Incremental Loans. The Borrower shall have the right to request one or more 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 $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: (w) the 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 effective date of such Incremental Loans, (y) the representations and warranties made or deemed made by the Borrower or any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct on the effective date of such Incremental Loans except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted hereunder, and (z) the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent: (i) 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 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 the Borrower and the Guarantor, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative 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 Incremental Loans pursuant to this Section 2.2 any Lender becoming a party hereto shall execute such documents and agreements as the Administrative Agent may reasonably request. The Incremental Loans (i) shall rank pari passu in right of payment with the existing Loans, (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 other Loan Documents, executed by the Borrower, each new Lender participating in such tranche (if any), each existing Lender participating in such tranche (if any) and the Administrative Agent. The Administrative Agent may, without the consent of any other Lenders (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 4 contracts
Samples: Unsecured Term Loan Agreement (First Industrial Lp), Unsecured Term Loan Agreement (First Industrial Lp), Unsecured Term Loan Agreement (First Industrial Lp)
Incremental Loans. The Borrower (i) Incremental Loan Commitments shall have the right become Commitments under this Agreement pursuant to request one or more additional tranches of additional Loans an amendment to this Agreement (the each, an “Incremental LoansLoan Amendment”) executed by providing written notice the Borrower, each Lender or other Person to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that the aggregate amount whom any portion of such Incremental Loans Loan Commitments has been allocated (each, an “Incremental Lender”) and such amendments to the other Loan Documents (executed by the relevant Loan Party and the Administrative Agent only) as the Borrower and the Administrative Agent shall reasonably deem appropriate to effect such purpose. For the avoidance of doubt, no amendment executed for the purpose of making Incremental Loan Commitments under this Agreement shall require, as a condition to its effectiveness, the signature of any Lender that is not exceed One Hundred Million Dollars obligated to make an Incremental Loan under such amendment. The Incremental Loan Amendment shall be effective on the date the Administrative Agent receives satisfactory legal opinions ($100,000,000). Each which shall include, for the avoidance of doubt, an opinion that such Incremental Loan must be an aggregate minimum amount Loans Commitments do not contravene this Agreement as of $20,000,000 the date of such increase), board resolutions and integral multiples of $5,000,000 in excess thereof. The other closing documents deemed reasonably necessary by the Administrative Agent in connection with such increase; provided that, immediately prior to and the Arrangers, in consultation with the Borrower, shall manage all aspects of after giving effect to 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: (w) the Administrative Agent shall have consented thereto (such consent not to be unreasonably withheld or delayed), (xA) no Default or Event of Default shall have occurred and be continuing, (B) each of the Parent REIT and the Borrower is in existence pro forma compliance with Section 7.1, such determination of pro forma compliance to be based on the then outstanding principal amount of Loans, and (C) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects on and as of such date as if made on and as of such date, provided that, (x) to the extent that any such representation or warranty relates to a specific earlier date, they shall be true and correct in all material respects as of such earlier date, and (y) to the extent that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(ii) Each Incremental Loan Commitment shall designate the applicable Incremental Loans either as a separate series, an increase to the Initial Term Loans or an increase to any prior series of Incremental Loans (in each case, a “Series”; for purposes of this Section 2.23, the Initial Term Loans and any increase thereof shall be deemed to be a Series) for all purposes of this Agreement. Except for purposes of this Section 2.23, any Incremental Loans that are designated as an increase to the Initial Term Loans shall be deemed to be, effective as of the date (each, an “Incremental Loan Effective Date”) on which the Borrower proposes such Incremental Loan Commitments shall be effective, and after the making of such Incremental Loans, Initial Term Loans for all purposes of this Agreement. For the avoidance of doubt all Incremental Loans shall be incurred under this Agreement.
(iii) On any Incremental Loan Effective Date on which any Incremental Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions (including, but not limited to, delivery of a Borrowing Notice), (i) each Incremental Lender of any Series shall make a Loan to the Borrower (an “Incremental Loan”) in an amount equal to its Incremental Loan Commitment of such Series and (ii) each Incremental Lender of any Series shall become a Lender hereunder with respect to the Incremental Loan Commitment of such Series and the Incremental Loans of such Series made pursuant thereto.
(iv) The Administrative Agent shall notify Lenders promptly upon receipt of Borrower’s notice of each Incremental Loan Effective Date and in respect thereof the Series of Incremental Loan Commitments and the Incremental Lenders of such Series.
(v) The Incremental Loans and Incremental Loan Commitments established pursuant to this Section 2.23 shall constitute Term Loans and Initial Term Loan Commitment 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 from the Guarantee Agreement equally and ratably with the other Obligations.
(vi) The terms and provisions of the Incremental Loans and Incremental Loan Commitments of any Series shall be identical to the Initial Term Loans, provided that, (x) the applicable Incremental Loan Maturity Date of each Series shall be as set forth in the applicable Incremental Loan Amendment for such Series which date shall not be earlier than the Term Loan Maturity Date of the Initial Term Loans, (y) the representations terms and warranties made or deemed made by the Borrower or conditions applicable to any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct on the effective date Series of such Incremental Loans except to maturing after the extent that Term Loan Maturity Date of the Initial Term Loans may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted hereunder, Term Loan Maturity Date and (z) the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent: (i) 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 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 the Borrower and the Guarantor, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative 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 Incremental Loans pursuant to this Section 2.2 any Lender becoming a party hereto shall execute such documents and agreements as the Administrative Agent may reasonably request. The Incremental Loans (i) shall rank pari passu in right of payment with the existing Loans, (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, priced differently than the other Loan Documents, executed by the Borrower, each new Lender participating in such tranche (if any), each existing Lender participating in such tranche (if any) Revolving Credit Loans and the Administrative Agent. The Administrative Agent may, without the consent of any other Lenders (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 2.2Initial Term Loans.
Appears in 4 contracts
Samples: Credit Agreement (Essential Properties Realty Trust, Inc.), Credit Agreement (Essential Properties Realty Trust, Inc.), Credit Agreement (Essential Properties Realty Trust, Inc.)
Incremental Loans. The Borrower shall have Borrowers may at any time after the right to request one or more additional tranches of additional Loans (the “Incremental Loans”) Funding Date, 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 Agent ($100,000,000). 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: (w) whereupon the Administrative Agent shall have consented thereto promptly deliver a copy to each of the Lenders) at least 30 days prior to the requested funding date of such Commitment Increase, request no more than two increases in the amount of the Commitments, each such increase, a “Commitment Increase,” and such increase shall thereupon become effective upon the effectiveness of the Incremental Amendment referred to below; provided that (i) both at the time of such consent not request and upon the effectiveness of the Incremental Amendment referred to be unreasonably withheld or delayed)below, (x) no Default or Event of Default shall be in existence on the effective date of such Incremental Loansexist, (yii) both at the time of any such request and upon the effectiveness of the Incremental Amendment referred to below, all representations and warranties made or deemed made by contained in this Agreement and in the Borrower or any other Loan Party in any Loan Document to which such Loan Party is a party Credit Documents shall be true and correct on in all material respects with the effective date of such Incremental Loans except to the extent that same effect as though such representations and warranties expressly relate solely to an earlier had been made on such date (in it being understood and agreed that (x) any representation or warranty which case such representations and warranties by its terms is made as of a specified date shall have been be required to be true and correct on and in all material respects only as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted hereunder, specified date and (zy) any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such date), (iii) as of the date of incurrence of Additional Loans (a) if such date is prior to March 31, 2013, the Total Leverage Ratio as of the most recently fiscal quarter of the Parent would be less than 2.50:1.00 on a Pro Forma Basis and, as applicable, calculated in accordance with the definition of Test Period contained herein, after giving effect to the incurrence of the Additional Loans and (b) if such date is after March 31, 2013, the Parent and its Subsidiaries would be in compliance with the financial covenants contained in Sections 8.07 through 8.11, inclusive, as of the most recently ended Calculation Period on a Pro Forma Basis, after giving effect to the incurrence of the Additional Loans and (iv) unless otherwise agreed to by the Required Lenders, the amount of each Commitment Increase shall be in integral multiples of $10,000,000 and the amount of all such Commitment Increases shall not be more than $20,000,000. Loans made pursuant to the Commitment Increase (the “Additional Loans”) shall have the same terms and conditions as those applicable to the Loans and shall constitute “Loans” hereunder. The notice from the Borrower pursuant to this Section 2.09 shall set forth the requested amount of the Commitment Increase and the funding date of such Commitment Increase. Each of the existing Lenders shall have a right of first refusal to provide its pro rata share of the requested Commitment Increase (but no existing Lender will have any obligation to make any portion of the Commitment Increase); provided that if any existing Lender shall choose to not participate in the Commitment Increase, the other existing Lenders shall have the right (but not the obligation) to provide its pro rata share (excluding the share of any non-participating Lender) to provide such amount of the Commitment Increase; provided further that any shortfall of the requested Commitment Increase that has not been provided by an existing Lender pursuant to the terms of this Section 2.09 may be provided by any other bank or other financial institution that is an Eligible Transferee (any such other bank or other financial institution being called an “Additional Lender”); provided that the Administrative Agent shall have received each of the followingconsented (not to be unreasonably withheld, in form and substance satisfactory conditioned or delayed) to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by such Additional Lender’s providing a Qualified Officer of the Borrower of (A) all partnership or other necessary action taken by the Borrower to authorize such Incremental Loans and (B) all corporate or other necessary action taken by Guarantor authorizing the guaranty portion of such Incremental Loans; and (ii) an opinion of counsel to the Borrower and the Guarantor, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative 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 LoansCommitment Increase. In connection with any Incremental Additional Loans pursuant to this Section 2.2 any Lender becoming a party hereto shall execute such documents and agreements as the Administrative Agent may reasonably request. The Incremental Loans (i) shall rank pari passu in right of payment with the existing Loans, (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 provided pursuant to an amendment or restatement of (the “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Credit Documents, executed by the Borrowereach Credit Party, each new Lender participating in agreeing to provide such tranche (Additional Loans, if any), each existing Lender participating in such tranche (Additional Lender, if any) , and the Administrative Agent. The Administrative Agent Incremental Amendment may, with the consent of the Parent, the Borrowers and the Administrative Agent, but without the consent of any other Lenders (except as expressly required pursuant to Section 14.3)Credit Party or the 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 Borrowers, to effect the provisions of this Section 2.22.09. The Borrower may use the proceeds of the Additional Loans for any purpose not prohibited by this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (SAExploration Holdings, Inc.), Credit Agreement (SAExploration Holdings, Inc.)
Incremental Loans. The Borrower shall have the right to request one or more additional tranches obligation 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 each 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 Lender 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 make the Incremental Loans under this Section on the Incremental Loan Effective Date, as provided for hereunder, is subject to the fulfillment, to the satisfaction of Administrative Agent and each Incremental Loan Lender, of each of the following conditions precedent: precedent on or before such date, unless any such condition is waived in accordance with Section 12.01:
(w) the Administrative Agent shall have consented thereto (such consent not to be unreasonably withheld or delayed), (xa) no Default or Event of Default shall have occurred and be continuing on such date and after giving effect to the Incremental Loans;
(b) Parent shall have certified to Administrative Agent and the Lenders, in existence on form and substance satisfactory to Administrative Agent and the effective date Lenders, that immediately after giving effect to advance of such the Incremental Loans, the Credit Parties are in compliance with each Financial Performance Covenant determined on a pro forma basis as of the last day of the most recent fiscal quarter for which financial statements have been delivered (yor were required to have been delivered) the pursuant to Section 8.01(a) or 8.01(b), as applicable;
(c) all representations and warranties made by each Credit Party contained herein or deemed made by in the Borrower or any other Loan Party in any Loan Document to which such Loan Party is a party Credit Documents shall be true and correct 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, Material Adverse Effect or similar language, or by a qualifying exhibit or schedule), in each case, with the same effect as though such representations and warranties had been made on the effective date and as of such Incremental Loans date (except to the extent that where such representations and warranties expressly relate solely to an earlier date (date, in which case such representations and warranties shall have been true and correct on and in all material respects as of such earlier datedate (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality, Material Adverse Effect or similar language, or by a qualifying exhibit or schedule));
(d) no injunction, writ, restraining order, or other order of any nature restricting or prohibiting, directly or indirectly, the Transactions shall have been issued and except for changes remain in factual circumstances specifically and expressly permitted hereunderforce by any Governmental Authority against any Credit Party, Administrative Agent or any Lender;
(e) there shall be no order or injunction or pending litigation in which there is a reasonable possibility of a decision that could reasonably be expected to have a Material Adverse Effect, and no pending litigation seeking to prohibit, enjoin or prevent any of the Transactions;
(zf) the Administrative Agent shall have received each of the followingIncremental Loan Agreement providing for Incremental Loan Commitments in the applicable amount;
(g) Administrative Agent shall have received such resolutions, manager’s certificates, legal opinions, Mortgage amendments, title policy updates and other agreements, instruments and documents requested by Administrative Agent, or the Incremental Loan Lenders in connection therewith; and
(h) Administrative Agent shall have received evidence, in form and substance satisfactory to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by a Qualified Officer confirming that Borrowers shall have achieved positive cash flow for three consecutive calendar months as of the Borrower of (A) all partnership or other necessary action taken by the Borrower to authorize such Incremental Loans 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 the Borrower and the Guarantor, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative 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 last day of the effectiveness of the applicable Incremental Loans. In connection with any Incremental Loans pursuant most recent fiscal quarter for which financial statements have been delivered (or were required to this Section 2.2 any Lender becoming a party hereto shall execute such documents and agreements as the Administrative Agent may reasonably request. The Incremental Loans (ihave been delivered) shall rank pari passu in right of payment with the existing Loans, (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 other Loan Documents, executed by the Borrower, each new Lender participating in such tranche (if any), each existing Lender participating in such tranche (if any) and the Administrative Agent. The Administrative Agent may, without the consent of any other Lenders (except as expressly required pursuant to Section 14.38.01(a) or 8.01(b), 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 2.2applicable.
Appears in 2 contracts
Samples: Credit Agreement and Security Agreements (TerrAscend Corp.), Credit Agreement and Security Agreements (TerrAscend Corp.)
Incremental Loans. The (a) At any time and from time to time prior to the Latest Maturity Date, subject to the terms and express conditions set forth herein, the Borrower shall have may by no less than three (3) Business Days’ prior notice to the right Administrative Agent (or such lesser number of days reasonably acceptable to the Administrative Agent), request to add one or more new credit facilities (each, an “Incremental Facility”) denominated in Dollars and, in the case of any Incremental Revolving Facility, at the option of the Borrower, any Alternative Currency, and consisting of one or more additional tranches of additional term loans or an increase to an existing Class of Term Loans (the each, an “Incremental LoansTerm Facility”) by providing written notice or one or more additional tranches of revolving commitments or an increase in an existing Class of Revolving Commitments (each, an “Incremental Revolving Facility”), or a combination thereof; provided that (i) (A) immediately before and after giving effect to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that the aggregate amount of such each Incremental Loans shall not exceed One Hundred Million Dollars ($100,000,000). 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 Facility Amendment and the Arrangersapplicable Incremental Facility, 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: (w) the 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 exists at the effective date time of such request or immediately after giving effect thereto; provided that to the extent the proceeds of any Incremental LoansLoans are being used to finance a Permitted Acquisition or other Permitted Investment, immediately before and after giving effect to each Incremental Facility Amendment and the applicable Incremental Facility, no Specified Event of Default exists at the time of such request or immediately after giving effect thereto, (yB) the representations and warranties made or deemed made by the Borrower or any other of each Loan Party set forth in any the Loan Document to which such Loan Party is a party Documents shall be true and correct on the effective date of such Incremental Loans except to the extent that such representations and warranties expressly relate solely to an earlier date (in which all material respects, in each case such representations and warranties shall have been true and correct on and as of such earlier the date of effectiveness (or true and correct in all material respects as of a specified date) and except for changes in factual circumstances specifically and expressly permitted hereunder, and (z) the Administrative Agent shall have received each of the followingif earlier), in form and substance satisfactory subject to customary “SunGard” limitations to the Administrative Agent: (i) if not previously delivered to extent the Administrative Agent, copies certified by a Qualified Officer proceeds of the Borrower of (A) all partnership or other necessary action taken by the Borrower to authorize such Incremental Loans 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 the Borrower and the Guarantor, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative 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 Incremental Loans pursuant are being used to this Section 2.2 any Lender becoming finance a party hereto shall execute such documents and agreements as the Administrative Agent may reasonably request. The Incremental Loans (i) shall rank pari passu in right of payment with the existing LoansPermitted Acquisition or other Permitted Investment, (ii) (A) subject to the provisos to this sentence, immediately after giving effect to each Incremental Facility Amendment and the applicable Incremental Facility, if such Incremental Facility is secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, the First Lien Net Leverage Ratio computed on a Pro Forma Basis shall not mature earlier be greater than 4.00:1.00 or, to the extent the proceeds of such Incremental Facility are being used to finance a Permitted Acquisition or other Permitted Investment, would not be greater than the Maturity Date First Lien Net Leverage Ratio immediately prior to such incurrence, (B) subject to the provisos to this sentence, immediately after giving effect to each Incremental Facility Amendment and (iii) shall be treated substantially the same as (and in any event no more favorably than) applicable Incremental Facility, if such Incremental Facility is secured by a Lien on the existing Loans. Incremental Loans may be made hereunder pursuant Collateral that is junior to an amendment or restatement of this Agreement and, as appropriatethe Lien securing the Obligations, the other Loan Documents, executed by the Borrower, each new Lender participating in such tranche (if any), each existing Lender participating in such tranche (if any) and the Administrative Agent. The Administrative Agent may, without the consent of any other Lenders (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.Senior Secured Net Leverage Ratio
Appears in 1 contract
Incremental Loans. (a) Each Lender hereby agrees to provide a Commitment to the Borrower to make Revolving Loans from and after the Incremental Amendment Effective Date in U.S. Dollars in an aggregate principal amount equal to the amount set forth opposite such Lender’s name on Schedule I attached hereto (each, an “Incremental Commitment” and, collectively, the ” Incremental Commitments”), on the terms set forth herein and in the Credit Agreement (as amended hereby), and subject to the conditions set forth herein. The Borrower Incremental Commitments shall have be deemed to be “Commitments” as defined in the right Credit Agreement (as amended hereby) for all purposes of the Loan Documents having terms and provisions identical to request one or more additional tranches of additional Loans those applicable to the Commitments outstanding immediately prior to the Incremental Amendment Effective Date (the “Incremental LoansExisting Revolving Commitments”).
(b) by providing written notice to Each Lender (i) confirms that a copy of 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 $20,000,000 and integral multiples of $5,000,000 in excess thereof. The Administrative Agent Credit Agreement and the Arrangersother applicable Loan Documents, in consultation together with the Borrower, shall manage all aspects of such Incremental Loans, including decisions as to the selection copies of the existing Lenders and/or financial statements referred to therein and such other banksdocuments and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment and make an Incremental Commitment, financial institutions and other institutional lenders to be approached with respect have been made available to such increase Lender; (ii) agrees that it will, independently 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: (w) without reliance upon the 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 effective date of such Incremental Loans, (y) the representations and warranties made or deemed made by the Borrower or any other Lender or agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement or the other applicable Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct on the effective date of such Incremental Loans except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted hereunderDocuments, and (z) the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent: (i) 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 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 the Borrower and the Guarantor, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agentincluding this Amendment; and (iii) if requested, new Notes executed by the Borrower, payable to any new Lenders appoints 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 Incremental Loans pursuant to this Section 2.2 any Lender becoming a party hereto shall execute such documents and agreements as authorizes the Administrative Agent may reasonably request. The Incremental Loans (i) shall rank pari passu in right of payment with to take such action as agent on its behalf and to exercise such powers under the existing Loans, (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 other Loan Documents, executed by the Borrower, each new Lender participating in such tranche (if any), each existing Lender participating in such tranche (if any) and the Administrative Agent. The Administrative Agent may, without the consent of any other Lenders (except as expressly required pursuant to Section 14.3), effect such amendments to this Credit Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of are delegated to the Administrative AgentAgent by the terms thereof, to effect the provisions of this Section 2.2together with such powers as are reasonably incidental thereto.
Appears in 1 contract
Incremental Loans. The Borrower (i) Incremental Loan Commitments shall have the right become Commitments under this Agreement pursuant to request one or more additional tranches of additional Loans an amendment to this Agreement (the each, an “Incremental LoansLoan Amendment”) executed by providing written notice the Borrower, each Lender or other Person to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that the aggregate amount whom any portion of such Incremental Loans Loan Commitments has been allocated (each, an “Incremental Lender”) and such amendments to the other Loan Documents (executed by the relevant Loan Party and the Administrative Agent only) as the Borrower and the Administrative Agent shall reasonably deem appropriate to effect such purpose. For the avoidance of doubt, no amendment executed for the purpose of making Incremental Loan Commitments under this Agreement shall require, as a condition to its effectiveness, the signature of any Lender that is not exceed One Hundred Million Dollars obligated to make an Incremental Loan under such amendment. The Incremental Loan Amendment shall be effective on the date the Administrative Agent receives satisfactory legal opinions ($100,000,000). Each which shall include, for the avoidance of doubt, an opinion that such Incremental Loan must be an aggregate minimum amount Loans Commitments do not contravene this Agreement as of $20,000,000 the date of such increase), board resolutions and integral multiples of $5,000,000 in excess thereof. The other closing documents deemed reasonably necessary by the Administrative Agent in connection with such increase; provided that, immediately prior to and the Arrangers, in consultation with the Borrower, shall manage all aspects of after giving effect to 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: (w) the Administrative Agent shall have consented thereto (such consent not to be unreasonably withheld or delayed), (xA) no Default or Event of Default shall have occurred and be continuing, (B) each of the Parent REIT and the Borrower is in existence pro forma compliance with Section 7.1, such determination of pro forma compliance to be based on the then outstanding principal amount of Loans, and (C) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects on and as of such date as if made on and as of such date, provided that, (x) to the extent that any such representation or warranty relates to a specific earlier date, they shall be true and correct in all material respects as of such earlier date, and (y) to the extent that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(ii) Each Incremental Loan Commitment shall designate the applicable Incremental Loans either as a separate series, an increase to the Initial Term Loans or an increase to any prior series of Incremental Loans (in each case, a “Series”; for purposes of this Section 2.23, the Initial Term Loans and any increase thereof shall be deemed to be a Series) for all purposes of this Agreement. Except for purposes of this Section 2.23, any Incremental Loans that are designated as an increase to the Initial Term Loans shall be deemed to be, effective as of the date (each, an “Incremental Loan Effective Date”) on which the Borrower proposes such Incremental Loan Commitments shall be effective, and after the making of such Incremental Loans, Initial Term Loans for all purposes of this Agreement. For the avoidance of doubt all Incremental Loans shall be incurred under this Agreement.
(iii) On any Incremental Loan Effective Date on which any Incremental Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions (including, but not limited to, delivery of a Borrowing Notice), (i) each Incremental Lender of any Series shall make a Loan to the Borrower (an “Incremental Loan”) in an amount equal to its Incremental Loan Commitment of such Series and (ii) each Incremental Lender of any Series shall become a Lender hereunder with respect to the Incremental Loan Commitment of such Series and the Incremental Loans of such Series made pursuant thereto.
(iv) The Administrative Agent shall notify Lenders promptly upon receipt of Borrower’s notice of each Incremental Loan Effective Date and in respect thereof the Series of Incremental Loan Commitments and the Incremental Lenders of such Series.
(v) The Incremental Loans and Incremental Loan Commitments established pursuant to this Section 2.23 shall constitute Term Loans and Term 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 from the Guarantee Agreement equally and ratably with the other Obligations.
(vi) The terms and provisions of the Incremental Loans and Incremental Loan Commitments of any Series shall be identical to the Initial Term Loans, provided that, (x) the applicable Incremental Loan Maturity Date of each Series shall be as set forth in the applicable Incremental Loan Amendment for such Series which date shall not be earlier than the Term Loan Maturity Date of the Initial Term Loans, (y) the representations terms and warranties made or deemed made by the Borrower or conditions applicable to any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct on the effective date Series of such Incremental Loans except to maturing after the extent that Term Loan Maturity Date of the Initial Term Loans may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted hereunder, Term Loan Maturity Date and (z) the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent: (i) 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 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 the Borrower and the Guarantor, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative 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 Incremental Loans pursuant to this Section 2.2 any Lender becoming a party hereto shall execute such documents and agreements as the Administrative Agent may reasonably request. The Incremental Loans (i) shall rank pari passu in right of payment with the existing Loans, (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 priced differently than the Initial Term Loans or restatement of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each new Lender participating in such tranche (if any), each existing Lender participating in such tranche (if any) and the Administrative Agent. The Administrative Agent may, without the consent of any other Lenders (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 Series of the Administrative Agent, to effect the provisions of this Section 2.2Incremental Loans.
Appears in 1 contract
Samples: Credit Agreement (Essential Properties Realty Trust, Inc.)
Incremental Loans. The (a) At any time and from time to time prior to the Latest Maturity Date, subject to the terms and conditions set forth herein, the Borrower shall have may by no less than three (3) Business Days’ prior notice to the right Administrative Agent (or such lesser number of days as may be reasonably acceptable to the Administrative Agent), request to add one or more new credit facilities (each, an “Incremental Facility”) denominated, at the option of the Borrower, in Dollars and/or Euros and consisting of one or more additional tranches of additional Loans term loans (the each, an “Incremental LoansTerm Facility”) by providing written notice or one or more additional tranches of revolving loans (each, an “Incremental Revolving Facility”), or a combination thereof, provided that (i) immediately before and after giving effect to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that the aggregate amount of such each Incremental Loans shall not exceed One Hundred Million Dollars ($100,000,000). 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 Facility Amendment and the Arrangersapplicable Incremental Facility, 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: (w) the Administrative Agent shall have consented thereto (such consent not to be unreasonably withheld or delayed), (x) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) subject to the provisos to this sentence, immediately after giving effect to each Incremental Facility Amendment and the applicable Incremental Facility, the First Lien Leverage Ratio (without giving effect to any proceeds of the Incremental Facility for purposes of calculating the First Lien Leverage Ratio and assuming the amount of such Incremental Revolving Facility (if any) is fully drawn) computed on a Pro Forma Basis shall not be greater than 4.25 to 1.00 as of the Applicable Date of Determination, provided that (1) for purposes of this Section 2.20, the addition of any Incremental Revolving Facility shall be deemed to be the incurrence of Indebtedness in existence an amount equal to the aggregate principal amount of the Incremental Revolving Commitments in respect of such Incremental Revolving Facility and (2) 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 after the Closing Date not to exceed an amount the Dollar Equivalent (calculated using the Exchange Rate in effect as of the date of effectiveness of such Incremental Facility Amendment and Incremental Facility) of which equals $150,000,000 (such Indebtedness, the “Unrestricted Incremental First-Lien Indebtedness”) (it being understood and agreed that (I) the Borrower shall designate any such Indebtedness as Unrestricted Incremental First-Lien Indebtedness on or prior to the effective date of such Incremental Loans, (y) the representations and warranties made or deemed made incurrence by the Borrower or any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct on the effective date of such Incremental Loans except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted hereunder, and (z) the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent: (i) 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 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 the Borrower and the Guarantor, and addressed notice to the Administrative Agent and (II) the Lenders covering Borrower may redesignate any such matters Indebtedness originally designated as reasonably requested by the Administrative Agent; and (iii) if requestedUnrestricted Incremental First-Lien Indebtedness if, 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 such redesignation, the effectiveness 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 applicable Incremental Loans. In connection with date of such redesignation by the amount of such Indebtedness so redesignated)), (iii) in the event that the Yield for any Incremental Facility (other than Unrestricted Incremental First-Lien Indebtedness) incurred during such period is higher than the Yield for the Initial Tranche B Term Loans pursuant by more than 50 basis points, then the Applicable Margin for the Initial Tranche B Term Loans and Initial Tranche B-1 Term Loans shall be increased to this the extent necessary so that the Yield for such Initial Tranche B Term Loans and Initial Tranche B-1 Term Loans is equal to the Yield for such Incremental Facility minus 50 basis points or minus 112.5 basis points in the case of the Initial Tranche B-1 Term Loans and (iv) after giving effect to such Incremental Facility (and the application of proceeds thereof) on a Pro Forma Basis, the Borrower is in compliance with the covenant set forth in Section 2.2 any Lender becoming a party hereto 6.12 as of the Applicable Date of Determination. Each Incremental Facility shall execute be in an integral multiple of $1,000,000 (or, in the case of Incremental Facilities denominated in Euros, €1,000,000) and be in an aggregate principal amount that is not less than $25,000,000 (or, in the case of Incremental Facilities denominated in Euros, €25,000,000), provided that such documents and agreements amount may be less than $25,000,000 (or €25,000,000, as the Administrative Agent case may be) if such amount represents all the remaining availability under the aggregate principal amount of Incremental Facilities set forth above. Any Lenders participating in an Incremental Revolving Facility, unless then a Revolving Lender, shall be reasonably request. The acceptable to the Swingline Lender and the Issuing Bank, in each case under such Incremental Loans Revolving Facility.
(b) Each Incremental Facility (i) shall rank pari passu in right of payment in respect of the Collateral and with the existing LoansObligations in respect of the Revolving Commitments and the Term Loans made available to the Borrower, (ii) for purposes of prepayments, shall not mature earlier be treated no more favorably than the Initial Tranche B Term Loans, in the case of an Incremental Term Facility, or the Initial Revolving Loans, in the case of an Incremental Revolving Facility, in each case except as otherwise approved by the Administrative Agent or those that only apply after the then existing Latest Maturity Date Date, and (iii) other than amortization, pricing or maturity date, shall have the same terms as the Initial Tranche B Term Loans, in the case of an Incremental Term Facility, or the Revolving Loans, in the case of an Incremental Revolving Facility, provided that (A) no Incremental Term Facility shall have a final maturity date earlier than the Term Loan Maturity Date with respect to the Initial Tranche B Term Loans, (B) no Incremental Revolving Facility shall have a final maturity date earlier than the Revolving Maturity Date with respect to the Initial Revolving Loans and (C) no Incremental Term Facility shall have a weighted average life that is shorter than the weighted average life of the then-remaining Initial Tranche B Term Loans.
(c) 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 treated substantially reasonably satisfactory to the same as Borrower and, in the case of any Incremental Revolving Facility, the Administrative Agent (and in any event no more favorably thansuch bank, financial institution, existing Lender or other Person being called an “Additional Lender”) the existing Loans. Incremental Loans may be made hereunder and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment or restatement of (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdco, the Borrower, each new such Additional Lender participating (in such tranche (if any)the case of this Agreement and, each existing Lender participating in such tranche (if anyas appropriate, any other Loan Document, as applicable) and (to the extent it affects the rights or increases the obligations of the Administrative Agent and/or the Collateral Agent. The , the Administrative Agent and/or the Collateral Agent). No Lender shall be obligated to provide any Commitments under an Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facilities shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders (except as expressly required pursuant to Section 14.3)Lenders, effect such amendments to this Agreement and the other any 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(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 on the date thereof (each, an “Incremental Facility Closing Date”) of the condition set forth in Section 4.02(b) (it being understood that all references to “the date of such Credit Event” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date) as well as all other 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 and Acquisitions).
Appears in 1 contract
Samples: Credit Agreement (Infor, Inc.)
Incremental Loans. The Prior to the incurrence of any Incremental Loans of a given Tranche, the Borrower shall have satisfied all of the right applicable conditions set forth in Section 2.14 and in the relevant Incremental Loan Commitment Agreement. In determining the satisfaction of the conditions specified in this Section 5, (a) to request the extent any item is required to be satisfactory to any Lender, such item shall be deemed satisfactory to each Lender which has not notified the Administrative Agent in writing prior to the occurrence of the Closing Date (or the applicable Incremental Loan Borrowing Date) that the respective item or matter does not meet its satisfaction and (b) in determining whether any Lender is aware of any fact, condition or event that has occurred and which would reasonably be expected to have a Material Adverse Effect or a material adverse effect of the type described in Section 5.07, each Lender which has not notified the Administrative Agent in writing prior to the occurrence of the Closing Date of such fact, condition or event shall be deemed not to be aware of any such fact, condition or event on the Closing Date. Upon the Administrative Agent’s good faith determination that the conditions specified in this Section 5 have been met (after giving effect to the preceding sentence), then the Closing Date shall have been deemed to have occurred, regardless of any subsequent determination that one or more additional tranches of additional Loans the conditions thereto had not been met (although the “occurrence of the Closing Date shall not release the Borrower from any liability for failure to satisfy one or more of the applicable conditions contained in this Section 5). The occurrence of the Closing Date or each applicable Incremental Loans”) Loan Borrowing Date, as applicable, and the acceptance of the benefits of the proceeds of each Loan shall constitute a representation and warranty by providing written notice the Borrower to the Administrative AgentAgent and each of the Lenders that all the relevant conditions specified in this Section 5 are satisfied as of that time. All of the Notes, which notice certificates and other documents and papers referred to in this Section 5 unless otherwise specified, 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 $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 delivered 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: (w) the Administrative Agent shall have consented thereto (such consent not to be unreasonably withheld or delayed), (x) no Default or Event at the Notice Office for the account of Default shall be in existence on the effective date of such Incremental Loans, (y) the representations and warranties made or deemed made by the Borrower or any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct on the effective date of such Incremental Loans except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted hereunder, and (z) the Administrative Agent shall have received each of the followingLenders and, except for the Notes, in sufficient counterparts or copies for each of the Lenders and shall be in form and substance reasonably satisfactory to the Administrative Agent: (i) 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 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 the Borrower and the Guarantor, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative 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 Incremental Loans pursuant to this Section 2.2 any Lender becoming a party hereto shall execute such documents and agreements as the Administrative Agent may reasonably request. The Incremental Loans (i) shall rank pari passu in right of payment with the existing Loans, (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 other Loan Documents, executed by the Borrower, each new Lender participating in such tranche (if any), each existing Lender participating in such tranche (if any) and the Administrative Agent. The Administrative Agent may, without the consent of any other Lenders (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 2.2Required Lenders.
Appears in 1 contract
Samples: Second Lien Credit Agreement (HUGHES Telematics, Inc.)
Incremental Loans. The (a) At any time and from time to time prior to the Latest Maturity Date, subject to the terms and express conditions set forth herein, the Borrower shall have may by no less than three (3) Business Days’ prior notice to the right Administrative Agent (or such lesser number of days reasonably acceptable to the Administrative Agent), request to add one or more new credit facilities (each, an “Incremental Facility”) denominated in Dollars and, in the case of any Incremental Revolving Facility, at the option of the Borrower, any Alternative Currency, and consisting of one or more additional tranches of additional term loans or an increase to an existing Class of Term Loans (the each, an “Incremental LoansTerm Facility”) by providing written notice or one or more additional tranches of revolving commitments or an increase in an existing Class of Revolving Commitments (each, an “Incremental Revolving Facility”), or a combination thereof; provided that (i) (A) immediately before and after giving effect to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that the aggregate amount of such each Incremental Loans shall not exceed One Hundred Million Dollars ($100,000,000). 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 Facility Amendment and the Arrangersapplicable Incremental Facility, 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: (w) the 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 exists at the effective date time of such request or immediately after giving effect thereto; provided that to the extent the proceeds of any Incremental LoansLoans are being used to finance a Permitted Acquisition or other Permitted Investment, immediately before and after giving effect to each Incremental Facility Amendment and the applicable Incremental Facility, no Specified Event of Default exists at the time of such request or immediately after giving effect thereto, (yB) the representations and warranties made or deemed made by the Borrower or any other of each Loan Party set forth in any the Loan Document to which such Loan Party is a party Documents shall be true and correct in all material respects, in each case on and as of the date of effectiveness (or true and correct in all material respects as of a specified date, if earlier), subject to customary “SunGard” limitations to the extent the proceeds of any Incremental Loans are being used to finance a Permitted Acquisition or other Permitted Investment, (ii) (A) subject to the provisos to this sentence, immediately after giving effect to each Incremental Facility Amendment and the applicable Incremental Facility, if such Incremental Facility is secured by a Lien on the effective Collateral that is pari passu with the Lien securing the Obligations, the First Lien Net Leverage Ratio computed on a Pro Forma Basis shall not be greater than 4.00:1.00 or, to the extent the proceeds of such Incremental Facility are being used to finance a Permitted Acquisition or other Permitted Investment, would not be greater than the First Lien Net Leverage Ratio immediately prior to such incurrence, (B) subject to the provisos to this sentence, immediately after giving effect to each Incremental Facility Amendment and the applicable Incremental Facility, if such Incremental Facility is secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, the Senior Secured Net Leverage Ratio computed on a Pro Forma Basis shall not be greater than 5.70:1.00 or, to the extent the proceeds of such Incremental Facility are being used to finance a Permitted Acquisition or other Permitted Investment, would not be greater than the Secured Net Leverage Ratio immediately prior to such incurrence, and (C) subject to the provisos to this sentence, immediately after giving effect to each Incremental Facility Amendment and the applicable Incremental Facility, if such Incremental Facility is unsecured, the Total Net Leverage Ratio computed on a Pro Forma Basis shall not be greater than 5.90:1.00 or, to the extent the proceeds of such Incremental Facility are being used to finance a Permitted Acquisition or other Permitted Investment, would not be greater than the Total Net Leverage Ratio immediately prior to such incurrence (assuming, in each case, 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, Additional Term Notes and Ratio Debt in each case established on or prior to such date are fully drawn other than any Unrestricted Additional Term Note and Incremental Facilities incurred in reliance on the Incremental Base Amount and (II) the proceeds of such Incremental Loans except are not included as unrestricted cash and Cash Equivalents in clause (i) of the definition of “First Lien Net Leverage Ratio”, “Senior Secured Net Leverage Ratio” and “Total Net Leverage Ratio”, as applicable) (such Indebtedness, the “Incremental Ratio Debt”); provided that to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct on and as the proceeds of such earlier date) and except for changes in factual circumstances specifically and expressly permitted hereunder, and (z) the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent: (i) 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 are to be used to prepay Indebtedness, the use of such proceeds for the prepayment of such Indebtedness may be given pro forma effect; provided, further, that the financial incurrence test set forth in clause (ii) of this paragraph (a) shall not apply to (1) 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 (B) all corporate or other necessary action taken by Guarantor authorizing calculated using the guaranty Exchange Rate on the date of effectiveness of such Incremental Loans; Facility Amendment and Incremental Facility) of which equals the greater of (x) $80,000,000 and (iiy) an opinion 50% of counsel to Borrower’s Consolidated EBITDA for the Borrower and most recently ended four fiscal quarter period for which financial statements are available, calculated on a Pro Forma Basis (such amount the Guarantor, and addressed to “Incremental Base Amount”) (minus (x) the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; aggregate principal amount of any Unrestricted Additional Term Notes and (iiiy) if requested, new the aggregate principal amount of any Second Lien Incremental Facilities and Second Lien Unrestricted Additional Term Notes executed by incurred in reliance on the Borrower, payable to Incremental Base Amount (as defined in the Second Lien Credit Agreement)) plus (2) the amount of any new Lenders voluntary prepayments of any tranche of the Term Loans and replacement Notes, if requested by any applicable Lender, executed by voluntary permanent reductions of the Borrower, payable to any existing Lenders making Incremental LoansRevolving Commitments effected after the Closing Date that are not financed with the incurrence of long-term Indebtedness (including purchases of the Loans (and, in the amount case of each such Lender’s Term Loan Exposure at the time Revolving Loans, voluntary termination of the effectiveness of the applicable Incremental Loans. In connection with any Incremental Loans pursuant to this Section 2.2 any Lender becoming a party hereto shall execute such documents and agreements as the Administrative Agent may reasonably request. The Incremental Loans (icorresponding Revolving Commitments) shall rank pari passu in right of payment with the existing Loans, (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 other Loan Documents, executed by the BorrowerLoan Parties at or below par, each new Lender participating in such tranche (if any)including, each existing Lender participating in such tranche (if any) and for the Administrative Agent. The Administrative Agent mayavoidance of doubt, without the consent of any other Lenders (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.to
Appears in 1 contract
Incremental Loans. The Borrower shall have the right to may request that one or more additional tranches of additional Loans incremental term loan facilities (the each, an “Incremental LoansFacility”) by providing written notice be added to the Administrative Agent, which notice shall be irrevocable once givenFacilities in the sole and absolute discretion of the Lenders; provided, howeverthat:
(i) the Lenders, that the aggregate amount of in their sole and absolute discretion, shall have agreed to participate in such Incremental Loans shall not exceed One Hundred Million Dollars Facility; XXXXXXXX 00000000 x00
($100,000,000). 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: (w) the Administrative Agent shall have consented thereto (such consent not to be unreasonably withheld or delayed), (xxx) no Default has occurred and is continuing, or Event of Default shall be in existence on the effective date of would result from any Borrowing under such Incremental Loans, Facility or from the application of the proceeds therefrom;
(yiii) the representations and warranties made or deemed made by the Borrower or any other Loan Party contained in any each Loan Document to which such Loan Party is a party shall be are true and correct in all material respects on and as of the effective date of such request and on and as of the date of any borrowing under such Incremental Loans Facility, before and after giving effect to such borrowing and to the application of the proceeds therefrom, as though made on and as of such dates, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been be true and correct on and in all material respects as of such earlier date); provided, that if a representation and warranty is qualified as to materiality, with respect to such representation and warranty, the materiality qualifier set forth in this clause (c)(iii) shall be disregarded;
(iv) subject to any changes acceptable to the Lenders in their sole and except absolute discretion that are required to make the loans under the Incremental Facility fungible for changes in factual circumstances specifically U.S. tax purposes, the terms and expressly permitted hereunder, and (z) the Administrative Agent shall have received each conditions of the following, in form and substance satisfactory Incremental Facility shall be identical to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by a Qualified Officer those of the Borrower of existing Facilities;
(Av) all partnership or other necessary action taken by the Borrower to authorize any such Incremental Loans 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 the Borrower and the Guarantor, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative 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 Incremental Loans pursuant to this Section 2.2 any Lender becoming a party hereto shall execute such documents and agreements as the Administrative Agent may reasonably request. The Incremental Loans (i) Facility shall rank pari passu in right of payment and of security with the existing LoansFacilities, (ii) and no Incremental Facility shall not mature earlier be secured by assets other than Collateral or guaranteed by Persons other than the Maturity Date and Guarantors;
(iiivi) any Incremental Facility shall be treated substantially the same as (pari passu in right of payment and security and will share ratably in any event no more favorably thanvoluntary or mandatory prepayments (other than Scheduled Amortization Payments) of the existing Facilities unless the Borrower and the lenders in respect of such Incremental Facility elect lesser payments, provided that, in connection with any such prepayment, any loans made under the Incremental Facility shall be paid after the Term A Loans and the Term B Loans. Incremental Loans Each of the parties hereto hereby agrees that, notwithstanding anything to the contrary set forth in Section 9.01, this Agreement and the other Loan Documents may be made hereunder amended pursuant to an amendment or restatement of this Agreement and, as appropriate, the other Loan Documents, executed by the BorrowerLoan Parties, each new Lender participating in such tranche (if any), each existing Lender participating in such tranche (if any) the Administrative Agent and the Administrative Agent. The Administrative Agent mayLenders providing an Incremental Facility, without the consent of any other Lenders (except as expressly Lender, to the extent reasonably required pursuant to Section 14.3), effect such amendments to this Agreement (including necessary amendments to reflect the existence of a new Incremental Facility) and the other Loan Documents as may be necessary or appropriate, in the reasonable sole and absolute opinion of the Administrative AgentAgent and the Borrower, to effect the provisions of Section 2.01(b), and the Lenders hereby expressly and irrevocably, for the benefit of all parties hereto, authorize the Administrative Agent to enter into such amendment. In connection with any such amendment, the Borrower shall deliver an opinion of counsel reasonably acceptable to the Administrative Agent (i) as to the enforceability of this Agreement (as amended), and such of the other Loan Documents (if AMERICAS 99636855 v27 any) as may be amended thereby and (ii) as to any other customary matters reasonably requested by the Administrative Agent.
(vii) The Administrative Agent and each Lender shall have consented (not to be unreasonably withheld or delayed) to the lenders providing such Incremental Facility to the extent such consent, if any, would be required under Section 2.29.07 for an assignment of Loans or Commitments, as applicable, to such lender.
(viii) Any loan amounts borrowed under any Incremental Facility that is repaid or prepaid may not be reborrowed. .
(a) The Term Loan A Borrowing consisting of Term A Loans advanced by the Term Loan A Lenders on the Effective Date shall be made following the issuance of a Notice of Borrowing, given not later than 11:00 A.M. (New York City time) on the third Business Day prior to the date of the proposed Term Loan A Borrowing, by the Borrower to the Administrative Agent, which shall give to the Term Loan A Lenders prompt notice thereof by electronic communication. Each such Notice of Borrowing shall be by telephone, confirmed immediately in writing, or by electronic communication, in substantially the form of Exhibit B hereto, specifying therein the requested (i) date of such Term Loan A Borrowing (which shall be the Effective Date), and (ii) aggregate amount of such Term Loan A Borrowing. Each Term Loan A Lender shall, before 11:00 A.M. (New York City time) on the date of such Term Loan A Borrowing, make available for the account of its Lending Office to the Administrative Agent at the Administrative Agent’s Account, in same day funds, its Pro Rata Share of the amount of such Term Loan A Borrowing in accordance with its Term Loan A Commitment under the Term Loan A Facility. After the Administrative Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Borrower hereby directs the Administrative Agent to apply such funds as set forth in the Funds Flow Memorandum.
(b) The Term Loan B Borrowing consisting of Term B Loans advanced by the Term Loan B Lenders on the Effective Date shall be made following the issuance of a Notice of Borrowing, given not later than 11:00 A.M. (New York City time) on the third Business Day prior to the date of the proposed Term Loan B Borrowing, by the Borrower to the Administrative Agent, which shall give to the Term Loan B Lenders prompt notice thereof by electronic communication. Each such Notice of Borrowing shall be by telephone, confirmed immediately in writing, or by electronic communication, in substantially the form of Exhibit B hereto, specifying therein the requested (i) date of such Term Loan B Borrowing (which shall be the Effective Date), and (ii) aggregate amount of such Term Loan B Borrowing. Each Term Loan B Lender shall, before 11:00 A.M. (New York City time) on the date of such Term Loan B Borrowing, make available for the account of its Lending Office to the Administrative Agent at the Administrative Agent’s Account, in same day funds, its Pro Rata Share of the amount of such Term Loan B Borrowing in accordance with its Term Loan B Commitment under the Term Loan B Facility. After the Administrative AMERICAS 99636855 v27 Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Borrower hereby directs the Administrative Agent to apply such funds as set forth in the Funds Flow Memorandum.
(c) Any Notice of Borrowing delivered after the Effective Date shall be irrevocable and binding on the Borrower. The Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing for such Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Loan to be made by such Lender as part of such Borrowing when such Loan, as a result of such failure, is not made on such date.
Appears in 1 contract
Samples: Senior Secured Term Loan Credit Agreement (U.S. Well Services, Inc.)
Incremental Loans. The (a) Incremental Lender hereby agrees to increase its Commitment to the Borrower shall have to make Revolving Loans from and after the right Amendment Effective Date in U.S. Dollars in an aggregate principal amount equal to request one or more additional tranches of additional Loans the amount set forth opposite such Lender’s name on Schedule I attached hereto under the heading “Incremental Commitment” (the “Incremental LoansCommitment”) by providing written notice to ), on the Administrative Agent, which notice shall be irrevocable once given; provided, however, that terms set forth herein and in the aggregate amount of such Incremental Loans shall not exceed One Hundred Million Dollars Credit Agreement ($100,000,000as amended hereby). 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: set forth herein. The Incremental Commitment shall be deemed to be a “Commitment” as defined in the Credit Agreement (was amended hereby) for all purposes of the Loan Documents having terms and provisions identical to those applicable to the Commitments outstanding immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”).
(b) Each Lender (i) confirms that a copy of the Credit Agreement and the other applicable Loan Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment and make an Incremental Commitment, have been made available to such Lender; (ii) agrees that it will, independently and without reliance upon the 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 effective date of such Incremental Loans, (y) the representations and warranties made or deemed made by the Borrower or any other Lender or agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement or the other applicable Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct on the effective date of such Incremental Loans except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted hereunderDocuments, and (z) the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent: (i) 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 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 the Borrower and the Guarantor, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agentincluding this Amendment; and (iii) if requested, new Notes executed by the Borrower, payable to any new Lenders appoints 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 Incremental Loans pursuant to this Section 2.2 any Lender becoming a party hereto shall execute such documents and agreements as authorizes the Administrative Agent may reasonably request. The Incremental Loans (i) shall rank pari passu in right of payment with to take such action as agent on its behalf and to exercise such powers under the existing Loans, (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 other Loan Documents, executed by the Borrower, each new Lender participating in such tranche (if any), each existing Lender participating in such tranche (if any) and the Administrative Agent. The Administrative Agent may, without the consent of any other Lenders (except as expressly required pursuant to Section 14.3), effect such amendments to this Credit Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of are delegated to the Administrative AgentAgent by the terms thereof, to effect the provisions of this Section 2.2together with such powers as are reasonably incidental thereto.
Appears in 1 contract
Incremental Loans. The Borrower shall have the right to may request that one or more additional tranches of additional Loans incremental term loan facilities (the each, an “Incremental LoansFacility”) by providing written notice be added to the Administrative Agent, which notice shall be irrevocable once givenFacilities in the sole and absolute discretion of the Lenders; provided, howeverthat:
(i) the Lenders, that the aggregate amount of in their sole and absolute discretion, shall have agreed to participate in such Incremental Loans shall not exceed One Hundred Million Dollars Facility;
($100,000,000). 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: (w) the Administrative Agent shall have consented thereto (such consent not to be unreasonably withheld or delayed), (xii) no Default has occurred and is continuing, or Event of Default shall be in existence on the effective date of would result from any Borrowing under such Incremental Loans, Facility or from the application of the proceeds therefrom;
(yiii) the representations and warranties made or deemed made by the Borrower or any other Loan Party contained in any each Loan Document to which such Loan Party is a party shall be are true and correct in all material respects on and as of the effective date of such request and on and as of the date of any borrowing under such Incremental Loans Facility, before and after giving effect to such borrowing and to the application of the proceeds therefrom, as though made on and as of such dates, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been be true and correct on and in all material respects as of such earlier date); provided, that if a representation and warranty is qualified as to materiality, with respect to such representation and warranty, the materiality qualifier set forth in this clause (c)(iii) shall be disregarded;
(iv) subject to any changes acceptable to the Lenders in their sole and except absolute discretion that are required to make the loans under the Incremental Facility fungible for changes in factual circumstances specifically U.S. tax purposes, the terms and expressly permitted hereunder, and (z) the Administrative Agent shall have received each conditions of the following, in form and substance satisfactory Incremental Facility shall be identical to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by a Qualified Officer those of the Borrower of existing Facilities;
(Av) all partnership or other necessary action taken by the Borrower to authorize any such Incremental Loans 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 the Borrower and the Guarantor, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative 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 Incremental Loans pursuant to this Section 2.2 any Lender becoming a party hereto shall execute such documents and agreements as the Administrative Agent may reasonably request. The Incremental Loans (i) Facility shall rank pari passu in right of payment and of security with the existing LoansFacilities, (ii) and no Incremental Facility shall not mature earlier be secured by assets other than Collateral or guaranteed by Persons other than the Maturity Date and Guarantors;
(iiivi) any Incremental Facility shall be treated substantially the same as (pari passu in right of payment and security and will share ratably in any event no more favorably thanvoluntary or mandatory prepayments (other than Scheduled Amortization Payments) of the existing Facilities unless the Borrower and the lenders in respect of such Incremental Facility elect lesser payments, provided that, in connection with any such prepayment, any loans made under the Incremental Facility shall be paid after the Term A Loans and the Term B Loans. Incremental Loans Each of the parties hereto hereby agrees that, notwithstanding anything to the contrary set forth in Section 9.01, this Agreement and the other Loan Documents may be made hereunder amended pursuant to an amendment or restatement of this Agreement and, as appropriate, the other Loan Documents, executed by the BorrowerLoan Parties, each new Lender participating in such tranche (if any), each existing Lender participating in such tranche (if any) the Administrative Agent and the Administrative Agent. The Administrative Agent mayLenders providing an Incremental Facility, without the consent of any other Lenders (except as expressly Lender, to the extent reasonably required pursuant to Section 14.3), effect such amendments to this Agreement (including necessary amendments to reflect the existence of a new Incremental Facility) and the other Loan Documents as may be necessary or appropriate, in the reasonable sole and absolute opinion of the Administrative AgentAgent and the Borrower, to effect the provisions of Section 2.01(b), and the Lenders hereby expressly and irrevocably, for the benefit of all parties hereto, authorize the Administrative Agent to enter into such amendment. In connection with any such amendment, the Borrower shall deliver an opinion of counsel reasonably acceptable to the Administrative Agent (i) as to the enforceability of this Agreement (as amended), and such of the other Loan Documents (if any) as may be amended thereby and (ii) as to any other customary matters reasonably requested by the Administrative Agent.
(vii) The Administrative Agent and each Lender shall have consented (not to be unreasonably withheld or delayed) to the lenders providing such Incremental Facility to the extent such consent, if any, would be required under Section 2.29.07 for an assignment of Loans or Commitments, as applicable, to such lender.
(viii) Any loan amounts borrowed under any Incremental Facility that is repaid or prepaid may not be reborrowed.
Appears in 1 contract
Samples: Senior Secured Term Loan Credit Agreement (U.S. Well Services, Inc.)
Incremental Loans. The Borrower shall have the right to may request that one or more additional tranches of additional Loans incremental term loan facilities (the each, an “Incremental LoansFacility”) by providing written notice be added to the Administrative Agent, which notice shall be irrevocable once givenFacilities in the sole and absolute discretion of the Lenders; provided, howeverthat:
1. the Lenders, that the aggregate amount of in their sole and absolute discretion, shall have agreed to participate in such Incremental Loans shall not exceed One Hundred Million Dollars ($100,000,000)Facility;
2. Each no Default has occurred and is continuing, or would result from any Borrowing under 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 Facility or from the Arrangers, in consultation with the Borrower, shall manage all aspects of such Incremental Loans, including decisions as to the selection application 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 lendersproceeds therefrom;
3. 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: (w) the 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 effective date of such Incremental Loans, (y) the representations and warranties made or deemed made by the Borrower or any other Loan Party contained in any each Loan Document to which such Loan Party is a party shall be are true and correct in all material respects on and as of the effective date of such request and on and as of the date of any borrowing under such Incremental Loans Facility, before and after giving effect to such borrowing and to the application of the proceeds therefrom, as though made on and as of such dates, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been be true and correct on and in all material respects as of such earlier date); provided, that if a representation and warranty is qualified as to materiality, with respect to such representation and warranty, the materiality qualifier set forth in this clause (c)(iii) shall be disregarded;
4. subject to any changes acceptable to the Lenders in their sole and except absolute discretion that are required to make the loans under the Incremental Facility fungible for changes in factual circumstances specifically U.S. tax purposes, the terms and expressly permitted hereunder, and (z) the Administrative Agent shall have received each conditions of the following, in form and substance satisfactory Incremental Facility shall be identical to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by a Qualified Officer those of the Borrower of (A) all partnership or other necessary action taken by the Borrower to authorize existing Facilities;
5. any such Incremental Loans 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 the Borrower and the Guarantor, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative 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 Incremental Loans pursuant to this Section 2.2 any Lender becoming a party hereto shall execute such documents and agreements as the Administrative Agent may reasonably request. The Incremental Loans (i) Facility shall rank pari passu in right of payment and of security with the existing LoansFacilities, (ii) and no Incremental Facility shall not mature earlier be secured by assets other than Collateral or guaranteed by Persons other than the Maturity Date and (iii) Guarantors;
6. any Incremental Facility shall be treated substantially the same as (pari passu in right of payment and security and will share ratably in any event no more favorably thanvoluntary or mandatory prepayments (other than Scheduled Amortization Payments) of the existing Facilities unless the Borrower and the lenders in respect of such Incremental Facility elect lesser payments, provided that, in connection with any such prepayment, any loans made under the Incremental Facility shall be paid after the Term A Loans and the Term B Loans. Incremental Loans Each of the parties hereto hereby agrees that, notwithstanding anything to the contrary set forth in Section 9.01, this Agreement and the other Loan Documents may be made hereunder amended pursuant to an amendment or restatement of this Agreement and, as appropriate, the other Loan Documents, executed by the BorrowerLoan Parties, each new Lender participating in such tranche (if any), each existing Lender participating in such tranche (if any) the Administrative Agent and the Administrative Agent. The Administrative Agent mayLenders providing an Incremental Facility, without the consent of any other Lenders (except as expressly Lender, to the extent reasonably required pursuant to Section 14.3), effect such amendments to this Agreement (including necessary amendments to reflect the existence of a new Incremental Facility) and the other Loan Documents as may be necessary or appropriate, in the reasonable sole and absolute opinion of the Administrative AgentAgent and the Borrower, to effect the provisions of Section 2.01(b), and the Lenders hereby expressly and irrevocably, for the benefit of all parties hereto, authorize the Administrative Agent to enter into such amendment. In connection with any such amendment, the Borrower shall deliver an opinion of counsel reasonably acceptable to the Administrative Agent (i) as to the enforceability of this Agreement (as amended), and such of the other Loan Documents (if any) as may be amended thereby and (ii) as to any other customary matters reasonably requested by the Administrative Agent.
7. The Administrative Agent and each Lender shall have consented (not to be unreasonably withheld or delayed) to the lenders providing such Incremental Facility to the extent such consent, if any, would be required under Section 2.29.07 for an assignment of Loans or Commitments, as applicable, to such lender.
8. Any loan amounts borrowed under any Incremental Facility that is repaid or prepaid may not be reborrowed.
Appears in 1 contract
Samples: Senior Secured Term Loan Credit Agreement (U.S. Well Services, Inc.)
Incremental Loans. The Borrower shall have the right to request one or more 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 $20,000,000 25,000,000 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: (w) the 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 effective date of such Incremental Loans, (y) the representations and warranties made or deemed made by the Borrower or any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct on the effective date of such Incremental Loans except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted hereunder, and (z) the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent: (i) 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 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 the Borrower and the Guarantor, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative 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 Incremental Loans pursuant to this Section 2.2 any Lender becoming a party hereto shall execute such documents and agreements as the Administrative Agent may reasonably request. The Incremental Loans (i) shall rank pari passu in right of payment with the existing Loans, (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 other Loan Documents, executed by the Borrower, each new Lender participating in such tranche (if any), each existing Lender participating in such tranche (if any) and the Administrative Agent. The Administrative Agent may, without the consent of any other Lenders (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. The Borrower shall have the right to request one or more 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 Fifty Million Dollars ($100,000,000150,000,000). 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 2.2 is subject to the following conditions precedent: (w) the 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 effective date of such Incremental Loans, (y) the representations and warranties made or deemed made by the Borrower or any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct on the effective date of such Incremental Loans except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted hereunder, and (z) the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent: (i) 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 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 the Borrower and the Guarantor, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative 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 Incremental Loans pursuant to this Section 2.2 any Lender becoming a party hereto shall execute such documents and agreements as the Administrative Agent may reasonably request. The Incremental Loans (i) shall rank pari passu in right of payment with the existing Loans, (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 other Loan Documents, executed by the Borrower, each new Lender participating in such tranche (if any), each existing Lender participating in such tranche (if any) and the Administrative Agent. The Administrative Agent may, without the consent of any other Lenders (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. The (a) Borrower shall have may at any time, by notice to Administrative Agent, request that, subject to the right following conditions and otherwise in accordance with this Agreement, Lenders and/or New Lenders, provide up to request an aggregate amount of $250,000,000 in additional loans (the “Incremental Loans”), which Incremental Loans may be provided as one or more additional tranches of additional Loans term loans (the “Incremental Term Loans”), as one or more additional tranches of delayed draw term loans (“Incremental Delayed Draw Term Loans”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once givenor as one or more tranches of revolving loans (“Incremental Revolving Credit Loans”); 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 $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: (w) the Administrative Agent shall have consented thereto (such consent not to be unreasonably withheld or delayed)that, (xi) no Default or Event of Default shall have occurred and be in existence on the effective date of continuing or result from such Incremental Loans, (yii) the representations and warranties made or deemed made by terms of the Incremental Loans are in compliance with Section 2.8(c) below, (iii) the Borrower or any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct on the effective date of such Incremental Loans except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted hereunder, and (z) the Administrative Agent shall have received each of the followingall approvals from all applicable Gaming Authorities necessary or, in form and substance satisfactory to the discretion of the Administrative Agent: , advisable in connection with such Incremental Loans; (iiv) if not previously the Borrower shall have delivered to the Administrative Agent, copies certified by Agent a Qualified Officer of the Borrower of (A) all partnership or other necessary action taken by the Borrower to authorize such Incremental Loans and (B) all corporate or other necessary action taken by Guarantor authorizing the guaranty of such Incremental Loans; and (ii) an legal opinion of each such special or local counsel to the Borrower and the Guarantor, and addressed to the Administrative Agent and the Lenders covering such matters as may be reasonably requested by the Administrative Agent; (v) the Borrower shall have delivered to the Administrative Agent title 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 extended coverage insurance for each real property Collateral covering 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 Incremental Loans pursuant to this Section 2.2 any Lender becoming a party hereto shall execute containing such documents endorsements and agreements affirmative coverage as the Administrative Agent may reasonably request; and (vi) Administrative Agent and Borrower shall execute conforming amendments to this Agreement and the other Loan Documents (collectively, the “Incremental Facility Amendments”) to reflect such Incremental Loans without the consent of any Lender, including, without limitation, to provide for the terms set forth in the Incremental Facility Activation Notice described below or Section 2.8(c).
(b) Upon receipt of such notice and an officer’s certificate as to the satisfaction of the foregoing conditions, Administrative Agent shall use all commercially reasonable efforts to arrange for Lenders or New Lenders to provide such Incremental Loans. Alternatively, any Lender may commit to provide the full amount of the requested Incremental Loans and then offer portions of such Incremental Loans to the other Lenders or other financial institutions, subject to the approval of Administrative Agent. Nothing contained in this paragraph or otherwise in this Agreement is intended or will be required to commit any Lender or any Agent to provide any portion of any such additional Incremental Loans.
(c) The Incremental Loans (ia) shall rank pari passu in right of payment and of security with the existing Revolving Loan, the Term Loans and the Delayed Draw Term Loans, (iib) shall not mature earlier than the Term Loan Maturity Date and Delayed Draw Term Loan Maturity Date (iiibut may, subject to clause (c) below, have amortization prior to such date), (c) shall not have a weighted average life that is shorter than the then-remaining weighted average life of the Term Loans or the Delayed Draw Term Loans, and (d) except as set forth above, shall be treated substantially the same as (and in any event no more favorably than) the Term Loans and the Delayed Draw Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that if the Applicable Margin relating to any Incremental Loan (as adjusted for upfront fees payable to Lenders of the Incremental Loans and original issue discount) exceeds the Applicable Margin relating to the Term Loans and the Delayed Draw Term Loans immediately prior to the effectiveness of the Incremental Facility Amendments by more than 0.25%, the Applicable Margin relating to the Term Loans and the Delayed Draw Term Loans shall be adjusted to an amount equal to the Applicable Margin of the Incremental Loans (as such Applicable Margin is adjusted to reflect for upfront fees payable to the Lenders of the Incremental Loans and original issue discount) minus 0.25%.
(d) Prior to the expiration of the Delayed Draw Term Loan Commitment Period, if this Agreement is amended, supplemented or restated to add an additional credit facility and/or additional term loans to refinance the existing Term Loans or the Delayed Draw Term Loans, the Applicable Margin on the new term loans cannot be less than the existing Applicable Margin on the Term Loans and the Delayed Draw Term Loans, without unanimous written consent of the Term Loan Lenders or Delayed Draw Term Loan Lenders.
(e) The Borrower and any one or more Lenders (including New Lenders) that agree to provide Incremental Loans shall execute and deliver to the Administrative Agent an Incremental Facility Activation Notice specifying, in compliance with Section 2.8(c): (i) the amount of the Incremental Loans and the Facility or Facilities involved, (ii) the applicable Incremental Loans closing date which shall be a Business Day, (iii) the Incremental Loans maturity date, (iv) the amortization schedule for the Incremental Term Loans and Incremental Delayed Draw Term Loans, as applicable, and (v) the Applicable Margin for such Incremental Loans. Incremental Loans may Any additional bank, financial institution or other entity which, with the consent of the Borrower and the Administrative Agent (which consent shall not be made hereunder pursuant unreasonably withheld), elects to an amendment become a “Lender” under this Agreement in connection with any transaction described in Section 2.8(c) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit B-2, whereupon (i) such bank, financial institution or restatement other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement and, and (ii) the Incremental Term Loans shall be treated as appropriate, the other Loan Documents, executed by the Borrower, each new Lender participating in such tranche (if any), each existing Lender participating in such tranche (if any) “Term Loans” and the Administrative Agent. The Administrative Agent may, without the consent of any other Lenders (except Incremental Delayed Draw Term Loans shall be treated as expressly required pursuant to Section 14.3), effect such amendments to this Agreement “Delayed Draw Term Loans,” and the “Incremental Revolving Credit Loans” shall be treated as “Revolver Credit Loans” for all purposes of this Agreement, other Loan Documents as may be necessary or appropriate, in the reasonable opinion than for purposes of the Administrative Agent, to effect the provisions of this Section 2.2Agreement specifically modified or addressed in the Incremental Facility Activation Notice.
Appears in 1 contract
