Increased Amount Date among the Lenders (viiiincluding the Incremental Lenders providing such Credit Loans) in accordance with their revised Revolving Credit Commitment Percentages (and the Lenders (including the Incremental Lenders providing such Incremental Loans) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 4.9 in connection with such reallocation as if such reallocation were a repayment);
(D) such Incremental Loans Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby.
2.2.3 On any Increased Amount Date on which any Incremental Loans become effective, subject to the foregoing terms and conditions, each lender with an Incremental Loan (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Loan.
2.2.4 The terms and provisions of the Incremental Loans shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Term Loans and for purposes of this Agreement, any Incremental Loans, when funded, shall be deemed to be Term Loans. Each Lenders (which 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 2.24.13); and
(E) the Borrower shall deliver or cause to be delivered any other documents reasonably requested by the Administrative Agent in connection with any such transaction.
(b) On any Increased Amount Date on which any Incremental Loan Commitment becomes effective, each Incremental Lender with an Incremental Loan Commitment shall become a Lender hereunder with respect to such Incremental Loan Commitment. Thereafter it shall be entitled to the same voting rights as the existing Lenders under the Revolving Credit Facility and shall be included in any determination of the Required Lenders. The Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement.
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