Incremental Term Facilities. (a) The Borrower may, by written notice to the Agent from time to time and on one or more occasions, request Incremental Term Commitments, in an aggregate principal amount not to exceed the Incremental Term Loan Amount at such time, from one or more financial institutions (which may include any existing Lender in such Lender’s sole discretion) that would be Eligible Assignees pursuant to Section 10.03(b) (other than Holdings or any of its subsidiaries or Affiliates or any Affiliate Lender) willing to provide such Incremental Term Loans. Each such notice shall set forth (i) the amount of the Incremental Term Commitments being requested, (ii) the date on which such Incremental Term Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Commitments are to be the same as the existing Commitments or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans (the “Other Term Loans”). Each tranche of Incremental Term Loans shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000; provided that such amount may be less than $25,000,000 if such amount represents all the remaining availability under the Incremental Term Loan Amount outstanding at such time. Notwithstanding anything to the contrary herein, the Borrower may request Incremental Term Commitments and may incur Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeem, repurchase or otherwise discharge all or a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses (including tender premium). (b) The Borrower and each Incremental Term Lender shall execute and deliver to the Agent an agreement (an “Incremental Assumption Agreement”) and such other documentation as the Agent shall reasonably request to evidence the Incremental Term Commitment of such Incremental Term Lender, in each case in form and substance reasonably satisfactory to the Agent. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) no existing Lender will be required to participate in any such Incremental Term Loan Facility without its consent, (ii) on the date of effectiveness of any Incremental Term Commitment and after giving effect to the making of such Incremental Term Loans, each of the conditions set forth in Sections 4.02(b) and 4.02(c) shall be satisfied, (iii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date of the Initial Term Loans and the weighted average life to maturity of such Incremental Term Loan Facility shall be not shorter than the then remaining weighted average life to maturity of the Initial Term Loans, (iv) the Borrower is in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Term Loan Facility (and after giving effect to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment events), with the covenant set forth in Section 6.11 recomputed as of the last day of the most recently ended fiscal quarter of Holdco for which financial statements are required to have been delivered pursuant to Section 5.01, (v) each Incremental Term Loan Facility will have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, the Initial Term Loan Facility, (vi) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable to any Incremental Term Loan Facility shall be determined by the Borrower and the applicable Incremental Term Lenders; provided, that if the total yield (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount (in each case, equated to the interest rate based upon an assumed four-year life to maturity or, if shorter, the remaining life to maturity of the Initial Term Loan Facility) and any interest rate floor payable to the arrangers providing such Incremental Term Loan Facility in the initial primary syndication thereof but excluding any arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to such arrangers) of any Incremental Term Loan Facility exceeds the total yield (consistently determined) on the Initial Term Loan Facility by more than 50 basis points, then the applicable margins for the Initial Term Loan Facility shall be increased to the extent necessary so that the total yield (consistently determined) on the Initial Term Loan Facility is 50 basis points less than the total yield (consistently determined) on such Incremental Term Loan Facility (provided, that, if the Adjusted LIBO Rate or the Alternate Base Rate in respect of such Incremental Term Loan Facility includes a floor greater than the floor applicable to the Initial Term Loan Facility, then such excess amount shall be equated to interest rate for purposes of determining the total yield under such Incremental Term Loan Facility), and (vii) each Incremental Term Loan Facility shall be on terms and pursuant to documentation to be mutually agreed; provided, that to the extent such terms and documentation are not consistent with the Initial Term Loan Facility (except to the extent permitted above), such terms and documentation shall be reasonably satisfactory to the Agent. (c) The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Facility. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and the other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Commitments evidenced thereby. Any such amendment may be memorialized in writing by the Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental Term Lenders in respect of such Incremental Term Commitments. (d) This Section 2.23 shall supersede anything in Section 10.09 to the contrary.
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Samples: Term Loan and Guaranty Agreement (Tower International, Inc.), Term Loan and Guaranty Agreement (Tower International, Inc.)
Incremental Term Facilities. (a) The Borrower may, by written notice to the Agent may from time to time and on time, subject to Section 2.17(f) below, request the addition of one or more occasions, request new term loan facilities under this Agreement or increases in the existing Term Loans of any Class (each an “Incremental Term Commitments, in an aggregate principal amount not to exceed the Incremental Term Loan Amount at such time, from one or more financial institutions (which may include any existing Lender in such Lender’s sole discretion) Facility”); provided that would be Eligible Assignees pursuant to Section 10.03(b) (other than Holdings or any of its subsidiaries or Affiliates or any Affiliate Lender) willing to provide such Incremental Term Loans. Each such notice shall set forth (i) the any such request for an Incremental Term Facility shall be in a minimum amount of $25,000,000 (unless otherwise agreed by the Incremental Term Commitments being requested, Administrative Agent) and (ii) the aggregate amount of Incremental Term Facilities effected on any date on after the Closing Date shall not exceed the Incremental Limit as of such date. Except with respect to any Incremental Term Facility the terms of which are identical to terms of the Tranche B Term Loans at the time of the incurrence of such Incremental Term Commitments are requested to become effective (Facility, the “Increased Amount Date”), and (iii) whether such Maturity Date for any Incremental Term Commitments are Facility shall not be prior to be the same Maturity Date in respect of the Tranche B Term Loans in effect as of the existing Commitments or commitments applicable Incremental Effective Date. The Weighted Average Life to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans (the “Other Term Loans”). Each tranche Maturity of any Incremental Term Loans shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less no shorter than $25,000,000; provided that such amount may be less than $25,000,000 if such amount represents all the remaining availability under Weighted Average Life to Maturity of the Tranche B Term Loans (determined without giving effect to any prepayments) as of the applicable Incremental Term Loan Amount outstanding at such timeEffective Date. Notwithstanding anything to the contrary herein, the Borrower may request Incremental Term Commitments and may incur The Incremental Term Loans pursuant thereto without regard to the in respect of any Incremental Term Loan Amount to the extent the Net Cash Proceeds Facility shall rank equal in right of such Incremental Term Loans are used substantially concurrently payment with the incurrence thereof to redeemLoans, repurchase or otherwise discharge all or a portion of shall be secured by the 2017 Notes Collateral and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses (including tender premium)shall be Guaranteed only by the Guarantors.
(b) The Borrower may request additional Incremental Term Facilities from existing Lenders or new lenders that are Eligible Assignees. No Lender shall be obligated to provide any Incremental Term Loans unless it so agrees and the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Incremental Term Loans. Each Incremental Term Facility, and the terms thereof, shall be set forth in an Incremental Facility Agreement among the Borrower and the Lenders under such Incremental Term Facility (and, upon execution of an Incremental Facility Agreement, any Eligible Assignee providing a portion of the Incremental Term Facility established thereunder shall become a Term Lender hereunder). The Incremental Facility Agreement for any Incremental Term Facility shall set forth the Incremental Term Commitments of each Incremental Term Loan Lender thereunder.
(c) If any Incremental Term Facility is effected in accordance with this Section, the Administrative Agent and the Borrower shall execute and deliver to determine the Agent an agreement effective date (an the “Incremental Assumption AgreementEffective Date”) and such other documentation as the Agent shall reasonably request to evidence the Incremental Term Commitment final allocation of such Incremental Term LenderFacility. The Administrative Agent shall promptly notify the Lenders of the final allocation of such Incremental Term Facility and the related Incremental Effective Date. As a condition precedent to any Incremental Term Facility, (i) the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the Incremental Effective Date signed by a Responsible Officer of such Loan Party (A) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such Incremental Term Facility and (B) in the case of the Borrower, certifying that, before and after giving effect to such Incremental Term Facility, (I) the representations and warranties contained in Article VI and the other Loan Documents (or, to the extent the proceeds of the Incremental Term Facility are being used to finance a Limited Condition Transaction that is a Permitted Acquisition or Permitted Investment, only the Specified Representations and the Acquisition Agreement Representations are true and correct in all material respects on and as of the Incremental Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.17, the representations and warranties contained in clauses (a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01, (II) all fees and expenses owing in respect of such Incremental Term Facility to the Administrative Agent have been paid and (III) except in the case of any HCOM Incremental Term Facility, no Event of Default (or, if agreed by the Lenders providing such Incremental Term Facility in connection with any Permitted Acquisition or Permitted Investment, no Event of Default under Section 9.01(a) or Section 9.01(g)) exists or would exist after giving effect to such Incremental Term Facility, and (ii) each case Guarantor shall reaffirm its obligations under the Guaranty pursuant to a customary reaffirmation agreement in form and substance reasonably satisfactory to the Administrative Agent. Each Incremental Assumption Agreement shall specify .
(d) If the terms of the applicable Incremental Term Loans; provided that (i) no existing Lender will be required to participate Effective Yield in any such Incremental Term Loan Facility without its consent, (ii) on the date of effectiveness respect of any Incremental Term Commitment and Facility that is incurred after giving the Closing Date exceeds the Effective Yield in respect of the Tranche B Term Loans in effect on the Closing Date or on the HCOM Closing Date by more than 0.50%, then the interest rate spread applicable to the making of such Incremental Term Loans, each of the conditions set forth in Sections 4.02(b) and 4.02(c) shall be satisfied, (iii) the final maturity date of any Other Tranche B Term Loans shall be no earlier than the Maturity Date of the Initial Term Loans and the weighted average life to maturity of such Incremental Term Loan Facility shall be not shorter than the then remaining weighted average life to maturity of the Initial Term Loans, (iv) the Borrower is in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Term Loan Facility (and after giving effect to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment events), with the covenant set forth in Section 6.11 recomputed as of the last day of the most recently ended fiscal quarter of Holdco for which financial statements are required to have been delivered pursuant to Section 5.01, (v) each Incremental Term Loan Facility will have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, the Initial Term Loan Facility, (vi) the interest rate margins and original issue discount increased or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable to any Incremental Term Loan Facility shall be determined by the Borrower and the applicable Incremental Term Lenders; provided, that if the total yield (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount (in each case, equated paid to the interest rate based upon an assumed four-year life to maturity or, if shorter, the remaining life to maturity of the Initial existing Tranche B Term Loan Facility) and any interest rate floor payable to the arrangers providing such Incremental Term Loan Facility in the initial primary syndication thereof but excluding any arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to such arrangers) of any Incremental Term Loan Facility exceeds the total yield (consistently determined) on the Initial Term Loan Facility by more than 50 basis points, then the applicable margins for the Initial Term Loan Facility shall be increased to the extent necessary Lenders so that the total yield (consistently determined) on Effective Yield in respect of such Tranche B Term Loans is equal to the Initial Term Loan Facility is 50 basis points less than the total yield (consistently determined) on such Incremental Term Loan Facility (provided, that, if the Adjusted LIBO Rate or the Alternate Base Rate Effective Yield in respect of such Incremental Term Loan Facility includes a floor greater less 0.50%.
(e) Each Incremental Term Facility will have terms as shall be agreed to between the Borrower and the Lenders providing such Incremental Term Facility; provided that such Incremental Term Facility (i) shall have covenants no more restrictive in any material respect than the floor those applicable to the Initial Tranche B Term Loan FacilityLoans (except for covenants or other provisions that are (A) applicable only to periods after the then applicable Maturity Date of the Tranche B Term Loans as of the applicable Incremental Effective Date or (B) made applicable to the Tranche B Term Loans) (it being understood that, then such excess amount shall be equated to interest rate the extent any more favorable covenant or provision, including any financial maintenance covenant, is added for purposes the benefit of determining the total yield under any such Incremental Term Loan Facility), and (vii) each Incremental Term Loan Facility no consent with respect to such more favorable covenant or provision, including any such financial maintenance covenant, shall be on terms and pursuant to documentation to be mutually agreed; provided, that required from the Administrative Agent or any existing Lender to the extent that such terms more favorable covenant or provision, including any such financial maintenance covenant, is also added for the benefit of the Tranche B Term Loans) and documentation are not consistent (ii) may be provided the right to ratable or less than ratable (with the Initial Tranche B Term Loan Facility (except to the extent permitted above), such terms Loans and documentation shall be reasonably satisfactory to the Agent.
(c) The Agent shall promptly notify each Lender as to the effectiveness of each any other Incremental Term Loan Facility. Each of the parties hereto hereby agrees that, upon the effectiveness of ) prepayment in connection with any Incremental Assumption Agreement, this Agreement and the other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Commitments evidenced thereby. Any such amendment may be memorialized in writing by the Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental Term Lenders in respect of such Incremental Term Commitmentsmandatory prepayments.
(d) This Section 2.23 shall supersede anything in Section 10.09 to the contrary.
Appears in 1 contract
Incremental Term Facilities. (a) The Borrower may, by written notice to the Agent from time to time and at any time, on one or more occasionsoccasions on or after the Effective Date pursuant to an Incremental Amendment add one or more new Classes of term facilities and/or increase the principal amount of the Loans of any existing Class by requesting new commitments to provide such Loans (any such new Class or increase, request an “Incremental Term CommitmentsFacility” and any loan made pursuant to any Incremental Term Facility, “Incremental Term Loans”) in an aggregate principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Term Loan Amount at Facility may be in an amount that is less than $1,000,000 (or such timelesser amount to which the Administrative Agent may reasonably agree),
(ii) except as the Borrower and any Lender may separately agree, from one or more financial institutions (which may include any existing no Lender in such Lender’s sole discretion) that would shall be Eligible Assignees pursuant to Section 10.03(b) (other than Holdings or any of its subsidiaries or Affiliates or any Affiliate Lender) willing obligated to provide such any Incremental Term Loans. Each such notice shall set forth (i) the amount of the Incremental Term Commitments being requested, (ii) the date on which such Incremental Term Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Commitments are the determination to be the same as the existing Commitments or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans (the “Other Term Loans”). Each tranche of provide any Incremental Term Loans shall be in an integral multiple within the sole and absolute discretion of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000; provided that such amount may be less than $25,000,000 if such amount represents all the remaining availability under the Lender,
(iii) no Incremental Term Facility or Incremental Term Loan Amount outstanding at such time. Notwithstanding anything to (nor the contrary creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Term Loan,
(iv) except as otherwise permitted herein, the Borrower may request terms of any Incremental Term Commitments and may incur Incremental Term Loans pursuant thereto without regard Facility shall be no more restrictive to the Incremental Term Loan Amount to the extent the Net Cash Proceeds of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeem, repurchase or otherwise discharge all or Borrower in any material respect (taken as a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses (including tender premium).
(bwhole) The Borrower and each Incremental Term Lender shall execute and deliver to the Agent an agreement (an “Incremental Assumption Agreement”) and such other documentation as the Agent shall reasonably request to evidence the Incremental Term Commitment of such Incremental Term Lender, in each case in form and substance reasonably satisfactory to the Agent. Each Incremental Assumption Agreement shall specify than the terms of the applicable Incremental Term Loans; provided that (i) no existing Lender will be required to participate in any such Incremental Term Loan Facility without its consent, (ii) on the date of effectiveness of any Incremental Term Commitment and after giving effect to the making of such Incremental Term Loans, each of the conditions set forth in Sections 4.02(b) and 4.02(c) shall be satisfied, (iii) the final maturity date of any Other Term Loans shall be no earlier than (excluding (x) pricing, rate floors, original issue discounts or call protection, premiums and optional prepayment or redemption terms and (y) (I) covenants or other provisions applicable only to periods after the Maturity Date or (II) any more restrictive covenant, to the extent that such covenant is also added for the benefit of the Initial Term Loans outstanding Loans; it being understood and agreed that in each such case, no consent of the Administrative Agent and/or any Lender shall be required in connection with adding such covenant, and it may be added by the Borrower and the weighted average life to maturity of such lenders providing the relevant Incremental Term Loan Facility shall be not shorter than the then remaining weighted average life to maturity of the Initial Term Loans, (iv) the Borrower is in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Term Loan Facility (and after giving effect to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment eventsFacility), with the covenant set forth in Section 6.11 recomputed as of the last day of the most recently ended fiscal quarter of Holdco for which financial statements are required to have been delivered pursuant to Section 5.01, ,
(v) each Incremental Term Loan Facility will have the same guarantees as, margin and be secured on a pari passu basis by the same Collateral securing, the Initial Term Loan Facility, (vi) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule pricing applicable to any Incremental Term Loan Facility shall be determined by the Borrower and the applicable Incremental Term Lenders; provided, that if the total yield (which shall, for such purposes only, be deemed to include all upfront lender or similar fees or original issue discount (in each case, equated to the interest rate based upon an assumed four-year life to maturity or, if shorter, the remaining life to maturity of the Initial Term Loan Facility) and any interest rate floor payable to the arrangers lenders providing such Incremental Term Loan Facility in the initial primary syndication thereof but excluding any arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable Facility,
(vi) except with respect to such arrangers) of any Incremental Term Loan Facility exceeds the total yield (consistently determined) on the Initial Term Loan Facility by more than 50 basis points, then the applicable margins for the Initial Term Loan Facility shall be increased to the extent necessary so that the total yield (consistently determined) on the Initial Term Loan Facility is 50 basis points less than the total yield (consistently determined) on such Incremental Term Loan Facility (provided, customary bridge financings that, if subject to customary conditions (as determined by the Adjusted LIBO Rate or the Alternate Base Rate Borrower in respect of such Incremental Term Loan Facility includes a floor greater than the floor applicable to the Initial Term Loan Facility, then such excess amount shall be equated to interest rate for purposes of determining the total yield under such Incremental Term Loan Facilitygood faith), and provide for an automatic extension of the maturity date thereof to a date that satisfies this clause (viivi) each Incremental Term Loan Facility shall be on terms and pursuant to documentation or require such bridge loans to be mutually agreed; provided, converted into or exchanged for permanent financing with a maturity date that to the extent such terms and documentation are not consistent with the Initial Term Loan Facility (except to the extent permitted above), such terms and documentation shall be reasonably satisfactory to the Agent.
(c) The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Facility. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, would satisfy this Agreement and the other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Commitments evidenced thereby. Any such amendment may be memorialized in writing by the Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental Term Lenders in respect of such Incremental Term Commitments.
(d) This Section 2.23 shall supersede anything in Section 10.09 to the contrary.clause
Appears in 1 contract
Incremental Term Facilities. (a) The Borrower may, by written notice to the Agent at any time and from time to time after the Closing Date and on prior to the Term Facility Maturity Date, by notice to the Administrative Agent, request (x) the addition of one or more occasions, request new term loan facilities (any such new term loan facility being an “Incremental Term CommitmentsFacility” and the commitment of any lender with respect to any Incremental Term Facility being an “Incremental Term Commitment”) or (y) the addition of one or more new revolving Loan Facilities (any such new revolving loan facility being an “Incremental Revolving Facility” and the commitment of any lender with respect to any Incremental Revolving Facility being an “Incremental Revolving Commitment”) to be effective as of a date (the “Increase Date”) specified in the related notice to the Administrative Agent; provided , in an however , that (i) after giving effect to the incurrence of such Indebtedness, either (A) the aggregate principal amount of all Indebtedness incurred and Incremental Revolving Commitments obtained under this Section 2.19 and then outstanding does not to exceed the Incremental Term Loan Amount at such time, from one $250,000,000 or more financial institutions (which may include any existing Lender in such Lender’s sole discretion) that would be Eligible Assignees pursuant to Section 10.03(b) (other than Holdings or any of its subsidiaries or Affiliates or any Affiliate Lender) willing to provide such Incremental Term Loans. Each such notice shall set forth (iB) the amount of the Incremental Term Commitments being requested, Consolidated Secured Leverage Ratio calculated on a Pro Forma Basis would not exceed 2.0 to 1.0; (ii) the date on which such each Incremental Term Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Commitments are to be the same as the existing Commitments or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans (the “Other Term Loans”). Each tranche of Incremental Term Loans Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000; provided that (iii) no more than 4 such amount requests may be less than $25,000,000 if such amount represents all the remaining availability under made pursuant to this Section 2.19 in respect of the Incremental Term Loan Amount outstanding at such time. Notwithstanding anything to the contrary herein, the Borrower may request Incremental Term Commitments and may incur Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeem, repurchase or otherwise discharge all or a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses Facilities; (including tender premium).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Agent an agreement (an “Incremental Assumption Agreement”) and such other documentation as the Agent shall reasonably request to evidence the Incremental Term Commitment of such Incremental Term Lender, in each case in form and substance reasonably satisfactory to the Agent. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) no existing Lender will be required to participate in any such Incremental Term Loan Facility without its consent, (iiiv) on the date of effectiveness of any request by the Borrower for an Incremental Term Commitment and after giving effect to on the making of such Incremental Term Loansrelated Increase Date, each of the applicable conditions set forth in Sections 4.02(bSection 3.01(g) and 4.02(c3.01(h) and in clause (d) of this Section 2.19 shall be satisfied, ; (iiiv) the any Incremental Term Facility shall have a final maturity date of any Other Term Loans shall be no earlier than the Term Facility Maturity Date of the Initial Term Loans and the weighted average life to maturity of such any Incremental Term Loan Facility shall be not no shorter than the then remaining weighted average life to maturity of the Initial Term Loans, (iv) the Borrower is in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Term Loan Facility (and after giving effect to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment events), with the covenant set forth in Section 6.11 recomputed as of the last day of the most recently ended fiscal quarter of Holdco for which financial statements are required to have been delivered pursuant to Section 5.01, (v) each Incremental Term Loan Facility will have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, the Initial Term Loan Facility, ; (vi) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable to any Incremental Term Loan Facility shall be bear interest at a rate per annum as determined by the Borrower and the applicable Incremental Term Lenders; provided, that if the total yield (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount (in each case, equated to the interest rate based upon an assumed four-year life to maturity or, if shorter, the remaining life to maturity of the Initial Term Loan Facility) and any interest rate floor payable to the arrangers providing lenders under such Incremental Term Loan Facility in the initial primary syndication thereof but excluding any arrangementFacility; provided that, commitment, structuring and underwriting fees and any amendment fees paid or payable solely with respect to such arrangers) of any Incremental Term Loan Facility exceeds added prior to the total yield date that is 18 months after the Closing Date, in the event that the Applicable Rate (consistently determinedtaking into account any applicable interest rate “floor”) on the Initial for any Advances under any Incremental Term Loan Facility by is more than 50 basis pointspoints greater than the Applicable Rate for the Term Advances then in effect, then the applicable margins Applicable Rate for the Initial Term Loan Facility Advances shall be increased to the extent necessary so that the total yield (consistently determined) on Applicable Rate for any Advances under the Initial Incremental Term Loan Facility is no more than 50 basis points less than the total yield (consistently determined) on such Incremental Term Loan Facility (provided, that, if the Adjusted LIBO Rate or the Alternate Base Rate in respect of such Incremental Term Loan Facility includes a floor greater than the floor Applicable Rate for the Term Advances then in effect; provided further that in determining the Applicable Rate applicable to the Initial Term Loan Advances, and any Advances under the Incremental Term Facility, then such excess amount (x) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders in the primary syndication thereof shall be included (with OID being equated to interest rate for purposes based on an assumed four-year life to maturity) and (y) customary arrangement, structuring or commitment fees payable to the Sole Lead Arranger (or its affiliates) or to one or more arrangers (or their affiliates) of determining the total yield under such Incremental Term Loan Facility), and loans shall be excluded; (vii) the Term Lenders shall initially have the right, but not the obligation, to commit to up to their pro rata portion of any Incremental Facility; (viii) each Incremental Term Loan Facility shall may be secured by either a pari passu or junior lien on the Collateral securing the Facilities in each case on terms and pursuant reasonably satisfactory to documentation to be mutually agreedthe Administrative Agent; provided, that (ix) to the extent such the terms and documentation of any Incremental Facility are not consistent with the Initial Term Loan Facility Facilities (except to the extent permitted by clause (v) or (vi) above), such terms and documentation they shall be reasonably satisfactory to the Administrative Agent; and (x) the Loan Documents may be amended by the Administrative Agent, the Loan Parties and the Lenders providing an Incremental Facility, to the extent necessary to evidence such Incremental Facility consistent with this Section 2.19(a) and to make appropriate revisions for the addition of a revolving loan facility in the case of an Incremental Revolving Facility, without the consent of any other Lender Party.
(b) The Administrative Agent shall promptly notify the Term Lenders of a request by the Borrower for an Incremental Facility, which notice shall include (i) the proposed amount of such requested Incremental Commitment, (ii) the proposed Increase Date and (iii) the date by which the relevant Lenders wishing to participate in the Incremental Commitment must commit to an Incremental Commitment (which shall in no event be less than ten Business Days from the date of delivery of such notice to the relevant Lenders) (the “Incremental Commitment Date”). Each relevant Lender that is willing to participate in the requested Incremental Commitment (each an “Increasing Lender”) shall, in its sole discretion, give written notice to the Administrative Agent on or prior to the Incremental Commitment Date of the amount by which it is willing to commit to the Incremental Facility. Any Lender not responding within such time period shall be deemed to have declined to participate in the requested Incremental Commitment. If the relevant Lenders notify the Administrative Agent that they are willing to participate in an Incremental Commitment by an aggregate amount that exceeds the amount of the requested Incremental Commitment, the requested Incremental Commitment shall be allocated among the relevant Lenders willing to participate therein in such amounts as are agreed between the Borrower and the Administrative Agent.
(c) The Promptly following the applicable Incremental Commitment Date, the Administrative Agent shall promptly notify each Lender the Borrower as to the effectiveness of each amount, if any, by which the relevant Lenders are willing to participate in the requested Incremental Term Loan FacilityCommitment. Each If the aggregate amount by which the Lenders are willing to participate in the requested Incremental Commitment on any such Incremental Commitment Date is less than the requested Incremental Commitment, then the Borrower may extend offers to one or more Eligible Assignees to participate in any portion of the parties hereto hereby agrees that, upon requested Incremental Commitment that has not been committed to by the effectiveness of any Incremental Assumption Agreement, this Agreement and the other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms relevant Lenders as of the Incremental Term Commitments evidenced thereby. Any Commitment Date; provided , however , that (i) the Commitment of each such amendment may Eligible Assignee shall be memorialized in writing by an amount equal to at least $1,000,000 and (ii) each such Eligible Assignee shall be subject to the approval of the Administrative Agent with the Borrower’s consent (which approval shall not to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental Term Lenders in respect of such Incremental Term Commitmentswithheld or delayed).
(d) This On the applicable Increase Date, each Eligible Assignee that accepts an offer to participate in a requested Incremental Commitment in accordance with Section 2.23 2.19(c) (each such Eligible Assignee, an “Assuming Lender”) shall supersede anything in Section 10.09 become a Lender Party to this Agreement as of the applicable Increase Date and the Commitment of each Increasing Lender for such Incremental Commitment shall be equal to the contraryamount so committed by such Lender (or by the amount allocated to such Lender pursuant to the last sentence of Section 2.19(b)) as of such Increase Date; provided , however , that the Administrative Agent shall have received on or before the Increase Date the following, each dated such date:
(i) certified copies of resolutions of the board of directors of the Borrower approving the applicable Incremental Commitment and the corresponding modifications to this Agreement;
(ii) an assumption agreement from each Assuming Lender, if any, in form and substance satisfactory to the Borrower and the Administrative Agent (each a “Commitment Assumption Agreement”), duly executed by such Eligible Assignee, the Administrative Agent and each Borrower; and
(iii) confirmation from each Increasing Lender of the increase in the amount of its Commitment in a writing satisfactory to the Borrower and the Administrative Agent; and
(iv) customary legal opinions or other documents from the Borrower as may be reasonably requested by the Administrative Agent in connection with any such transaction. On the applicable Increase Date, upon fulfillment of the conditions set forth in the immediately preceding sentence of this Section 2.19(d), the Administrative Agent shall notify the Lenders (including, without limitation, each Assuming Lender) and the Borrower, on or before 1:00 P.M. (New York City time), by telecopier or telex, of the occurrence of the applicable Incremental Commitment to be effected on the related Increase Date and shall record in the Register the relevant information with respect to each Increasing Lender and each Assuming Lender on such date. On the applicable Increase Date, the Advances under any Incremental Term Facility that is to become part of an outstanding Facility shall bear interest at the Eurodollar Rates and for the remainder of the Interest Periods that are then applicable to such outstanding Facility in order to ensure that each Lender under such Facility, after giving effect to the Incremental Term Commitments, is entitled to a ratable share of all interest payments due under such Facility on the same dates.
Appears in 1 contract
Samples: Credit Agreement (Polycom Inc)
Incremental Term Facilities. (a) The Borrower mayCompany may on one or more occasions, by written notice to the Agent from time to time and on one or more occasionsAdministrative Agent, request the establishment of Incremental Term Commitments, in an provided that the aggregate principal amount not to exceed of all the Incremental Term Loan Amount at Commitments established hereunder shall not exceed $100,000,000 during the term of this Agreement. Each such timenotice shall specify (i) the date on which the Company proposes that the Incremental Term Commitments shall be effective, from one which shall be a date not less than 10 Business Days (or more financial institutions such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, and (which ii) the amount of Incremental Term Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Term Commitment may include any existing Lender elect or decline, in such Lender’s its sole discretion) that would be Eligible Assignees pursuant to Section 10.03(b) (other than Holdings or any of its subsidiaries or Affiliates or any Affiliate Lender) willing , to provide such Incremental Term Loans. Each such notice shall set forth Commitment and (iy) any Person that the amount of the Incremental Term Commitments being requested, (ii) the date on which such Incremental Term Commitments are requested Company proposes to become effective (the “Increased Amount Date”)an Incremental Lender, and (iii) whether if such Incremental Term Commitments are to be the same as the existing Commitments or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans (the “Other Term Loans”). Each tranche of Incremental Term Loans shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that Person is not less than $25,000,000; provided that such amount may then a Lender, must be less than $25,000,000 if such amount represents all the remaining availability under the Incremental Term Loan Amount outstanding at such time. Notwithstanding anything an Eligible Assignee and must be reasonably acceptable to the contrary herein, the Borrower may request Incremental Term Commitments and may incur Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeem, repurchase or otherwise discharge all or a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses (including tender premiumAdministrative Agent).
(b) The Borrower terms and each conditions of any Incremental Term Lender shall execute Commitments and deliver to the Agent an agreement (an “Incremental Assumption Agreement”) and such other documentation as the Agent shall reasonably request to evidence the Incremental Term Commitment of such Incremental Term LenderLoans to be made thereunder shall be, except as otherwise set forth herein or in each case in form and substance reasonably satisfactory to the Agent. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Facility Agreement, identical to those of the Tranche B Term Commitments and the Tranche B Term Loans; provided that (i) if the Weighted Average Yield applicable to any Incremental Term Loans exceeds by more than 0.25% per annum the applicable Weighted Average Yield payable pursuant to the terms of this Agreement, as amended through the date of such calculation, with respect to Tranche B Term Loans, then the Applicable Rate then in effect for Tranche B Term Loans shall automatically be increased to eliminate such excess, (ii) no existing Lender will Incremental Term Maturity Date shall be required earlier than the Tranche B Term Maturity Date, (iii) the weighted average life to maturity of any Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of the Tranche B Term Loans and (iv) the Incremental Term Loans may participate on a pro rata basis (or on a basis that is less than pro rata) in any mandatory prepayments of the Tranche B Term Loans, but may not provide for mandatory prepayment requirements that are more favorable than those applicable to the Tranche B Term Loans. Any Incremental Term Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement.
(c) The Incremental Term Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Company, each Incremental Lender providing such Incremental Term Loan Facility without its consentCommitments and the Administrative Agent; provided that no Incremental Term Commitments shall become effective unless (i) on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Term Commitments (and assuming that the full amount of such Incremental Term Commitments shall have been funded as Loans on such date), no Default shall have occurred and be continuing, (ii) on the date of effectiveness of any Incremental Term Commitment thereof, and after giving effect to the making of Loans to be made on such Incremental Term Loansdate, the representations and warranties of each of the conditions Loan Party set forth in Sections 4.02(b) and 4.02(c) the Loan Documents shall be satisfiedtrue and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) after giving effect to such Incremental Term Commitments (and assuming that the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date of the Initial Term Loans and the weighted average life to maturity full amount of such Incremental Term Loan Facility Commitments shall have been funded as Loans on such date), and any related transaction, the Company shall be not shorter than the then remaining weighted average life to maturity of the Initial Term Loans, (iv) the Borrower is in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Term Loan Facility Compliance (and after giving effect to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment events), with the covenant set forth in Section 6.11 recomputed calculated as of the last day of the fiscal quarter of the Company then most recently ended fiscal quarter of Holdco for which financial statements are required to have been delivered pursuant to Section 5.015.01(a) or 5.01(b) (or prior to the first such delivery, (v) each Incremental Term Loan Facility will have as of April 28, 2012 ), provided that, for purposes of the same guarantees as, and be secured on a pari passu basis by the same Collateral securingforegoing, the Initial Term Loan Facility, (vi) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable to any Incremental Term Loan Facility Senior Secured Indebtedness shall be determined on a Pro Forma Basis as of the date of the effectiveness thereof) and (iv) the Company shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates, reaffirmation agreement and other documents as shall reasonably be requested by the Borrower and Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the applicable Incremental Term Lenders; provided, that if the total yield (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount (in each case, equated to the interest rate based upon an assumed four-year life to maturity or, if shorter, the remaining life to maturity of the Initial Term Loan Facility) and any interest rate floor payable to the arrangers providing such Incremental Term Loan Facility in the initial primary syndication thereof but excluding any arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to such arrangers) consent of any Incremental Term Loan Facility exceeds the total yield (consistently determined) on the Initial Term Loan Facility by more than 50 basis pointsLender, then the applicable margins for the Initial Term Loan Facility shall be increased effect such amendments to the extent necessary so that the total yield (consistently determined) on the Initial Term Loan Facility is 50 basis points less than the total yield (consistently determined) on such Incremental Term Loan Facility (provided, that, if the Adjusted LIBO Rate or the Alternate Base Rate in respect of such Incremental Term Loan Facility includes a floor greater than the floor applicable to the Initial Term Loan Facility, then such excess amount shall be equated to interest rate for purposes of determining the total yield under such Incremental Term Loan Facility), and (vii) each Incremental Term Loan Facility shall be on terms and pursuant to documentation to be mutually agreed; provided, that to the extent such terms and documentation are not consistent with the Initial Term Loan Facility (except to the extent permitted above), such terms and documentation shall be reasonably satisfactory to the Agent.
(c) The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Facility. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and the other Loan Documents shall as may be amended necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the extent (but only to the extent) necessary to reflect the existence and terms provisions of the Incremental Term Commitments evidenced thereby. Any such amendment may be memorialized in writing by the Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental Term Lenders in respect of such Incremental Term Commitmentsthis Section.
(d) This Section 2.23 Upon the effectiveness of an Incremental Term Commitment of any Incremental Lender, such Incremental Lender shall supersede anything be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents.
(e) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Company in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(f) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Company referred to in Section 10.09 to 2.18(a) and of the contraryeffectiveness of any Incremental Term Commitments, in each case advising the Lenders of the details thereof.
Appears in 1 contract
Incremental Term Facilities. (ai) The With the prior written consent of the Administrative Agent, the Borrower may, by written notice to the Agent from time to time and on any one or more occasions, request Incremental Lenders (including New Term Commitments, in an aggregate principal amount not to exceed Lenders) may agree that such Lenders shall make incremental term loans (the Incremental Term Loan Amount at such time, from one or more financial institutions (which may include any existing Lender in such Lender’s sole discretion) that would be Eligible Assignees pursuant to Section 10.03(b) (other than Holdings or any of its subsidiaries or Affiliates or any Affiliate Lender) willing to provide such “Incremental Term Loans. Each such notice shall set forth (i”) the amount of the Incremental Term Commitments being requested, (ii) the date on which such Incremental Term Commitments are requested to become effective (the “Increased Amount Date”), by executing and (iii) whether such Incremental Term Commitments are to be the same as the existing Commitments or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans (the “Other Term Loans”). Each tranche of Incremental Term Loans shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000; provided that such amount may be less than $25,000,000 if such amount represents all the remaining availability under the Incremental Term Loan Amount outstanding at such time. Notwithstanding anything delivering to the contrary herein, the Borrower may request Incremental Term Commitments and may incur Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeem, repurchase or otherwise discharge all or Administrative Agent a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses notice (including tender premium).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Agent an agreement (an “Incremental Assumption Agreement”) and such other documentation as the Agent shall reasonably request to evidence the Incremental Term Commitment of such Incremental Term Lender, in each case in form and substance reasonably satisfactory to the Administrative Agent. Each Incremental Assumption Agreement shall specify ) specifying (A) the terms amount of the applicable Incremental Term Loans; provided that , (iB) no existing Lender will be required to participate in any such the applicable closing date for the Incremental Term Loans (each an “Incremental Term Loan Facility without its consentClosing Date”), (iiC) on the applicable maturity date of effectiveness of any for the Incremental Term Commitment Loans (which in any event shall not be earlier than the Revolving Maturity Date), (D) the amortization schedule for the Incremental Term Loans, (E) the Applicable Margin and other pricing terms for the Incremental Term Loans and (F) the other terms and conditions of the Incremental Term Loans, which, in each case, shall be reasonably acceptable to the Administrative Agent. The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Loans and after giving effect to the making issuance of such the Incremental Term Loans, each of the conditions set forth in Sections 4.02(b) and 4.02(c) shall be satisfied, (iii) Revolving Commitments plus the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date of the Initial Term Loans and the weighted average life to maturity of such Incremental Term Loan Facility shall be not shorter than the then remaining weighted average life to maturity of the Initial Term Loans, plus, the outstanding Replacement Term Loans (iv) the Borrower is in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Term Loan Facility (and after giving effect to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment events), with replacement thereof) do not exceed the covenant set forth Borrowing Base then in Section 6.11 recomputed as effect. No Lender shall have any obligation to participate in the making of the last day of the most recently ended fiscal quarter of Holdco for which financial statements are required to have been delivered pursuant to Section 5.01, (v) each any Incremental Term Loan Facility will have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, the Initial Term Loan Facility, (vi) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable Loans unless it agrees to do so in its sole discretion. With respect to any Incremental Term Loan Facility shall be determined by Loans incurred after the Borrower and the applicable Incremental initial Replacement Term Lenders; provided, that if the total yield (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount (in each case, equated to the interest rate based upon an assumed four-year life to maturity or, if shorterLoans Closing Date, the remaining life Effective Yield applicable to maturity of the Initial Term Loan Facility) and any interest rate floor payable to the arrangers providing such Incremental Term Loan Facility in Loans will not be more than 0.50% higher than the initial primary syndication thereof but excluding corresponding Effective Yield on the Term Loans then outstanding (calculated for both the Incremental Term Loans and the Term Loans then outstanding inclusive of any arrangementoriginal issue discount, commitment, structuring and underwriting upfront fees and any amendment fees paid or Adjusted LIBO Rate floors, payable to such arrangers) of any Incremental all applicable Term Loan Facility exceeds Lenders), unless the total yield (consistently determined) on the Initial Term Loan Facility by more than 50 basis points, then the applicable margins for the Initial Term Loan Facility shall be increased Effective Yield with respect to the extent necessary so that Term Loans then outstanding is increased by an amount equal to the total yield (consistently determined) on difference between the Initial Term Loan Facility is 50 basis points less than the total yield (consistently determined) on Effective Yield with respect to such Incremental Term Loan Facility Loans and the corresponding Effective Yield on the existing Term Loans, minus 0.50%. With respect to the Revolving Commitments, the Effective Yield applicable to the Revolving Commitments will not be more than 0.50% higher than the corresponding Effective Yield on the Term Loans then outstanding (providedcalculated for both the Term Loans then outstanding and the Revolving Commitments then existing inclusive of any original issue discount, that, if the upfront fees and Adjusted LIBO Rate or floors, payable to all Term Lenders and all Revolving Lenders, respectively), unless the Alternate Base Rate in Effective Yield with respect of such Incremental Term Loan Facility includes a floor greater than the floor applicable to the Initial Term Loan Facility, Loans then such excess outstanding is increased by an amount shall be equated to interest rate for purposes of determining the total yield under such Incremental Term Loan Facility), and (vii) each Incremental Term Loan Facility shall be on terms and pursuant to documentation to be mutually agreed; provided, that equal to the extent difference between the Effective Yield with respect to such terms Revolving Commitments and documentation are not consistent with the Initial corresponding Effective Yield on the existing Term Loan Facility (except to the extent permitted above)Loans, such terms and documentation shall be reasonably satisfactory to the Agentminus 0.50%.
(cii) The Agent Any additional bank, financial institution or other entity which, with the consent of the Borrower (which consent shall promptly notify each not be unreasonably withheld) and the Administrative Agent, elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.03(c) shall execute a Lender as Certificate whereupon such New Term Lender shall become a Lender for all purposes and to the effectiveness same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(iii) Notwithstanding anything to the contrary in this Agreement, each Incremental Term Loan Facility. Each of the parties hereto hereby agrees that, upon the effectiveness of on any Incremental Assumption AgreementTerm Loan Closing Date, this Agreement and the other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Commitments evidenced therebyLoans being made on such Incremental Term Loan Closing Date. Any such deemed amendment may be memorialized effected in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental Term Lenders in respect of such Incremental Term Commitmentshereto.
(d) This Section 2.23 shall supersede anything in Section 10.09 to the contrary.
Appears in 1 contract
Incremental Term Facilities. (a) The Borrower maymay on one or more occasions, by written notice to the Agent from time to time and on one or more occasionsAdministrative Agent, request the establishment of Incremental Term Loan Commitments, in an provided that the aggregate principal amount not to exceed of all the Incremental Term Loan Commitments established hereunder on any date shall not exceed the Incremental Amount at as of such time, from one or more financial institutions (which may include any existing Lender in such Lender’s sole discretion) that would be Eligible Assignees pursuant to Section 10.03(b) (other than Holdings or any of its subsidiaries or Affiliates or any Affiliate Lender) willing to provide such Incremental Term Loansdate. Each such notice shall set forth specify (iA) the date on which the Borrower proposes that the Incremental Term Loan Commitments shall be effective and (B) the amount of the Incremental Term Loan Commitments being requestedrequested (it being agreed that (x) any Lender approached to provide any Incremental Term Loan Commitment may elect or decline, (ii) the date on which in its sole discretion, to provide such Incremental Term Commitments are requested Loan Commitment and (y) any Person that the Borrower proposes to become effective (an Incremental Lender must be an Eligible Assignee and, solely if such approval would be required under Section 10.6 for an assignment of Loans or Commitments of the “Increased Amount Date”), and (iii) whether applicable Class to such Incremental Term Commitments are Lender, must be approved by the Administrative Agent (such approval not to be the same as the existing Commitments unreasonably withheld, conditioned or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans (the “Other Term Loans”delayed). Each tranche of Incremental Term Loans shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000; provided that such amount may be less than $25,000,000 if such amount represents all the remaining availability under the Incremental Term Loan Amount outstanding at such time. Notwithstanding anything to the contrary herein, the Borrower may request Incremental Term Commitments and may incur Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeem, repurchase or otherwise discharge all or a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses (including tender premium).
(b) The Borrower terms and each conditions of any Incremental Term Lender shall execute Loan Commitments and deliver to the Agent an agreement (an “Incremental Assumption Agreement”) and such other documentation as the Agent shall reasonably request to evidence the Incremental Term Commitment of such Incremental Term Lender, Loans to be made thereunder shall be as set forth in each case in form and substance reasonably satisfactory to the Agent. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansFacility Agreement; provided that (i) no existing Lender will be required to participate in any such Incremental Term Loan Facility without its consent, (ii) Maturity Date shall be earlier than the latest Maturity Date in effect on the date of effectiveness of any Incremental Term Commitment and after giving effect to the making incurrence of such Incremental Term Loans, each of the conditions set forth in Sections 4.02(b(ii) and 4.02(c) shall be satisfied, (iii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date of the Initial Term Loans and the weighted average life to maturity of such any Incremental Term Loan Facility Loans shall be not no shorter than the then longest remaining weighted average life to maturity of any other Class of Loans outstanding on the Initial date of incurrence of such Incremental Term LoansLoans (and, (iv) for purposes of determining the Borrower is in compliance, on a Pro Forma Basis after giving effect weighted average life to the incurrence maturity of any such Incremental Term Loan Facility (and after giving effect other Class of Loans, the effects of any prepayments made prior to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment eventsthe date of the determination shall be disregarded), with the covenant set forth in Section 6.11 recomputed as of the last day of the most recently ended fiscal quarter of Holdco for which financial statements are required it being understood that, subject to have been delivered pursuant to Section 5.01, this clause (v) each Incremental Term Loan Facility will have the same guarantees as, and be secured on a pari passu basis by the same Collateral securingii), the Initial Term Loan Facility, (vi) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable to (and the effect thereon of any prepayments of) any Incremental Term Loan Facility Loans shall be determined by the Borrower and the applicable Incremental Lenders, (iii) Incremental Term Lenders; providedLoans may participate in any mandatory prepayments hereunder on a pro rata basis (or on a basis that is less than pro rata) with the other Loans, but may not provide for mandatory prepayment requirements that if are more favorable than those applicable to the total yield other Loans, (which shalliv) any Incremental Term Loan Commitments and any Loans thereunder shall rank pari passu in right of payment, and shall be secured by the Collateral on an equal and ratable basis, with the other Commitments and Loans, and shall be extensions of credit to the Borrower that are Guaranteed only by the Credit Parties, (v) the Effective Yield with respect to any Incremental Term Loans (other than MFN Adjustment Excluded Indebtedness), determined as of the date of incurrence of such Incremental Term Loans, shall not be greater than the Effective Yield with respect to the Tranche B Term Loans, determined as of such date (giving effect to any amendments to the Effective Yield on the Tranche B Term Loans that became effective subsequent to the Closing Date but prior to such date, but excluding the effect of any increase in the Effective Yield thereon pursuant to this clause (v)), plus 50 basis points per annum unless the Applicable Rate (together with, as provided in the proviso below, the Adjusted Eurodollar RateTerm SOFR and Base Rate floors) with respect to the Tranche B Term Loans is increased, or fees to Lenders then holding the Tranche B Term Loans are paid, so as to cause the Effective Yield with respect to the Tranche B Term Loans to equal the Effective Yield with respect to such Incremental Term Loans minus 50 basis points, provided that any increase in the Effective Yield with respect to the Tranche B Term Loans due to the application of an Adjusted Eurodollar RateTerm SOFR or Base Rate floor to any Incremental Term Loans shall be effected solely through an increase in the Adjusted Eurodollar RateTerm SOFR or Base Rate floor applicable to the Tranche B Term Loans (this clause (v), the “MFN Adjustment”), and (vi) except for such purposes onlythe terms referred to above and subject to Section 2.23(c), be deemed the terms of any Incremental Term Loans (for the avoidance of doubt, other than with respect to include all upfront Effective Yield and components thereof, fees, prepayment terms (including “no call” terms and other restrictions thereon) and premiums) shall satisfy the Specified Permitted Indebtedness Documentation Requirements. In the event any Incremental Term Loans have the same terms as any existing Class of Loans then outstanding or similar fees any Extended/Modified Term Loans or original issue discount Refinancing Term Loans then substantially concurrently established (in each case, equated to disregarding any differences in original issue discount or upfront fees if not affecting the interest rate based upon an assumed four-year life to maturity orfungibility thereof for US federal income tax purposes), if shorter, the remaining life to maturity of the Initial Term Loan Facility) and any interest rate floor payable to the arrangers providing such Incremental Term Loan Facility Loans may, at the election of the Borrower, be treated as a single Class with such outstanding Term Loans or such Extended/Modified Term Loans or Refinancing Term Loans, and the scheduled Installments set forth in Section 2.11 with respect to any such Class of Loans may be increased, without the initial primary syndication thereof but excluding consent of the Majority in Interest of such Class or any arrangementLender of such Class, commitment, structuring and underwriting fees and any amendment fees paid or payable to such arrangers) of any Incremental Term Loan Facility exceeds the total yield (consistently determined) on the Initial Term Loan Facility by more than 50 basis points, then the applicable margins for the Initial Term Loan Facility shall be increased to the extent necessary so that the total yield (consistently determined) on the Initial Term Loan Facility is 50 basis points less than the total yield (consistently determined) on such Incremental Term Loan Facility (provided, that, if the Adjusted LIBO Rate or the Alternate Base Rate in respect reflect scheduled amortization of such Incremental Term Loan Facility includes a floor greater than the floor applicable to the Initial Term Loan Facility, then such excess amount shall be equated to interest rate for purposes of determining the total yield under such Incremental Term Loan Facility), and (vii) each Incremental Term Loan Facility shall be on terms and pursuant to documentation to be mutually agreed; provided, that to the extent such terms and documentation are not consistent with the Initial Term Loan Facility (except to the extent permitted above), such terms and documentation shall be reasonably satisfactory to the AgentLoans.
(c) The Incremental Term Loan Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Term Loan Commitments and the Administrative Agent; provided that no Incremental Term Loan Commitments shall become effective unless (i) on the date of effectiveness thereof, after giving Pro Forma Effect to such Incremental Term Loan Commitments, the making of Loans thereunder and the use of proceeds thereof, (x) no Event of Default shall have occurred and be continuing or would result therefrom and (y) the representations and warranties of each Credit Party set forth in the Credit Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects, and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, provided that in the case of Incremental Term Loan Commitments established to finance, in whole or in part, a Limited Conditionality Transaction, the conditions set forth in this clause (i) may be tested in accordance with Section 1.2(e) and/or may be modified in a manner customary for “SunGard” limited condition transactions, in each case as agreed by the Borrower and the Incremental Lenders providing such Incremental Term Loan Commitment and set forth in the applicable Incremental Facility Agreement, (ii) the Administrative Agent shall promptly notify each Lender have received a certificate, dated the date of effectiveness thereof and signed by an Authorized Officer of the Borrower, confirming compliance with the conditions set forth in clause (i) above (as may be modified as described in such clause) and, if such Incremental Term Loan Commitments or any portion thereof are being established in reliance on clause (b) of the definition of the term “Incremental Amount”, setting forth a reasonably detailed calculation of the Incremental Amount under such clause, (iii) the Borrower shall make any payments required to be made pursuant to Section 2.17(c) in connection with such Incremental Term Loan Commitments and the related transactions under this Section 2.23 and (iv) the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates, reaffirmation agreements and other documents as shall reasonably be requested (consistent in all material respects with the documents delivered under Section 3.1 on the Closing Date) by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent and the Borrower, to give effect to the provisions of this Section 2.23, including any amendments necessary to treat the applicable Incremental Term Loan Commitments and Incremental Term Loans as a new Class of Commitments and Loans hereunder (including for purposes of prepayments and voting (it being agreed that such new Class of Commitments and Loans may be included in the definitions of “Majority in Interest”, “Pro Rata Share” and “Requisite Lenders” and may be afforded class voting rights requiring the consent of Lenders under such Class in addition to any other consent of Lenders that might otherwise be required under Section 10.5) and to enable such new Class of Commitments and Loans to be extended under Section 2.24 or refinanced under Section 2.25).
(d) Upon the effectiveness of an Incremental Term Loan Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Credit Documents.
(e) [Reserved].
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Incremental Term Lender holding an Incremental Term Loan Facility. Each Commitment of any Class shall make a Loan to the parties hereto hereby agrees that, Borrower in an amount equal to such Incremental Term Loan Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.23(a) and of the effectiveness of any Incremental Assumption AgreementTerm Loan Commitments, this Agreement and in each case advising the other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms Lenders of the Incremental Term Commitments evidenced thereby. Any such amendment may be memorialized in writing by the Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental Term Lenders in respect of such Incremental Term Commitmentsdetails thereof.
(d) This Section 2.23 shall supersede anything in Section 10.09 to the contrary.
Appears in 1 contract
Incremental Term Facilities. (a) The Borrower may, by written notice to the Agent at any time and from time to time after the Closing Date and on prior to the Term Facility Maturity Date, by notice to the Administrative Agent, request (x) the addition of one or more occasions, request new term loan facilities or an increase in the Term Commitments (each of such commitment increases and any such new term loan facility being an “Incremental Term CommitmentsFacility” and the commitment of any lender with respect to any Incremental Term Facility being an “Incremental Term Commitment”) to be effective as of a date (the “Increase Date”) specified in the related notice to the Administrative Agent; provided, in an however, that (i) after giving effect to the incurrence of such Indebtedness, either (A) the aggregate principal amount of all Indebtedness incurred under this Section 2.19 and then outstanding does not to exceed the Incremental Term Loan Amount at such time, from one $400,000,000 or more financial institutions (which may include any existing Lender in such Lender’s sole discretion) that would be Eligible Assignees pursuant to Section 10.03(b) (other than Holdings or any of its subsidiaries or Affiliates or any Affiliate Lender) willing to provide such Incremental Term Loans. Each such notice shall set forth (iB) the amount of the Incremental Term Commitments being requested, Consolidated Secured Leverage Ratio calculated on a Pro Forma Basis would not exceed 2.50 to 1.0; (ii) the date on which such each Incremental Term Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Commitments are to be the same as the existing Commitments or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans (the “Other Term Loans”). Each tranche of Incremental Term Loans Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000; provided that (iii) no more than 4 such amount requests may be less than $25,000,000 if such amount represents all the remaining availability under made pursuant to this Section 2.19 in respect of the Incremental Term Loan Amount outstanding at such time. Notwithstanding anything to the contrary herein, the Borrower may request Incremental Term Commitments and may incur Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeem, repurchase or otherwise discharge all or a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses Facilities; (including tender premium).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Agent an agreement (an “Incremental Assumption Agreement”) and such other documentation as the Agent shall reasonably request to evidence the Incremental Term Commitment of such Incremental Term Lender, in each case in form and substance reasonably satisfactory to the Agent. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) no existing Lender will be required to participate in any such Incremental Term Loan Facility without its consent, (iiiv) on the date of effectiveness of any request by the Borrower for an Incremental Term Commitment and after giving effect to on the making of such Incremental Term Loansrelated Increase Date, each of the applicable conditions set forth in Sections 4.02(bSection 3.02 and in clause (d) and 4.02(c) of this Section 2.19 shall be satisfied, ; (iiiv) the any Incremental Term Facility shall have a final maturity date of any Other Term Loans shall be no earlier than the Term Facility Maturity Date of the Initial Term Loans and the weighted average life to maturity of such any Incremental Term Loan Facility shall be not no shorter than the then remaining weighted average life to maturity of the Initial Term Loans, (iv) the Borrower is in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Term Loan Facility (and after giving effect to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment events), with the covenant set forth in Section 6.11 recomputed as of the last day of the most recently ended fiscal quarter of Holdco for which financial statements are required to have been delivered pursuant to Section 5.01, (v) each Incremental Term Loan Facility will have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, the Initial Term Loan Facility, ; (vi) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable to any Incremental Term Loan Facility shall be bear interest at a rate per annum as determined by the Borrower and the applicable Incremental Term Lenders; provided, that if the total yield (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount (in each case, equated to the interest rate based upon an assumed four-year life to maturity or, if shorter, the remaining life to maturity of the Initial Term Loan Facility) and any interest rate floor payable to the arrangers providing lenders under such Incremental Term Loan Facility Facility; provided that in the initial primary syndication thereof but excluding event that the Applicable Rate for any arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to such arrangers) of Advances under any Incremental Term Loan Facility exceeds the total yield (consistently determined) on the Initial Term Loan Facility by is more than 50 basis pointspoints greater than the Applicable Rate for the Term Advances then in effect, then the applicable margins Applicable Rate for the Initial Term Loan Facility Advances shall be increased to the extent necessary so that the total yield (consistently determined) on Applicable Rate for any Advances under the Initial Incremental Term Loan Facility is no more than 50 basis points less than the total yield (consistently determined) on such Incremental Term Loan Facility (provided, that, if the Adjusted LIBO Rate or the Alternate Base Rate in respect of such Incremental Term Loan Facility includes a floor greater than the floor Applicable Rate for the Term Advances then in effect; provided further that in determining the Applicable Rate applicable to the Initial Term Loan Advances, and any Advances under the Incremental Term Facility, then such excess amount (x) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders in the primary syndication thereof shall be included (with OID being equated to interest rate for purposes based on an assumed four-year life to maturity) and (y) customary arrangement or commitment fees payable to the Joint Lead Arrangers (or their respective affiliates) or to one or more arrangers (or their affiliates) of determining the total yield under such Incremental Term Loan Facility), and loans shall be excluded; (vii) the Term Lenders shall initially have the right, but not the obligation, to commit to up to their pro rata portion of any Incremental Term Facility; (viii) each Incremental Term Loan Facility shall may be secured by either a pari passu or junior lien on the Collateral securing the Facilities in each case on terms and pursuant satisfactory to documentation to be mutually agreedthe Administrative Agent; provided, that (ix) to the extent such the terms and documentation of any Incremental Term Facility are not consistent with the Initial Term Loan Facility Facilities (except to the extent permitted by clause (v) or (vi) above), such terms and documentation they shall be reasonably satisfactory to the Administrative Agent; and (x) the Loan Documents may be amended by the Administrative Agent, the Loan Parties and the Term Lenders providing an Incremental Term Facility, to the extent necessary to evidence such Incremental Term Facility consistent with this Section 2.19(a), without the consent of any other Lender Party.
(b) The Administrative Agent shall promptly notify the Term Lenders of a request by the Borrower for an Incremental Term Facility, which notice shall include (i) the proposed amount of such requested Incremental Term Commitment, (ii) the proposed Increase Date and (iii) the date by which the relevant Lenders wishing to participate in the Incremental Term Commitment must commit to an increase in the amount of their respective Commitments (which shall in no event be less than ten Business Days from the date of delivery of such notice to the relevant Lenders) (the “Incremental Term Commitment Date”). Each relevant Lender that is willing to participate in the requested Incremental Commitment (each an “Increasing Lender”) shall, in its sole discretion, give written notice to the Administrative Agent on or prior to the Incremental Term Commitment Date of the amount by which it is willing to commit to the Incremental Term Facility. Any Lender not responding within such time period shall be deemed to have declined to participate in the requested Incremental Term Commitment. If the relevant Lenders notify the Administrative Agent that they are willing to participate in an Incremental Commitment by an aggregate amount that exceeds the amount of the requested Incremental Commitment, the requested Incremental Term Commitment shall be allocated among the relevant Lenders willing to participate therein in such amounts as are agreed between the Borrower and the Administrative Agent.
(c) The Promptly following the applicable Incremental Term Commitment Date, the Administrative Agent shall promptly notify each Lender the Borrower as to the effectiveness of each amount, if any, by which the relevant Lenders are willing to participate in the requested Incremental Term Loan FacilityCommitment. Each If the aggregate amount by which the Lenders are willing to participate in the requested Incremental Term Commitment on any such Incremental Term Commitment Date is less than the requested Incremental Term Commitment, then the Borrower may extend offers to one or more Eligible Assignees to participate in any portion of the parties hereto hereby agrees that, upon requested Incremental Term Commitment that has not been committed to by the effectiveness of any Incremental Assumption Agreement, this Agreement and the other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms relevant Lenders as of the Incremental Term Commitments evidenced thereby. Any Commitment Date; provided, however, that (i) the Commitment of each such amendment may Eligible Assignee shall be memorialized in writing by an amount equal to at least $1,000,000 and (ii) each such Eligible Assignee shall be subject to the approval of the Administrative Agent with the Borrower’s consent (which approval shall not to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental Term Lenders in respect of such Incremental Term Commitmentswithheld or delayed).
(d) This On the applicable Increase Date, each Eligible Assignee that accepts an offer to participate in a requested Incremental Term Commitment in accordance with Section 2.23 2.19(c) (each such Eligible Assignee, an “Assuming Lender”) shall supersede anything in Section 10.09 become a Lender Party to this Agreement as of the applicable Increase Date and the Commitment of each Increasing Lender for such Incremental Term Commitment shall be so increased by such amount (or by the amount allocated to such Lender pursuant to the contrarylast sentence of Section 2.19(b)) as of such Increase Date; provided, however, that the Administrative Agent shall have received on or before the Increase Date the following, each dated such date:
(i) certified copies of resolutions of the board of directors of the Borrower approving the applicable Incremental Term Commitment and the corresponding modifications to this Agreement;
(ii) an assumption agreement from each Assuming Lender, if any, in form and substance satisfactory to the Borrower and the Administrative Agent (each a “Commitment Assumption Agreement”), duly executed by such Eligible Assignee, the Administrative Agent and each Borrower; and
(iii) confirmation from each Increasing Lender of the increase in the amount of its Commitment in a writing satisfactory to the Borrower and the Administrative Agent. On the applicable Increase Date, upon fulfillment of the conditions set forth in the immediately preceding sentence of this Section 2.19(d), the Administrative Agent shall notify the Lenders (including, without limitation, each Assuming Lender) and the Borrower, on or before 1:00 P.M. (New York City time), by telecopier or telex, of the occurrence of the applicable Incremental Term Commitment to be effected on the related Increase Date and shall record in the Register the relevant information with respect to each Increasing Lender and each Assuming Lender on such date. On the applicable Increase Date, the Advances under any Incremental Term Facility that is to become part of an outstanding Facility shall bear interest at the Eurodollar Rates and for the remainder of the Interest Periods that are then applicable to such outstanding Facility in order to ensure that each Lender under such Facility, after giving effect to the Incremental Term Commitments, is entitled to a ratable share of all interest payments due under such Facility on the same dates.
Appears in 1 contract
Samples: Credit Agreement (Neustar Inc)
Incremental Term Facilities. (a) The Borrower maymay on one or more occasions, by written notice to the Agent from time to time and on one or more occasionsAdministrative Agent, request the establishment of Incremental Term Commitments, provided that the aggregate amount of all the Incremental Term Commitments (other than Incremental Term Commitments in an respect of Refinancing Term Loans) established hereunder when aggregated with the aggregate principal amount of Incremental Equivalent Debt shall not to exceed the Maximum Incremental Amount. Each such notice shall specify (i) the date on which the Borrower proposes that the Incremental Term Loan Amount at Commitments shall be effective, which shall be a date not less than 5 Business Days (or such timeshorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, from one and (ii) the amount of Incremental Term Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Term Commitment may elect or more financial institutions (which may include any existing Lender decline, in such Lender’s its sole discretion) that would be Eligible Assignees pursuant to Section 10.03(b) (other than Holdings or any of its subsidiaries or Affiliates or any Affiliate Lender) willing , to provide such Incremental Term Loans. Each such notice shall set forth Commitment and (iy) any Person that the amount of the Incremental Term Commitments being requested, (ii) the date on which such Incremental Term Commitments are requested Borrower proposes to become effective (the “Increased Amount Date”)an Incremental Lender, and (iii) whether if such Incremental Term Commitments are to be the same as the existing Commitments or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans (the “Other Term Loans”). Each tranche of Incremental Term Loans shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that Person is not less than $25,000,000; provided that such amount may then a Lender, must be less than $25,000,000 if such amount represents all the remaining availability under the Incremental Term Loan Amount outstanding at such time. Notwithstanding anything an Eligible Assignee and must be reasonably acceptable to the contrary herein, the Borrower may request Incremental Term Commitments and may incur Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeem, repurchase or otherwise discharge all or a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses (including tender premiumAdministrative Agent).
(b) The Borrower terms and each conditions of any Incremental Term Lender shall execute Commitments and deliver to the Agent an agreement (an “Incremental Assumption Agreement”) and such other documentation as the Agent shall reasonably request to evidence the Incremental Term Commitment of such Incremental Term LenderLoans to be made thereunder shall be, except as otherwise set forth herein or in each case in form and substance reasonably satisfactory to the Agent. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Facility Agreement, identical to those of the Tranche B-2 Term Loans; provided that (i) no existing Lender will if the All-in Yield for any Incremental Term Loans (other than Refinancing Term Loans) exceeds the All-in Yield for the Tranche B-2 Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Rate for the Tranche B-2 Term Loans shall automatically be required to participate in any increased by the Yield Differential, effective upon the making of such Incremental Term Loans, (ii) no Incremental Term Maturity Date shall be earlier than the Tranche B-2 Term Maturity Date, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Tranche B-2 Term Loans, (iv) the Incremental Term Loans may participate on a pro rata basis (or on a basis that is less than pro rata) in any mandatory prepayments of the Tranche B-2 Term Loans but may not provide for mandatory prepayment requirements that are more favorable than those applicable to the Tranche B-2 Term Loans, (vi) the Incremental Term Loans will rank pari passu in right of payment and with respect to security with the Tranche B-2 Term Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party and (vii) to the extent the terms of the Incremental Term Loans are inconsistent with the terms of the Tranche B-2 Term Loans (except as set forth in clauses (i), (ii) and (iii) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Term Commitments established pursuant to an Incremental Facility without its consentAgreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate Series of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement unless intended to constitute an increase in any previously established Class of Loans.
(c) The Incremental Term Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Loan Parties, each Incremental Lender providing such Incremental Term Commitments and the Administrative Agent; provided that no Incremental Term Commitments shall become effective unless (i) on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Term Commitments (and assuming that the full amount of such Incremental Term Commitments shall have been funded as Loans on such date), no Default or Event of Default shall have occurred and be continuing, (ii) on the date of effectiveness of any Incremental Term Commitment thereof, and after giving effect to the making of Loans to be made on such date, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date; provided that if the proceeds of such Incremental Term LoansLoans are being used to finance a Permitted Acquisition, each only the accuracy of the conditions set forth in Sections 4.02(b) and 4.02(c) Specified Representations shall be satisfied, conditions precedent to the incurrence of such Incremental Term Loans and (iii) the final maturity date Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates, reaffirmation agreement and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Other Term Loans shall be no earlier than the Maturity Date of the Initial Term Loans and the weighted average life Lender, effect such amendments to maturity of such Incremental Term Loan Facility shall be not shorter than the then remaining weighted average life to maturity of the Initial Term Loans, (iv) the Borrower is in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Term Loan Facility (and after giving effect to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment events), with the covenant set forth in Section 6.11 recomputed as of the last day of the most recently ended fiscal quarter of Holdco for which financial statements are required to have been delivered pursuant to Section 5.01, (v) each Incremental Term Loan Facility will have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, the Initial Term Loan Facility, (vi) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable to any Incremental Term Loan Facility shall be determined by the Borrower and the applicable Incremental Term Lenders; provided, that if the total yield (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount (in each case, equated to the interest rate based upon an assumed four-year life to maturity or, if shorter, the remaining life to maturity of the Initial Term Loan Facility) and any interest rate floor payable to the arrangers providing such Incremental Term Loan Facility in the initial primary syndication thereof but excluding any arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to such arrangers) of any Incremental Term Loan Facility exceeds the total yield (consistently determined) on the Initial Term Loan Facility by more than 50 basis points, then the applicable margins for the Initial Term Loan Facility shall be increased to the extent necessary so that the total yield (consistently determined) on the Initial Term Loan Facility is 50 basis points less than the total yield (consistently determined) on such Incremental Term Loan Facility (provided, that, if the Adjusted LIBO Rate or the Alternate Base Rate in respect of such Incremental Term Loan Facility includes a floor greater than the floor applicable to the Initial Term Loan Facility, then such excess amount shall be equated to interest rate for purposes of determining the total yield under such Incremental Term Loan Facility), and (vii) each Incremental Term Loan Facility shall be on terms and pursuant to documentation to be mutually agreed; provided, that to the extent such terms and documentation are not consistent with the Initial Term Loan Facility (except to the extent permitted above), such terms and documentation shall be reasonably satisfactory to the Agent.
(c) The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Facility. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and the other Loan Documents shall as may be amended necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the extent (but only to the extent) necessary to reflect the existence and terms provisions of the Incremental Term Commitments evidenced thereby. Any such amendment may be memorialized in writing by the Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental Term Lenders in respect of such Incremental Term Commitmentsthis Section.
(d) This Section 2.23 Upon the effectiveness of an Incremental Term Commitment of any Incremental Lender, such Incremental Lender shall supersede anything be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents.
(e) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment shall make a loan to the Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(f) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 10.09 to 2.18(a) and of the contraryeffectiveness of any Incremental Term Commitments, in each case advising the Lenders of the details thereof.
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Incremental Term Facilities. (ai) The With the prior written consent of the Administrative Agent, the Borrower may, by written notice to the Agent from time to time and on any one or more occasions, request Incremental Lenders (including New Term Commitments, in an aggregate principal amount not to exceed Lenders) may agree that such Lenders shall make incremental term loans (the Incremental Term Loan Amount at such time, from one or more financial institutions (which may include any existing Lender in such Lender’s sole discretion) that would be Eligible Assignees pursuant to Section 10.03(b) (other than Holdings or any of its subsidiaries or Affiliates or any Affiliate Lender) willing to provide such “Incremental Term Loans. Each such notice shall set forth (i”) the amount of the Incremental Term Commitments being requested, (ii) the date on which such Incremental Term Commitments are requested to become effective (the “Increased Amount Date”), by executing and (iii) whether such Incremental Term Commitments are to be the same as the existing Commitments or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans (the “Other Term Loans”). Each tranche of Incremental Term Loans shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000; provided that such amount may be less than $25,000,000 if such amount represents all the remaining availability under the Incremental Term Loan Amount outstanding at such time. Notwithstanding anything delivering to the contrary herein, the Borrower may request Incremental Term Commitments and may incur Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeem, repurchase or otherwise discharge all or Administrative Agent a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses notice (including tender premium).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Agent an agreement (an “Incremental Assumption Agreement”) and such other documentation as the Agent shall reasonably request to evidence the Incremental Term Commitment of such Incremental Term Lender, in each case in form and substance reasonably satisfactory to the Administrative Agent. Each Incremental Assumption Agreement shall specify ) specifying (A) the terms amount of the applicable Incremental Term Loans; provided that , (iB) no existing Lender will be required to participate in any such the applicable closing date for the Incremental Term Loans (each an “Incremental Term Loan Facility without its consentClosing Date”), (iiC) on the applicable maturity date of effectiveness of any for the Incremental Term Commitment Loans (which in any event shall not be earlier than the Maturity Date), (D) the amortization schedule for the Incremental Term Loans, (E) the Applicable Margin and other pricing terms for the Incremental Term Loans and (F) the other terms and conditions of the Incremental Term Loans, which, in each case, shall be reasonably acceptable to the Administrative Agent. The Incremental Term Loans shall rank pari passu in right of payment and of security with the Revolving Loans and after giving effect to the making issuance of such the Incremental Term Loans, each of the conditions set forth in Sections 4.02(b) and 4.02(c) shall be satisfied, (iii) Revolving Commitments plus the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date of the Initial Term Loans and the weighted average life to maturity of such Incremental Term Loan Facility shall be not shorter than the then remaining weighted average life to maturity of the Initial Term Loans, plus, the outstanding Replacement Term Loans (iv) the Borrower is in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Term Loan Facility (and after giving effect to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment events), with replacement thereof) do not exceed the covenant set forth Borrowing Base then in Section 6.11 recomputed as of the last day of the most recently ended fiscal quarter of Holdco for which financial statements are required effect. No Lender shall have any obligation to have been delivered pursuant to Section 5.01, (v) each Incremental Term Loan Facility will have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, the Initial Term Loan Facility, (vi) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable to any Incremental Term Loan Facility shall be determined by the Borrower and the applicable Incremental Term Lenders; provided, that if the total yield (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount (in each case, equated to the interest rate based upon an assumed four-year life to maturity or, if shorter, the remaining life to maturity of the Initial Term Loan Facility) and any interest rate floor payable to the arrangers providing such Incremental Term Loan Facility participate in the initial primary syndication thereof but excluding any arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to such arrangers) making of any Incremental Term Loan Facility exceeds the total yield (consistently determined) on the Initial Term Loan Facility by more than 50 basis points, then the applicable margins for the Initial Term Loan Facility shall be increased Loans unless it agrees to the extent necessary do so that the total yield (consistently determined) on the Initial Term Loan Facility is 50 basis points less than the total yield (consistently determined) on such Incremental Term Loan Facility (provided, that, if the Adjusted LIBO Rate or the Alternate Base Rate in respect of such Incremental Term Loan Facility includes a floor greater than the floor applicable to the Initial Term Loan Facility, then such excess amount shall be equated to interest rate for purposes of determining the total yield under such Incremental Term Loan Facility), and (vii) each Incremental Term Loan Facility shall be on terms and pursuant to documentation to be mutually agreed; provided, that to the extent such terms and documentation are not consistent with the Initial Term Loan Facility (except to the extent permitted above), such terms and documentation shall be reasonably satisfactory to the Agentits sole discretion.
(cii) The Agent Any additional bank, financial institution or other entity which, with the consent of the Borrower (which consent shall promptly notify each not be unreasonably withheld) and the Administrative Agent, elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.03(c) shall execute a Lender as Certificate whereupon such New Term Lender shall become a Lender for all purposes and to the effectiveness same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(iii) Notwithstanding anything to the contrary in this Agreement, each Incremental Term Loan Facility. Each of the parties hereto hereby agrees that, upon the effectiveness of on any Incremental Assumption AgreementTerm Loan Closing Date, this Agreement and the other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Commitments evidenced therebyLoans being made on such Incremental Term Loan Closing Date. Any such deemed amendment may be memorialized effected in writing by the Administrative Agent with the Borrower’s 's consent (not to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental Term Lenders in respect of such Incremental Term Commitments.
(d) This Section 2.23 shall supersede anything in Section 10.09 to the contrary.hereto. EXCO CREDIT AGREEMENT – Page 43
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Incremental Term Facilities. (a) The Borrower may, by written notice to the Agent at any time or from time to time and after the Closing Date, on one or more occasions, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of term loans (the commitments thereof, the “Incremental Term Commitments”, the loans thereunder, the “Incremental Term Loans”, and a Person making such loans, an “Incremental Term Lender”), and any such Incremental Term Loans shall be subject to the following:
(i) no Default or Event of Default shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in an aggregate principal amount connection therewith (and after giving effect to such Incremental Term Loans made thereunder);
(ii) on the Incremental Facility Closing Date with respect to any Incremental Amendment (and after giving effect to such Incremental Term Loans made thereunder), the Borrower shall be in compliance with Section 6.3;
(iii) immediately after giving effect to the issuance of such Incremental Term Loans and the addition of additional Appraised Collateral, if any, to the Collateral by any Obligor on the Incremental Facility Closing Date, no Collateral Coverage Failure will have occured;
(iv) such Incremental Term Loans shall not mature earlier than the earliest Maturity Date applicable to exceed any Loan outstanding on the applicable Incremental Facility Closing Date;
(v) such Incremental Term Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of any Loans outstanding on the applicable Incremental Facility Closing Date;
(vi) subject to clauses (iv) and (v) above, the interest rates and the amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Incremental Term Loan Amount at such time, from one or more financial institutions (which may include any existing Lender in such Lender’s sole discretion) that would be Eligible Assignees pursuant to Section 10.03(b) (other than Holdings or any of its subsidiaries or Affiliates or any Affiliate Lender) willing to provide Lenders making such Incremental Term Loans. Each ;
(vii) all fees and expenses owing to the Administrative Agent and the Joint Lead Arrangers and Joint Bookrunners shall have been paid on or prior to the applicable Incremental Facility Closing Date;
(viii) with respect to the Incremental Amendment for such notice Incremental Term Loans, if the all-in-yield (as determined by the Borrower and Incremental Term Lenders making such Incremental Term Loans) with respect to such Incremental Term Loans (whether in the form of interest rate margins, original issue discount (equated to interest based on an assumed four-year life to maturity), upfront fees (which shall set forth be deemed to constitute like amount of original issue discount) or a LIBOR or Index Rate floor that exceeds 1.0% or 1.0%, respectively (iwith any such excess amount being equated to interest margin based on an assumed four-year life to maturity for purposes of determining any increase (as described below) to the Applicable Margin for the applicable Class of Loans), but excluding any arrangement, structuring or other fees payable in connection therewith) exceeds the all-in yield (after giving effect to (x) interest rate margins (including LIBOR and Index Rate floors, if any), original issue discount (equated to interest based on an assumed four-year life to maturity) and upfront fees (which shall be deemed to constitute like amount of original issue discount) paid in connection with the initial primary syndication of the Term Facility, but excluding any arrangement, structuring or other fees payable in connection therewith and (y) any amendments to the Applicable Margin in effect prior to the applicable Incremental Facility Closing Date) of any Class of Loans made on the Closing Date and outstanding on the applicable Incremental Facility Closing Date by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for such Class of Loans then outstanding shall be automatically increased by the Incremental Yield Differential; provided that this clause (viii) shall apply to (x) both Tranche B1 Term Commitments being requested, (ii) Loans and Tranche B2 Term Loans if the maturity date on which of such Incremental Term Commitments are requested to become effective (Loans is later than the “Increased Amount Date”), Tranche B2 Term Maturity Date and earlier than the Tranche B1 Term Maturity Date and (iiix) whether only the Tranche B1 Term Loans if the maturity date of such Incremental Term Commitments are to be Loans is the same as or later than the existing Commitments or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans Tranche B1 Term Loan Maturity Date.
(the “Other Term Loans”b) Except as set forth in Section 2.14(a). Each , each tranche of Incremental Term Loans shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000; provided that such amount may be less than $25,000,000 if such amount represents all treated substantially the remaining availability under the Incremental Term Loan Amount outstanding at such time. Notwithstanding anything to the contrary herein, the Borrower may request Incremental Term Commitments and may incur Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeem, repurchase or otherwise discharge all or a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses (including tender premium).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Agent an agreement (an “Incremental Assumption Agreement”) and such other documentation same as the Agent shall reasonably request to evidence the Incremental Term Commitment of such Incremental Term Lender, in each case in form and substance reasonably satisfactory to the Agent. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) no existing Lender will be required to participate in any such Incremental Term Loan Facility without its consent, (ii) on the date of effectiveness of any Incremental Term Commitment and after giving effect to the making of such Incremental Term outstanding Loans, each of the conditions set forth in Sections 4.02(b) and 4.02(c) shall be satisfied, (iii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date of the Initial Term Loans and the weighted average life including without limitation to maturity of such Incremental Term Loan Facility shall be not shorter than the then remaining weighted average life to maturity of the Initial Term Loans, (iv) the Borrower is in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Term Loan Facility (and after giving effect to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment events), with the covenant set forth in Section 6.11 recomputed as of the last day of the most recently ended fiscal quarter of Holdco for which financial statements are required to have been delivered pursuant to Section 5.01, (v) each Incremental Term Loan Facility will have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing(including any additional Collateral) and with respect to mandatory and voluntary prepayments (unless the applicable Incremental Term Lenders agree to a less than pro rata share of such prepayments), the Initial Guaranty, any other guarantees in respect of any Term Loan Facility, Facility or any of the Obligations and the Collateral Documents. Each notice from the Borrower to the Administrative Agent pursuant to Section 2.14(a) shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans.
(vic) the interest rate margins and original issue discount Incremental Term Loans may be made by any existing Lender or upfront fees any Additional Lender (if anyprovided that no Lender shall be obligated to make a portion of any Incremental Term Loan), interest rate floors (if any) in each case on the terms permitted in this Section 2.14, and, to the extent not permitted in this Section 2.14, all terms and amortization schedule applicable documentation with respect to any Incremental Term Loans which (i) are not inconsistent with the terms of the Loan Facility Documents or (ii) relate to provisions of a mechanical or administrative nature shall be determined by the Borrower and the applicable Incremental Term Lenders; provided, that if the total yield (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount (in each case, equated to the interest rate based upon an assumed four-year life to maturity or, if shorter, the remaining life to maturity of the Initial Term Loan Facility) and any interest rate floor payable to the arrangers providing such Incremental Term Loan Facility in the initial primary syndication thereof but excluding any arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to such arrangers) of any Incremental Term Loan Facility exceeds the total yield (consistently determined) on the Initial Term Loan Facility by more than 50 basis points, then the applicable margins for the Initial Term Loan Facility shall be increased to the extent necessary so that the total yield (consistently determined) on the Initial Term Loan Facility is 50 basis points less than the total yield (consistently determined) on such Incremental Term Loan Facility (provided, that, if the Adjusted LIBO Rate or the Alternate Base Rate in respect of such Incremental Term Loan Facility includes a floor greater than the floor applicable to the Initial Term Loan Facility, then such excess amount shall be equated to interest rate for purposes of determining the total yield under such Incremental Term Loan Facility), and (vii) each Incremental Term Loan Facility shall be on terms and pursuant to documentation to be mutually agreed; provided, that to the extent such terms and documentation are not consistent with the Initial Term Loan Facility (except to the extent permitted above), such terms and documentation shall case be reasonably satisfactory to the Agent.
Administrative Agent and the Borrower; provided that (ci) The the Administrative Agent shall promptly notify have consented (such consent not to be unreasonably withheld, conditioned or delayed) and (ii) the Borrower shall have consented to any Lender or Additional Lender’s making such Incremental Term Loans if such consent would be required under Section 9.2 for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender as agreeing to provide such Commitment, if any, each Additional Lender, if any, and the effectiveness of each Administrative Agent. The Incremental Term Loan Facility. Each of Amendment may, without the parties hereto hereby agrees that, upon the effectiveness consent of any Incremental Assumption Agreementother Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to give effect to the provisions of this Section 2.14. The effectiveness of any Incremental Amendment shall be amended (unless waived by the Additional Lenders) subject to the extent satisfaction of the conditions set forth in Article III (but only it being understood that all references to the extentdate of any Borrowing in Article III shall be deemed to refer to the Incremental Facility Closing Date) necessary to reflect and such other conditions, in each case as the existence and terms parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”). The Borrower will use the proceeds of the Incremental Term Commitments evidenced therebyLoans for any purpose not prohibited by this Agreement. Any such amendment may No Lender shall be memorialized in writing by the Agent with the Borrower’s consent (not obligated to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of provide any Lender other than the Incremental Term Lenders in respect of such Incremental Term CommitmentsLoans unless it so agrees.
(d) This Notwithstanding anything to the contrary herein, this Section 2.23 2.14 shall supersede anything any provisions in Section 10.09 Sections 9.1, 9.2 or 9.6 to the contrarycontrary and the Borrower and the Administrative Agent may amend Section 9.6 to implement any Incremental Amendment.
Appears in 1 contract
Samples: Loan Agreement (Us Airways Inc)
Incremental Term Facilities. (a) The At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, by written notice to the Administrative Agent from time (whereupon the Administrative Agent shall promptly deliver a copy to time and on each of the Lenders), request to add one or more occasions, request additional tranches of term loans (the “Incremental Term Commitments, Loans”) and Alternative Incremental Facility Debt in an aggregate principal amount not of up to exceed (i) $100,000,000 if, after giving effect to the Incremental Term Loan Amount at incurrence of such time, from one or more financial institutions amount and the application of the proceeds therefrom (which may include any existing Lender in such Lender’s sole discretion) and assuming that would be Eligible Assignees pursuant to Section 10.03(b) (other than Holdings or any the full amount of its subsidiaries or Affiliates or any Affiliate Lender) willing to provide such Incremental Term Loans. Each Loans and such notice Alternative Incremental Facility Debt has been funded on such date and the proceeds of such amount shall be excluded from the calculation of cash and cash equivalents set forth in clause (ib) the amount of the Incremental Term Commitments being requesteddefinition of Consolidated Net Debt), the Total Leverage Ratio is equal to or less than 5.00 to 1.00 plus (ii) an additional amount if, after giving effect to the date on which incurrence of such additional amount and the application of the proceeds therefrom (and assuming that the full amount of such Incremental Term Commitments are requested Loans and such Alternative Incremental Facility Debt has been funded on such date and that such Incremental Term Loans and Alternative Incremental Facility Debt is secured on a senior basis and the proceeds of such amount shall be excluded from the calculation of cash and cash equivalents set forth in clause (b) of the definition of Consolidated Net Debt), the Senior Secured Leverage Ratio is equal to become effective or less than 3.50 to 1.00; provided that, at the time of each such request and upon the effectiveness of each Incremental Facility Amendment, (the “Increased Amount Date”)A) no Default has occurred and is continuing or shall result therefrom, and (iiiB) whether such Incremental Term Commitments are the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clause (A) above, together with reasonably detailed calculations demonstrating compliance with clauses (a)(i) and (a)(ii) above (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and certificate of a Financial Officer required to be delivered by Section 5.01(a) or 5.01(b) and Section 5.01(d), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA for the same as the existing Commitments or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans (the “Other Term Loans”relevant period). Each tranche of Incremental Term Loans shall be in an integral multiple of $1,000,000 5,000,000 and be in an aggregate principal amount that is not less than $25,000,000; provided that such amount may be less than $25,000,000 if such amount represents all the remaining availability under the Incremental Term Loan Amount outstanding at such time. Notwithstanding anything to the contrary herein, the Borrower may request Incremental Term Commitments and may incur aggregate principal amount of Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeem, repurchase or otherwise discharge all or a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses (including tender premium)set forth above.
(b) The Incremental Term Loans (i) shall rank pari passu or junior in right of payment in respect of the Collateral and with the Obligations in respect of the Tranche
B-1 Term Loans and the Tranche B-2 Term Loans, (ii) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Tranche B-1 Term Loans and the Tranche B-2 Term Loans and (iii) other than amortization, pricing and maturity date, shall be on terms and subject to conditions as agreed between the Borrower and each the Incremental Term Lender shall execute and deliver Lenders and, to the extent such terms (other than with respect to maturity, amortization and pricing) are inconsistent with those governing the Tranche B-2 Term Loans, reasonably satisfactory to the Administrative Agent; provided that (A) if the Weighted Average Yield relating to any Incremental Term Loan exceeds the Weighted Average Yield relating to a Class of existing Term Loans (after giving effect to any amendments to the applicable margin on such Class of existing Term Loans prior to time that such Incremental Term Loans are made) immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, then the Applicable Rate relating to such Class of existing Term Loans shall be adjusted so that the Weighted Average Yield relating to such Incremental Term Loans shall not exceed the Weighted Average Yield relating to such Class of existing Term Loans by more than 0.50%, (B) any Incremental Term Loan shall not have a final maturity date earlier than the Tranche B-2 Term Maturity Date and (C) any Incremental Term Loan shall not have a weighted average life that is shorter than the weighted average life of the then-remaining Tranche B-2 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 Term Loan. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Term Loans shall be reasonably satisfactory to the Borrower and the Administrative Agent (any such bank, financial institution, existing Lender or other Person being called an agreement “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Assumption AgreementFacility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, such Additional Lender and such other documentation as the Agent Administrative Agent. No Lender shall reasonably request be obligated to evidence the provide any Incremental Term Commitment Loan, unless it so agrees. Commitments in respect of such any Incremental Term Lender, in each case in form and substance reasonably satisfactory to Loans shall become Commitments under this Agreement upon the Agent. Each Incremental Assumption Agreement shall specify the terms effectiveness of the applicable Incremental Term Loans; provided that Facility Amendment. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (iincluding to provide for voting provisions applicable to the Additional Lenders comparable to the provisions of clause (B) no existing Lender will be required to participate in any such Incremental Term Loan Facility without its consent, (ii) on of the date second proviso of Section 9.02(b)). The effectiveness of any Incremental Term Commitment Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and after giving effect the Additional Lenders, be subject to the making satisfaction on the effective date thereof of such Incremental Term Loans, each of the conditions set forth in Sections 4.02(bclauses (g) and 4.02(c(h) of Section 4.01 (it being understood and agreed that all references to a Borrowing in clauses (g) and (h) of Section 4.01 shall be satisfied, (iii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date of the Initial Term Loans and the weighted average life deemed to maturity of such Incremental Term Loan Facility shall be not shorter than the then remaining weighted average life refer to maturity of the Initial Term Loans, (iv) the Borrower is in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Term Loan Facility (and after giving effect to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment events), with the covenant set forth in Section 6.11 recomputed as of the last day of the most recently ended fiscal quarter of Holdco for which financial statements are required to have been delivered pursuant to Section 5.01, (v) each Incremental Term Loan Facility will have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, the Initial Term Loan Facility, (vi) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable to any Incremental Term Loan Facility shall be determined by the Borrower and the applicable Incremental Term Lenders; provided, that if the total yield (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount (in each case, equated to the interest rate based upon an assumed four-year life to maturity or, if shorter, the remaining life to maturity of the Initial Term Loan Facility) and any interest rate floor payable to the arrangers providing such Incremental Term Loan Facility in the initial primary syndication thereof but excluding any arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to such arrangers) of any Incremental Term Loan Facility exceeds the total yield (consistently determined) on the Initial Term Loan Facility by more than 50 basis points, then the applicable margins for the Initial Term Loan Facility shall be increased to the extent necessary so that the total yield (consistently determined) on the Initial Term Loan Facility is 50 basis points less than the total yield (consistently determined) on such Incremental Term Loan Facility (provided, that, if the Adjusted LIBO Rate or the Alternate Base Rate in respect of such Incremental Term Loan Facility includes a floor greater than the floor applicable to the Initial Term Loan Facility, then such excess amount shall be equated to interest rate for purposes of determining the total yield under such Incremental Term Loan FacilityAmendment), and (vii) each Incremental Term Loan Facility shall be on terms and pursuant to documentation to be mutually agreed; provided, that to the extent such terms and documentation are not consistent with the Initial Term Loan Facility (except to the extent permitted above), such terms and documentation shall be reasonably satisfactory to the Agent.
(c) The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Facility. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and the other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Commitments evidenced thereby. Any such amendment may be memorialized in writing by the Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental Term Lenders in respect of such Incremental Term Commitments.
(d) This Section 2.23 shall supersede anything in Section 10.09 to the contrary.
Appears in 1 contract
Samples: Credit Agreement (Affinia Group Intermediate Holdings Inc.)
Incremental Term Facilities. (a) The Borrower maymay on one or more occasions, by written notice to the Agent from time to time and on one or more occasionsAdministrative Agent, request the establishment of Incremental Term Loan Commitments, in an provided that the aggregate principal amount not to exceed of all the Incremental Term Loan Amount at such timeCommitments to be established hereunder on any date shall not exceed, from one or more financial institutions (which may include any existing Lender in such Lender’s sole discretion) that would be Eligible Assignees pursuant to Section 10.03(b) (other than Holdings or any assuming the full amount of its subsidiaries or Affiliates or any Affiliate Lender) willing to provide such Incremental Term LoansLoan Commitments shall have been funded as Loans on such date, the Incremental Amount as of such date. Each such notice shall set forth specify (i) the date on which the Borrower proposes that the Incremental Term Loan Commitments shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, (ii) the amount of the Incremental Term Loan Commitments being requested, requested (iiwhich shall be an amount not less than $5,000,000) the date on which such Incremental Term Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether the identity of each Person proposed to become an Incremental Lender in connection therewith (it being agreed that (x) any Lender approached to provide any Incremental Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Commitments are Loan Commitment and (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee and, if such approval would then be required under Section 10.6(c) for an assignment to such Person of a Commitment or Loan of the applicable Class, must be approved by the Administrative Agent (such approval not to be the same as the existing Commitments unreasonably withheld or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans (the “Other Term Loans”delayed). Each tranche of Incremental Term Loans shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000; provided that such amount may be less than $25,000,000 if such amount represents all the remaining availability under the Incremental Term Loan Amount outstanding at such time. Notwithstanding anything to the contrary herein, the Borrower may request Incremental Term Commitments and may incur Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeem, repurchase or otherwise discharge all or a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses (including tender premium).
(b) The Borrower terms and each conditions of any Incremental Term Lender shall execute Loan Commitments and deliver to the Agent an agreement (an “Incremental Assumption Agreement”) and such other documentation as the Agent shall reasonably request to evidence the Incremental Term Commitment of such Incremental Term Lender, Loans to be made thereunder shall be as set forth in each case in form and substance reasonably satisfactory to the Agent. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansFacility Agreement; provided that (i) no existing Lender will be required to participate in any such Incremental Term Loan Facility without its consent, (ii) Maturity Date shall be earlier than the latest Maturity Date in effect on the date of effectiveness of any Incremental Term Commitment and after giving effect to the making incurrence of such Incremental Term Loans, each of the conditions set forth in Sections 4.02(b(ii) and 4.02(c) shall be satisfied, (iii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date of the Initial Term Loans and the weighted average life to maturity of such any Incremental Term Loan Facility Loans shall be not no shorter than the then longest remaining weighted average life to maturity of any other Class of Loans outstanding on the Initial date of incurrence of such Incremental Term LoansLoans (and, (iv) for purposes of determining the Borrower is in compliance, on a Pro Forma Basis after giving effect weighted average life to the incurrence maturity of any such Incremental Term Loan Facility (and after giving effect outstanding Loans, the effects of any prepayments made prior to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment eventsthe date of the determination shall be disregarded), with the covenant set forth in Section 6.11 recomputed as of the last day of the most recently ended fiscal quarter of Holdco for which financial statements are required it being understood that, subject to have been delivered pursuant to Section 5.01, this clause (v) each Incremental Term Loan Facility will have the same guarantees as, and be secured on a pari passu basis by the same Collateral securingii), the Initial Term Loan Facility, (vi) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable to (and the effect thereon of any prepayments of) any Incremental Term Loan Facility Loans shall be determined by the Borrower and the applicable Incremental Term Lenders; provided, that if the total yield (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount (in each case, equated to the interest rate based upon an assumed four-year life to maturity or, if shorter, the remaining life to maturity of the Initial Term Loan Facility) and any interest rate floor payable to the arrangers providing such Incremental Term Loan Facility in the initial primary syndication thereof but excluding any arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to such arrangers) of any Incremental Term Loan Facility exceeds the total yield (consistently determined) on the Initial Term Loan Facility by more than 50 basis points, then the applicable margins for the Initial Term Loan Facility shall be increased to the extent necessary so that the total yield (consistently determined) on the Initial Term Loan Facility is 50 basis points less than the total yield (consistently determined) on such Incremental Term Loan Facility (provided, that, if the Adjusted LIBO Rate or the Alternate Base Rate in respect of such Incremental Term Loan Facility includes a floor greater than the floor applicable to the Initial Term Loan Facility, then such excess amount shall be equated to interest rate for purposes of determining the total yield under such Incremental Term Loan Facilityiii), and (vii) each Incremental Term Loan Facility shall be on terms and pursuant to documentation to be mutually agreed; provided, that to the extent such terms and documentation are not consistent with the Initial Term Loan Facility (except to the extent permitted above), such terms and documentation shall be reasonably satisfactory to the Agent.
(c) The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Facility. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and the other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Commitments evidenced thereby. Any such amendment may be memorialized in writing by the Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental Term Lenders in respect of such Incremental Term Commitments.
(d) This Section 2.23 shall supersede anything in Section 10.09 to the contrary.
Appears in 1 contract
Samples: Term Credit and Guaranty Agreement (QualTek Services Inc.)
Incremental Term Facilities. (a) The Borrower may, by written notice to the Agent at any time and from time to time after the Closing Date and on prior to the Term Facility Maturity Date, by notice to the Administrative Agent, request (x) the addition of one or more occasions, request new term loan facilities or an increase in the Term Commitments (each of such commitment increases and any such new term loan facility being an “Incremental Term Commitments, in an aggregate principal amount not Facility” and the commitment of any lender with respect to exceed the any Incremental Term Loan Amount at such time, from one or more financial institutions (which may include any existing Lender in such Lender’s sole discretion) that would be Eligible Assignees pursuant to Section 10.03(b) (other than Holdings or any of its subsidiaries or Affiliates or any Affiliate Lender) willing to provide such Facility being an “Incremental Term Loans. Each such Commitment”) to be effective as of a date (the “Increase Date”) specified in the related notice shall set forth to the Administrative Agent; provided, however, that (i) in no event shall the aggregate amount of the all Incremental Term Commitments being requested, exceed $400,000,000; (ii) the date on which such each Incremental Term Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Commitments are to be the same as the existing Commitments or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans (the “Other Term Loans”). Each tranche of Incremental Term Loans Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000; provided that (iii) no more than 4 such amount requests may be less than $25,000,000 if such amount represents all the remaining availability under made pursuant to this Section 2.19 in respect of the Incremental Term Loan Amount outstanding at such time. Notwithstanding anything to the contrary herein, the Borrower may request Incremental Term Commitments and may incur Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeem, repurchase or otherwise discharge all or a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses Facilities; (including tender premium).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Agent an agreement (an “Incremental Assumption Agreement”) and such other documentation as the Agent shall reasonably request to evidence the Incremental Term Commitment of such Incremental Term Lender, in each case in form and substance reasonably satisfactory to the Agent. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) no existing Lender will be required to participate in any such Incremental Term Loan Facility without its consent, (iiiv) on the date of effectiveness of any request by the Borrower for an Incremental Term Commitment and on the related Increase Date, the applicable conditions set forth in Section 3.02 and in clause (d) of this Section 2.19 shall be satisfied; (v) after giving effect to the making incurrence of such any Incremental Term LoansFacility, each of the conditions Borrower shall be in Pro Forma compliance with all financial covenants set forth in Sections 4.02(bSection 6.11; (vi) and 4.02(c) any Incremental Term Facility shall be satisfied, (iii) the have a final maturity date of any Other Term Loans shall be no earlier than the Term Facility Maturity Date of the Initial Term Loans and the weighted average life to maturity of such any Incremental Term Loan Facility shall be not no shorter than the then remaining weighted average life to maturity of the Initial Term Loans, Facility; (ivvii) the Borrower is in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Term Loan Facility (and after giving effect to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment events), with the covenant set forth in Section 6.11 recomputed as of the last day of the most recently ended fiscal quarter of Holdco for which financial statements are required to have been delivered pursuant to Section 5.01, (v) each Incremental Term Loan Facility will have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, the Initial Term Loan Facility, (vi) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable to any Incremental Term Loan Facility shall be bear interest at a rate per annum as determined by the Borrower and the applicable Incremental Term Lenders; provided, that if the total yield (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount (in each case, equated to the interest rate based upon an assumed four-year life to maturity or, if shorter, the remaining life to maturity of the Initial Term Loan Facility) and any interest rate floor payable to the arrangers providing lenders under such Incremental Term Loan Facility Facility; provided that in the initial primary syndication thereof but excluding event that the Applicable Margin for any arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to such arrangers) of Advances under any Incremental Term Loan Facility exceeds the total yield (consistently determined) on the Initial Term Loan Facility by is more than 50 basis pointspoints greater than the Applicable Margin for the Term Advances, then the applicable margins Applicable Margin for the Initial Term Loan Facility Advances shall be increased to the extent necessary so that the total yield (consistently determined) on Applicable Margin for any Advances under the Initial Incremental Term Loan Facility is no more than 50 basis points less than the total yield (consistently determined) on such Incremental Term Loan Facility (provided, that, if the Adjusted LIBO Rate or the Alternate Base Rate in respect of such Incremental Term Loan Facility includes a floor greater than the floor Applicable Margin for the Term Advances; provided further that in determining the Applicable Margin applicable to the Initial Term Loan Advances, and any Advances under the Incremental Term Facility, then such excess amount (x) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders in the primary syndication thereof shall be included (with OID being equated to interest rate for purposes based on an assumed four-year life to maturity), (y) customary arrangement or commitment fees payable to the Lead Arranger (or its affiliates) or to one or more arrangers (or their affiliates) of determining the total yield such loans shall be excluded and (z) no Eurocurrency Rate or Base Rate “floors” applicable to any Advances under such any Incremental Term Loan Facility shall be higher than the Eurocurrency Rate or Base Rate “floors” applicable to the Term Advances; (viii) the Term Lenders shall initially have the right, but not the obligation, to commit to up to their pro rata portion of any Incremental Term Facility), and ; (viiix) each Incremental Term Loan Facility shall may be secured by either a pari passu or junior lien on the Collateral securing the Facilities in each case on terms and pursuant satisfactory to documentation to be mutually agreedthe Administrative Agent; provided, that (x) to the extent such the terms and documentation of any Incremental Term Facility are not consistent with the Initial Term Loan Facility Facilities (except to the extent permitted by clause (vi) or (vii) above), such terms and documentation they shall be reasonably satisfactory to the Administrative Agent; and (xi) the Loan Documents may be amended by the Administrative Agent, the Loan Parties and the Term Lenders providing an Incremental Term Facility, to the extent necessary to evidence such Incremental Term Facility consistent with this Section 2.19(a), without the consent of any other Lender Party.
(b) The Administrative Agent shall promptly notify the Term Lenders of a request by the Borrower for an Incremental Term Facility, which notice shall include (i) the proposed amount of such requested Incremental Term Commitment, (ii) the proposed Increase Date and (iii) the date by which the relevant Lenders wishing to participate in the Incremental Term Commitment must commit to an increase in the amount of their respective Commitments (which shall in no event be less than ten Business Days from the date of delivery of such notice to the relevant Lenders) (the “Incremental Term Commitment Date”). Each relevant Lender that is willing to participate in the requested Incremental Commitment (each an “Increasing Lender”) shall, in its sole discretion, give written notice to the Administrative Agent on or prior to the Incremental Term Commitment Date of the amount by which it is willing to commit to the Incremental Term Facility. Any Lender not responding within such time period shall be deemed to have declined to participate in the requested Incremental Term Commitment. If the relevant Lenders notify the Administrative Agent that they are willing to participate in an Incremental Commitment by an aggregate amount that exceeds the amount of the requested Incremental Commitment, the requested Incremental Term Commitment shall be allocated among the relevant Lenders willing to participate therein in such amounts as are agreed between the Borrower and the Administrative Agent.
(c) The Promptly following the applicable Incremental Term Commitment Date, the Administrative Agent shall promptly notify each Lender the Borrower as to the effectiveness of each amount, if any, by which the relevant Lenders are willing to participate in the requested Incremental Term Loan FacilityCommitment. Each If the aggregate amount by which the Lenders are willing to participate in the requested Incremental Term Commitment on any such Incremental Term Commitment Date is less than the requested Incremental Term Commitment, then the Borrower may extend offers to one or more Eligible Assignees to participate in any portion of the parties hereto hereby agrees that, upon requested Incremental Term Commitment that has not been committed to by the effectiveness of any Incremental Assumption Agreement, this Agreement and the other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms relevant Lenders as of the Incremental Term Commitments evidenced thereby. Any Commitment Date; provided, however, that (i) the Commitment of each such amendment may Eligible Assignee shall be memorialized in writing by an amount equal to at least $1,000,000 and (ii) each such Eligible Assignee shall be subject to the approval of the Administrative Agent with the Borrower’s consent (which approval shall not to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental Term Lenders in respect of such Incremental Term Commitmentswithheld or delayed).
(d) This On the applicable Increase Date, each Eligible Assignee that accepts an offer to participate in a requested Incremental Term Commitment in accordance with Section 2.23 2.19(c) (each such Eligible Assignee, an “Assuming Lender”) shall supersede anything in Section 10.09 become a Lender Party to this Agreement as of the applicable Increase Date and the Commitment of each Increasing Lender for such Incremental Term Commitment shall be so increased by such amount (or by the amount allocated to such Lender pursuant to the contrarylast sentence of Section 2.19(b)) as of such Increase Date; provided, however, that the Administrative Agent shall have received on or before the Increase Date the following, each dated such date:
(i) certified copies of resolutions of the board of directors of the Borrower approving the applicable Incremental Commitment and the corresponding modifications to this Agreement;
(ii) an assumption agreement from each Assuming Lender, if any, in form and substance satisfactory to the Borrower and the Administrative Agent (each a “Commitment Assumption Agreement”), duly executed by such Eligible Assignee, the Administrative Agent and each Borrower; and
(iii) confirmation from each Increasing Lender of the increase in the amount of its Commitment in a writing satisfactory to the Borrower and the Administrative Agent. On the applicable Increase Date, upon fulfillment of the conditions set forth in the immediately preceding sentence of this Section 2.19(d), the Administrative Agent shall notify the Lenders (including, without limitation, each Assuming Lender) and the Borrower, on or before 1:00 P.M. (New York City time), by telecopier or telex, of the occurrence of the applicable Incremental Commitment to be effected on the related Increase Date and shall record in the Register the relevant information with respect to each Increasing Lender and each Assuming Lender on such date. On the applicable Increase Date, the Advances under any Incremental Term Facility that is to become part of an outstanding Facility shall bear interest at the Eurodollar Rates and for the remainder of the Interest Periods that are then applicable to such outstanding Facility in order to ensure that each Lender under such Facility, after giving effect to the Incremental Term Commitments, is entitled to a ratable share of all interest payments due under such Facility on the same dates.
Appears in 1 contract
Samples: Credit Agreement (Neustar Inc)
Incremental Term Facilities. (a) The Borrower may, by written notice With respect to the Agent from time to time and on one or more occasions, request any Incremental Term CommitmentsFacility, in an aggregate principal amount not to exceed the Incremental Term Loan Amount at such time, from one or more financial institutions (which may include any existing Lender in such Lender’s sole discretion) that would be Eligible Assignees pursuant to Section 10.03(b) (other than Holdings or any of its subsidiaries or Affiliates or any Affiliate Lender) willing to provide such Incremental Term Loans. Each such notice Borrower and the Administrative Agent shall set forth (i) the amount of the Incremental Term Commitments being requested, (ii) the date on which such Incremental Term Commitments are requested to become effective (the “Increased Amount Date”), and (iii) have mutually agreed whether such Incremental Term Commitments are to be the same as the existing Commitments or commitments to make Facility is a term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans (the “Other Term Loans”). Each tranche of Incremental Term Loans shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000; provided that such amount may be less than $25,000,000 if such amount represents all the remaining availability under the Incremental Term Loan Amount outstanding at such time. Notwithstanding anything to the contrary herein, the Borrower may request Incremental Term Commitments and may incur Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeem, repurchase or otherwise discharge all or a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses (including tender premium).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Agent an agreement loan A (an “Incremental Assumption AgreementTranche A Term Facility”) and such other documentation as the Agent shall reasonably request to evidence the or a term loan B (an “Incremental Tranche B Term Commitment of such Incremental Term Lender, in each case in form and substance reasonably satisfactory to the Agent. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that Facility”):
(i) no existing Lender will be required to participate in any the case of an Incremental Tranche A Term Facility:
(A) the interest rate, interest rate margins, fees, discount, prepayment premiums, amortization and final maturity date for such Incremental Tranche A Term Facility shall be as agreed by the Loan Facility without its consent, (ii) on Parties and the date of effectiveness of any Incremental Term Commitment and after giving effect to the making of Lenders providing such Incremental Tranche A Term Loans, each of the conditions set forth in Sections 4.02(b) and 4.02(c) shall be satisfied, Facility; provided that: (iiiI) the final maturity of such Incremental Tranche A Term Facility shall not be earlier than the later of (x) the Maturity Date or (y) the latest maturity date of any Other outstanding Incremental Tranche A Term Loans shall be no earlier than Facility; (II) the Weighted Average Life To Maturity Date of the Initial Term Loans and the weighted average life to maturity of such Incremental Tranche A Term Loan Facility shall not be not shorter than the then remaining weighted average life Weighted Average Life to maturity of the Initial Term Loans, (iv) the Borrower is in compliance, on a Pro Forma Basis after giving effect to the incurrence Maturity of any outstanding Incremental Tranche A Term Facility; and (III) if the All-In-Yield on such Incremental Tranche A Term Loan Facility (and after giving effect to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment events), with the covenant set forth in Section 6.11 recomputed as of the last day of the most recently ended fiscal quarter of Holdco for which financial statements are required to have been delivered pursuant to Section 5.01, (v) each Incremental Term Loan Facility will have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, the Initial Term Loan Facility, (vi) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable to any Incremental Term Loan Facility shall be determined by the Borrower and the applicable Incremental Term Lenders; provided, that if the total yield (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount (in each case, equated to the interest rate based upon an assumed four-year life to maturity or, if shorter, the remaining life to maturity of the Initial Term Loan Facility) and any interest rate floor payable to the arrangers providing such Incremental Term Loan Facility in the initial primary syndication thereof but excluding any arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to such arrangers) of any Incremental Term Loan Facility exceeds the total yield (consistently determined) on All-In-Yield of the Initial Revolving Loans and any outstanding Incremental Tranche A Term Loan Facility by more than 50 basis pointspoints (0.50%) per annum, then the applicable margins for Applicable Rate or fees payable by the Initial Borrower with respect to the Revolving Loans and such outstanding Incremental Tranche A Term Loan Facility shall on the effective date of such Incremental Tranche A Term Facility be increased to the extent necessary so that to cause the total yield (consistently determined) All-In-Yield on the Initial Revolving Loans and such outstanding Incremental Tranche A Term Loan Facility is to be 50 basis points (0.50%) less than the total yield (consistently determined) All-In-Yield on such Incremental Tranche A Term Facility;
(B) such Incremental Tranche A Term Facility shall share ratably in any mandatory prepayments of the other term loans under this Agreement (or otherwise provide for more favorable prepayment treatment for one or more of such outstanding term loans) and shall have ratable voting rights as the other term loans (if any) under this Agreement (or otherwise provide for more favorable voting rights for one or more of such outstanding term loans);
(ii) in the case of an Incremental Tranche B Term Facility:
(A) the interest rate, interest rate margins, fees, discount, prepayment premiums, amortization and final maturity date for such Incremental Tranche B Term Facility shall be as agreed by the Loan Facility Parties and the Lenders providing such Incremental Tranche B Term Facility; provided that: (provided, that, if I) the Adjusted LIBO Rate or the Alternate Base Rate in respect final maturity of such Incremental Tranche B Term Loan Facility includes a floor greater shall not be earlier than the floor applicable later of (x) the Maturity Date or (y) the latest maturity date of any outstanding term loan under this Agreement; (II) the Weighted Average Life To Maturity of such Incremental Tranche B Term Facility shall not be shorter than the Weighted Average Life to Maturity of any outstanding term loan under this Agreement; and (III) if the Initial All-In-Yield on such Incremental Tranche B Term Loan FacilityFacility exceeds the All-In-Yield of any other outstanding Incremental Tranche B Term Facility by more than 50 basis points (0.50%) per annum, then the Applicable Rate or fees payable by the Borrower with respect to such excess amount outstanding Incremental Tranche B Term Facility shall be equated to interest rate for purposes on the effective date of determining the total yield under such Incremental Tranche B Term Loan Facility), and (vii) each Incremental Term Loan Facility shall be on terms and pursuant to documentation to be mutually agreed; provided, that increased to the extent necessary to cause the All-In-Yield on such terms and documentation are not consistent with outstanding Incremental Tranche B Term Facility to be 50 basis points (0.50%) less than the Initial All-In-Yield on such Incremental Tranche B Term Loan Facility (except to the extent permitted above), such terms and documentation shall be reasonably satisfactory to the Agent.Facility; and
(cB) The Agent such Incremental Tranche B Term Facility shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Facility. Each share ratably in any mandatory prepayments of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, other term loans under this Agreement (or otherwise provide for more favorable prepayment treatment for one or more of such outstanding term loans) and shall have ratable voting rights as the other Loan Documents shall be amended to the extent term loans (but only to the extentif any) necessary to reflect the existence and terms of the Incremental Term Commitments evidenced thereby. Any such amendment may be memorialized in writing by the Agent with the Borrower’s consent under this Agreement (not to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental Term Lenders in respect or otherwise provide for more favorable voting rights for one or more of such Incremental Term Commitments.
(d) This Section 2.23 shall supersede anything in Section 10.09 to the contrary.outstanding term loans);
Appears in 1 contract
Samples: Credit Agreement (Fairchild Semiconductor International Inc)
Incremental Term Facilities. (a) The Borrower mayBorrowers may on one or more occasions after the Closing Date, by written notice to the Agent from time to time and on one or more occasionsAdministrative Agent, request the establishment of Incremental Term Commitments, in an ; provided that the aggregate principal amount not to exceed of the Incremental Term Loan Loans incurred under this Section 2.19 on any date shall not exceed the greater of (x) an amount equal to the Base Incremental Amount at in effect on such timedate, from one or more financial institutions (which may include y) an amount subject to the Maximum Incremental Amount as of such date and (z) an amount equal to the aggregate amount of all optional prepayments of Term Loans (except prepayments made with the proceeds of any existing Lender in such Lender’s sole discretion) that would be Eligible Assignees pursuant to Section 10.03(blong-term Indebtedness) (other than Holdings or any it being understood that the Borrowers shall be deemed to have used amounts under clause (x) and clause (z) above prior to utilization of its subsidiaries or Affiliates or any Affiliate Lenderamounts under clause (y) willing to provide such Incremental Term Loansabove). Each such notice shall set forth specify (iA) the date on which the Borrowers propose that the Incremental Term Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (B) the amount of the Incremental Term Commitments Commitments, as applicable, being requestedrequested (it being agreed that (x) any Lender approached to provide any Incremental Term Commitment may elect or decline, (ii) the date on which in its sole discretion, to provide such Incremental Term Commitments are requested Commitment and (y) any Person that the Borrowers propose to become effective (the “Increased Amount Date”), and (iii) whether such an Incremental Term Commitments are to be the same as the existing Commitments or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans (the “Other Term Loans”). Each tranche of Incremental Term Loans shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that Lender, if such Person is not less than $25,000,000; provided that such amount may then a Lender, must be less than $25,000,000 if such amount represents all the remaining availability under the Incremental Term Loan Amount outstanding at such time. Notwithstanding anything to the contrary herein, the Borrower may request Incremental Term Commitments and may incur Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeem, repurchase or otherwise discharge all or a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses (including tender premiuman Eligible Assignee).
(b) The Borrower terms and each conditions of any Incremental Term Lender shall execute Facility and deliver to the Agent an agreement (an “Incremental Assumption Agreement”) and such other documentation as the Agent shall reasonably request to evidence the Incremental Term Commitment Loans to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Facility Amendment, substantially consistent to those of the Term Commitments and the Term Loans and, to the extent such terms and conditions are not substantially consistent with the terms and conditions applicable to the Term Commitments and the Term Loans, such terms and conditions shall not be more favorable, taken as a whole, to the Incremental Term Lenders providing such Incremental Term Lender, in each case in form and substance reasonably satisfactory to the Agent. Each Incremental Assumption Agreement shall specify Facility than the terms of the applicable Incremental existing Term Commitments and the Term Loans, as applicable (other than with respect to terms and conditions applicable only after the Latest Maturity Date then in effect); provided that (i) the upfront fees, interest rates and amortization schedule applicable to any Incremental Term Facility and Incremental Term Loans shall be determined by the Borrowers and the Incremental Term Lenders providing the relevant Incremental Term Commitments, (ii) except in the case of an Incremental Term Facility effected as an increase to an existing Class of Term Loans, the weighted average life to maturity of any Incremental Term Loans shall be no existing Lender will shorter than the remaining weighted average life to maturity of the Terms Loans with the latest Maturity Date, (iii) no Incremental Term Maturity Date shall be required to participate earlier than the Term Maturity Date and (iv) any Incremental Term Facility, for purposes of prepayments (either mandatory or optional), shall be treated substantially the same as (and in any event no more favorably than) the Term Loans. Any Incremental Term Commitments established pursuant to an Incremental Facility Amendment that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement. Each Incremental Term Facility and all extensions of credit thereunder shall be secured by the same Collateral securing the other Loan Document Obligations on a pari passu basis with the Liens on the Collateral securing the other Loan Document Obligations and shall be Guaranteed by the same Loan Parties that Guarantee the other Loan Document Obligations.
(c) The Incremental Term Commitments and Incremental Term Facilities relating thereto shall be effected pursuant to one or more Incremental Facility Amendments executed and delivered by the Borrowers, each Incremental Term Lender providing such Incremental Term Loan Commitments and the Administrative Agent; provided that no Incremental Term Commitments shall become effective unless (i) no Event of Default (or, in the case of any Incremental Acquisition Term Facility without its consentif agreed by all applicable Incremental Term Lenders, no Event of Default under clause (a), (b), (h) or (i) of Article VII) shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Term Commitments (and assuming that the full amount of such Incremental Term Commitments shall have been funded as Loans on such date), (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents (or, in the case of any Incremental Acquisition Term Commitment and after giving effect to the making of such Facility if agreed by all applicable Incremental Term LoansLenders, each of the conditions set forth in Sections 4.02(b) Specified Representations and 4.02(cthe Specified Permitted Acquisition Agreement Representations) shall be satisfiedtrue and correct (A) in the case of such representations and warranties qualified as to materiality or Material Adverse Effect, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) the final maturity date of any Other Term Loans Company shall be no earlier than the Maturity Date in compliance on a Pro Forma Basis with each of the Initial Term Loans and the weighted average life to maturity of such Incremental Term Loan Facility shall be not shorter than the then remaining weighted average life to maturity of the Initial Term Loansfinancial maintenance covenants set forth in Section 6.13, (iv) the Borrower is Borrowers shall make any payments required to be made pursuant to Section 2.14 in compliance, on a Pro Forma Basis after giving effect to the incurrence of any connection with such Incremental Term Loan Facility (Commitments and after giving effect to any acquisition consummated simultaneously therewith the related transactions under this Section 2.19 and all other appropriate pro forma adjustment events), with the covenant set forth in Section 6.11 recomputed as of the last day of the most recently ended fiscal quarter of Holdco for which financial statements are required to have been delivered pursuant to Section 5.01, (v) each Incremental Term Loan Facility will the Borrowers shall have delivered to the same guarantees asAdministrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be secured on a pari passu basis requested by the same Collateral securingAdministrative Agent in connection with any such transaction. Each Incremental Facility Amendment may, without the Initial Term Loan Facility, (vi) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable to any Incremental Term Loan Facility shall be determined by the Borrower and the applicable Incremental Term Lenders; provided, that if the total yield (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount (in each case, equated to the interest rate based upon an assumed four-year life to maturity or, if shorter, the remaining life to maturity of the Initial Term Loan Facility) and any interest rate floor payable to the arrangers providing such Incremental Term Loan Facility in the initial primary syndication thereof but excluding any arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to such arrangers) consent of any Incremental Term Loan Facility exceeds the total yield (consistently determined) on the Initial Term Loan Facility by more than 50 basis pointsLender, then the applicable margins for the Initial Term Loan Facility shall be increased effect such amendments to the extent necessary so that the total yield (consistently determined) on the Initial Term Loan Facility is 50 basis points less than the total yield (consistently determined) on such Incremental Term Loan Facility (provided, that, if the Adjusted LIBO Rate or the Alternate Base Rate in respect of such Incremental Term Loan Facility includes a floor greater than the floor applicable to the Initial Term Loan Facility, then such excess amount shall be equated to interest rate for purposes of determining the total yield under such Incremental Term Loan Facility), and (vii) each Incremental Term Loan Facility shall be on terms and pursuant to documentation to be mutually agreed; provided, that to the extent such terms and documentation are not consistent with the Initial Term Loan Facility (except to the extent permitted above), such terms and documentation shall be reasonably satisfactory to the Agent.
(c) The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Facility. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and the other Loan Documents shall as may be amended necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the extent (but only to the extent) necessary to reflect the existence and terms provisions of the Incremental Term Commitments evidenced thereby. Any such amendment may be memorialized in writing by the Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental Term Lenders in respect of such Incremental Term Commitmentsthis Section 2.19.
(d) This Section 2.23 Upon the effectiveness of an Incremental Term Commitment of any Incremental Term Lender, such Incremental Term Lender shall supersede anything be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents.
(e) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Amendment, each Lender holding an Incremental Term Commitment of any Series shall make an Incremental Term Loan to the Borrowers in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Amendment.
(f) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrowers referred to in Section 10.09 to 2.19(a) and of the contraryeffectiveness of any Incremental Term Commitments, in each case advising the Lenders of the details thereof.
Appears in 1 contract
Incremental Term Facilities. (a) The Borrower may, by written notice to the Agent Term Administrative Agents from time to time and on one or more occasions, request Incremental Term Commitments, in an aggregate principal amount not to exceed the Incremental Term Loan Amount at such time, from one or more financial institutions Eligible Assignees (which may include any existing Lender in such Lender’s sole discretion) that would be Eligible Assignees pursuant to Section 10.03(b) (other than Holdings or any of its subsidiaries or Affiliates or any Affiliate Lender) are willing to provide such Incremental Term Loans; provided that no Incremental Term Loans may be borrowed at any time, and no commitments in respect of Incremental Term Loan Facilities may become effective at any time, if the sum, without duplication, of (x) the aggregate principal amount of all Incremental Term Loans borrowed hereunder at or prior to such time plus (y) the aggregate amount of all Incremental Term Commitments in respect of Incremental Term Loan Facilities that shall have become effective at or prior to such time plus (z) the aggregate principal amount of all Incremental Equivalent Debt incurred at or prior to such time would exceed the Incremental Cap at such time. Each such notice shall set forth (i) the amount of the Incremental Term Commitments being requested, (ii) the date on which such Incremental Term Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Commitments are to be the same as the existing Commitments or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Term Loans (the “Other Term Loans”). Each tranche of Incremental Term Loans shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000; provided that such amount may be less than $25,000,000 if such amount represents all the remaining availability under the Incremental Term Loan Amount Cap outstanding at such time. Notwithstanding anything to the contrary herein, the Borrower may request Incremental Term Commitments and may incur Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeem, repurchase or otherwise discharge all or a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses (including tender premium).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Agent Term Administrative Agents an agreement (an “Incremental Assumption Agreement”) and such other documentation as the Agent Term Administrative Agents shall reasonably request to evidence the Incremental Term Commitment of such Incremental Term Lender, in each case in form and substance reasonably satisfactory to the AgentTerm Administrative Agents. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) no existing Lender will be required to participate in any such Incremental Term Loan Facility without its consent, (ii) on the date of effectiveness of any Incremental Term Commitment and after giving effect to the making of such Incremental Term Loans, each of the conditions set forth in Sections 4.02(b) and 4.02(c) shall be satisfiedsatisfied (with references therein to the date of a Borrowing deemed to be references to such date of effectiveness), (iii) the final maturity date of any Other Term Loans shall be no earlier than the Revolving Credit Maturity Date of (without giving effect to the Initial Springing Maturity Date) (or, if longer the Latest Term Loans Maturity Date) and the weighted average life Weighted Average Life to maturity Maturity of such Incremental Term Loan Facility shall be not shorter than the then remaining weighted average life Weighted Average Life to maturity Maturity of the Initial Revolving Credit Facility (or, if longer, the then remaining Weighted Average Life to Maturity of the Term Loans), (iv) the Borrower is in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Term Loan Facility (and after giving effect to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment events), with the covenant set forth in Section 6.11 recomputed as of the last day of the most recently ended fiscal quarter of Holdco for which financial statements are required to have been delivered pursuant to Section 5.01, (v) each Incremental Term Loan Facility will have the same guarantees as, and be secured by (X) the PP&E Collateral on a pari passu basis by (but without regard to the same control of remedies) with the other PP&E First Lien Obligations and (Y) the Borrowing Base Collateral securing, on a junior basis relative to the Initial Term Loan FacilityLiens on the Borrowing Base Collateral securing the Borrowing Base Priority Obligations, (viv) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable to any Incremental Term Loan Facility shall be determined by the Borrower and the applicable Incremental Term Lenders; provided, provided that if the total yield (which shall, for such purposes only, be deemed All-in Yield applicable to include all upfront or similar fees or original issue discount (in each case, equated to the interest rate based upon an assumed four-year life to maturity or, if shorter, the remaining life to maturity of the Initial Term Loan Facility) and any interest rate floor payable to the arrangers providing such Incremental Term Loan Facility in the initial primary syndication thereof but excluding any arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to such arrangers) of any Incremental Term Loan Facility exceeds the total yield (consistently determined) on the Initial All-in Yield applicable to any Class of Term Loan Facility Loans by more than 50 basis points, then the applicable margins for the Initial such Class of Term Loan Facility Loans shall be increased to the extent necessary so that the total yield (consistently determined) on the Initial All-in Yield applicable to such Class of Term Loan Facility Loans is 50 basis points less than the total yield All-in Yield on such Incremental Term Loan Facility; and (consistently determinedvi) on the other terms and conditions of such Incremental Term Loan Facility (providedexcluding pricing, thatfees, if the Adjusted LIBO Rate or the Alternate Base Rate in respect of such Incremental Term Loan Facility includes a floor greater than the floor applicable optional prepayment, redemption terms, amortization (subject to the Initial Term Loan Facility, then preceding clause (iii)) and for covenants or other provisions applicable only to periods after the Latest Maturity Date at such excess amount shall be equated to interest rate for purposes of determining the total yield under such Incremental Term Loan Facilitytime), and (vii) each Incremental Term taken as a whole, shall not be more restrictive in any material respect on the Loan Facility shall be on terms and pursuant to documentation to be mutually agreed; provided, that Parties than those with respect to the extent such terms and documentation are not consistent with the Initial Term Loan Facility (except to the extent permitted above), such terms and documentation shall be reasonably satisfactory to the AgentFacility.
(c) The Agent Term Administrative Agents shall promptly notify each Term Loan Lender (and the Revolving Administrative Agent) as to the effectiveness of each Incremental Term Loan Facility. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and the other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Commitments evidenced thereby. Any such amendment may be memorialized in writing by the Agent Term Administrative Agents with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental Term Lenders in respect of such Incremental Term Commitments.
(d) This Section 2.23 shall supersede anything in Section 10.09 to the contrary.
Appears in 1 contract
Samples: Term Loan and Revolving Credit Agreement (Federal-Mogul Holdings Corp)
Incremental Term Facilities. (a) The Borrower may, by written notice establishment of any Incremental Term Facility shall be subject to the Agent from time to time and on one or more occasions, request Incremental Term Commitments, in an aggregate principal amount not to exceed the Incremental Term Loan Amount at such time, from one or more financial institutions (which may include any existing Lender in such Lender’s sole discretion) that would be Eligible Assignees pursuant to Section 10.03(b) (other than Holdings or any of its subsidiaries or Affiliates or any Affiliate Lender) willing to provide such Incremental Term Loans. Each such notice shall set forth (i) the amount satisfaction of the Incremental Term Commitments being requested, following conditions:
(ii1) no Default shall have occurred and be continuing on the date on which such Incremental Term Facility is established and immediately after giving effect thereto;
(2) after giving effect to the establishment of such Incremental Term Facility, the representations and warranties contained in Article VI and the other Loan Documents, or which are contained in any document furnished at any time under or in connection herewith or therewith, are true and correct in all material respects (or in all respects, if such representation and warranty is already qualified by materiality or reference to Material Adverse Effect) on and as of the date of such establishment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects, if such representation or and warranty is already qualified by materiality or reference to Material Adverse Effect) as of such earlier date;
(3) such Incremental Term Facility shall be in a minimum amount of $5,000,000 and in integral multiples of $1,000,000 in excess thereof (or such lesser amount as the Administrative Agent may agree in its sole discretion);
(4) such Incremental Term Facility shall only be effective upon receipt by the Administrative Agent of Incremental Term Commitments are requested for such Incremental Term Facility from either existing Lenders and/or one or more other institutions that qualify as Eligible Assignees, which Persons shall join in this Agreement as Incremental Term Lenders by executing an agreement, in form and substance satisfactory to become effective the Administrative Agent, setting forth the terms applicable to such Incremental Term Facility in accordance with this Section 2.01(b) (any such agreement, an “Incremental Term Facility Agreement”), it being understood and agreed that in connection with any Incremental Term Facility, (1) the “Increased Amount Date”Incremental Term Facility Agreement for such Incremental Term Facility shall only be required to be executed by the Incremental Term Lenders for such Incremental Term Facility, the Loan Parties, and the Administrative Agent (and, for the avoidance of doubt, shall not require the consent of any other Person (including any Lender)), and (iii2) no existing Lender shall be under any obligation to become an Incremental Term Lender and any such decision whether to become an Incremental Term Lender shall be in such Lender’s sole and absolute discretion;
(5) the Administrative Agent shall have received all documents (including resolutions of the board of directors of the Borrower and the Guarantors) it may reasonably request relating to the corporate or other necessary authority for such Incremental Term Commitments are to be Facility and the same as the existing Commitments or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans (the “Other Term Loans”). Each tranche of Incremental Term Loans shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000; provided that such amount may be less than $25,000,000 if such amount represents all the remaining availability under the Incremental Term Loan Amount outstanding at such time. Notwithstanding anything to the contrary herein, the Borrower may request Incremental Term Commitments and may incur Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds validity of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeemFacility, repurchase or otherwise discharge and any other matters relevant thereto, all or a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses (including tender premium).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Agent an agreement (an “Incremental Assumption Agreement”) and such other documentation as the Agent shall reasonably request to evidence the Incremental Term Commitment of such Incremental Term Lender, in each case in form and substance reasonably satisfactory to the Administrative Agent. Each Incremental Assumption Agreement shall specify ;
(6) the terms of the applicable Incremental Term LoansFacility Maturity Date for such Incremental Term Facility shall be as set forth in the Incremental Term Facility Agreement relating to such Incremental Term Facility; provided that provided, that, such date shall not be earlier than the then-Latest Maturity Date;
(i7) no existing Lender will be required to participate in the interest rates, interest rate floors, upfront fees and original issue discount for any such Incremental Term Loan Facility without its consent, (ii) on the date of effectiveness of any Incremental Term Commitment and after giving effect to the making of such Incremental Term Loans, each of the conditions set forth in Sections 4.02(b) and 4.02(c) shall be satisfied, (iii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date of the Initial Term Loans and the weighted average life to maturity of such Incremental Term Loan Facility shall be not shorter than the then remaining weighted average life to maturity of the Initial Term Loans, (iv) the Borrower is in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Term Loan Facility (and after giving effect to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment events), with the covenant set forth in Section 6.11 recomputed as of the last day of the most recently ended fiscal quarter of Holdco for which financial statements are required to have been delivered pursuant to Section 5.01, (v) each Incremental Term Loan Facility will have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, the Initial Term Loan Facility, (vi) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable to any Incremental Term Loan Facility shall be determined by the Borrower and the applicable Incremental Term Lenders; provided, that if the total yield (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount (in each case, equated to the interest rate based upon an assumed four-year life to maturity or, if shorter, the remaining life to maturity of the Initial Term Loan Facility) and any interest rate floor payable to the arrangers Lenders providing such Incremental Term Facility;
(8) (1) any such Incremental Term Facility shall rank pari passu in right of payment with the Obligations and in respect of the Collateral; (2) no Subsidiary shall be a guarantor with respect to any such Incremental Term Facility unless such Subsidiary is a Loan Party; and (3) no property or assets of the Borrower or any of its Subsidiaries shall secure any such Incremental Term Facility in unless such property or assets constitute Collateral;
(9) except as otherwise permitted by this Section 2.01(b)(ii), all other terms of any such Incremental Term Facility, if not consistent with the initial primary syndication thereof but excluding terms for any arrangementother then-existing Class of Incremental Term Loans, commitmentshall be as agreed between the Borrower and the Incremental Term Lenders providing such Incremental Term Facility, structuring with such other terms not consistent with any other then-existing Class of Incremental Term Loans to be reasonably satisfactory to the Administrative Agent (it being understood and underwriting fees and any amendment fees paid or payable to such arrangersagreed that: (1) of any Incremental Term Loan Facility exceeds the total yield (consistently determined) on the Initial Term Loan Facility by more than 50 basis points, then the applicable margins for the Initial Term Loan Facility shall may be increased structured as a “delayed draw” term facility if and to the extent necessary so that the total yield (consistently determined) on the Initial Incremental Term Loan Facility is 50 basis points less than the total yield (consistently determined) on Lenders providing such Incremental Term Facility so agree; and (2) the following shall be deemed to be satisfactory to the Administrative Agent: (x) covenants or other provisions applicable only to periods after the then-Latest Maturity Date; (y) covenants or other provisions that are not set forth in the Loan Documents at the time of incurrence of such Incremental Term Facility, so long as the Loan Documents are amended to include such covenants or other provisions for the benefit of the Administrative Agent and the Lenders at the time of the incurrence of such Incremental Term Facility (provided, that, if it is understood and agreed that, notwithstanding this clause (y), to the Adjusted LIBO Rate or extent any financial maintenance covenant is added to this Agreement in connection with the Alternate Base Rate in respect implementation of an Incremental Term Facility, such financial maintenance covenant may be added to this Agreement solely for the benefit of the Lenders providing such Incremental Term Loan Facility includes (and any other Lenders providing any other then-existing Class of Loans for which a floor greater than financial maintenance covenant applies) and not for the floor benefit of any other Lenders); and (z) customary call protection and mandatory prepayments, in each case, which may be applicable solely with respect to the Initial Term Loan Facility, then such excess amount shall be equated to interest rate for purposes of determining the total yield under such Incremental Term Loan Facility), and ;
(vii10) each Schedule 2.01 shall be deemed revised to include any Incremental Term Loan Facility shall be on terms and pursuant to documentation this Section 2.01(b) and to be mutually agreedinclude thereon any Person that becomes a Lender pursuant to this Section 2.01(b); provided, that and
(11) the Administrative Agent shall have received such amendments to the extent Collateral Documents as the Administrative Agent reasonably requests to cause the Collateral Documents to secure the Obligations after giving effect to such terms and documentation are not consistent with the Initial Term Loan Facility (except to the extent permitted above), such terms and documentation shall be reasonably satisfactory to the Agentincrease.
(c) The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Facility. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and the other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Commitments evidenced thereby. Any such amendment may be memorialized in writing by the Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental Term Lenders in respect of such Incremental Term Commitments.
(d) This Section 2.23 shall supersede anything in Section 10.09 to the contrary.
Appears in 1 contract
Samples: Credit Agreement (StoneX Group Inc.)
Incremental Term Facilities. (a) The Borrower mayCompany may on one or more occasions, by written notice to the Agent from time to time and on one or more occasionsAdministrative Agent, request the establishment of the Incremental Term Commitments, in an provided that the aggregate principal amount of any Incremental Term Commitments established hereunder at any time shall not to exceed the Incremental Term Loan Maximum Increase Amount at such time, from one or more financial institutions (which may include any existing Lender in such Lender’s sole discretion) that would be Eligible Assignees pursuant to Section 10.03(b) (other than Holdings or any of its subsidiaries or Affiliates or any Affiliate Lender) willing to provide such Incremental Term Loans. Each such notice shall set forth specify (iA) the date on which the Company proposes that the Incremental Term Commitments shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, and (B) the amount of the Incremental Term Commitments being requestedrequested (it being agreed that (x) any Lender approached to provide any Incremental Term Commitment may elect or decline, (ii) the date on which in its sole discretion, to provide such Incremental Term Commitments are requested Commitment and (y) any Person that the Company proposes to become effective (the “Increased Amount Date”), and (iii) whether such an Incremental Term Commitments are to be the same as the existing Commitments or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans (the “Other Term Loans”). Each tranche of Incremental Term Loans shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that Lender, if such Person is not less than $25,000,000; provided that such amount may then a Lender or any Affiliate thereof, must be less than $25,000,000 if such amount represents all the remaining availability under the Incremental Term Loan Amount outstanding at such time. Notwithstanding anything reasonably acceptable to the contrary herein, the Borrower may request Incremental Term Commitments and may incur Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeem, repurchase or otherwise discharge all or a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses (including tender premiumAdministrative Agent).
(b) The Borrower terms and each conditions of any Incremental Term Lender shall execute Commitments and deliver to the Agent an agreement (an “Incremental Assumption Agreement”) and such other documentation as the Agent shall reasonably request to evidence the Incremental Term Commitment of such Incremental Term LenderLoans to be made thereunder shall be, except as otherwise set forth herein or in each case in form and substance reasonably satisfactory to the Agent. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Facility Agreement, substantially the same as those of the Tranche A Term LoansCommitments and the Tranche A Term Loans made thereunder on the Effective Date; provided that (i) no existing Lender will be required to participate in any such Series of Incremental Term Loan Facility without its consentLoans may bear interest at higher or lower rates than those applicable to the Tranche A Term Commitments and the Tranche A Term Loans made thereunder on the Effective Date, (ii) the Company may pay upfront or closing fees with respect to any Series of Incremental Term Commitments that are higher or lower than such fees paid with respect to the Tranche A Term Commitments established on the Effective Date, (iii) any Series of Incremental Term Loans may be issued with original issue discount that is higher or lower than that applicable to Tranche A Term Loans made on the Effective Date, (iv) such Incremental Facility Agreement may not provide for mandatory prepayment requirements with respect to any Incremental Term Loans more favorable to the Incremental Term Lenders party thereto than those applicable to the Tranche A Term Loans set forth in this Agreement, (v) no Incremental Term Maturity Date with respect to any Series of Incremental Term Loans shall be earlier than the latest Maturity Date in effect as of the date of effectiveness of any Incremental Term Commitment and after giving effect to the making establishment of such Incremental Term Loans, each of the conditions set forth in Sections 4.02(b) and 4.02(c) shall be satisfied, (iii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date of the Initial Term Loans and (vi) the weighted average life to maturity of such any Incremental Term Loan Facility Loans shall not be not shorter than the then remaining weighted average life to maturity of the Initial any then-outstanding Term Loans, (iv) the Borrower is in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such . Any Incremental Term Loan Facility (and after giving effect to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment events), with the covenant set forth in Section 6.11 recomputed as of the last day of the most recently ended fiscal quarter of Holdco for which financial statements are required to have been delivered Commitments established pursuant to Section 5.01, (v) each Incremental Term Loan Facility will have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, the Initial Term Loan Facility, (vi) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable to any Incremental Term Loan Facility shall be determined by the Borrower Agreement that have identical terms and the applicable Incremental Term Lenders; providedconditions, that if the total yield (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount (in each case, equated to the interest rate based upon an assumed four-year life to maturity or, if shorter, the remaining life to maturity of the Initial Term Loan Facility) and any interest rate floor payable to the arrangers providing such Incremental Term Loan Facility in the initial primary syndication thereof but excluding any arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to such arrangers) of any Incremental Term Loan Facility exceeds the total yield (consistently determined) on the Initial Term Loan Facility by more than 50 basis pointsLoans made thereunder, then the applicable margins for the Initial Term Loan Facility shall be increased to the extent necessary so that the total yield designated as a separate series (consistently determinedeach a “Series”) on the Initial Term Loan Facility is 50 basis points less than the total yield (consistently determined) on such of Incremental Term Loan Facility (provided, that, if the Adjusted LIBO Rate or the Alternate Base Rate in respect of such Commitments and Incremental Term Loan Facility includes a floor greater than the floor applicable to the Initial Term Loan Facility, then such excess amount shall be equated to interest rate Loans for all purposes of determining the total yield under such Incremental Term Loan Facility), and (vii) each Incremental Term Loan Facility shall be on terms and pursuant to documentation to be mutually agreed; provided, that to the extent such terms and documentation are not consistent with the Initial Term Loan Facility (except to the extent permitted above), such terms and documentation shall be reasonably satisfactory to the Agentthis Agreement.
(c) The Agent Incremental Term Commitments shall promptly notify each Lender as be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the effectiveness of Company, each Incremental Term Loan Facility. Each Lender providing such Incremental Term Commitments and the Administrative Agent; provided that no Incremental Term Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing (or would occur after giving effect to such transaction), (ii) the Company and its Subsidiaries shall be in pro forma compliance with each of the parties hereto hereby agrees thatfinancial covenants specified in subsection 8.1, upon and (iii) each of the effectiveness of any Incremental Assumption Agreement, representations and warranties made by the Borrowers in or pursuant to this Agreement and or any of the other Loan Documents shall be amended true and correct in all material respects on and as of such date as if made on and as of such date (except to the extent any such representations and warranties relate, by their terms, to a specific date, in which case such representations and warranties shall be true and correct in all material respects on and as of such specific date).
(but only d) Upon the effectiveness of an Incremental Term Commitment of any Incremental Term Lender, such Incremental Term Lender shall be deemed to the extent) necessary to reflect the existence be a “Term Lender” (and terms a Term Lender in respect of Term Commitments and Term Loans of the Incremental applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Term Commitments evidenced thereby. Any such amendment may be memorialized in writing by the Agent with the Borrower’s consent Lenders (not to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental or Term Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Term Lenders (or Term Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents.
(e) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Company in an amount equal to such Incremental Term CommitmentsCommitment on the date specified in such Incremental Facility Agreement.
(df) This Section 2.23 To the extent reasonably requested by the Administrative Agent, it shall supersede anything be a condition precedent to any increase in Section 10.09 the Incremental Term Commitments pursuant to the contrary.this
Appears in 1 contract
Samples: Multi Currency Credit Agreement (Harman International Industries Inc /De/)
Incremental Term Facilities. (a) The Borrower maymay on one or more occasions, by written notice to the Agent from time to time and on one or more occasionsAdministrative Agent, request the establishment of Incremental Term Loan Commitments, in an provided that the aggregate principal amount not to exceed of all the Incremental Term Loan Amount at such timeCommitments to be established hereunder on any date shall not exceed, from one or more financial institutions (which may include any existing Lender in such Lender’s sole discretion) that would be Eligible Assignees pursuant to Section 10.03(b) (other than Holdings or any assuming the full amount of its subsidiaries or Affiliates or any Affiliate Lender) willing to provide such Incremental Term LoansLoan Commitments shall have been funded as Loans on such date, the Incremental Amount as of such date. Each such notice shall set forth specify (i) the date on which the Borrower proposes that the Incremental Term Loan Commitments shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, (ii) the amount of the Incremental Term Loan Commitments being requested, requested (iiwhich shall be an amount not less than $5,000,000) the date on which such Incremental Term Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether the identity of each Person proposed to become an Incremental Lender in connection therewith (it being agreed that (x) any Lender approached to provide any Incremental Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Commitments are Loan Commitment and (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee and, if such approval would then be required under Section 10.6(c) for an assignment to such Person of a Commitment or Loan of the applicable Class, must be approved by the Administrative Agent (such approval not to be the same as the existing Commitments unreasonably withheld or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans (the “Other Term Loans”delayed). Each tranche of Incremental Term Loans shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000; provided that such amount may be less than $25,000,000 if such amount represents all the remaining availability under the Incremental Term Loan Amount outstanding at such time. Notwithstanding anything to the contrary herein, the Borrower may request Incremental Term Commitments and may incur Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeem, repurchase or otherwise discharge all or a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses (including tender premium).
(b) The Borrower terms and each conditions of any Incremental Term Lender shall execute Loan Commitments and deliver to the Agent an agreement (an “Incremental Assumption Agreement”) and such other documentation as the Agent shall reasonably request to evidence the Incremental Term Commitment of such Incremental Term Lender, Loans to be made thereunder shall be as set forth in each case in form and substance reasonably satisfactory to the Agent. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansFacility Agreement; provided that (i) other than with respect to the Amendment No. 3 Term Loans, no existing Lender will be required to participate in any such Incremental Term Loan Facility without its consent, (ii) Maturity Date shall be earlier than the latest Maturity Date in effect on the date of effectiveness of any Incremental Term Commitment and after giving effect to the making incurrence of such Incremental Term Loans, each of (ii) theother than with respect to the conditions set forth in Sections 4.02(b) and 4.02(c) shall be satisfiedAmendment No. 3 Term Loans, (iii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date of the Initial Term Loans and the weighted average life to maturity of such any Incremental Term Loan Facility Loans shall be not no shorter than the then longest remaining weighted average life to maturity of any other Class of Loans outstanding on the Initial date of incurrence of such Incremental Term LoansLoans (and, (iv) for purposes of determining the Borrower is in compliance, on a Pro Forma Basis after giving effect weighted average life to the incurrence maturity of any such Incremental Term Loan Facility (and after giving effect outstanding Loans, the effects of any prepayments made prior to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment eventsthe date of the determination shall be disregarded), with the covenant set forth in Section 6.11 recomputed as of the last day of the most recently ended fiscal quarter of Holdco for which financial statements are required it being understood that, subject to have been delivered pursuant to Section 5.01, this clause (v) each Incremental Term Loan Facility will have the same guarantees as, and be secured on a pari passu basis by the same Collateral securingii), the Initial Term Loan Facility, (vi) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable to (and the effect thereon of any prepayments of) any Incremental Term Loan Facility Loans shall be determined by the Borrower and the applicable Incremental Term Lenders; provided, that if the total yield (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount (in each case, equated iii) other than with respect to the interest rate based upon an assumed four-year life to maturity or, if shorter, the remaining life to maturity of the Initial Term Loan Facility) and any interest rate floor payable to the arrangers providing such Incremental Term Loan Facility in the initial primary syndication thereof but excluding any arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to such arrangers) of any Incremental Term Loan Facility exceeds the total yield (consistently determined) on the Initial Term Loan Facility by more than 50 basis points, then the applicable margins for the Initial Term Loan Facility shall be increased to the extent necessary so that the total yield (consistently determined) on the Initial Term Loan Facility is 50 basis points less than the total yield (consistently determined) on such Incremental Term Loan Facility (provided, that, if the Adjusted LIBO Rate or the Alternate Base Rate in respect of such Incremental Term Loan Facility includes a floor greater than the floor applicable to the Initial Term Loan Facility, then such excess amount shall be equated to interest rate for purposes of determining the total yield under such Incremental Term Loan Facility), and (vii) each Incremental Term Loan Facility shall be on terms and pursuant to documentation to be mutually agreed; provided, that to the extent such terms and documentation are not consistent with the Initial Term Loan Facility (except to the extent permitted above), such terms and documentation shall be reasonably satisfactory to the Agent.
(c) The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan FacilityAmendment No. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and the other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Commitments evidenced thereby. Any such amendment may be memorialized in writing by the Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental Term Lenders in respect of such Incremental Term Commitments.
(d) This Section 2.23 shall supersede anything in Section 10.09 to the contrary.3
Appears in 1 contract
Samples: Term Credit and Guaranty Agreement (QualTek Services Inc.)
Incremental Term Facilities. (a) The Borrower maymay on one or more occasions, by written notice to the Agent from time to time and on one or more occasionsAdministrative Agent, request the establishment of Incremental Term Commitments, in an provided that the aggregate principal amount not to exceed of all the Incremental Term Loan Amount at such time, from one or more financial institutions (which may include any existing Lender in such Lender’s sole discretion) that would be Eligible Assignees pursuant to Section 10.03(b) Commitments (other than Holdings Incremental Term Commitments in respect of Refinancing Term Loans) established hereunder shall not exceed $250,000,000 during the term of this Agreement. Each such notice shall specify (i) the date on which the Borrower proposes that the Incremental Term Commitments shall be effective, which shall be a date not less than 5 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, and (ii) the amount of Incremental Term Commitments being requested (it being agreed that (x) any of Lender approached to provide any Incremental Term Commitment may elect or decline, in its subsidiaries or Affiliates or any Affiliate Lender) willing sole discretion, to provide such Incremental Term Loans. Each such notice shall set forth Commitment and (iy) any Person that the amount of the Incremental Term Commitments being requested, (ii) the date on which such Incremental Term Commitments are requested Borrower proposes to become effective (the “Increased Amount Date”)an Incremental Lender, and (iii) whether if such Incremental Term Commitments are to be the same as the existing Commitments or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans (the “Other Term Loans”). Each tranche of Incremental Term Loans shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that Person is not less than $25,000,000; provided that such amount may then a Lender, must be less than $25,000,000 if such amount represents all the remaining availability under the Incremental Term Loan Amount outstanding at such time. Notwithstanding anything an Eligible Assignee and must be reasonably acceptable to the contrary herein, the Borrower may request Incremental Term Commitments and may incur Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeem, repurchase or otherwise discharge all or a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses (including tender premiumAdministrative Agent).
(b) The Borrower terms and each conditions of any Incremental Term Lender shall execute Commitments and deliver to the Agent an agreement (an “Incremental Assumption Agreement”) and such other documentation as the Agent shall reasonably request to evidence the Incremental Term Commitment of such Incremental Term LenderLoans to be made thereunder shall be, except as otherwise set forth herein or in each case in form and substance reasonably satisfactory to the Agent. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Facility Agreement, identical to those of the Tranche B Term Commitments and the Tranche B Term Loans; provided that (i) no existing Lender will if the All-in Yield for any Incremental Term Loans (other than Refinancing Term Loans) exceeds the All-in Yield for the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Rate for the Tranche B Term Loans shall automatically be required to participate in any increased by the Yield Differential, effective upon the making of such Incremental Term Loans, (ii) no Incremental Term Maturity Date shall be earlier than the Tranche B Term Maturity Date, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Tranche B Term Loans, (iv) the Incremental Term Loans may participate on a pro rata basis (or on a basis that is less than pro rata) in any mandatory prepayments of the Tranche B Term Loans, but may not provide for mandatory prepayment requirements that are more favorable than those applicable to the Tranche B Term Loans, (vi) the Incremental Term Loans will rank pari passu in right of payment and with respect to security with the Tranche B Term Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party and (vii) to the extent the terms of the Incremental Term Loans are inconsistent with the terms of the Tranche B Term Loans (except as set forth in clauses (i), (ii) and (iii) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Term Commitments established pursuant to an Incremental Facility without its consentAgreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate Series of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement unless intended to constitute an increase in any previously established Class of Loans.
(c) The Incremental Term Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Loan Parties, each Incremental Lender providing such Incremental Term Commitments and the Administrative Agent; provided that no Incremental Term Commitments shall become effective unless (i) on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Term Commitments (and assuming that the full amount of such Incremental Term Commitments shall have been funded as Loans on such date), no Default or Event of Default shall have occurred and be continuing, (ii) on the date of effectiveness of any Incremental Term Commitment thereof, and after giving effect to the making of Loans to be made on such date, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date; provided that if the proceeds of such Incremental Term Loans are being used to finance a Permitted Acquisition, only the accuracy of the Specified Representations shall be conditions precedent to the incurrence of such Incremental Term Loans, each of the conditions set forth in Sections 4.02(b) and 4.02(c) shall be satisfied, (iii) except in the final maturity date case of any Other Refinancing Term Loans shall be no earlier than after giving effect to such Incremental Term Commitments (and assuming that the Maturity Date of the Initial Term Loans and the weighted average life to maturity full amount of such Incremental Term Loan Facility Commitments shall be not shorter than the then remaining weighted average life to maturity of the Initial Term Loanshave been funded as Loans on such date), (iv) the Borrower is in compliance, and any related transaction on a Pro Forma Basis after giving effect to Basis, the incurrence of any such Incremental Term Loan Facility Senior Secured Leverage Ratio (and after giving effect to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment events), with the covenant set forth in Section 6.11 recomputed calculated as of the last day of the fiscal quarter of Parent then most recently ended fiscal quarter of Holdco for which financial statements are required to have been delivered pursuant to Section 5.01, (v5.01(a) each Incremental Term Loan Facility will have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, the Initial Term Loan Facility, (vior 5.01(b)) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable to any Incremental Term Loan Facility shall be determined by the Borrower and the applicable Incremental Term Lenders; provided, that if the total yield (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount (in each case, equated to the interest rate based upon an assumed four-year life to maturity or, if shorter, the remaining life to maturity of the Initial Term Loan Facility) and any interest rate floor payable to the arrangers providing such Incremental Term Loan Facility in the initial primary syndication thereof but excluding any arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to such arrangers) of any Incremental Term Loan Facility exceeds the total yield (consistently determined) on the Initial Term Loan Facility by more than 50 basis points, then the applicable margins for the Initial Term Loan Facility shall be increased to the extent necessary so that the total yield (consistently determined) on the Initial Term Loan Facility is 50 basis points less than the total yield (consistently determined) on such Incremental Term Loan Facility (provided, that, if the Adjusted LIBO Rate or the Alternate Base Rate in respect of such Incremental Term Loan Facility includes a floor greater than the floor applicable to the Initial Term Loan Facility, then such excess amount shall be equated to interest rate for purposes of determining the total yield under such Incremental Term Loan Facility)would not exceed 2.50:1.00, and (viiiv) each Incremental Term Loan Facility the Borrower shall be on terms and pursuant to documentation to be mutually agreed; provided, that have delivered to the extent Administrative Agent such terms legal opinions, board resolutions, secretary’s certificates, officer’s certificates, reaffirmation agreement and documentation are not consistent other documents as shall reasonably be requested by the Administrative Agent in connection with the Initial Term Loan Facility (except to the extent permitted above), any such terms and documentation shall be reasonably satisfactory to the Agent.
(c) The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Facilitytransaction. Each of Incremental Facility Agreement may, without the parties hereto hereby agrees that, upon the effectiveness consent of any Incremental Assumption AgreementLender, effect such amendments to this Agreement and the other Loan Documents shall as may be amended necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the extent (but only to the extent) necessary to reflect the existence and terms provisions of the Incremental Term Commitments evidenced thereby. Any such amendment may be memorialized in writing by the Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental Term Lenders in respect of such Incremental Term Commitmentsthis Section.
(d) This Section 2.23 Upon the effectiveness of an Incremental Term Commitment of any Incremental Lender, such Incremental Lender shall supersede anything be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents.
(e) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment shall make a loan to the Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(f) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 10.09 to 2.18(a) and of the contraryeffectiveness of any Incremental Term Commitments, in each case advising the Lenders of the details thereof.
Appears in 1 contract
Incremental Term Facilities. (a) The Borrower mayBorrowers may on one or more occasions after the Effective Date, by written notice to the Agent from time to time and on one or more occasionsAdministrative Agent, request the establishment of Incremental Term Commitments, in an provided that the aggregate principal amount not to exceed of all the Incremental Term Loan Amount at such time, from one or more financial institutions (which may include any existing Lender in such Lender’s sole discretion) that would be Eligible Assignees pursuant to Section 10.03(b) Commitments (other than Holdings Incremental Term Commitments in respect of Refinancing Term Loans) established hereunder shall not exceed (during the term of this Agreement) (a) $200,000,000 plus (b) an unlimited amount so long as, in the case of this clause (b), after giving effect to such Incremental Term Commitments (assuming that the full amount of such Incremental Term Commitments shall have been funded as Loans on such date) and any related transaction, on a Pro Forma Basis, the Senior Secured Leverage Ratio as of the last day of the most recent fiscal quarter of the Parent Borrower for which financial statements have been (or are required to have been) delivered pursuant to clause (p) of Article IV, Section 5.01(a) or 5.01 (b) does not exceed 2.00:1.00. Each such notice shall specify (i) the date on which the Borrowers propose that the Incremental Term Commitments shall be effective, which shall be a date not less than 5 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, and (ii) the amount of Incremental Term Commitments being requested (it being agreed that (x) any of Lender approached to provide any Incremental Term Commitment may elect or decline, in its subsidiaries or Affiliates or any Affiliate Lender) willing sole discretion, to provide such Incremental Term Loans. Each such notice shall set forth Commitment and (iy) any Person that the amount of the Incremental Term Commitments being requested, (ii) the date on which such Incremental Term Commitments are requested Borrowers propose to become effective (the “Increased Amount Date”)an Incremental Lender, and (iii) whether if such Incremental Term Commitments are to be the same as the existing Commitments or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans (the “Other Term Loans”). Each tranche of Incremental Term Loans shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that Person is not less than $25,000,000; provided that such amount may then a Lender, must be less than $25,000,000 if such amount represents all the remaining availability under the Incremental Term Loan Amount outstanding at such time. Notwithstanding anything an Eligible Assignee and must be reasonably acceptable to the contrary herein, the Borrower may request Incremental Term Commitments and may incur Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeem, repurchase or otherwise discharge all or a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses (including tender premiumAdministrative Agent).
(b) The Borrower terms and each conditions of any Incremental Term Lender shall execute Commitments and deliver to the Agent an agreement (an “Incremental Assumption Agreement”) and such other documentation as the Agent shall reasonably request to evidence the Incremental Term Commitment of such Incremental Term LenderLoans to be made thereunder shall be, except as otherwise set forth herein or in each case in form and substance reasonably satisfactory to the Agent. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Facility Agreement, identical to those of the Tranche B Term Commitments and the Tranche B Term Loans; provided that (i) no existing Lender will be required with respect to participate any Incremental Term Commitments that are pari passu with respect to security with the Tranche B Term Loans, if the All-in Yield for any such Incremental Term Loans (other than Refinancing Term Loans) exceeds the All-in Yield for the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Rate for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans, (ii) no Incremental Term Maturity Date shall be earlier than the Tranche B Term Maturity Date, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Tranche B Term Loans, (iv) the Incremental Term Loans may participate on a pro rata basis (or on a basis that is less than pro rata) in any mandatory prepayments of the Tranche B Term Loans, but may not provide for mandatory prepayment requirements that are more favorable than those applicable to the Tranche B Term Loans, (v) the Incremental Term Loans will rank pari passu in right of payment and pari passu or junior with respect to security with the Tranche B Term Loans (subject to, in the case of any Incremental Term Commitments that rank junior with respect to security with the Tranche B Term Loans, the entry into customary intercreditor arrangements reasonably acceptable to the Administrative Agent and the Borrowers) and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party and (vi) to the extent the terms of the Incremental Term Loans are inconsistent with the terms of the Tranche B Term Loans (except as set forth in clauses (i), (ii) and (iii) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Term Commitments established pursuant to an Incremental Facility without its consentAgreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate Series of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement unless intended to constitute an increase in any previously established Class of Loans.
(c) The Incremental Term Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrowers, each Incremental Lender providing such Incremental Term Commitments and the Administrative Agent; provided that no Incremental Term Commitments shall become effective unless (i) on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Term Commitments (and assuming that the full amount of such Incremental Term Commitments shall have been funded as Loans on such date), no Default or Event of Default shall have occurred and be continuing (unless, if the proceeds of such Incremental Term Loans are being used to finance a Limited Condition Acquisition, waived (or not required) by the Lenders providing such Incremental Term Commitments), (ii) on the date of effectiveness of any Incremental Term Commitment thereof, and after giving effect to the making of Loans to be made on such date, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date; provided that if the proceeds of such Incremental Term LoansLoans are being used to finance a Limited Condition Acquisition, each of the conditions condition set forth in Sections 4.02(bthis clause (ii) may be limited such that only the accuracy of the Specified Representations and 4.02(cthe Acquired Company Acquisition Agreement Representations (assuming the target is the “Acquired Company”, the applicable acquisition agreement is the “Acquisition Agreement,” and the acquisition of such target is the “Acquisition” for purposes of the definition thereof) shall be satisfied, a condition precedent to the incurrence of such Incremental Term Loans and (iii) the final maturity date Borrowers shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates, reaffirmation agreement and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Other Term Loans shall be no earlier than the Maturity Date of the Initial Term Loans and the weighted average life Lender, effect such amendments to maturity of such Incremental Term Loan Facility shall be not shorter than the then remaining weighted average life to maturity of the Initial Term Loans, (iv) the Borrower is in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Term Loan Facility (and after giving effect to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment events), with the covenant set forth in Section 6.11 recomputed as of the last day of the most recently ended fiscal quarter of Holdco for which financial statements are required to have been delivered pursuant to Section 5.01, (v) each Incremental Term Loan Facility will have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, the Initial Term Loan Facility, (vi) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable to any Incremental Term Loan Facility shall be determined by the Borrower and the applicable Incremental Term Lenders; provided, that if the total yield (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount (in each case, equated to the interest rate based upon an assumed four-year life to maturity or, if shorter, the remaining life to maturity of the Initial Term Loan Facility) and any interest rate floor payable to the arrangers providing such Incremental Term Loan Facility in the initial primary syndication thereof but excluding any arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to such arrangers) of any Incremental Term Loan Facility exceeds the total yield (consistently determined) on the Initial Term Loan Facility by more than 50 basis points, then the applicable margins for the Initial Term Loan Facility shall be increased to the extent necessary so that the total yield (consistently determined) on the Initial Term Loan Facility is 50 basis points less than the total yield (consistently determined) on such Incremental Term Loan Facility (provided, that, if the Adjusted LIBO Rate or the Alternate Base Rate in respect of such Incremental Term Loan Facility includes a floor greater than the floor applicable to the Initial Term Loan Facility, then such excess amount shall be equated to interest rate for purposes of determining the total yield under such Incremental Term Loan Facility), and (vii) each Incremental Term Loan Facility shall be on terms and pursuant to documentation to be mutually agreed; provided, that to the extent such terms and documentation are not consistent with the Initial Term Loan Facility (except to the extent permitted above), such terms and documentation shall be reasonably satisfactory to the Agent.
(c) The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Facility. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and the other Loan Documents shall as may be amended necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the extent (but only to the extent) necessary to reflect the existence and terms provisions of the Incremental Term Commitments evidenced thereby. Any such amendment may be memorialized in writing by the Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental Term Lenders in respect of such Incremental Term Commitmentsthis Section.
(d) This Section 2.23 Upon the effectiveness of an Incremental Term Commitment of any Incremental Lender, such Incremental Lender shall supersede anything be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents.
(e) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment shall make a loan to the Borrowers in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(f) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrowers referred to in Section 10.09 to 2.18(a) and of the contraryeffectiveness of any Incremental Term Commitments, in each case advising the Lenders of the details thereof.
Appears in 1 contract
Incremental Term Facilities. (a) The Borrower may, by written notice to the Agent from time to time and on one or more occasions, request Incremental Term Commitments, in an aggregate principal amount following the ARCA Effective Date not to exceed the Incremental Term Loan Amount at such time, from one or more financial institutions (which may include any existing Lender in such Lender’s sole discretion) that would be Eligible Assignees pursuant to Section 10.03(b) (other than Holdings or any of its subsidiaries or Affiliates or any Affiliate Lender) willing to provide such Incremental Term Loans. Each such notice shall set forth (i) the amount of the Incremental Term Commitments being requested, (ii) the date on which such Incremental Term Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Commitments are to be the same as the existing Commitments or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans (the “Other Term Loans”). Each tranche of Incremental Term Loans shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000; provided that such amount may be less than $25,000,000 if such amount represents all the remaining availability under the Incremental Term Loan Amount outstanding at such time. Notwithstanding anything to the contrary herein, the Borrower may request Incremental Term Commitments and may incur Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeem, repurchase or otherwise discharge all or a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses (including tender premium).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Agent an agreement (an “Incremental Assumption Agreement”) and such other documentation as the Agent shall reasonably request to evidence the Incremental Term Commitment of such Incremental Term Lender, in each case in form and substance reasonably satisfactory to the Agent. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) no existing Lender will be required to participate in any such Incremental Term Loan Facility without its consent, (ii) on the date of effectiveness of any Incremental Term Commitment and after giving effect to the making of such Incremental Term Loans, each of the conditions set forth in Sections 4.02(b) and 4.02(c) shall be satisfied, (iii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date of the Initial Term Loans and the weighted average life to maturity of such Incremental Term Loan Facility shall be not shorter than the then remaining weighted average life to maturity of the Initial Term Loans, (iv) the Borrower is in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Term Loan Facility (and after giving effect to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment events), with the covenant set forth in Section 6.11 recomputed as of the last day of the most recently ended fiscal quarter of Holdco for which financial statements are required to have been delivered pursuant to Section 5.01, (v) each Incremental Term Loan Facility will have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, the Initial Term Loan Facility, (vi) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable to any Incremental Term Loan Facility shall be determined by the Borrower and the applicable Incremental Term Lenders; provided, that if the total yield (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount (in each case, equated to the interest rate based upon an assumed four-year life to maturity or, if shorter, the remaining life to maturity of the Initial Term Loan Facility) and any interest rate floor payable to the arrangers providing such Incremental Term Loan Facility in the initial primary syndication thereof but excluding any arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to such arrangers) of any Incremental Term Loan Facility exceeds the total yield (consistently determined) on the Initial Term Loan Facility by more than 50 basis points, then the applicable margins for the Initial Term Loan Facility shall be increased to the extent necessary so that the total yield (consistently determined) on the Initial Term Loan Facility is 50 basis points less than the total yield (consistently determined) on such Incremental Term Loan Facility (provided, that, if the Adjusted LIBO Rate or the Alternate Base Rate in respect of such Incremental Term Loan Facility includes a floor greater than the floor applicable to the Initial Term Loan Facility, then such excess amount shall be equated to interest rate for purposes of determining the total yield under such Incremental Term Loan Facility), and (vii) each Incremental Term Loan Facility shall be on terms and pursuant to documentation to be mutually agreed; provided, that to the extent such terms and documentation are not consistent with the Initial Term Loan Facility (except to the extent permitted above), such terms and documentation shall be reasonably satisfactory to the Agent.
(c) The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Facility. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and the other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Commitments evidenced thereby. Any such amendment may be memorialized in writing by the Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental Term Lenders in respect of such Incremental Term Commitments.
(d) This Section 2.23 shall supersede anything in Section 10.09 to the contrary.
Appears in 1 contract
Samples: Term Loan and Guaranty Agreement (Tower International, Inc.)
Incremental Term Facilities. The Revolving Credit Lenders hereby agree that:
(a) The Borrower may, by written notice to the Administrative Agent from time to time and on one or more occasions, request Incremental Term Commitments, in an aggregate principal amount not to exceed the Incremental Term Loan Amount at such time, from one or more financial institutions (which may include any existing Lender in such Lender’s sole discretion) that would be are Eligible Assignees pursuant to Section 10.03(b) (other than Holdings or any of its subsidiaries or Affiliates or any Affiliate Lender) willing to provide such Incremental Term Loans; provided that no Incremental Term Loans may be borrowed at any time, and no commitments in respect of Incremental Term Loan Facilities may become effective at any time, if the sum, without duplication, of (x) the aggregate principal amount of all Incremental Term Loans borrowed hereunder at or prior to such time plus (y) the aggregate amount of all Incremental Term Commitments in respect of Incremental Term Loan Facilities that shall have become effective at or prior to such time plus (z) the aggregate principal amount of all Incremental Equivalent Debt incurred at or prior to such time would exceed the Incremental Cap at such time. Each such notice shall set forth (i) the amount of the Incremental Term Commitments being requested, (ii) the ii)the date on which such Incremental Term Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Commitments are to be the same as the existing Commitments or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Term Loans (the “Other Term Loans”). Each tranche of Incremental Term Loans shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000; provided that such amount may be less than $25,000,000 if such amount represents all the remaining availability under the Incremental Term Loan Amount Cap outstanding at such time. Notwithstanding anything to the contrary herein, the Borrower may request Incremental Term Commitments and may incur Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeem, repurchase or otherwise discharge all or a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses (including tender premium).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Term Administrative Agent an agreement (an “Incremental Assumption Agreement”) and such other documentation as the Term Administrative Agent shall reasonably request to evidence the Incremental Term Commitment of such Incremental Term Lender, in each case in form and substance reasonably satisfactory to the Administrative Agent. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) no existing Lender will be required to participate in any such Incremental Term Loan Facility without its consent, (ii) on the date of effectiveness of any Incremental Term Commitment and after giving effect to the making of such Incremental Term Loans, each of the conditions set forth in Sections 4.02(b) and 4.02(c) shall be satisfiedsatisfied (with references therein to the date of a Borrowing deemed to be references to such date of effectiveness), (iii) the final maturity date of any Other Term Loans shall be no earlier than 91 days following the Revolving Credit Maturity Date of (without giving effect to the Initial Springing Maturity Date) (or, if longer the Latest Term Loans Maturity Date) and the weighted average life Weighted Average Life to maturity Maturity of such Incremental Term Loan Facility shall be not shorter than the then remaining weighted average life Weighted Average Life to maturity Maturity of the Initial Revolving Credit Facility (or, if longer, the then remaining Weighted Average Life to Maturity of the Term Loans), (iv) the Borrower is in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Term Loan Facility (and after giving effect to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment events), with the covenant set forth in Section 6.11 recomputed as of the last day of the most recently ended fiscal quarter of Holdco for which financial statements are required to have been delivered pursuant to Section 5.01, (v) each Incremental Term Loan Facility will have the same guarantees as, and be secured by (X) the PP&E Collateral on a pari passu basis by (but without regard to the same control of remedies) with the other PP&E Priority Obligations and (Y) the Borrowing Base Collateral securing, on a junior basis relative to the Initial Term Loan FacilityLiens on the Borrowing Base Collateral securing the Borrowing Base Priority Obligations, (viv) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable to any Incremental Term Loan Facility shall be determined by the Borrower and the applicable Incremental Term Lenders; provided, that if and (vi) the total yield (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount (in each case, equated to the interest rate based upon an assumed four-year life to maturity or, if shorter, the remaining life to maturity other terms and conditions of the Initial Term Loan Facility) and any interest rate floor payable to the arrangers providing such Incremental Term Loan Facility in the initial primary syndication thereof but excluding any arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to such arrangers) of any Incremental Term Loan Facility exceeds the total yield (consistently determined) on the Initial Term Loan Facility by more than 50 basis points, then the applicable margins for the Initial Term Loan Facility shall be increased to the extent necessary so that the total yield (consistently determined) on the Initial Term Loan Facility is 50 basis points less than the total yield (consistently determined) on such Incremental Term Loan Facility (providedexcluding pricing, thatfees, if the Adjusted LIBO Rate or the Alternate Base Rate in respect of such Incremental Term Loan Facility includes a floor greater than the floor applicable optional prepayment, redemption terms, amortization (subject to the Initial Term Loan Facility, then preceding clause (iii)) and for covenants or other provisions applicable only to periods after the Latest Maturity Date at such excess amount shall be equated to interest rate for purposes of determining the total yield under such Incremental Term Loan Facilitytime), and (vii) each Incremental Term taken as a whole, shall not be more restrictive in any material respect on the Loan Facility shall be on terms and pursuant to documentation to be mutually agreed; provided, that Parties than those with respect to the extent such terms and documentation are not consistent with the Initial Term Loan Facility (except to the extent permitted above), such terms and documentation shall be reasonably satisfactory to the AgentRevolving Credit Facility.
(c) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Facility. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and the other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Commitments evidenced thereby. Any such amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental Term Lenders in respect of such Incremental Term Commitments.
(d) This Section 2.23 shall supersede anything in Section 10.09 to the contrary.;
Appears in 1 contract
Samples: Term Loan and Revolving Credit Agreement (Federal Mogul Corp)
Incremental Term Facilities. (a) The Borrower maymay on one or more occasions, by written notice to the Agent from time to time and on one or more occasionsAdministrative Agent, request the establishment of Incremental Term Loan Commitments, in an provided that the aggregate principal amount not to exceed of all the Incremental Term Loan Amount at such timeCommitments to be established hereunder on any date shall not exceed, from one or more financial institutions (which may include any existing Lender in such Lender’s sole discretion) that would be Eligible Assignees pursuant to Section 10.03(b) (other than Holdings or any assuming the full amount of its subsidiaries or Affiliates or any Affiliate Lender) willing to provide such Incremental Term LoansLoan Commitments shall have been funded as Loans on such date, the Incremental Amount as of such date. Each such notice shall set forth specify (i) the date on which the Borrower proposes that the Incremental Term Loan Commitments shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, (ii) the amount of the Incremental Term Loan Commitments being requested, (ii) the date on which such Incremental Term Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether the identity of each Person proposed to become an Incremental Lender in connection therewith (it being agreed that (x) any Lender approached to provide any Incremental Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Commitments are Loan Commitment and (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee and must be approved by the Administrative Agent (such approval not to be the same as the existing Commitments unreasonably withheld or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans (the “Other Term Loans”delayed). Each tranche of Incremental Term Loans shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000; provided that such amount may be less than $25,000,000 if such amount represents all the remaining availability under the Incremental Term Loan Amount outstanding at such time. Notwithstanding anything to the contrary herein, the Borrower may request Incremental Term Commitments and may incur Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeem, repurchase or otherwise discharge all or a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses (including tender premium).
(b) The Borrower terms and each conditions of any Incremental Term Lender shall execute Loan Commitments and deliver to the Agent an agreement (an “Incremental Assumption Agreement”) and such other documentation as the Agent shall reasonably request to evidence the Incremental Term Commitment of such Incremental Term Lender, Loans to be made thereunder shall be as set forth in each case in form and substance reasonably satisfactory to the Agent. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansFacility Agreement; provided that (i) no existing Lender will be required to participate in any such Incremental Term Loan Facility without its consent, (ii) Maturity Date shall be earlier than the latest Maturity Date in effect on the date of effectiveness of any Incremental Term Commitment and after giving effect to the making incurrence of such Incremental Term Loans, each of the conditions set forth in Sections 4.02(b(ii) and 4.02(c) shall be satisfied, (iii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date of the Initial Term Loans and the weighted average life to maturity of such any Incremental Term Loan Facility Loans shall be not no shorter than the then longest remaining weighted average life to maturity of any other Class of Loans outstanding on the Initial date of incurrence of such Incremental Term LoansLoans (and, (iv) for purposes of determining the Borrower is in compliance, on a Pro Forma Basis after giving effect weighted average life to the incurrence maturity of any such Incremental Term Loan Facility (and after giving effect outstanding Loans, the effects of any prepayments made prior to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment eventsthe date of the determination shall be disregarded), with the covenant set forth in Section 6.11 recomputed as of the last day of the most recently ended fiscal quarter of Holdco for which financial statements are required it being understood that, subject to have been delivered pursuant to Section 5.01, this clause (v) each Incremental Term Loan Facility will have the same guarantees as, and be secured on a pari passu basis by the same Collateral securingii), the Initial Term Loan Facility, (vi) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable to (and the effect thereon of any prepayments of) any Incremental Term Loan Facility Loans shall be determined by the Borrower and the applicable Incremental Lenders, (iii) Incremental Term Lenders; providedLoans may participate in any mandatory prepayments hereunder (other than the mandatory prepayment under Section 2.14(e)) on a pro rata basis (or on a basis that is less than pro rata) with the other Loans, but may not provide for mandatory prepayment requirements that if are more favorable than those applicable to the total other Loans, (iv) any Incremental Term Loan Commitments and Incremental Term Loans thereunder shall rank pari passu in right of payment, and shall be secured by the Collateral on an equal and ratable basis, with the other Loans, and shall be extensions of credit to the Borrower that are Guaranteed only by the Credit Parties, (v) the effective yield with respect to such Incremental Term Loans, determined as of the date of incurrence of such Incremental Term Loans (which shallbut giving effect to any scheduled increases), shall not be greater than the effective yield with respect to the Tranche B Term Loans, determined as of such date (giving effect to any amendments to the effective yield on the Term B Term Loans that became effective subsequent to the Closing Date but prior to such date, but excluding the effect to any increase in interest margins with respect thereto pursuant to this clause (v)), plus 50 basis points per annum unless the Applicable Rate (together with, as provided in the proviso below, the Adjusted Eurodollar Rate and Base Rate floors) with respect to the Tranche B Term Loans is increased so as to cause the effective yield with respect to the Tranche B Term Loans to equal the effective yield with respect to such Incremental Term Loans minus 50 basis points (for such purposes onlyof the foregoing, “effective yield” shall be deemed determined, with respect to include all any Indebtedness, as the yield thereof, whether in the form of interest rate, interest rate margin, original issue discount, upfront fees, recurring periodic fees in substance equivalent to interest, an interest rate floor (subject to the proviso set forth below) or otherwise (but excluding arrangement fees, structuring fees, commitment fees, underwriting fees and other similar fees or not paid generally to all lenders of such Indebtedness), with original issue discount (in each case, and upfront fees being equated to the interest rate based upon an assumed assuming a four-year life to maturity (or, if shorterless, the remaining stated life to maturity at the time of incurrence of the Initial applicable Indebtedness), provided that any increase in the effective yield with respect to the Tranche B Term Loan Facility) Loans due to the application of an Adjusted Eurodollar Rate or Base Rate floor to any Incremental Term Loans shall be effected solely through an increase in the Adjusted Eurodollar Rate or Base Rate floor applicable to the Tranche B Term Loans and any only to the extent an increase in such floor with respect to the Tranche B Term Loans would cause an increase in the interest rate floor payable then in effect with respect thereto and (vi) except for the terms referred to above and subject to Section 2.24(c), to the arrangers providing such Incremental Term Loan Facility in extent the initial primary syndication thereof but excluding any arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to such arrangers) terms of any Incremental Term Loan Facility exceeds Loans (for the total yield avoidance of doubt, other than interest rates (consistently determinedwhether fixed or floating), interest margins, benchmark rate floors, upfront fees, original issue discounts and prepayment terms (including “no call” terms and other restrictions thereon) and premiums) are not consistent with those of the Tranche B Term Loans as in effect on the Initial Term Loan Facility by more than 50 basis points, then the applicable margins for the Initial Term Loan Facility shall be increased to the extent necessary so that the total yield (consistently determined) on the Initial Term Loan Facility is 50 basis points less than the total yield (consistently determined) on such Incremental Term Loan Facility (provided, that, if the Adjusted LIBO Rate or the Alternate Base Rate in respect date of incurrence of such Incremental Term Loan Facility includes a floor greater than the floor applicable to the Initial Term Loan Facility, then such excess amount shall be equated to interest rate for purposes of determining the total yield under such Incremental Term Loan Facility), and (vii) each Incremental Term Loan Facility shall be on terms and pursuant to documentation to be mutually agreed; provided, that to the extent such terms and documentation are not consistent with the Initial Term Loan Facility (except to the extent permitted above)Loans, such terms and documentation differences shall be reasonably satisfactory to the AgentAdministrative Agent (it being agreed, however, that (x) any Incremental Facility Agreement may include any Previously Absent Financial Maintenance Covenant if such Previously Absent Financial Maintenance Covenant applies only to periods after the latest Maturity Date in effect as of the date of incurrence of such Incremental Term Loans or this Agreement is amended to include such Previously Absent Financial Maintenance Covenant for the benefit of all Lenders and (y) any Incremental Facility Agreement may include covenants and other provisions applicable only to periods after the latest Maturity Date in effect as of the date of incurrence of such Incremental Term Loans). In the event any Incremental Term Loans have the same terms as any existing Class of Loans then outstanding (disregarding any differences in original issue discount or upfront fees), such Incremental Term Loans may, at the election of the Borrower, be treated as a single Class with such outstanding Loans, and the scheduled Installments set forth in Section 2.12 with respect to any such Class of Loans may be increased to reflect scheduled amortization of such Incremental Term Loans.
(c) The Incremental Term Loan Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Term Loan Commitments and the Administrative Agent; provided that no Incremental Term Loan Commitments shall become effective unless (i) on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Term Loan Commitments, the making of Loans thereunder and the use of proceeds thereof, no Event of Default shall have occurred and be continuing and the representations and warranties of each Credit Party set forth in the Credit Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, provided that, in the case of Incremental Term Loan Commitments established to finance a Limited Condition Acquisition, the condition set forth in this clause (i) may be waived or modified in a manner determined by the Borrower and the Incremental Lenders providing such Incremental Term Loan Commitments, as set forth in the applicable Incremental Facility Agreement, except that the requirement that the Specified Representations be true and correct as set forth above may not be waived or modified without the prior written consent of the Requisite Lenders, (ii) the Administrative Agent shall promptly notify each Lender have received a certificate, dated the date of effectiveness thereof and signed by a Authorized Officer of the Borrower, confirming compliance with the condition set forth in clauses (i) above and, if such Incremental Term Loan Commitments or any portion thereof are being established in reliance on clause (b) of the definition of the term “Incremental Amount”, setting forth a reasonably detailed calculation of the Incremental Amount under such clause and (iii) the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates, reaffirmation agreements and other documents as shall reasonably be requested (consistent in all material respects with the documents delivered under Section 3 on the Closing Date) by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent and the Borrower, to give effect to the provisions of this Section 2.24, including any amendments necessary to treat the applicable Incremental Term Loan Commitments and Incremental Term Loans as a new Class of Commitments and Loans hereunder (including for purposes of prepayments and voting (it being agreed that such new Class of Commitments and Loans may be afforded class voting rights requiring the consent of Lenders under such Class in addition to any other consent of Lenders that might otherwise be required under Section 10.5) and to enable such new Class of Commitments and Loans to be extended under Section 2.25 or refinanced under Section 2.26).
(d) Upon the effectiveness of each an Incremental Term Loan Facility. Each Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the parties hereto hereby agrees thatapplicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Credit Documents.
(e) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.24(a) and of the effectiveness of any Incremental Assumption AgreementTerm Loan Commitments, this Agreement and in each case advising the other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms Lenders of the Incremental Term Commitments evidenced thereby. Any such amendment may be memorialized in writing by the Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental Term Lenders in respect of such Incremental Term Commitmentsdetails thereof.
(d) This Section 2.23 shall supersede anything in Section 10.09 to the contrary.
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Incremental Term Facilities. (a) The At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, by written notice to the Administrative Agent from time (whereupon the Administrative Agent shall promptly deliver a copy to time and on each of the Lenders), request to add one or more occasions, request additional tranches of term loans (the “Incremental Term Commitments, Loans”) and Alternative Incremental Facility Debt in an aggregate principal amount not of up to exceed (i) $100,000,000 if, after giving effect to the Incremental Term Loan Amount at incurrence of such time, from one or more financial institutions amount and the application of the proceeds therefrom (which may include any existing Lender in such Lender’s sole discretion) and assuming that would be Eligible Assignees pursuant to Section 10.03(b) (other than Holdings or any the full amount of its subsidiaries or Affiliates or any Affiliate Lender) willing to provide such Incremental Term Loans. Each Loans and such notice Alternative Incremental Facility Debt has been funded on such date and the proceeds of such amount shall be excluded from the calculation of cash and cash equivalents set forth in clause (ib) the amount of the Incremental Term Commitments being requesteddefinition of Consolidated Net Debt), the Total Leverage Ratio is equal to or less than 5.00 to 1.00 plus (ii) an additional amount if, after giving effect to the date on which incurrence of such additional amount and the application of the proceeds therefrom (and assuming that the full amount of such Incremental Term Commitments are requested Loans and such Alternative Incremental Facility Debt has been funded on such date and that such Incremental Term Loans and Alternative Incremental Facility Debt is secured on a senior basis and the proceeds of such amount shall be excluded from the calculation of cash and cash equivalents set forth in clause (b) of the definition of Consolidated Net Debt), the Senior Secured Leverage Ratio is equal to become effective or less than 3.50 to 1.00; provided that, at the time of each such request and upon the effectiveness of each Incremental Facility Amendment, (the “Increased Amount Date”)A) no Default has occurred and is continuing or shall result therefrom, and (iiiB) whether such Incremental Term Commitments are the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clause (A) above, together with reasonably detailed calculations demonstrating compliance with clauses (a)(i) and (a)(ii) above (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and certificate of a Financial Officer required to be delivered by Section 5.01(a) or 5.01(b) and Section 5.01(d), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA for the same as the existing Commitments or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans (the “Other Term Loans”relevant period). Each tranche of Incremental Term Loans shall be in an integral multiple of $1,000,000 5,000,000 and be in an aggregate principal amount that is not less than $25,000,000; provided that such amount may be less than $25,000,000 if such amount represents all the remaining availability under the Incremental Term Loan Amount outstanding at such time. Notwithstanding anything to the contrary herein, the Borrower may request Incremental Term Commitments and may incur aggregate principal amount of Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeem, repurchase or otherwise discharge all or a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses (including tender premium)set forth above.
(b) The Incremental Term Loans (i) shall rank pari passu or junior in right of payment in respect of the Collateral and with the Obligations in respect of the Tranche B-1 Term Loans and the Tranche B-2 Term Loans, (ii) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Tranche B-1 Term Loans and the Tranche B-2 Term Loans and (iii) other than amortization, pricing and maturity date, shall be on terms and subject to conditions as agreed between the Borrower and each the Incremental Term Lender shall execute and deliver Lenders and, to the extent such terms (other than with respect to maturity, amortization and pricing) are inconsistent with those governing the Tranche B-2 Term Loans, reasonably satisfactory to the Administrative Agent; provided that (A) if the Weighted Average Yield relating to any Incremental Term Loan exceeds the Weighted Average Yield relating to a Class of existing Term Loans (after giving effect to any amendments to the applicable margin on such Class of existing Term Loans prior to time that such Incremental Term Loans are made) immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, then the Applicable Rate relating to such Class of existing Term Loans shall be adjusted so that the Weighted Average Yield relating to such Incremental Term Loans shall not exceed the Weighted Average Yield relating to such Class of existing Term Loans by more than 0.50%, (B) any Incremental Term Loan shall not have a final maturity date earlier than the Tranche B-2 Term Maturity Date and (C) any Incremental Term Loan shall not have a weighted average life that is shorter than the weighted average life of the then-remaining Tranche B-2 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 Term Loan. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Term Loans shall be reasonably satisfactory to the Borrower and the Administrative Agent (any such bank, financial institution, existing Lender or other Person being called an agreement “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Assumption AgreementFacility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, such Additional Lender and such other documentation as the Agent Administrative Agent. No Lender shall reasonably request be obligated to evidence the provide any Incremental Term Commitment Loan, unless it so agrees. Commitments in respect of such any Incremental Term Lender, in each case in form and substance reasonably satisfactory to Loans shall become Commitments under this Agreement upon the Agent. Each Incremental Assumption Agreement shall specify the terms effectiveness of the applicable Incremental Term Loans; provided that Facility Amendment. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (iincluding to provide for voting provisions applicable to the Additional Lenders comparable to the provisions of clause (B) no existing Lender will be required to participate in any such Incremental Term Loan Facility without its consent, (ii) on of the date second proviso of Section 9.02(b)). The effectiveness of any Incremental Term Commitment Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and after giving effect the Additional Lenders, be subject to the making satisfaction on the effective date thereof of such Incremental Term Loans, each of the conditions set forth in Sections 4.02(bclauses (g) and 4.02(c(h) of Section 4.01 (it being understood and agreed that all references to a Borrowing in clauses (g) and (h) of Section 4.01 shall be satisfied, (iii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date of the Initial Term Loans and the weighted average life deemed to maturity of such Incremental Term Loan Facility shall be not shorter than the then remaining weighted average life refer to maturity of the Initial Term Loans, (iv) the Borrower is in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Term Loan Facility (and after giving effect to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment events), with the covenant set forth in Section 6.11 recomputed as of the last day of the most recently ended fiscal quarter of Holdco for which financial statements are required to have been delivered pursuant to Section 5.01, (v) each Incremental Term Loan Facility will have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, the Initial Term Loan Facility, (vi) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable to any Incremental Term Loan Facility shall be determined by the Borrower and the applicable Incremental Term Lenders; provided, that if the total yield (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount (in each case, equated to the interest rate based upon an assumed four-year life to maturity or, if shorter, the remaining life to maturity of the Initial Term Loan Facility) and any interest rate floor payable to the arrangers providing such Incremental Term Loan Facility in the initial primary syndication thereof but excluding any arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to such arrangers) of any Incremental Term Loan Facility exceeds the total yield (consistently determined) on the Initial Term Loan Facility by more than 50 basis points, then the applicable margins for the Initial Term Loan Facility shall be increased to the extent necessary so that the total yield (consistently determined) on the Initial Term Loan Facility is 50 basis points less than the total yield (consistently determined) on such Incremental Term Loan Facility (provided, that, if the Adjusted LIBO Rate or the Alternate Base Rate in respect of such Incremental Term Loan Facility includes a floor greater than the floor applicable to the Initial Term Loan Facility, then such excess amount shall be equated to interest rate for purposes of determining the total yield under such Incremental Term Loan FacilityAmendment), and (vii) each Incremental Term Loan Facility shall be on terms and pursuant to documentation to be mutually agreed; provided, that to the extent such terms and documentation are not consistent with the Initial Term Loan Facility (except to the extent permitted above), such terms and documentation shall be reasonably satisfactory to the Agent.
(c) The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Facility. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and the other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Commitments evidenced thereby. Any such amendment may be memorialized in writing by the Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental Term Lenders in respect of such Incremental Term Commitments.
(d) This Section 2.23 shall supersede anything in Section 10.09 to the contrary.
Appears in 1 contract
Samples: Credit Agreement (Affinia Group Intermediate Holdings Inc.)
Incremental Term Facilities. (a) The Borrower maymay on one or more occasions, by written notice to the Agent from time to time and on one or more occasionsAdministrative Agent, request the establishment of Incremental Term Loan Commitments, in an provided that the aggregate principal amount not to exceed of all the Incremental Term Loan Commitments established hereunder on any date shall not exceed the Incremental Amount at as of such time, from one or more financial institutions (which may include any existing Lender in such Lender’s sole discretion) that would be Eligible Assignees pursuant to Section 10.03(b) (other than Holdings or any of its subsidiaries or Affiliates or any Affiliate Lender) willing to provide such Incremental Term Loansdate. Each such notice shall set forth specify (iA) the date on which the Borrower proposes that the Incremental Term Loan Commitments shall be effective and (B) the amount of the Incremental Term Loan Commitments being requestedrequested (it being agreed that (x) any Lender approached to provide any Incremental Term Loan Commitment may elect or decline, (ii) the date on which in its sole discretion, to provide such Incremental Term Commitments are requested Loan Commitment and (y) any Person that the Borrower proposes to become effective (an Incremental Lender must be an Eligible Assignee and, solely if such approval would be required under Section 10.6 for an assignment of Loans or Commitments of the “Increased Amount Date”), and (iii) whether applicable Class to such Incremental Term Commitments are Lender, must be approved by the Administrative Agent (such approval not to be the same as the existing Commitments unreasonably withheld, conditioned or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans (the “Other Term Loans”delayed)). Each tranche The terms and conditions of any Incremental Term Loan Commitments and the Incremental Term Loans to be made thereunder shall be as set forth in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000; provided that such amount may be less than $25,000,000 if such amount represents all the remaining availability under the Incremental Term Loan Amount outstanding at such time. Notwithstanding anything to the contrary herein, the Borrower may request Incremental Term Commitments and may incur Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeem, repurchase or otherwise discharge all or a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses (including tender premium).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Agent an agreement (an “Incremental Assumption Agreement”) and such other documentation as the Agent shall reasonably request to evidence the Incremental Term Commitment of such Incremental Term Lender, in each case in form and substance reasonably satisfactory to the Agent. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansFacility Agreement; provided that (i) no existing Lender will be required to participate in any such Incremental Term Loan Facility without its consent, (ii) Maturity Date shall be earlier than the latest Maturity Date in effect on the date of effectiveness of any Incremental Term Commitment and after giving effect to the making incurrence of such Incremental Term Loans, each of the conditions set forth in Sections 4.02(b(ii) and 4.02(c) shall be satisfied, (iii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date of the Initial Term Loans and the weighted average life to maturity of such any Incremental Term Loan Facility Loans shall be not no shorter than the then longest remaining weighted average life to maturity of any other Class of Loans outstanding on the Initial date of incurrence of such Incremental Term LoansLoans (and, (iv) for purposes of determining the Borrower is in compliance, on a Pro Forma Basis after giving effect weighted average life to the incurrence maturity of any such Incremental Term Loan Facility (and after giving effect other Class of Loans, the effects of any prepayments made prior to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment eventsthe date of the determination shall be disregarded), with the covenant set forth in Section 6.11 recomputed as of the last day of the most recently ended fiscal quarter of Holdco for which financial statements are required it being understood that, subject to have been delivered pursuant to Section 5.01, this clause (v) each Incremental Term Loan Facility will have the same guarantees as, and be secured on a pari passu basis by the same Collateral securingii), the Initial Term Loan Facility, (vi) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable to (and the effect thereon of any prepayments of) any Incremental Term Loan Facility Loans shall be determined by the Borrower and the applicable Incremental Lenders, (iii) Incremental Term Lenders; providedLoans may participate in any mandatory prepayments hereunder on a pro rata basis (or on a basis that is less than pro rata) with the other Loans, but may not provide for mandatory prepayment requirements that if are more favorable than those applicable to the total yield other Loans, (which shalliv) any Incremental Term Loan Commitments and any Loans thereunder shall rank pari passu in right of payment, and shall be secured by the Collateral on an equal and ratable basis, with the other Commitments and Loans, and shall be extensions of credit to the Borrower that are Guaranteed only by the Credit Parties, (v) the Effective Yield with respect to any Incremental Term Loans (other than MFN Adjustment Excluded Indebtedness), determined as of the date of incurrence of such Incremental Term Loans, shall not be greater than the Effective Yield with respect to the Tranche B Term Loans, determined as of such date (giving effect to any amendments to the Effective Yield on the Tranche B Term Loans that became effective subsequent to the Closing Date but prior to such date, but excluding the effect of any increase in the Effective Yield thereon pursuant to this clause (v)), plus 50 basis points per annum unless the Applicable Rate (together with, as provided in the proviso below, the Adjusted Eurodollar Rate and Base Rate floors) with respect to the Tranche B Term Loans is increased, or fees to Lenders then holding the Tranche B Term Loans are paid, so as to cause the Effective Yield with respect to the Tranche B Term Loans to equal the Effective Yield with respect to such Incremental Term Loans minus 50 basis points, provided that any increase in the Effective Yield with respect to the Tranche B Term Loans due to the application of an Adjusted Eurodollar Rate or Base Rate floor to any Incremental Term Loans shall be effected solely through an increase in the Adjusted Eurodollar Rate or Base Rate floor applicable to the Tranche B Term Loans (this clause (v), the “MFN Adjustment”), and (vi) except for such purposes onlythe terms referred to above and subject to Section 2.23(c), be deemed the terms of any Incremental Term Loans (for the avoidance of doubt, other than with respect to include all upfront Effective Yield and components thereof, fees, prepayment terms (including “no call” terms and other restrictions thereon) and premiums) shall satisfy the Specified Permitted Indebtedness Documentation Requirements. In the event any Incremental Term Loans have the same terms as any existing Class of Loans then outstanding or similar fees any Extended/Modified Term Loans or original issue discount Refinancing Term Loans then substantially concurrently established (in each case, equated to disregarding any differences in original issue discount or upfront fees if not affecting the interest rate based upon an assumed four-year life to maturity orfungibility thereof for US federal income tax purposes), if shortersuch Incremental Term Loans may, at the remaining life to maturity election of the Initial Borrower, be treated as a single Class with such outstanding Term Loans or such Extended/Modified Term Loans or Refinancing Term Loans, and the scheduled Installments set forth in Section 2.11 with respect to any such Class of Loans may be increased, without the consent of the Majority in Interest of such Class or any Lender of such Class, to reflect scheduled amortization of such Incremental Term Loans. The Incremental Term Loan Facility) Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and any interest rate floor payable to delivered by the arrangers Borrower, each Incremental Lender providing such Incremental Term Loan Facility Commitments and the Administrative Agent; provided that no Incremental Term Loan Commitments shall become effective unless (i) on the date of effectiveness thereof, after giving Pro Forma Effect to such Incremental Term Loan Commitments, the making of Loans thereunder and the use of proceeds thereof, (x) no Event of Default shall have occurred and be continuing or would result therefrom and (y) the representations and warranties of each Credit Party set forth in the initial primary syndication Credit Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects, and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, provided that in the case of Incremental Term Loan Commitments established to finance, in whole or in part, a Limited Conditionality Transaction, the conditions set forth in this clause (i) may be tested in accordance with Section 1.2(e) and/or may be modified in a manner customary for “SunGard” limited condition transactions, in each case as agreed by the Borrower and the Incremental Lenders providing such Incremental Term Loan Commitment and set forth in the applicable Incremental Facility Agreement, (ii) the Administrative Agent shall have received a certificate, dated the date of effectiveness thereof but excluding and signed by an Authorized Officer of the Borrower, confirming compliance with the conditions set forth in clause (i) above (as may be modified as described in such clause) and, if such Incremental Term Loan Commitments or any arrangementportion thereof are being established in reliance on clause (b) of the definition of the term “Incremental Amount”, commitmentsetting forth a reasonably detailed calculation of the Incremental Amount under such clause, structuring (iii) the Borrower shall make any payments required to be made pursuant to Section 2.17(c) in connection with such Incremental Term Loan Commitments and underwriting fees the related transactions under this Section 2.23 and (iv) the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates, reaffirmation agreements and other documents as shall reasonably be requested (consistent in all material respects with the documents delivered under Section 3.1 on the Closing Date) by the Administrative Agent in connection with any amendment fees paid such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Credit Documents as may be necessary or payable appropriate, in the opinion of the Administrative Agent and the Borrower, to give effect to the provisions of this Section 2.23, including any amendments necessary to treat the applicable Incremental Term Loan Commitments and Incremental Term Loans as a new Class of Commitments and Loans hereunder (including for purposes of prepayments and voting (it being agreed that such new Class of Commitments and Loans may be included in the definitions of “Majority in Interest”, “Pro Rata Share” and “Requisite Lenders” and may be afforded class voting rights requiring the consent of Lenders under such Class in addition to any other consent of Lenders that might otherwise be required under Section 10.5) and to enable such new Class of Commitments and Loans to be extended under Section 2.24 or refinanced under Section 2.25). Upon the effectiveness of an Incremental Term Loan Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Credit Documents. [Reserved]. Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Incremental Term Lender holding an Incremental Term Loan Commitment of any Class shall make a Loan to the Borrower in an amount equal to such arrangersIncremental Term Loan Commitment on the date specified in such Incremental Facility Agreement. The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.23(a) and of the effectiveness of any Incremental Term Loan Facility exceeds Commitments, in each case advising the total yield (consistently determined) on the Initial Term Loan Facility by more than 50 basis points, then the applicable margins for the Initial Term Loan Facility shall be increased to the extent necessary so that the total yield (consistently determined) on the Initial Term Loan Facility is 50 basis points less than the total yield (consistently determined) on such Incremental Term Loan Facility (provided, that, if the Adjusted LIBO Rate or the Alternate Base Rate in respect of such Incremental Term Loan Facility includes a floor greater than the floor applicable to the Initial Term Loan Facility, then such excess amount shall be equated to interest rate for purposes of determining the total yield under such Incremental Term Loan Facility), and (vii) each Incremental Term Loan Facility shall be on terms and pursuant to documentation to be mutually agreed; provided, that to the extent such terms and documentation are not consistent with the Initial Term Loan Facility (except to the extent permitted above), such terms and documentation shall be reasonably satisfactory to the Agent.
(c) The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Facility. Each Lenders of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and the other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Commitments evidenced thereby. Any such amendment may be memorialized in writing by the Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental Term Lenders in respect of such Incremental Term Commitmentsdetails thereof.
(d) This Section 2.23 shall supersede anything in Section 10.09 to the contrary.
Appears in 1 contract
Incremental Term Facilities. (a) The At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, by written notice to the Administrative Agent from time (whereupon the Administrative Agent shall promptly deliver a copy to time and on each of the Lenders), add additional Term Loans or add one or more occasions, request Incremental Term Commitments, in an aggregate principal amount not to exceed additional tranches of term loans (the Incremental Term Loan Amount at such time, from one or more financial institutions (which may include any existing Lender in such Lender’s sole discretion) that would be Eligible Assignees pursuant to Section 10.03(b) (other than Holdings or any of its subsidiaries or Affiliates or any Affiliate Lender) willing to provide such “Incremental Term Loans”; each such increase or tranche, an “Incremental Term Facility”). Each such notice Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Facilities shall set forth not exceed an amount equal to the sum of (i) the amount of the Fixed Incremental Term Commitments being requestedAmount, plus (ii) the date on which such Incremental Term Commitments are requested to become effective Ratio Amount (the sum of the Fixed Incremental Amount and the Ratio Amount, the “Increased Amount DateIncremental Amount”), and (iii) whether such . Calculation of the Incremental Term Commitments are to Amount shall be the same as the existing Commitments or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans (the “Other Term Loans”)made on Pro Forma Basis. Each tranche of Incremental Term Loans shall be in an integral multiple of $1,000,000 1.0 million and be in an aggregate principal amount that is not less than $25,000,00010.0 million (or such lesser minimum amount approved by the Administrative Agent in its reasonable discretion); provided that such amount may be less than $25,000,000 the applicable minimum amount or integral multiple amount if such amount represents all the remaining availability under the Fixed Incremental Term Loan Amount outstanding at such time. Notwithstanding anything to or the contrary herein, the Borrower may request Incremental Term Commitments and may incur Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeem, repurchase or otherwise discharge all or a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses (including tender premium)Ratio Amount.
(b) The Each notice from the Borrower pursuant to this Section 2.19 shall set forth the requested amount and each Incremental Term Lender shall execute and deliver to the Agent an agreement (an “Incremental Assumption Agreement”) and such other documentation as the Agent shall reasonably request to evidence the Incremental Term Commitment of such Incremental Term Lender, in each case in form and substance reasonably satisfactory to the Agent. Each Incremental Assumption Agreement shall specify the proposed terms of the applicable relevant Incremental Term Loans; . Incremental Term Loans may be provided by any existing Lender (it being understood that (i) no existing Lender will be required have an obligation to participate in provide, and the Borrower shall have no obligation to offer any such Incremental Term Loan Facility without its consentexisting Lender the opportunity to provide any commitment for, (ii) on the date of effectiveness of any Incremental Term Commitment and after giving effect to the making of such Incremental Term Loans), in each of the conditions set forth in Sections 4.02(b) and 4.02(c) shall be satisfied, (iii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date of the Initial Term Loans and the weighted average life to maturity of such Incremental Term Loan Facility shall be not shorter than the then remaining weighted average life to maturity of the Initial Term Loans, (iv) the Borrower is in compliancecase, on a Pro Forma Basis after giving effect to terms permitted under this Section 2.19, or any Additional Lender; provided that the incurrence of any such Incremental Term Loan Facility (and after giving effect to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment events), with the covenant set forth in Section 6.11 recomputed as of the last day of the most recently ended fiscal quarter of Holdco for which financial statements are required to Administrative Agent shall have been delivered pursuant to Section 5.01, (v) each Incremental Term Loan Facility will have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, the Initial Term Loan Facility, (vi) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable to any Incremental Term Loan Facility shall be determined by the Borrower and the applicable Incremental Term Lenders; provided, that if the total yield (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount consented (in each case, equated such consent not to the interest rate based upon an assumed four-year life be unreasonably withheld, delayed or conditioned) to maturity or, if shorter, the remaining life to maturity of the Initial Term Loan Facility) and any interest rate floor payable to the arrangers Additional Lender’s providing such Incremental Term Loan Facility in Loans if such consent by the initial primary syndication thereof but excluding any arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable Administrative Agent would be required under Section 9.04 for an assignment of Term Loans to such arrangers) Additional Lender; provided further that the making of any Incremental Term Loan Facility exceeds the total yield (consistently determined) on the Initial Term Loan Facility Loans by more than 50 basis points, then the applicable margins for the Initial Term Loan Facility any Non-Debt Fund Affiliate shall be increased subject to the extent necessary so that the total yield (consistently determined) on the Initial terms and conditions applicable to any assignment of Term Loan Facility is 50 basis points less than the total yield (consistently determined) on Loans to such Affiliated Lender as if such Incremental Term Loans were assigned to such Affiliated Lender. Each Incremental Term Facility shall become effective pursuant to an amendment (each, an “Incremental Term Facility Amendment”) to this Agreement and, as appropriate, the other Loan Facility (providedDocuments, thatexecuted by the Borrower, if the Adjusted LIBO Rate each Lender or the Alternate Base Rate in respect of Additional Lender providing such Incremental Term Loan Facility includes a floor greater than the floor applicable to the Initial Term Loan Facility, then such excess amount shall be equated to interest rate for purposes of determining the total yield under such Incremental Term Loan Facility), and (vii) each Incremental Term Loan Facility shall be on terms and pursuant to documentation to be mutually agreed; provided, that to the extent such terms and documentation are not consistent with the Initial Term Loan Facility (except to but without the extent permitted above), such terms consent of any other Lender) and documentation shall be reasonably satisfactory to the Administrative Agent.
(c) . The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan FacilityFacility Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption AgreementTerm Facility Amendment, this Agreement and the other Loan Documents Documents, as applicable, shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Commitments evidenced thereby. Any such amendment may be memorialized in writing by the Agent with the Borrower’s consent (not to be unreasonably withheld) Facility and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental Term Loans evidenced thereby.
(c) Any Incremental Term Facility shall be subject to the following terms and conditions:
(A) no Event of Default shall have occurred and be continuing or would result the incurrence of such Incremental Term Facility; provided that the condition set forth in this clause (A) may be waived or not required (other than with respect to Specified Events of Default) by the Persons providing such Incremental Term Facilities if the proceeds of the initial Borrowings under such Incremental Term Facilities will be used to finance, in whole or in part, an Investment or acquisition; and
(B) the representations and warranties in the Loan Documents will be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties will be true and correct in all respects) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Facility; provided that the condition set forth in this clause (B) may be waived or not required (other than with respect to the Specified Representations) by the persons providing such Incremental Term Facilities if the proceeds of the initial Borrowings under such Incremental Term Facilities will be used to finance, in whole or in part, an Investment or acquisition,
(ii) without the prior written consent of the Required Lenders,
(A) the final maturity date of any such Incremental Term Loans will be no earlier than the Maturity Date of the Closing Date Term Loans; provided that this clause shall not apply to the incurrence of any Incremental Term Loans pursuant to the Inside Maturity Exception,
(B) the Weighted Average Life to Maturity of any such Incremental Term Loans will be no shorter than the remaining Weighted Average Life to Maturity of the Closing Date Term Loans; provided that this clause shall not apply to the incurrence of any Incremental Term Loans pursuant to the Inside Maturity Exception; and
(C) subject to clauses (A) and (B), the amortization schedules applicable to such Incremental Term Facility shall be as determined by the Borrower and the Lenders or Additional Lenders thereunder,
(iii) such Incremental Term Facility shall, at the discretion of the Borrower, (A) rank pari passu in right of payment with the Obligations, (B) be subordinated in right of payment to the Obligations, (C) be secured on a pari passu basis with the Obligations, (D) be secured on a junior basis to the Obligations or (E) be unsecured;
(iv) any Incremental Term Facility may provide for the ability of the Lenders or Additional Lenders providing such Incremental Facility to participate on a pro rata basis or less than pro rata basis in any voluntary or mandatory prepayments of the Term Loans, but not on a greater than pro rata basis to the Closing Date Term Loans (other than (A) any repayment of such Incremental Term Loans at maturity, and (B) any greater than pro rata repayment of such Incremental Term Loans with the proceeds of Credit Agreement Refinancing Indebtedness);
(v) the interest rate, upfront fees and original issue discount for any Incremental Term Loans shall be as determined by the Borrower and the Lenders or Additional Lenders providing such Incremental Term Facility; provided that in the event that the interest rate margins applicable to any Incremental Term Loans (other than any Excluded Incremental Term Loan) that are incurred during the first six months following the Closing Date and are secured on a pari passu basis with the Closing Date Term Loans exceed the interest rate margins (taking into account the leverage-based pricing grid therein and any comparable leverage-based pricing grid applicable to such Incremental Term Loans) for the Closing Date Term Loans by more than 75 basis points, then the interest rate margins for the Closing Date Term Loans shall be increased to the extent necessary so that such interest rate margins for such Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 75 basis points
(vi) any other fees payable in connection with any Incremental Term Loans shall be as determined by the Borrower and the Lenders or Additional Lenders providing such Incremental Term Facility and
(vii) except as otherwise provided in clauses (i) through (vi), all other terms of such Incremental Term Facility shall be on terms (including subordination terms, if applicable) and pursuant to documentation to be determined by the Borrower and the providers of the Incremental Term Facility; provided that the operational and agency provisions contained in such documentation shall be reasonably satisfactory to the Administrative Agent and the Borrower.
(d) The proceeds of any Incremental Term Loans will be used for general corporate purposes (including financing capital expenditures, Investments, Permitted Business Acquisitions, Restricted Payments, refinancing of Indebtedness and any other transaction not prohibited hereunder).
(e) At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, incur Incremental Equivalent Debt in an aggregate principal amount not to exceed, as of the date of and after giving effect to the issuance of any such Incremental Equivalent Debt, the aggregate amount of Incremental Facilities then permitted to be incurred under Section 2.19 (determined assuming that the proceeds of any such Incremental Facilities would have been used for the same purposes as the proceeds of such Incremental Equivalent Debt); provided that the incurrence of any Incremental Equivalent Debt shall reduce, on a dollar-for-dollar basis, the aggregate amount of Incremental Facilities permitted to be incurred under Section 2.19.
(f) The incurrence of any Incremental Equivalent Debt pursuant to this Section 2.19(f), shall be subject to the following terms and conditions:
(i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the date of issuance of the Incremental Equivalent Debt signed by a Responsible Officer of the Borrower, certifying and attaching the resolutions adopted by the Borrower approving or consenting to the execution and delivery of the applicable financing documentation in respect of such Incremental Term CommitmentsEquivalent Debt and the issuance of such Incremental Equivalent Debt,
(ii) no Event of Default shall have occurred and be continuing or would result therefrom; provided that the condition set forth in this clause (ii) may be waived or not required (other than with respect to Specified Events of Default) by the persons providing such Incremental Equivalent Debt if the proceeds of the initial Borrowings under such Incremental Equivalent Debt will be used to finance, in whole or in part, an Investment or acquisition.
(diii) without the prior written consent of the Required Lenders,
(A) the final maturity date of any such Incremental Equivalent Debt will be no earlier than the Maturity Date of the Closing Date Term Loans; provided that this clause shall not apply to the incurrence of any Incremental Equivalent Debt pursuant to the Inside Maturity Exception;
(B) the Weighted Average Life to Maturity of any such Incremental Equivalent Debt will be no shorter than the remaining Weighted Average Life to Maturity of the Closing Date Term Loans; provided that this clause shall not apply to the incurrence of any Incremental Term Loans pursuant to the Inside Maturity Exception and
(C) subject to clauses (A) and (B), the amortization schedules applicable to such Incremental Equivalent Debt shall be as determined by the Borrower and the Lenders or Additional Lenders thereunder,
(iv) such Incremental Equivalent Debt shall, at the discretion of the Borrower, (A) rank pari passu in right of payment with the Obligations, (B) be subordinated in right of payment to the Obligations, (C) be secured on a pari passu basis with the Obligations, (D) be secured on a junior basis to the Obligations or (E) be unsecured; provided that if subordinated or secured, any intercreditor or lien subordination arrangements shall be reasonably satisfactory to the Administrative Agent,
(v) any fees payable in connection with such Incremental Equivalent Debt shall be determined by the Borrower and the arrangers or lenders providing such Incremental Equivalent Debt,
(vi) any Incremental Equivalent Debt may provide for the ability of the lenders providing such Incremental Equivalent Debt to participate on a pro rata basis or less than pro rata basis in any voluntary or mandatory prepayments of the Term Loans but not on a greater than pro rata basis to the Closing Date Term Loans (other than (A) any repayment of such Incremental Equivalent Debt at maturity, and (B) any greater than pro rata repayment of such Incremental Equivalent Debt with the proceeds of Credit Agreement Refinancing Indebtedness),
(vii) all other terms of such Incremental Equivalent Debt, shall be on terms (including subordination terms, if applicable) and pursuant to documentation to be determined by the Borrower and the providers of the Incremental Equivalent Debt. This Section 2.23 2.19 shall supersede anything any provisions in Section 10.09 9.08 to the contrary. For the avoidance of doubt, no existing Lender will be required to provide any Incremental Equivalent Debt and the Borrower shall have no obligation to offer any existing Lender the opportunity to provide any commitment for any Incremental Equivalent Debt.
Appears in 1 contract
Incremental Term Facilities. (a) The Borrower maymay on one or more occasions, by written notice to the Agent from time to time and on one or more occasionsAdministrative Agent, request the establishment of Incremental Term Commitments, provided that the aggregate amount of all the Incremental Term Commitments (other than Incremental Term Commitments in an respect of Refinancing Term Loans) established hereunder when aggregated with the aggregate principal amount of Incremental Equivalent Debt shall not to exceed $250,000,000 during the term of this Agreementthe Maximum Incremental Amount. Each such notice shall specify (i) the date on which the Borrower proposes that the Incremental Term Loan Amount at Commitments shall be effective, which shall be a date not less than 5 Business Days (or such timeshorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, from one and (ii) the amount of Incremental Term Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Term Commitment may elect or more financial institutions (which may include any existing Lender decline, in such Lender’s its sole discretion) that would be Eligible Assignees pursuant to Section 10.03(b) (other than Holdings or any of its subsidiaries or Affiliates or any Affiliate Lender) willing , to provide such Incremental Term Loans. Each such notice shall set forth Commitment and (iy) any Person that the amount of the Incremental Term Commitments being requested, (ii) the date on which such Incremental Term Commitments are requested Borrower proposes to become effective (the “Increased Amount Date”)an Incremental Lender, and (iii) whether if such Incremental Term Commitments are to be the same as the existing Commitments or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans (the “Other Term Loans”). Each tranche of Incremental Term Loans shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that Person is not less than $25,000,000; provided that such amount may then a Lender, must be less than $25,000,000 if such amount represents all the remaining availability under the Incremental Term Loan Amount outstanding at such time. Notwithstanding anything an Eligible Assignee and must be reasonably acceptable to the contrary herein, the Borrower may request Incremental Term Commitments and may incur Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeem, repurchase or otherwise discharge all or a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses (including tender premiumAdministrative Agent).
(b) The Borrower terms and each conditions of any Incremental Term Lender shall execute Commitments and deliver to the Agent an agreement (an “Incremental Assumption Agreement”) and such other documentation as the Agent shall reasonably request to evidence the Incremental Term Commitment of such Incremental Term LenderLoans to be made thereunder shall be, except as otherwise set forth herein or in each case in form and substance reasonably satisfactory to the Agent. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Facility Agreement, identical to those of the Tranche B Term Commitments and the Tranche B-2 Term Loans; provided that (i) no existing Lender will if the All-in Yield for any Incremental Term Loans (other than Refinancing Term Loans) exceeds the All-in Yield for the Tranche B-2 Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Rate for the Tranche B-2 Term Loans shall automatically be required to participate in any increased by the Yield Differential, effective upon the making of such Incremental Term Loans, (ii) no Incremental Term Maturity Date shall be earlier than the Tranche B-2 Term Maturity Date, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Tranche B-2 Term Loans, (iv) the Incremental Term Loans may participate on a pro rata basis (or on a basis that is less than pro rata) in any mandatory prepayments of the Tranche B-2 Term Loans, but may not provide for mandatory prepayment requirements that are more favorable than those applicable to the Tranche B-2 Term Loans, (vi) the Incremental Term Loans will rank pari passu in right of payment and with respect to security with the Tranche B-2 Term Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party and (vii) to the extent the terms of the Incremental Term Loans are inconsistent with the terms of the Tranche B-2 Term Loans (except as set forth in clauses (i), (ii) and (iii) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Term Commitments established pursuant to an Incremental Facility without its consentAgreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate Series of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement unless intended to constitute an increase in any previously established Class of Loans.
(c) The Incremental Term Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Loan Parties, each Incremental Lender providing such Incremental Term Commitments and the Administrative Agent; provided that no Incremental Term Commitments shall become effective unless (i) on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Term Commitments (and assuming that the full amount of such Incremental Term Commitments shall have been funded as Loans on such date), no Default or Event of Default shall have occurred and be continuing, (ii) on the date of effectiveness of any Incremental Term Commitment thereof, and after giving effect to the making of Loans to be made on such date, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date; provided that if the proceeds of such Incremental Term Loans are being used to finance a Permitted Acquisition, only the accuracy of the Specified Representations shall be conditions precedent to the incurrence of such Incremental Term Loans, each of the conditions set forth in Sections 4.02(b) and 4.02(c) shall be satisfied, (iii) except in the final maturity date case of any Other Refinancing Term Loans shall be no earlier than after giving effect to such Incremental Term Commitments (and assuming that the Maturity Date of the Initial Term Loans and the weighted average life to maturity full amount of such Incremental Term Loan Facility Commitments shall be not shorter than the then remaining weighted average life to maturity of the Initial Term Loanshave been funded as Loans on such date), (iv) the Borrower is in compliance, and any related transaction on a Pro Forma Basis after giving effect to Basis, the incurrence of any such Incremental Term Loan Facility Senior Secured Leverage Ratio (and after giving effect to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment events), with the covenant set forth in Section 6.11 recomputed calculated as of the last day of the fiscal quarter of Parent then most recently ended fiscal quarter of Holdco for which financial statements are required to have been delivered pursuant to Section 5.01, (v5.01(a) each Incremental Term Loan Facility will have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, the Initial Term Loan Facility, (vior 5.01(b)) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable to any Incremental Term Loan Facility shall be determined by the Borrower and the applicable Incremental Term Lenders; provided, that if the total yield (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount (in each case, equated to the interest rate based upon an assumed four-year life to maturity or, if shorter, the remaining life to maturity of the Initial Term Loan Facility) and any interest rate floor payable to the arrangers providing such Incremental Term Loan Facility in the initial primary syndication thereof but excluding any arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to such arrangers) of any Incremental Term Loan Facility exceeds the total yield (consistently determined) on the Initial Term Loan Facility by more than 50 basis points, then the applicable margins for the Initial Term Loan Facility shall be increased to the extent necessary so that the total yield (consistently determined) on the Initial Term Loan Facility is 50 basis points less than the total yield (consistently determined) on such Incremental Term Loan Facility (provided, that, if the Adjusted LIBO Rate or the Alternate Base Rate in respect of such Incremental Term Loan Facility includes a floor greater than the floor applicable to the Initial Term Loan Facility, then such excess amount shall be equated to interest rate for purposes of determining the total yield under such Incremental Term Loan Facility)would not exceed 2.50:1.00, and (viiiv and (iii) each Incremental Term Loan Facility the Borrower shall be on terms and pursuant to documentation to be mutually agreed; provided, that have delivered to the extent Administrative Agent such terms legal opinions, board resolutions, secretary’s certificates, officer’s certificates, reaffirmation agreement and documentation are not consistent other documents as shall reasonably be requested by the Administrative Agent in connection with the Initial Term Loan Facility (except to the extent permitted above), any such terms and documentation shall be reasonably satisfactory to the Agent.
(c) The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Facilitytransaction. Each of Incremental Facility Agreement may, without the parties hereto hereby agrees that, upon the effectiveness consent of any Incremental Assumption AgreementLender, effect such amendments to this Agreement and the other Loan Documents shall as may be amended necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the extent (but only to the extent) necessary to reflect the existence and terms provisions of the Incremental Term Commitments evidenced thereby. Any such amendment may be memorialized in writing by the Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental Term Lenders in respect of such Incremental Term Commitmentsthis Section.
(d) This Section 2.23 Upon the effectiveness of an Incremental Term Commitment of any Incremental Lender, such Incremental Lender shall supersede anything be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents.
(e) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment shall make a loan to the Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(f) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 10.09 to 2.18(a) and of the contraryeffectiveness of any Incremental Term Commitments, in each case advising the Lenders of the details thereof.
Appears in 1 contract
Incremental Term Facilities. (a) The Borrower may, by written notice to the Agent from time to time and at any time, on one or more occasionsoccasions on or after the Effective Date pursuant to an Incremental Amendment add one or more new Classes of term facilities and/or increase the principal amount of the Loans of any existing Class by requesting new commitments to provide such Term Loans (any such new Class or increase, request an “Incremental Term CommitmentsFacility” and any loan made pursuant to any Incremental Term Facility, “Incremental Term Loans”) in an aggregate principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Term Loan Amount at Facility may be in an amount that is less than $1,000,000 (or such timelesser amount to which the Administrative Agent may reasonably agree),
(ii) except as the Borrower and any Lender may separately agree, from one or more financial institutions (which may include any existing no Lender in such Lender’s sole discretion) that would shall be Eligible Assignees pursuant to Section 10.03(b) (other than Holdings or any of its subsidiaries or Affiliates or any Affiliate Lender) willing obligated to provide such any Incremental Term Loans. Each such notice shall set forth (i) the amount of the Incremental Term Commitments being requested, (ii) the date on which such Incremental Term Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Commitments are the determination to be the same as the existing Commitments or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans (the “Other Term Loans”). Each tranche of provide any Incremental Term Loans shall be in an integral multiple within the sole and absolute discretion of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000; provided that such amount may be less than $25,000,000 if such amount represents all the remaining availability under the Lender,
(iii) no Incremental Term Facility or Incremental Term Loan Amount outstanding at such time. Notwithstanding anything to (nor the contrary hereincreation, provision or implementation thereof) shall require the Borrower may request Incremental Term Commitments and may incur Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds approval of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeemany existing Lender other than in its capacity, repurchase or otherwise discharge if any, as a lender providing all or a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses (including tender premium).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Agent an agreement (an “Incremental Assumption Agreement”) and such other documentation as the Agent shall reasonably request to evidence the Incremental Term Commitment of such Incremental Term Lender, in each case in form and substance reasonably satisfactory to the Agent. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) no existing Lender will be required to participate in any such Incremental Term Loan Facility without its consent, (ii) on the date of effectiveness part of any Incremental Term Commitment Loan,
(iv) except as otherwise permitted herein (including with respect to margin, pricing (including any MFN provision), maturity, Weighted Average Life to Maturity and after giving effect fees), the terms of any Incremental Term Facility, if not substantially consistent with those applicable to the making of such Incremental any then-existing Term Loans, each of must be reasonably acceptable to the conditions Administrative Agent and the covenants applicable thereto (other than any such covenants applicable only after the Scheduled Maturity Date) shall not be more onerous or more restrictive in any material respect (taken as a whole) than the applicable covenants set forth in Sections 4.02(b) and 4.02(c) shall be satisfied, (iii) the final maturity date of any Other Term Loans shall be no earlier than the Maturity Date of the Initial Term Loans and the weighted average life to maturity of such Incremental Term Loan Facility shall be not shorter than the then remaining weighted average life to maturity of the Initial Term Loans, (iv) the Borrower is in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Term Loan Facility (and after giving effect to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment events), with the covenant set forth in Section 6.11 recomputed as of the last day of the most recently ended fiscal quarter of Holdco for which financial statements are required to have been delivered pursuant to Section 5.01, this Agreement,
(v) each Incremental Term Loan Facility will have the same guarantees as, All-In Yield (and be secured on a pari passu basis by the same Collateral securing, the Initial Term Loan Facility, (vicomponents thereof) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable to any Incremental Term Loan Facility shall be determined by the Borrower and the applicable Incremental Term Lenders; provided, that if the total yield (which shall, for such purposes only, be deemed to include all upfront lender or similar fees or original issue discount (in each case, equated to the interest rate based upon an assumed four-year life to maturity or, if shorter, the remaining life to maturity of the Initial Term Loan Facility) and any interest rate floor payable to the arrangers lenders providing such Incremental Term Loan Facility; provided that the All-In Yield applicable to any Incremental Term Facility established prior to the first anniversary of the Effective Date may not be more than 0.50% per annum higher than the All-In Yield applicable to the then-existing Term Loans unless the Applicable Rate (and/or, as provided in the initial primary syndication thereof but excluding proviso below, the Floor) with respect to such Term Loans is adjusted such that the All-In Yield on such Term Loans is not more than 0.50% per annum less than the All-In Yield with respect to such Incremental Term Facility (the “MFN Protection”); provided, further, that any arrangementincrease in All-In Yield applicable to any Term Loan due to the application or imposition of an Alternate Base Rate floor may, commitmentat the election of the Borrower, structuring and underwriting fees be effected through an increase in the Alternate Base Rate floor applicable to such Term Loan and any amendment fees paid increase in the All-In Yield applicable to any Term Loan due to the application or payable imposition of an Adjusted Term SOFR Rate or Adjusted Daily Simple SOFR floor on any such Incremental Term Loan may, at the election of the Borrower, be effected through an increase in each of the Adjusted Term SOFR Rate and Adjusted Daily Simple SOFR floor applicable to such arrangersTerm Loan,
(vi) except with respect to customary bridge financings that, subject to customary conditions (as determined by the Borrower in good faith), provide for an automatic extension of the maturity date thereof to a date that satisfies this clause (vi) or require such bridge loans to be converted into or exchanged for permanent financing with a maturity date that would satisfy this clause (vi), the final maturity date with respect to any Class of Incremental Term Loans shall be no earlier than the Scheduled Maturity Date; provided that with respect to any Incremental Term Loans secured on a junior lien basis to the Term Loans or that are unsecured, such Incremental Term Loans shall not mature prior to the date that is 91 days after the Scheduled Maturity Date (it being understood that no provision requiring an offer to purchase such Indebtedness as a result of change of control or asset sale or other fundamental change shall violate the foregoing restriction),
(vii) except with respect to customary bridge financings that, subject to customary conditions (as determined by the Borrower in good faith), provide for an automatic extension of the maturity date thereof to a date that satisfies this clause (vii) or require such bridge loans to be converted into or exchanged for permanent financing with a Weighted Average Life to Maturity date that would satisfy this clause (vii), the Weighted Average Life to Maturity of any Incremental Term Loan Facility exceeds the total yield (consistently determined) on the Initial Term Loan Facility by more than 50 basis points, then the applicable margins for the Initial Term Loan Facility shall be increased no shorter than the remaining Weighted Average Life to Maturity of any then-existing tranche of Term Loans (without giving effect to any prepayment thereof); provided that any Incremental Term Loans may have a shorter Weighted Average Life to Maturity of any then-existing tranche of Term Loans solely as necessary to ensure that such Incremental Term Loans are fungible with such then-existing tranche,
(viii) subject to clauses (vi) and (vii) above, any Incremental Term Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Term Facility; provided that with respect to any Incremental Term Loans secured on a junior lien basis to the Term Loans or that are unsecured, such Incremental Term Loans shall not be subject to any mandatory prepayment, redemption, defeasance, scheduled amortization or other scheduled payments of principal, in each case prior to the date that is 91 days after the Scheduled Maturity Date (it being understood that no provision requiring an offer to purchase such Indebtedness as a result of change of control or asset sale or other fundamental change shall violate the foregoing restriction),
(ix) subject to clause (v) above, to the extent necessary so that applicable, any fees payable in connection with any Incremental Term Facility shall be determined by the total yield (consistently determined) on Borrower and the Initial Term Loan Facility is 50 basis points less than the total yield (consistently determined) on arrangers and/or lenders providing such Incremental Term Facility,
(x) (A) each Incremental Term Facility shall not be senior to the Loans in right of payment, (B) each Incremental Term Facility, if secured, shall (1) be secured on a pari passu or junior basis to existing Loans and (2) be subject to an intercreditor agreement in form and substance reasonably acceptable to the Administrative Agent and (C) no Incremental Term Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the Collateral,
(A) no Default or Event of Default shall exist immediately prior to or after giving effect to such Incremental Term Facility (provided, that, notwithstanding the foregoing, if the Adjusted LIBO Rate Borrower shall have made an LCT Election in accordance with Section 1.08, no Default or Event of Default shall be existing immediately prior to the Alternate Base Rate in respect LCT Test Date and no Specified Event of Default shall exist immediately prior to or after giving effect to such Incremental Term Loan Facility includes a floor greater than the floor applicable to the Initial Term Loan Facility, then such excess amount shall be equated to interest rate for purposes of determining the total yield under such Incremental Term Loan Facility), and (viiB) each Incremental Term Loan Facility shall be on terms and pursuant subject to documentation to be mutually agreed; provided, that to the extent such terms and documentation are not consistent with the Initial Term Loan Facility (except to the extent permitted aboveSection 2.20(h), such terms the representations and documentation shall be reasonably satisfactory to the Agent.
(c) The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Facility. Each warranties of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, Loan Parties set forth in this Agreement and the other Loan Documents shall be amended true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) on and as of the date such Incremental Term Facility becomes effective with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period;
(but only xii) any Incremental Term Facility shall participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a) and (B) in any mandatory prepayment of Term Loans as set forth in (c) and (d), in each case, to the extentextent provided in Section 2.11,
(xiii) necessary to reflect the existence proceeds of any Incremental Term Facility may be used for working capital and/or purchase price adjustments and terms other general corporate purposes and any other use not prohibited by this Agreement, and
(xiv) on the date of the Borrowing of any Incremental Term Commitments evidenced thereby. Any Loans that will be of the same Class as any then-existing Class of Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13, such amendment Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Term Loans having an Interest Period (the duration of which may be memorialized in writing less than one month) that begins during an Interest Period then applicable to outstanding Eurocurrency Loans of the relevant Class and which ends on the last day of such Interest Period.
(b) Incremental Term Loans may be provided by any existing Lender, or by any other eligible assignee (any such lender providing Incremental Term Loans, an “Incremental Lender”); provided that the Administrative Agent with the Borrower’s shall have a right to consent (such consent not to be unreasonably withheldwithheld or delayed) and furnished to the other parties hereto but shall not require relevant Incremental Lender’s provision of Incremental Term Loans if such consent would be required under Section 9.04 for an assignment of Loans to such Incremental Lender, mutatis mutandis, to the consent same extent as if the relevant Incremental Term Loans and related Obligations had been acquired by such Incremental Lender by way of assignment.
(c) Each Incremental Lender providing a portion of any Incremental Term Loans shall execute and deliver to the Administrative Agent and the Borrower all such documentation (including the relevant Incremental Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Term Loans. On the effective date of such Incremental Term Loans, each Incremental Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As conditions precedent to the effectiveness of any Incremental Term Facility or the making of any Incremental Term Loans, (i) upon its request, the Administrative Agent shall be entitled to receive customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall be entitled to receive, from each Incremental Lender, an Administrative Questionnaire and such other than documents as it shall reasonably require from such Incremental Lender, (iii) the Administrative Agent, on behalf of the Incremental Term Lenders, or the Incremental Lenders, as applicable, shall have received the amount of any fees payable to the Incremental Lenders in respect of such Incremental Term CommitmentsFacility or Incremental Term Loans, (iv) subject to Section 2.20(h), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Term Loans were subject to Section 2.03 or another written request the form of which is reasonably acceptable to the Administrative Agent (it being understood and agreed that the requirement to deliver a Borrowing Request shall not result in the imposition of any additional condition precedent to the availability of the relevant Incremental Term Loans) and (v) the Administrative Agent shall be entitled to receive a certificate of the Borrower signed by a Financial Officer thereof (A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Term Facility or Incremental Term Loans and (B) to the extent applicable, certifying that the condition set forth in clause (a)(xi) above has been satisfied.
(de) [reserved].
(f) [reserved].
(g) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Amendment and/or any amendment to any other Loan Document as may be necessary in order to establish new Classes or sub-Classes in respect of Loans or commitments pursuant to this Section 2.20, such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Classes or sub- Classes, in each case on terms consistent with this Section 2.20 and such other amendments as are described in Section 9.02.
(h) Notwithstanding anything to the contrary in this Section 2.20 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Facility are intended to be applied to finance a Permitted Acquisition or other similar Investment and the lenders providing such Incremental Term Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(i) This Section 2.23 2.20 shall supersede anything any provision in Section 10.09 9.02 to the contrary.
Appears in 1 contract
Incremental Term Facilities. (a) The Borrower may, by written notice to the Agent at any time and from time to time after the Closing Date and on prior to the Term Facility Maturity Date, by notice to the Administrative Agent, request (x) the addition of one or more occasions, request new term loan facilities (any such new term loan facility being an “Incremental Term CommitmentsFacility” and the commitment of any lender with respect to any Incremental Term Facility being an “Incremental Term Commitment”) or (y) the addition of one or more new revolving Loan Facilities (any such new revolving loan facility being an “Incremental Revolving Facility” and the commitment of any lender with respect to any Incremental Revolving Facility being an “Incremental Revolving Commitment”) to be effective as of a date (the “Increase Date”) specified in the related notice to the Administrative Agent; provided, in an however, that (i) after giving effect to the incurrence of such Indebtedness, either (A) the aggregate principal amount of all Indebtedness incurred and Incremental Revolving Commitments obtained under this Section 2.19 and then outstanding does not to exceed the Incremental Term Loan Amount at such time, from one $250,000,000 or more financial institutions (which may include any existing Lender in such Lender’s sole discretion) that would be Eligible Assignees pursuant to Section 10.03(b) (other than Holdings or any of its subsidiaries or Affiliates or any Affiliate Lender) willing to provide such Incremental Term Loans. Each such notice shall set forth (iB) the amount of the Incremental Term Commitments being requested, Consolidated Secured Leverage Ratio calculated on a Pro Forma Basis would not exceed 2.0 to 1.0; (ii) the date on which such each Incremental Term Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Commitments are to be the same as the existing Commitments or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the existing Loans (the “Other Term Loans”). Each tranche of Incremental Term Loans Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000; provided that (iii) no more than 4 such amount requests may be less than $25,000,000 if such amount represents all the remaining availability under made pursuant to this Section 2.19 in respect of the Incremental Term Loan Amount outstanding at such time. Notwithstanding anything to the contrary herein, the Borrower may request Incremental Term Commitments and may incur Incremental Term Loans pursuant thereto without regard to the Incremental Term Loan Amount to the extent the Net Cash Proceeds of such Incremental Term Loans are used substantially concurrently with the incurrence thereof to redeem, repurchase or otherwise discharge all or a portion of the 2017 Notes and to pay accrued and unpaid interest on such discharged 2017 Notes and related fees and expenses Facilities; (including tender premium).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Agent an agreement (an “Incremental Assumption Agreement”) and such other documentation as the Agent shall reasonably request to evidence the Incremental Term Commitment of such Incremental Term Lender, in each case in form and substance reasonably satisfactory to the Agent. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) no existing Lender will be required to participate in any such Incremental Term Loan Facility without its consent, (iiiv) on the date of effectiveness of any request by the Borrower for an Incremental Term Commitment and after giving effect to on the making of such Incremental Term Loansrelated Increase Date, each of the applicable conditions set forth in Sections 4.02(bSection 3.01(g) and 4.02(c3.01(h) and in clause (d) of this Section 2.19 shall be satisfied, ; (iiiv) the any Incremental Term Facility shall have a final maturity date of any Other Term Loans shall be no earlier than the Term Facility Maturity Date of the Initial Term Loans and the weighted average life to maturity of such any Incremental Term Loan Facility shall be not no shorter than the then remaining weighted average life to maturity of the Initial Term Loans, (iv) the Borrower is in compliance, on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Term Loan Facility (and after giving effect to any acquisition consummated simultaneously therewith and all other appropriate pro forma adjustment events), with the covenant set forth in Section 6.11 recomputed as of the last day of the most recently ended fiscal quarter of Holdco for which financial statements are required to have been delivered pursuant to Section 5.01, (v) each Incremental Term Loan Facility will have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, the Initial Term Loan Facility, ; (vi) the interest rate margins and original issue discount or upfront fees (if any), interest rate floors (if any) and amortization schedule applicable to any Incremental Term Loan Facility shall be bear interest at a rate per annum as determined by the Borrower and the applicable Incremental Term Lenders; provided, that if the total yield (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount (in each case, equated to the interest rate based upon an assumed four-year life to maturity or, if shorter, the remaining life to maturity of the Initial Term Loan Facility) and any interest rate floor payable to the arrangers providing lenders under such Incremental Term Loan Facility in the initial primary syndication thereof but excluding any arrangementFacility; provided that, commitment, structuring and underwriting fees and any amendment fees paid or payable solely with respect to such arrangers) of any Incremental Term Loan Facility exceeds added prior to the total yield date that is 18 months after the Closing Date, in the event that the Applicable Rate (consistently determinedtaking into account any applicable interest rate “floor”) on the Initial for any Advances under any Incremental Term Loan Facility by is more than 50 basis pointspoints greater than the Applicable Rate for the Term Advances then in effect, then the applicable margins Applicable Rate for the Initial Term Loan Facility Advances shall be increased to the extent necessary so that the total yield (consistently determined) on Applicable Rate for any Advances under the Initial Incremental Term Loan Facility is no more than 50 basis points less than the total yield (consistently determined) on such Incremental Term Loan Facility (provided, that, if the Adjusted LIBO Rate or the Alternate Base Rate in respect of such Incremental Term Loan Facility includes a floor greater than the floor Applicable Rate for the Term Advances then in effect; provided further that in determining the Applicable Rate applicable to the Initial Term Loan Advances, and any Advances under the Incremental Term Facility, then such excess amount (x) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders in the primary syndication thereof shall be included (with OID being equated to interest rate for purposes based on an assumed four-year life to maturity) and (y) customary arrangement, structuring or commitment fees payable to the Sole Lead Arranger (or its affiliates) or to one or more arrangers (or their affiliates) of determining the total yield under such Incremental Term Loan Facility), and loans shall be excluded; (vii) the Term Lenders shall initially have the right, but not the obligation, to commit to up to their pro rata portion of any Incremental Facility; (viii) each Incremental Term Loan Facility shall may be secured by either a pari passu or junior lien on the Collateral securing the Facilities in each case on terms and pursuant reasonably satisfactory to documentation to be mutually agreedthe Administrative Agent; provided, that (ix) to the extent such the terms and documentation of any Incremental Facility are not consistent with the Initial Term Loan Facility Facilities (except to the extent permitted by clause (v) or (vi) above), such terms and documentation they shall be reasonably satisfactory to the Administrative Agent; and (x) the Loan Documents may be amended by the Administrative Agent, the Loan Parties and the Lenders providing an Incremental Facility, to the extent necessary to evidence such Incremental Facility consistent with this Section 2.19(a) and to make appropriate revisions for the addition of a revolving loan facility in the case of an Incremental Revolving Facility, without the consent of any other Lender Party.
(b) The Administrative Agent shall promptly notify the Term Lenders of a request by the Borrower for an Incremental Facility, which notice shall include (i) the proposed amount of such requested Incremental Commitment, (ii) the proposed Increase Date and (iii) the date by which the relevant Lenders wishing to participate in the Incremental Commitment must commit to an Incremental Commitment (which shall in no event be less than ten Business Days from the date of delivery of such notice to the relevant Lenders) (the “Incremental Commitment Date”). Each relevant Lender that is willing to participate in the requested Incremental Commitment (each an “Increasing Lender”) shall, in its sole discretion, give written notice to the Administrative Agent on or prior to the Incremental Commitment Date of the amount by which it is willing to commit to the Incremental Facility. Any Lender not responding within such time period shall be deemed to have declined to participate in the requested Incremental Commitment. If the relevant Lenders notify the Administrative Agent that they are willing to participate in an Incremental Commitment by an aggregate amount that exceeds the amount of the requested Incremental Commitment, the requested Incremental Commitment shall be allocated among the relevant Lenders willing to participate therein in such amounts as are agreed between the Borrower and the Administrative Agent.
(c) The Promptly following the applicable Incremental Commitment Date, the Administrative Agent shall promptly notify each Lender the Borrower as to the effectiveness of each amount, if any, by which the relevant Lenders are willing to participate in the requested Incremental Term Loan FacilityCommitment. Each If the aggregate amount by which the Lenders are willing to participate in the requested Incremental Commitment on any such Incremental Commitment Date is less than the requested Incremental Commitment, then the Borrower may extend offers to one or more Eligible Assignees to participate in any portion of the parties hereto hereby agrees that, upon requested Incremental Commitment that has not been committed to by the effectiveness of any Incremental Assumption Agreement, this Agreement and the other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms relevant Lenders as of the Incremental Term Commitments evidenced thereby. Any Commitment Date; provided, however, that (i) the Commitment of each such amendment may Eligible Assignee shall be memorialized in writing by an amount equal to at least $1,000,000 and (ii) each such Eligible Assignee shall be subject to the approval of the Administrative Agent with the Borrower’s consent (which approval shall not to be unreasonably withheld) and furnished to the other parties hereto but shall not require the consent of any Lender other than the Incremental Term Lenders in respect of such Incremental Term Commitmentswithheld or delayed).
(d) This On the applicable Increase Date, each Eligible Assignee that accepts an offer to participate in a requested Incremental Commitment in accordance with Section 2.23 2.19(c) (each such Eligible Assignee, an “Assuming Lender”) shall supersede anything in Section 10.09 become a Lender Party to this Agreement as of the applicable Increase Date and the Commitment of each Increasing Lender for such Incremental Commitment shall be equal to the contraryamount so committed by such Lender (or by the amount allocated to such Lender pursuant to the last sentence of Section 2.19(b)) as of such Increase Date; provided, however, that the Administrative Agent shall have received on or before the Increase Date the following, each dated such date:
(i) certified copies of resolutions of the board of directors of the Borrower approving the applicable Incremental Commitment and the corresponding modifications to this Agreement;
(ii) an assumption agreement from each Assuming Lender, if any, in form and substance satisfactory to the Borrower and the Administrative Agent (each a “Commitment Assumption Agreement”), duly executed by such Eligible Assignee, the Administrative Agent and each Borrower; and
(iii) confirmation from each Increasing Lender of the increase in the amount of its Commitment in a writing satisfactory to the Borrower and the Administrative Agent; and
(iv) customary legal opinions or other documents from the Borrower as may be reasonably requested by the Administrative Agent in connection with any such transaction. On the applicable Increase Date, upon fulfillment of the conditions set forth in the immediately preceding sentence of this Section 2.19(d), the Administrative Agent shall notify the Lenders (including, without limitation, each Assuming Lender) and the Borrower, on or before 1:00 P.M. (New York City time), by telecopier or telex, of the occurrence of the applicable Incremental Commitment to be effected on the related Increase Date and shall record in the Register the relevant information with respect to each Increasing Lender and each Assuming Lender on such date. On the applicable Increase Date, the Advances under any Incremental Term Facility that is to become part of an outstanding Facility shall bear interest at the Eurodollar Rates and for the remainder of the Interest Periods that are then applicable to such outstanding Facility in order to ensure that each Lender under such Facility, after giving effect to the Incremental Term Commitments, is entitled to a ratable share of all interest payments due under such Facility on the same dates.
Appears in 1 contract
Samples: Credit Agreement (Polycom Inc)
