Incremental Term Loan Facility. (a) The Borrowers may by written notice (which notice may be delivered no more than three times) to the Administrative Agent elect to request the establishment of one or more new term loan commitments (the “Incremental Term Loan Commitments”), in an aggregate principal amount not in excess of $100,000,000. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrowers propose that the Incremental Term Loan Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent and (ii) the identity of each Lender or other Person providing such Incremental Term Loan Commitments (each, an “Incremental Term Loan Lender”) to whom the Borrowers propose any portion of such Incremental Term Loan Commitments be allocated and the amounts of such allocations; provided that any Lender approached to provide all or a portion of the Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Term Loan Commitment. Such Incremental Term Loan Commitments shall become effective as of such Increased Amount Date; provided that (A) no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date both before and after giving effect to the establishment of such Incremental Term Loan Commitments and any borrowings thereunder; (B) both before and after giving effect to the making of any Series of Incremental Term Loans, each of the conditions set forth in Section 4.2 shall be satisfied; (C) AVG Technologies (or the Surviving Borrower, if applicable) shall be in pro forma compliance with each of the covenants set forth in Section 6.1 as of the last day of the most recently ended Reference Period after giving effect to such Incremental Term Loan Commitments and any borrowings thereunder, assuming, in the case of the Consolidated Leverage Ratio, that the applicable maximum level set forth in Section 6.1(a) for the last day of the most recently ended Reference Period was 0.50:1.00 lower than the maximum level of the Consolidated Leverage Ratio actually set forth therein; (D) the Incremental Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrowers, the Incremental Term Loan Lenders and the Administrative Agent, each of which shall be recorded in the Register, and each Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.17(f); (E) the aggregate principal amount of Incremental Term Loans from any Series to be made by Sponsor Assignees may not exceed 10% of the aggregate principal amount of all Incremental Term Loans in such Series and the making of such Incremental Term Loans by each Sponsor Assignee shall be subject to the conditions set forth in Sections 9.6(c)(ii)(A), 9.6(c)(ii)(B), 9.6(c)(ii)(C), 9.6(c)(ii)(D) and 9.6(c)(ii)(F); and (F) the Borrowers shall deliver or cause to be delivered to the Administrative Agent any legal opinions of counsel to the Loan Parties or other documents (including, without limitation, modifications of the Security Documents) reasonably requested by the Administrative Agent in connection with any such transaction. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Term Loans for all purposes of this Agreement. (b) On any Increased Amount Date with respect to a given Series, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender of such Series shall make a Loan to the Borrowers (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Series and (ii) each Incremental Term Loan Lender of such Series shall become a Lender hereunder with respect to its Incremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made by it pursuant thereto. (c) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrowers’ notice of each Increased Amount Date and in respect thereof the Series of Incremental Term Loan Commitments and the Incremental Term Loan Lenders of such Series. (d) With the exception of the weighted average life to maturity, the applicable Incremental Term Loan Maturity Date and the yield thereof (each of which shall be subject to the following sentence), the terms and provisions of the Incremental Term Loans and Incremental Term Loan Commitments of any Series shall be identical to those of the then outstanding Loans. In any event (i) the weighted average life to maturity of any Incremental Term Loans of any Series shall be no shorter than the weighted average life to maturity of the then outstanding Loans, (ii) the applicable Incremental Term Loan Maturity Date of each Series shall be no shorter than the final maturity of the then outstanding Loans and (iii) the yield applicable to the Incremental Term Loans of each Series shall be determined by the Borrowers and the applicable Incremental Term Loan Lenders and shall be set forth in each applicable Joinder Agreement; provided, however, that the yield applicable to the Incremental Term Loans (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness) shall not be greater than the yield (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness) payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Loans plus 0.25% per annum, unless the interest rate with respect to the then outstanding Loans is increased so as to cause the then applicable yield (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness) under this Agreement on the Loans to equal the yield then applicable to the Incremental Term Loans (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness). Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.18.
Appears in 1 contract
Incremental Term Loan Facility. (a) The Borrowers Borrower and CoBank may by agree, and from time to time, upon at least 30 days’ prior written notice (which notice may be delivered no more than three times) to the Administrative Agent elect to request the establishment of one or more new Agent, that CoBank shall make an additional term loan commitments facility available to the Borrower under this Subsection 9 (the “Incremental Term Loan CommitmentsFacility”), in an aggregate principal amount not in excess of $100,000,000. Each such notice shall specify (i) ; the date (each, an “Increased Amount Date”) on which the Borrowers propose that the Incremental Term Loan Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent and (ii) the identity of each Lender or other Person providing such Incremental Term Loan Commitments (eachcommitment thereunder, an “Incremental Term Loan LenderCommitment”) to whom the Borrowers propose any portion of such ). The Incremental Term Loan Commitments Facility, if any, shall be allocated documented by a supplement to the MLA (or restatement thereof) signed by the Borrower and CoBank. Notwithstanding the amounts of such allocations; provided that any Lender approached to provide all or a portion foregoing: (i) the principal amount of the Incremental Term Loan Commitments may elect or declineCommitment shall not exceed $6,000,000; (ii) CoBank shall not be obligated to participate in such increase, which decision shall be made in its the sole discretion, discretion of CoBank; (iii) to provide an the extent that any applicable interest rate margins for the Incremental Term Loan Commitment. Such Facility exceed by more than 0.25% the applicable interest rate margins for the Loan, determined as of the initial funding date for the Incremental Term Loan Commitments Facility, the Applicable Margin for the Loan shall become effective as be increased so that the interest rate margins on the Incremental Term Loan Facility and the Loan are equal; (iv) any covenant or Event of such Increased Amount DateDefault applicable to the Incremental Term Loan Facility that is more restrictive than the equivalent covenant or Event of Default set forth in this Agreement shall be deemed to be applicable to the Loan hereunder; provided that (Av) no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date both before and or result after giving effect to the establishment of such Incremental Term Loan Commitments Facility and any the borrowings contemplated thereunder; (B) both before , and after giving effect to the making of any Series of Incremental Term Loans, each of the conditions set forth in Section 4.2 shall be satisfied; (C) AVG Technologies (or the Surviving Borrower, if applicable) Borrower shall be in pro forma compliance with each the financial covenants contained in Subsection 8(I) of the covenants set forth in Section 6.1 MLA; and (vi) the Revolver Increase (as of the last day of the most recently ended Reference Period after giving effect to such Incremental Term Loan Commitments and any borrowings thereunder, assuming, defined in the case of the Consolidated Leverage RatioSecond Supplement) shall not have taken place. CoBank shall have no obligation, that the applicable maximum level set forth and shall have no right, to participate in Section 6.1(a) for the last day of the most recently ended Reference Period was 0.50:1.00 lower than the maximum level of the Consolidated Leverage Ratio actually set forth therein; (D) the Incremental Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed Facility. Amended and delivered by the Borrowers, the Incremental Term Loan Lenders and the Administrative Agent, each of which shall be recorded in the Register, and each Incremental Term Loan Lender shall be subject Restated Third Supplement to the requirements set forth in Section 2.17(f); (E) the aggregate principal amount of Incremental Term Loans from any Series to be made by Sponsor Assignees may not exceed 10% of the aggregate principal amount of all Incremental Term Loans in such Series Amended and the making of such Incremental Term Loans by each Sponsor Assignee shall be subject to the conditions set forth in Sections 9.6(c)(ii)(A)Restated Master Loan Agreement/New Ulm Telecom, 9.6(c)(ii)(B), 9.6(c)(ii)(C), 9.6(c)(ii)(D) and 9.6(c)(ii)(F); and (F) the Borrowers shall deliver or cause to be delivered to the Administrative Agent any legal opinions of counsel to the Inc. Loan Parties or other documents (including, without limitation, modifications of the Security Documents) reasonably requested by the Administrative Agent in connection with any such transactionNo. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Term Loans for all purposes of this Agreement.
(b) On any Increased Amount Date with respect to a given Series, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender of such Series shall make a Loan to the Borrowers (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Series and (ii) each Incremental Term Loan Lender of such Series shall become a Lender hereunder with respect to its Incremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made by it pursuant thereto.
(c) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrowers’ notice of each Increased Amount Date and in respect thereof the Series of Incremental Term Loan Commitments and the Incremental Term Loan Lenders of such Series.
(d) With the exception of the weighted average life to maturity, the applicable Incremental Term Loan Maturity Date and the yield thereof (each of which shall be subject to the following sentence), the terms and provisions of the Incremental Term Loans and Incremental Term Loan Commitments of any Series shall be identical to those of the then outstanding Loans. In any event (i) the weighted average life to maturity of any Incremental Term Loans of any Series shall be no shorter than the weighted average life to maturity of the then outstanding Loans, (ii) the applicable Incremental Term Loan Maturity Date of each Series shall be no shorter than the final maturity of the then outstanding Loans and (iii) the yield applicable to the Incremental Term Loans of each Series shall be determined by the Borrowers and the applicable Incremental Term Loan Lenders and shall be set forth in each applicable Joinder Agreement; provided, however, that the yield applicable to the Incremental Term Loans (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness) shall not be greater than the yield (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness) payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Loans plus 0.25% per annum, unless the interest rate with respect to the then outstanding Loans is increased so as to cause the then applicable yield (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness) under this Agreement on the Loans to equal the yield then applicable to the Incremental Term Loans (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness). Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.18.RX0583-T3A
Appears in 1 contract
Sources: Third Supplement to the Amended and Restated Master Loan Agreement (New Ulm Telecom Inc)
Incremental Term Loan Facility. (a) The Borrowers may by Subject to the conditions set forth below, at any time prior to the Tranche A-1 Term Loan Maturity Date, the Borrower shall have the right, upon not less than fifteen (15) days' prior written notice (which notice may be delivered no more than three timesan "Incremental Term Loan Notification") to the Administrative Agent elect (which shall promptly advise each Lender of its receipt and the contents thereof) to request the establishment of one or more new term loan commitments (the “Incremental Term Loan Commitments”), in an aggregate principal amount not in excess of $100,000,000. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrowers propose that the Incremental Term Loan Commitments under this Agreement. Such Incremental Term Loan Notification shall specify the applicable Incremental Term Loan Effective Date.
(b) Each Incremental Term Loan Commitment shall be effectiveobtained from existing Lenders or from other banks, which shall be financial institutions or Approved Funds that qualify as Purchasing Lender pursuant to Section 9.6 (each such other bank, financial institution or Approved Fund, a date not less than ten Business Days after "New Term Lender" and, collectively with the date on which such notice is delivered existing Lenders providing an Incremental Term Loan Commitment with respect to the Administrative Agent and (ii) the identity of each Lender or other Person providing such Incremental Term Loan Commitments (eachLoan, an “the "Incremental Term Loan Lender”) Lenders"), in each case in accordance with this Section 2.6; provided that no existing Lender shall have any obligation to whom the Borrowers propose provide any portion of such Incremental Term Loan Commitments be allocated and the amounts failure by any existing Lender to respond to an Incremental Term Loan Notification within ten (10) days of the Administrative Agent's receipt thereof shall be deemed to be a refusal of such allocations; provided that request by such existing Lender.
(c) The following terms and conditions shall apply to each Incremental Term Loan:
(i) such Incremental Term Loan shall constitute Credit Party Obligations and shall be secured and guaranteed with the other Obligations on a pari passu basis;
(ii) the outstanding principal amount of all Incremental Term Loans plus the aggregate amount of all increases in the Revolving-1 Committed Amount pursuant to Section 2.1(e) shall not exceed $500,000,000 at any Lender approached time;
(iii) the initial principal amount of each such Incremental Term Loan shall not be less than $100,000,000, or if less, the remaining amount permitted pursuant to provide all or clause (ii) above;
(iv) each Incremental Term Loan will mature and amortize in a portion of manner reasonably acceptable to the Administrative Agent and the Incremental Term Loan Commitments may elect Lenders making such Incremental Term Loan, but will not in any event have a shorter average life than the Tranche A-1 Term Loan or declinea maturity date earlier than the Tranche A-1 Term Loan Maturity Date;
(v) the Borrower shall, in its sole discretion, to provide an upon the request of any Incremental Term Loan Commitment. Such Lender, execute such Incremental Term Loan Commitments Notes as are necessary to reflect the Incremental Term Loan of such Incremental Term Loan Lender;
(vi) the Administrative Agent and the Lenders shall become effective have received a certificate of the chief financial officer or treasurer of the Borrower in form and substance reasonably satisfactory to the Administrative Agent, demonstrating that, as of such Increased Amount Date; provided that the applicable Incremental Term Loan Effective Date and after giving effect thereto and to any Incremental Term Loans made or to be made in connection therewith, the Borrower is in pro forma compliance with the requirements of Section 5.9;
(Avii) no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date both before and after giving effect to as of the establishment of such applicable Incremental Term Loan Commitments and any borrowings thereunder; (B) both before and Effective Date or after giving effect to the making of any Series of such Incremental Term Loans, Loan;
(viii) the Administrative Agent shall have received a resolution duly adopted by the governing body of each of the conditions set forth in Section 4.2 shall be satisfied; (C) AVG Technologies (or the Surviving Borrower, if applicable) shall be in pro forma compliance with each of the covenants set forth in Section 6.1 as of the last day of the most recently ended Reference Period after giving effect to Credit Parties authorizing such Incremental Term Loan Commitments and any borrowings thereunder, assuming, in the case of the Consolidated Leverage Ratio, that the applicable maximum level set forth in Section 6.1(a) for the last day of the most recently ended Reference Period was 0.50:1.00 lower than the maximum level of the Consolidated Leverage Ratio actually set forth therein; Loan;
(Dix) the Incremental Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrowers, the Incremental Term Loan Lenders and the Administrative Agent, each of which shall be recorded in the Register, Borrower and each Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.17(f); (E) the aggregate principal amount of execute and deliver one or more Incremental Term Loans from any Series to be made by Sponsor Assignees may not exceed 10% of the aggregate principal amount of all Incremental Term Loans in such Series and the making of such Incremental Term Loans by each Sponsor Assignee shall be subject to the conditions set forth in Sections 9.6(c)(ii)(A), 9.6(c)(ii)(B), 9.6(c)(ii)(C), 9.6(c)(ii)(D) and 9.6(c)(ii)(F); and (F) the Borrowers shall deliver or cause to be delivered Loan Agreements to the Administrative Agent any legal opinions of counsel to Agent, for its acceptance and recording in the Loan Parties or other documents (includingRegister, without limitation, modifications of the Security Documents) reasonably requested which shall be acknowledged by the Administrative Agent and the Borrower and shall be in form and substance reasonably satisfactory to the Administrative Agent;
(x) the terms and conditions applicable to such Incremental Term Loan shall, except to the extent otherwise provided in this Section 2.6, be substantially similar to the terms and conditions applicable to the Tranche A-1 Term Loan and any prior Incremental Term Loan; and
(xi) the Administrative Agent shall have received any documents or information, including opinions of counsel, in connection with any such transaction. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Term Loans for all purposes of this AgreementLoan as and to the extent it may reasonably request.
(bd) On any Increased Amount Date with respect to a given SeriesUpon the execution, subject to the satisfaction delivery, acceptance and recording of the foregoing terms applicable Incremental Term Loan Agreement, from and conditionsafter the applicable Incremental Term Loan Effective Date, (i) each Incremental Term Loan Lender shall have an Incremental Term Loan Commitment as set forth in the Register and all the rights and obligations of a Lender with such Series an Incremental Term Loan Commitment hereunder. The applicable Incremental Term Loan Lenders shall make a the Incremental Term Loan to the Borrowers (an “Borrower on the applicable Incremental Term Loan”) Loan Effective Date in an amount equal to its the Incremental Term Loan Commitment of such Series and (ii) each Incremental Term Loan Lender of such Series shall become a Lender hereunder with respect to its such Incremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made by it pursuant theretoto subsection (b) above.
(ce) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrowers’ notice of each Increased Amount Date Applicable Percentage and in respect thereof the Series of pricing grid, if applicable, for any proposed Incremental Term Loan Commitments shall be determined by the Borrower and the each Incremental Term Loan Lenders of such Series.
(d) With the exception of the weighted average life to maturity, Lender on or before the applicable Incremental Term Loan Maturity Date and the yield thereof (each of which shall be subject to the following sentence), the terms and provisions of the Incremental Term Loans and Incremental Term Loan Commitments of any Series shall be identical to those of the then outstanding Loans. In any event (i) the weighted average life to maturity of any Incremental Term Loans of any Series shall be no shorter than the weighted average life to maturity of the then outstanding Loans, (ii) the applicable Incremental Term Loan Maturity Date of each Series shall be no shorter than the final maturity of the then outstanding Loans and (iii) the yield applicable to the Incremental Term Loans of each Series shall be determined by the Borrowers and the applicable Incremental Term Loan Lenders and shall be set forth in each applicable Joinder Agreement; provided, however, that the yield applicable to the Incremental Term Loans (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness) shall not be greater than the yield (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness) payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Loans plus 0.25% per annum, unless the interest rate with respect to the then outstanding Loans is increased so as to cause the then applicable yield (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness) under this Agreement on the Loans to equal the yield then applicable to the Incremental Term Loans (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness). Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.18Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Dean Foods Co/)
Incremental Term Loan Facility. (ai) An Incremental Term Loan Facility shall be on the terms and provisions set forth in Section 2.16(a) and this Section SECTION 1.01.(a)(a)(i).
(ii) The Borrowers notice from the Borrower pursuant to Section 2.16(a) in respect of an Incremental Term Loan Facility shall set forth the requested amount and proposed terms of the Incremental Term Loan Facility, subject to the provisions of Section 2.16(g)(iv). The Borrower (in consultation with the Administrative Agent) may by written notice select any existing Lender (which notice may it being understood that no existing Lender shall have any obligation to commit to fund any portion of the Incremental Term Loan Facility unless it shall otherwise agree nor shall the Borrower be delivered no more than three timesobligated to offer any such Lender the opportunity to fund any portion of the Incremental Term Loan Facility) or any other Person that is an Eligible Assignee (any such other Person that is an Eligible Assignee being called an “Additional Term Loan Lender”) to make the Administrative Agent elect Incremental Term Loan Facility.
(iii) Commitments in respect of the Incremental Term Loan Facility shall become Commitments under this Agreement pursuant to request the establishment of one or more new term loan commitments an amendment (the “Incremental Term Loan Commitments”), in an aggregate principal amount not in excess of $100,000,000. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrowers propose that the Incremental Term Loan Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent and (ii) the identity of each Lender or other Person providing such Incremental Term Loan Commitments (each, an “Incremental Term Loan LenderAmendment”) to whom this Agreement and, as appropriate, the Borrowers propose any portion of such Incremental other Loan Documents, executed by the Borrower, each Additional Term Loan Commitments be allocated and the amounts of such allocations; provided that any Lender approached to provide all or a portion of the Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Term Loan Commitment. Such Incremental Term Loan Commitments shall become effective as of such Increased Amount Date; provided that (A) no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date both before and after giving effect to the establishment of such Incremental Term Loan Commitments and any borrowings thereunder; (B) both before and after giving effect to the making of any Series of Incremental Term Loans, each of the conditions set forth in Section 4.2 shall be satisfied; (C) AVG Technologies (or the Surviving Borrower, if applicable) shall be in pro forma compliance with each of the covenants set forth in Section 6.1 as of the last day of the most recently ended Reference Period after giving effect to such Incremental Term Loan Commitments and any borrowings thereunder, assuming, in the case of the Consolidated Leverage Ratio, that the applicable maximum level set forth in Section 6.1(a) for the last day of the most recently ended Reference Period was 0.50:1.00 lower than the maximum level of the Consolidated Leverage Ratio actually set forth therein; (D) the Incremental Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrowers, the Incremental Term Loan Lenders and the Administrative Agent, each of which shall be recorded in the Register, and each . The Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.17(f); (E) the aggregate principal amount of Incremental Term Loans from any Series to be made by Sponsor Assignees may not exceed 10% of the aggregate principal amount of all Incremental Term Loans in such Series and the making of such Incremental Term Loans by each Sponsor Assignee shall be subject to the conditions set forth in Sections 9.6(c)(ii)(A), 9.6(c)(ii)(B), 9.6(c)(ii)(C), 9.6(c)(ii)(D) and 9.6(c)(ii)(F); and (F) the Borrowers shall deliver or cause to be delivered to the Administrative Agent any legal opinions of counsel to the Loan Parties or other documents (including, without limitation, modifications of the Security Documents) reasonably requested by the Administrative Agent in connection with any such transaction. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Term Loans for all purposes of this Agreement.
(b) On any Increased Amount Date with respect to a given Series, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender of such Series shall make a Loan to the Borrowers (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Series and (ii) each Incremental Term Loan Lender of such Series shall become a Lender hereunder with respect to its Incremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made by it pursuant thereto.
(c) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrowers’ notice of each Increased Amount Date and in respect thereof the Series of Incremental Term Loan Commitments and the Incremental Term Loan Lenders of such Series.
(d) With the exception of the weighted average life to maturity, the applicable Incremental Term Loan Maturity Date and the yield thereof (each of which shall be subject to the following sentence), the terms and provisions of the Incremental Term Loans and Incremental Term Loan Commitments of any Series shall be identical to those of the then outstanding Loans. In any event (i) the weighted average life to maturity of any Incremental Term Loans of any Series shall be no shorter than the weighted average life to maturity of the then outstanding Loans, (ii) the applicable Incremental Term Loan Maturity Date of each Series shall be no shorter than the final maturity of the then outstanding Loans and (iii) the yield applicable to the Incremental Term Loans of each Series shall be determined by the Borrowers and the applicable Incremental Term Loan Lenders and shall be set forth in each applicable Joinder Agreement; provided, however, that the yield applicable to the Incremental Term Loans (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness) shall not be greater than the yield (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness) payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Loans plus 0.25% per annum, unless the interest rate with respect to the then outstanding Loans is increased so as to cause the then applicable yield (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness) under this Agreement on the Loans to equal the yield then applicable to the Incremental Term Loans (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness). Each Joinder Agreement Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to effect the provisions of this Section 2.18SECTION 1.01.
(a) (a)(i). Subject to the provisions of this Section SECTION 1.01.(a)(a)(i), no approval from the Required Lenders or all Lenders will be required in connection with the implementation of the Incremental Term Loan Facility and the Administrative Agent and the Additional Term Loan Lenders providing the Incremental Term Loan Facility shall be permitted to enter into such amendments to the Loan Documents as are necessary to give effect to the Incremental Term Loan Facility.
(iv) The effectiveness of the Incremental Term Loan Amendment shall be subject to the satisfaction on the Incremental Term Loan Date of each of the following conditions, and the Incremental Term Loan Facility shall be available only so long as: (A) both at the time of any such request for the Incremental Term Loan Facility and on the Incremental Term Loan Date (after giving effect thereto), no Event of Default shall exist; (B) after giving effect thereto on a pro forma basis and the use of proceeds therefrom, the Borrower shall be in compliance with the financial covenants set forth in Section 8.13; (C) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (unless qualified as to materiality or Material Adverse Effect, in which case such representations and warranties shall be true and correct in all respects) and on and as of the Incremental Term Loan Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (unless qualified as to materiality or Material Adverse Effect, in which case such representations and warranties shall be true and correct in all respects) on and as of such earlier date; (D) the Administrative Agent shall have received each of the following, each in form and substance reasonably satisfactory to the Administrative Agent: (1) if not previously delivered to the Administrative Agent, certified copies of (x) all corporate or other necessary action taken by the Borrower to authorize the Incremental Term Loan Facility and (y) all corporate, partnership, member, or other necessary action taken by each Guarantor authorizing the guaranty of the Incremental Term Loan Facility; and (2) a customary opinion of counsel to the Borrower and the Guarantors (which may be in substantially the same form as delivered on the Closing Date), and addressed to the Administrative Agent and the Lenders; (E) for the Incremental Term Loan Facility and on the Incremental Term Loan Date, all applicable conditions set forth in Section 5.02 other than those expressly set forth in this Section 2.16(g)(a)(iv) shall have been satisfied (or waived in accordance with Section 11.01); and (F) the Borrower shall satisfy such other conditions as the Administrative Agent may reasonably require or the parties to such Incremental Term Loan Amendment shall agree, including, without limitation, the provision of any other documentation reasonably necessary to provide for or evidence the Incremental Term Loan Facility.
(v) The terms and provisions of the Incremental Term Loan Facility shall be as follows: (A) the Borrower may use the proceeds of the Incremental Term Loan Facility for any purpose not prohibited by Section 8.09 so long as the Borrower continues to comply with all financial covenants set forth in Section 8.13; (B) in no event shall the amount of the Incremental Term Loan Facility be less than US$10,000,000 or greater than US$1,000,000,000; (C) the Incremental Term Loan Facility maturity date shall be the same as the RCF-A Maturity Date; (D) the Incremental Term Loan Facility shall not be subject to any extension options; (E) the Obligations of the Loan Parties in respect of the Incremental Term Loan Facility shall not be guaranteed by any Person that does not also guarantee the Obligations of the Loan Parties in respect of the Facility, in each case on terms and pursuant to documentation reasonably satisfactory to the Administrative Agent; (F) the Incremental Term Loan Facility shall not have any scheduled amortization payments; and (G) the terms and provisions of Incremental Term Loan Facility shall be otherwise satisfactory to the Borrower, the Administrative Agent and the Additional Term Loan Lenders.
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Incremental Term Loan Facility. (ai) An Incremental Term Loan Facility shall be on the terms and provisions set forth in Section 2.16(a) and this Section 2.16(g).
(ii) The Borrowers notice from the Borrower pursuant to Section 2.16(a) in respect of an Incremental Term Loan Facility shall set forth the requested amount and proposed terms of the Incremental Term Loan Facility, subject to the provisions of Section 2.16(g)(iv). The Borrower (in consultation with the Administrative Agent) may by written notice select any existing Lender (which notice may it being understood that no existing Lender shall have any obligation to commit to fund any portion of the Incremental Term Loan Facility unless it shall otherwise agree nor shall the Borrower be delivered no more than three timesobligated to offer any such Lender the opportunity to fund any portion of the Incremental Term Loan Facility) or any other Person that is an Eligible Assignee (any such other Person that is an Eligible Assignee being called an “Additional Term Loan Lender”) to make the Administrative Agent elect Incremental Term Loan Facility.
(iii) Commitments in respect of the Incremental Term Loan Facility shall become Commitments under this Agreement pursuant to request the establishment of one or more new term loan commitments an amendment (the “Incremental Term Loan Commitments”), in an aggregate principal amount not in excess of $100,000,000. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrowers propose that the Incremental Term Loan Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent and (ii) the identity of each Lender or other Person providing such Incremental Term Loan Commitments (each, an “Incremental Term Loan LenderAmendment”) to whom this Agreement and, as appropriate, the Borrowers propose any portion of such Incremental other Loan Documents, executed by the Borrower, each Additional Term Loan Commitments be allocated and the amounts of such allocations; provided that any Lender approached to provide all or a portion of the Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Term Loan Commitment. Such Incremental Term Loan Commitments shall become effective as of such Increased Amount Date; provided that (A) no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date both before and after giving effect to the establishment of such Incremental Term Loan Commitments and any borrowings thereunder; (B) both before and after giving effect to the making of any Series of Incremental Term Loans, each of the conditions set forth in Section 4.2 shall be satisfied; (C) AVG Technologies (or the Surviving Borrower, if applicable) shall be in pro forma compliance with each of the covenants set forth in Section 6.1 as of the last day of the most recently ended Reference Period after giving effect to such Incremental Term Loan Commitments and any borrowings thereunder, assuming, in the case of the Consolidated Leverage Ratio, that the applicable maximum level set forth in Section 6.1(a) for the last day of the most recently ended Reference Period was 0.50:1.00 lower than the maximum level of the Consolidated Leverage Ratio actually set forth therein; (D) the Incremental Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrowers, the Incremental Term Loan Lenders and the Administrative Agent, each of which shall be recorded in the Register, and each . The Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.17(f); (E) the aggregate principal amount of Incremental Term Loans from any Series to be made by Sponsor Assignees may not exceed 10% of the aggregate principal amount of all Incremental Term Loans in such Series and the making of such Incremental Term Loans by each Sponsor Assignee shall be subject to the conditions set forth in Sections 9.6(c)(ii)(A), 9.6(c)(ii)(B), 9.6(c)(ii)(C), 9.6(c)(ii)(D) and 9.6(c)(ii)(F); and (F) the Borrowers shall deliver or cause to be delivered to the Administrative Agent any legal opinions of counsel to the Loan Parties or other documents (including, without limitation, modifications of the Security Documents) reasonably requested by the Administrative Agent in connection with any such transaction. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Term Loans for all purposes of this Agreement.
(b) On any Increased Amount Date with respect to a given Series, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender of such Series shall make a Loan to the Borrowers (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Series and (ii) each Incremental Term Loan Lender of such Series shall become a Lender hereunder with respect to its Incremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made by it pursuant thereto.
(c) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrowers’ notice of each Increased Amount Date and in respect thereof the Series of Incremental Term Loan Commitments and the Incremental Term Loan Lenders of such Series.
(d) With the exception of the weighted average life to maturity, the applicable Incremental Term Loan Maturity Date and the yield thereof (each of which shall be subject to the following sentence), the terms and provisions of the Incremental Term Loans and Incremental Term Loan Commitments of any Series shall be identical to those of the then outstanding Loans. In any event (i) the weighted average life to maturity of any Incremental Term Loans of any Series shall be no shorter than the weighted average life to maturity of the then outstanding Loans, (ii) the applicable Incremental Term Loan Maturity Date of each Series shall be no shorter than the final maturity of the then outstanding Loans and (iii) the yield applicable to the Incremental Term Loans of each Series shall be determined by the Borrowers and the applicable Incremental Term Loan Lenders and shall be set forth in each applicable Joinder Agreement; provided, however, that the yield applicable to the Incremental Term Loans (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness) shall not be greater than the yield (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness) payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Loans plus 0.25% per annum, unless the interest rate with respect to the then outstanding Loans is increased so as to cause the then applicable yield (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness) under this Agreement on the Loans to equal the yield then applicable to the Incremental Term Loans (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness). Each Joinder Agreement Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to effect the provisions of this Section 2.182.16(g). Subject to the provisions of this Section 2.16(g), no approval from the Required Lenders or all Lenders will be required in connection with the implementation of the Incremental Term Loan Facility and the Administrative Agent and the Additional Term Loan Lenders providing the Incremental Term Loan Facility shall be permitted to enter into such amendments to the Loan Documents as are necessary to give effect to the Incremental Term Loan Facility.
(iv) The effectiveness of the Incremental Term Loan Amendment shall be subject to the satisfaction on the Incremental Term Loan Date of each of the following conditions, and the Incremental Term Loan Facility shall be available only so long as:
(A) both at the time of any such request for the Incremental Term Loan Facility and on the Incremental Term Loan Date (after giving effect thereto), no Event of Default shall exist; (B) after giving effect thereto on a pro forma basis and the use of proceeds therefrom, the Borrower shall be in compliance with the financial covenants set forth in this Agreement; (C) the representations and warranties contained herein and in the other Loan Documents shall be correct in all material respects (unless qualified as to materiality or Material Adverse Effect, in which case such representations and warranties shall be true and correct in all respects) and on and as of the Incremental Term Loan Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been correct and complete in all material respects (unless qualified as to materiality or Material Adverse Effect, in which case such representations and warranties shall be true and correct in all respects) on and as of such earlier date; (D) the Administrative Agent shall have received each of the following, each in form and substance reasonably satisfactory to the Administrative Agent: (1) if not previously delivered to the Administrative Agent, certified copies of (x) all corporate or other necessary action taken by the Borrower to authorize the Incremental Term Loan Facility and (y) all corporate, partnership, member, or other necessary action taken by each Guarantor authorizing the guaranty of the Incremental Term Loan Facility; and (2) a customary opinion of counsel to the Borrower and the Guarantors (which may be in substantially the same form as delivered on the Closing Date), and addressed to the Administrative Agent and the Lenders; (E) the Borrower and the Administrative Agent shall have entered into any documentation, including amendments of or supplements to the Security Documents, as necessary to document and/or perfect the pari passu Liens securing the Incremental Term Loan Facility, if any; (F) for the Incremental Term Loan Facility and on the Incremental Term Loan Date, all applicable conditions set forth in Section 5.02 other than those expressly set forth in this Section 2.16(g)(iv) shall have been satisfied; and (G) the Borrower shall satisfy such other conditions as the Administrative Agent may reasonably require or the parties to such Incremental Term Loan Amendment shall agree, including, without limitation, the provision of any other documentation reasonably necessary to provide for, evidence or secure the Incremental Term Loan Facility.
(v) The terms and provisions of the Incremental Term Loan Facility shall be as follows: (A) the Borrower may use the proceeds of the Incremental Term Loan Facility for any purpose not prohibited by Section 8.09 so long as the Borrower continues to comply with all financial covenants set forth in this Agreement; (B) in no event shall the amount of the Incremental Term Loan Facility be less than $10,000,000 or greater than $350,000,000; (C) the Incremental Term Loan Facility maturity date shall be the same as the Maturity Date; (D) the Incremental Term Loan Facility shall provide for equivalent extension options as those available pursuant to Section 2.15; (E) the Obligations of the Loan Parties in respect of the Incremental Term Loan Facility shall be secured along with the Obligations of the Loan Parties in respect of the Facility by pari passu Liens on the Collateral and shall not be guaranteed by any Person that does not also guarantee the Obligations of the Loan Parties in respect of the Facility, in each case on terms and pursuant to documentation reasonably satisfactory to the Administrative Agent; (F) the Incremental Term Loan Facility shall not have any scheduled amortization payments; and (G) the terms and provisions of Incremental Term Loan Facility shall be otherwise satisfactory to the Borrower, the Administrative Agent and the Additional Term Loan Lenders.
Appears in 1 contract
Incremental Term Loan Facility. (a) i. The Borrowers may Borrower may, at any time, by written notice (which notice may be delivered no more than three times) to the Administrative Agent elect to Agent, request that a portion of the establishment of one or more new available Additional Commitments permitted under Section 2.24 be designated as an incremental term loan commitments (the “Incremental Term Loan Commitments”), in an aggregate principal amount not in excess of $100,000,000. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrowers propose that the "Incremental Term Loan Commitments shall Facility") to be effective, which shall be a date not less than ten Business Days after made available by the date on which such notice is delivered to the Administrative Agent and (ii) the identity of each Lender or other Person providing such existing Lenders and/or Additional Incremental Term Loan Commitments Lenders, and to be effective as of the date specified in such notice (each, an “the "Incremental Term Loan Lender”Date") to whom the Borrowers propose any portion of such Incremental Term Loan Commitments be allocated and the amounts of such allocations; provided that any Lender approached to provide all or a portion of the Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Term Loan Commitment. Such Incremental Term Loan Commitments shall become effective as of such Increased Amount Date; provided that (A) no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date both before and after giving effect to the establishment of such Incremental Term Loan Commitments and any borrowings thereunder; (B) both before and after giving effect to the making of any Series of Incremental Term Loans, each of the conditions set forth in Section 4.2 shall be satisfied; (C) AVG Technologies (or the Surviving Borrower, if applicable) shall be in pro forma compliance with each of the covenants set forth in Section 6.1 as of the last day of the most recently ended Reference Period after giving effect to such Incremental Term Loan Commitments and any borrowings thereunder, assuming, specified in the case of the Consolidated Leverage Ratio, that the applicable maximum level set forth in Section 6.1(a) for the last day of the most recently ended Reference Period was 0.50:1.00 lower than the maximum level of the Consolidated Leverage Ratio actually set forth therein; (D) the Incremental Term Loan Commitments shall be effected pursuant related notice to one or more Joinder Agreements executed and delivered by the Borrowers, the Incremental Term Loan Lenders and the Administrative Agent, each of which shall be recorded in the Register, and each Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.17(f); (E) the aggregate principal amount of Incremental Term Loans from any Series to be made by Sponsor Assignees may not exceed 10% of the aggregate principal amount of all Incremental Term Loans in such Series and the making of such Incremental Term Loans by each Sponsor Assignee shall be subject to the conditions set forth in Sections 9.6(c)(ii)(A), 9.6(c)(ii)(B), 9.6(c)(ii)(C), 9.6(c)(ii)(D) and 9.6(c)(ii)(F); and (F) the Borrowers shall deliver or cause to be delivered to the Administrative Agent any legal opinions of counsel to the Loan Parties or other documents (including, without limitation, modifications of the Security Documents) reasonably requested by the Administrative Agent in connection with any such transaction. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Term Loans for all purposes of this Agreement.
(b) On any Increased Amount Date with respect to a given Series, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender of such Series shall make a Loan to the Borrowers (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Series and (ii) each Incremental Term Loan Lender of such Series shall become a Lender hereunder with respect to its Incremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made by it pursuant thereto.
(c) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrowers’ notice of each Increased Amount Date and in respect thereof the Series of Incremental Term Loan Commitments and the Incremental Term Loan Lenders of such Series.
(d) With the exception of the weighted average life to maturity, the applicable Incremental Term Loan Maturity Date and the yield thereof (each of which shall be subject to the following sentence), the terms and provisions of the Incremental Term Loans and Incremental Term Loan Commitments of any Series shall be identical to those of the then outstanding Loans. In any event (i) the weighted average life to maturity of any Incremental Term Loans of any Series shall be no shorter than the weighted average life to maturity of the then outstanding Loans, (ii) the applicable Incremental Term Loan Maturity Date of each Series shall be no shorter than the final maturity of the then outstanding Loans and (iii) the yield applicable to the Incremental Term Loans of each Series shall be determined by the Borrowers and the applicable Incremental Term Loan Lenders and shall be set forth in each applicable Joinder Agreement; provided, however, that in no event shall the yield applicable amount of any Incremental Term Loan Facility be less than $25,000,000 or, when combined with any and all prior Incremental Term Loan Facilities and Additional Commitments, exceed $250,000,000. In no event shall any Lender be required to participate in any Incremental Term Loan Facility.
ii. The notice from the Borrower pursuant to this Section 2.31 shall set forth the requested amount and proposed terms of each Incremental Term Loan Facility. Each Incremental Term Loan Facility may be made by any existing Lender (it being understood that no existing Lender shall have any obligation to commit to fund any portion of an Incremental Term Loan Facility unless it shall otherwise agree nor shall the Borrower be obligated to offer any such Lender the opportunity to fund any portion of any Incremental Term Loan Facility) or by any other banks or lending institutions that are reasonably acceptable to the Administrative Agent, the Joint Lead Arrangers and the Borrower (any such other Person being called an "Additional Incremental Term Loans (including Loan Lender").
iii. Commitments in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders respect of such Indebtedness (in their capacities as such) with respect to such Indebtedness) an Incremental Term Loan Facility shall not be greater than the yield (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness) payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Loans plus 0.25% per annum, unless the interest rate with respect to the then outstanding Loans is increased so as to cause the then applicable yield (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness) become Commitments under this Agreement on the Loans pursuant to equal the yield then applicable to the an amendment (each, an "Incremental Term Loans (including in addition Loan Amendment") to this Agreement and, as appropriate, the applicable couponother Loan Documents, any interest rate “floors,” upfront or similar feesexecuted by the Loan Parties, each Incremental Term Loan Lender and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness)Administrative Agent. Each Joinder Agreement Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of Administrative Agent and the Administrative AgentBorrower, to effect the provisions of this Section 2.182.31. Subject to the provisions of this Section 2.31 and notwithstanding the provisions of Section 9.08, no approval from the Required Lenders or all Lenders will be required in connection with the implementation of an Incremental Term Loan Facility and the Administrative Agent and the Incremental Term Loan Lenders providing an Incremental Term Loan Facility shall be permitted to enter into such amendments to the Loan Documents as are necessary to give effect to such Incremental Term Loan Facility.
Appears in 1 contract
Sources: Senior Unsecured Credit Agreement (Choice Hotels International Inc /De)
Incremental Term Loan Facility. (a) The In accordance with §2.11, the Borrowers may may, at any time (but no more than once during the term of the Facility), by written notice to Agent, request that a portion of the available Commitment Increases permitted under §2.11 be designated as a single incremental term loan (which notice may be delivered no more than three timesan “Incremental Term Loan Facility”) to be made available by the Administrative Agent elect existing Lenders and/or Additional Incremental Term Loan Lenders, and to request be effective as of the establishment of one or more new term loan commitments date specified in such notice (the “Incremental Term Loan CommitmentsDate”)) as specified in the related notice to Agent; provided, in an aggregate principal amount not in excess of $100,000,000. Each such notice shall specify however, that (i) in no event shall the date (each, an “Increased Amount Date”) on which the Borrowers propose that amount of the Incremental Term Loan Commitments shall Facility be effective, which shall be a date not less than ten Business Days after $25,000,000.00 or, when combined with any and all prior Commitment Increases, result in the date on which such notice is delivered to the Administrative Agent and Total Commitment exceeding Six Hundred Million Dollars ($600,000,000.00), (ii) the identity maturity date of each Lender or other Person providing such the Incremental Term Loan Commitments Facility shall be the date occurring five (each5) years following the Incremental Term Loan Date, or such earlier date on which the Loans shall become due and payable pursuant to the terms hereof by virtue of the occurrence of an Event of Default (the “Incremental Term Loan LenderMaturity Date”) to whom and (iii) the Borrowers propose any portion of such Incremental Term Loan Commitments Facility shall otherwise be allocated and on terms identical to the amounts of such allocations; provided that Facility. In no event shall any Lender approached be required to provide all or a participate in the Incremental Term Loan Facility.
(b) The notice from the Borrowers pursuant to this §2.13 shall set forth the requested amount and proposed terms of the Incremental Term Loan Facility. The Incremental Term Loan Facility may be made by any existing Lender (it being understood that no existing Lender shall have any obligation to commit to fund any portion of the Incremental Term Loan Commitments may elect or decline, in its sole discretion, Facility unless it shall otherwise agree nor shall the Borrowers be obligated to provide an Incremental Term Loan Commitment. Such Incremental Term Loan Commitments shall become effective as offer any such Lender the opportunity to fund any portion of such Increased Amount Date; provided that (A) no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date both before and after giving effect to the establishment of such Incremental Term Loan Commitments and any borrowings thereunder; (B) both before and after giving effect to the making of any Series of Incremental Term Loans, each of the conditions set forth in Section 4.2 shall be satisfied; (C) AVG Technologies (or the Surviving Borrower, if applicable) shall be in pro forma compliance with each of the covenants set forth in Section 6.1 as of the last day of the most recently ended Reference Period after giving effect to such Incremental Term Loan Commitments and any borrowings thereunder, assuming, in the case of the Consolidated Leverage Ratio, that the applicable maximum level set forth in Section 6.1(a) for the last day of the most recently ended Reference Period was 0.50:1.00 lower than the maximum level of the Consolidated Leverage Ratio actually set forth therein; (D) the Incremental Term Loan Facility) or by any other banks or lending institutions that are reasonably acceptable to Agent, Arrangers and Parent Borrower (any such other Person being called an “Additional Incremental Term Loan Lender”).
(c) Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrowers, in respect of the Incremental Term Loan Lenders and Facility shall become Commitments under this Agreement pursuant to an amendment (the Administrative Agent“Incremental Term Loan Amendment”) to this Agreement and, each of which shall be recorded in as appropriate, the Registerother Loan Documents, and executed by the Loan Parties, each Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.17(f); (E) the aggregate principal amount of Incremental Term Loans from any Series to be made by Sponsor Assignees may not exceed 10% of the aggregate principal amount of all Incremental Term Loans in such Series and the making of such Incremental Term Loans by each Sponsor Assignee shall be subject to the conditions set forth in Sections 9.6(c)(ii)(A), 9.6(c)(ii)(B), 9.6(c)(ii)(C), 9.6(c)(ii)(D) and 9.6(c)(ii)(F); and (F) the Borrowers shall deliver or cause to be delivered to the Administrative Agent any legal opinions of counsel to the Loan Parties or other documents (including, without limitation, modifications of the Security Documents) reasonably requested by the Administrative Agent in connection with any such transactionAgent. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Term Loans for all purposes of this Agreement.
(b) On any Increased Amount Date with respect to a given Series, subject to the satisfaction of the foregoing terms and conditions, (i) each The Incremental Term Loan Lender of such Series shall make a Loan to the Borrowers (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Series and (ii) each Incremental Term Loan Lender of such Series shall become a Lender hereunder with respect to its Incremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made by it pursuant thereto.
(c) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrowers’ notice of each Increased Amount Date and in respect thereof the Series of Incremental Term Loan Commitments and the Incremental Term Loan Lenders of such Series.
(d) With the exception of the weighted average life to maturity, the applicable Incremental Term Loan Maturity Date and the yield thereof (each of which shall be subject to the following sentence), the terms and provisions of the Incremental Term Loans and Incremental Term Loan Commitments of any Series shall be identical to those of the then outstanding Loans. In any event (i) the weighted average life to maturity of any Incremental Term Loans of any Series shall be no shorter than the weighted average life to maturity of the then outstanding Loans, (ii) the applicable Incremental Term Loan Maturity Date of each Series shall be no shorter than the final maturity of the then outstanding Loans and (iii) the yield applicable to the Incremental Term Loans of each Series shall be determined by the Borrowers and the applicable Incremental Term Loan Lenders and shall be set forth in each applicable Joinder Agreement; provided, however, that the yield applicable to the Incremental Term Loans (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness) shall not be greater than the yield (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness) payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Loans plus 0.25% per annum, unless the interest rate with respect to the then outstanding Loans is increased so as to cause the then applicable yield (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness) under this Agreement on the Loans to equal the yield then applicable to the Incremental Term Loans (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness). Each Joinder Agreement Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of Agent and the Administrative AgentBorrowers, to effect the provisions of this Section 2.18§2.13. Subject to the provisions of this §2.13 and notwithstanding the provisions of §27, no approval from the Required Lenders or all Lenders will be required in connection with the implementation of the Incremental Term Loan Facility and Agent and the Incremental Term Loan Lenders providing the Incremental Term Loan Facility shall be permitted to enter into such amendments to the Loan Documents as are necessary to give effect to the Incremental Term Loan Facility.
(d) [Reserved.]
(e) [Reserved.]
Appears in 1 contract
Incremental Term Loan Facility. (ai) The Borrowers may In addition to Borrowings of Term Loans pursuant to Section 2.01(b), at any time and from time to time so long as, before and after giving effect to any Loans under this Section 2.01(c), no Default shall have occurred and be continuing, the Borrower may, by written notice (which notice may be delivered no more than three times) to the Administrative Agent elect to Agent, request the establishment of that one or more new term loan Persons (which may include any Lender) offer, in their sole discretion, to enter into commitments (the “"Incremental Term Loan Commitments”") to make additional Term Loans, which shall be used only to fund Permitted Acquisitions permitted under Section 7.02(f), in an aggregate principal amount not in excess to exceed $20,000,000 ("Incremental Term Loans"); it being understood that, the consent of $100,000,000. Each the Administrative Agent to such notice Person becoming a Lender hereunder shall specify be required to the extent such consent would be required by Section 10.07(b) if such Person was an assignee of Term Loans.
(iii) If any such Persons and the date (each, an “Increased Amount Date”) Borrower agree as to the terms on which such Incremental Term Commitments shall be available, including the Borrowers propose that amount of such Incremental Term Commitments and the Applicable Rate applicable to outstanding Incremental Term Loans, the 39 Keystone Senior Credit Agreement Borrower, such Persons (the "Incremental Term Lenders") and the Administrative Agent shall execute and deliver an appropriate amendment (the "Incremental Term Loan Amendment"), and thereafter the Incremental Term Lenders shall be obligated, subject to the terms and conditions set forth herein, to make Incremental Term Loans to the Borrower under this Agreement in amounts equal to their respective Incremental Term Commitments as specified in the Incremental Term Loan Commitments shall be effective, which shall be a date not less than ten Business Days Amendment.
(iii) From and after the date on which such notice is delivered to the Administrative Agent and (ii) the identity of each Lender or other Person providing such Incremental Term Loan Commitments (each, an “Incremental Term Loan Lender”) to whom the Borrowers propose any portion of such Incremental Term Loan Commitments be allocated and the amounts of such allocations; provided that any Lender approached to provide all or a portion execution of the Incremental Term Loan Commitments may elect or declineAmendment, in its sole discretion, to provide an Incremental Term Loan Commitment. Such Incremental Term Loan Commitments shall become effective as of such Increased Amount Date; provided that (A) no Default or Event for purposes of Default this Agreement, any Incremental Term Commitments shall have occurred be "Term Commitments" hereunder, any Incremental Term Lenders shall be "Term Lenders" hereunder and any Incremental Term Loans shall be continuing "Term Loans" hereunder, in each case subject to the terms of this Agreement, and (B) the amount of each scheduled prepayment of the Term Loans to be made pursuant to Section 2.08(b) after the date such Incremental Term Loans are made (the "Applicable Incremental Term Loans") shall be increased by an amount equal to the Applicable Percentage of the aggregate principal amount of the Applicable Incremental Term Loans. "Applicable Percentage" means, with respect to each scheduled prepayment of Term Loans to be made pursuant to Section 2.08(b), the aggregate principal amount of the Term Loans to be repaid on such Increased Amount Date both before and after prepayment date (without giving effect to any reduction thereof pursuant to Section 2.08(c)) divided by the establishment aggregate principal amount of such Incremental the Term Loan Commitments Loans then outstanding, expressed as a percentage and any borrowings thereunder; (B) both before and after calculated prior to giving effect to the making of any Series of the Applicable Incremental Term Loans, each of the conditions set forth in Section 4.2 shall be satisfied; (C) AVG Technologies (or the Surviving Borrower, if applicable) shall be in pro forma compliance with each of the covenants set forth in Section 6.1 as of the last day of the most recently ended Reference Period after giving effect to such Incremental Term Loan Commitments and any borrowings thereunder, assuming, in the case of the Consolidated Leverage Ratio, that the applicable maximum level set forth in Section 6.1(a) for the last day of the most recently ended Reference Period was 0.50:1.00 lower than the maximum level of the Consolidated Leverage Ratio actually set forth therein; (D) the Incremental Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrowers, the Incremental Term Loan Lenders and the Administrative Agent, each of which shall be recorded in the Register, and each Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.17(f); (E) the aggregate principal amount of Incremental Term Loans from any Series to be made by Sponsor Assignees may not exceed 10% of the aggregate principal amount of all Incremental Term Loans in such Series and the making of such Incremental Term Loans by each Sponsor Assignee shall be subject to the conditions set forth in Sections 9.6(c)(ii)(A), 9.6(c)(ii)(B), 9.6(c)(ii)(C), 9.6(c)(ii)(D) and 9.6(c)(ii)(F); and (F) the Borrowers shall deliver or cause to be delivered to the Administrative Agent any legal opinions of counsel to the Loan Parties or other documents (including, without limitation, modifications of the Security Documents) reasonably requested by the Administrative Agent in connection with any such transaction. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Term Loans for all purposes of this Agreement.
(b) On any Increased Amount Date with respect to a given Series, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender of such Series shall make a Loan to the Borrowers (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Series and (ii) each Incremental Term Loan Lender of such Series shall become a Lender hereunder with respect to its Incremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made by it pursuant thereto.
(c) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrowers’ notice of each Increased Amount Date and in respect thereof the Series of Incremental Term Loan Commitments and the Incremental Term Loan Lenders of such Series.
(d) With the exception of the weighted average life to maturity, the applicable Incremental Term Loan Maturity Date and the yield thereof (each of which shall be subject to the following sentence), the terms and provisions of the Incremental Term Loans and Incremental Term Loan Commitments of any Series shall be identical to those of the then outstanding Loans. In any event (i) the weighted average life to maturity of any Incremental Term Loans of any Series shall be no shorter than the weighted average life to maturity of the then outstanding Loans, (ii) the applicable Incremental Term Loan Maturity Date of each Series shall be no shorter than the final maturity of the then outstanding Loans and (iii) the yield applicable to the Incremental Term Loans of each Series shall be determined by the Borrowers and the applicable Incremental Term Loan Lenders and shall be set forth in each applicable Joinder Agreement; provided, however, that the yield applicable to the Incremental Term Loans (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness) shall not be greater than the yield (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness) payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Loans plus 0.25% per annum, unless the interest rate with respect to the then outstanding Loans is increased so as to cause the then applicable yield (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness) under this Agreement on the Loans to equal the yield then applicable to the Incremental Term Loans (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness). Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.18.
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Incremental Term Loan Facility. (a) The In accordance with §2.11, the Borrowers may may, at any time (but no more than once during the term of the Facility), by written notice (which notice may be delivered no more than three times) to the Administrative Agent elect to Agent, request that a portion of the establishment of one or more new available Commitment Increases permitted under §2.11 be designated as a single incremental term loan commitments (an “Incremental Term Loan Facility”) to be made available by the existing Lenders and/or Additional Incremental Term Loan Lenders, and to be effective as of the date specified in such notice (the “Incremental Term Loan CommitmentsDate”)) as specified in the related notice to Agent; provided, in an aggregate principal amount not in excess of $100,000,000. Each such notice shall specify however, that (i) in no event shall the date (each, an “Increased Amount Date”) on which the Borrowers propose that amount of the Incremental Term Loan Commitments shall Facility be effective, which shall be a date not less than ten Business Days after $25,000,000 or, when combined with any and all prior Commitment Increases, result in the date on which such notice is delivered to the Administrative Agent and Total Commitment exceeding Five Hundred Million Dollars ($500,000,000), (ii) the identity maturity date of each Lender or other Person providing such the Incremental Term Loan Commitments Facility shall be the date occurring five (each5) years following the Incremental Term Loan Date, or such earlier date on which the Loans shall become due and payable pursuant to the terms hereof by virtue of the occurrence of an Event of Default (the “Incremental Term Loan LenderMaturity Date”) to whom and (iii) the Borrowers propose any portion of such Incremental Term Loan Commitments Facility shall otherwise be allocated and on terms identical to the amounts of such allocations; provided that Facility. In no event shall any Lender approached be required to provide all or a participate in the Incremental Term Loan Facility.
(b) The notice from the Borrowers pursuant to this §2.13 shall set forth the requested amount and proposed terms of the Incremental Term Loan Facility. The Incremental Term Loan Facility may be made by any existing Lender (it being understood that no existing Lender shall have any obligation to NYDOCS03/1056463.7 commit to fund any portion of the Incremental Term Loan Commitments may elect or decline, in its sole discretion, Facility unless it shall otherwise agree nor shall the Borrowers be obligated to provide an Incremental Term Loan Commitment. Such Incremental Term Loan Commitments shall become effective as offer any such Lender the opportunity to fund any portion of such Increased Amount Date; provided that (A) no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date both before and after giving effect to the establishment of such Incremental Term Loan Commitments and any borrowings thereunder; (B) both before and after giving effect to the making of any Series of Incremental Term Loans, each of the conditions set forth in Section 4.2 shall be satisfied; (C) AVG Technologies (or the Surviving Borrower, if applicable) shall be in pro forma compliance with each of the covenants set forth in Section 6.1 as of the last day of the most recently ended Reference Period after giving effect to such Incremental Term Loan Commitments and any borrowings thereunder, assuming, in the case of the Consolidated Leverage Ratio, that the applicable maximum level set forth in Section 6.1(a) for the last day of the most recently ended Reference Period was 0.50:1.00 lower than the maximum level of the Consolidated Leverage Ratio actually set forth therein; (D) the Incremental Term Loan Facility) or by any other banks or lending institutions that are reasonably acceptable to Agent, Arrangers and Parent Borrower (any such other Person being called an “Additional Incremental Term Loan Lender”).
(c) Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrowers, in respect of the Incremental Term Loan Lenders and Facility shall become Commitments under this Agreement pursuant to an amendment (the Administrative Agent“Incremental Term Loan Amendment”) to this Agreement and, each of which shall be recorded in as appropriate, the Registerother Loan Documents, and executed by the Loan Parties, each Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.17(f); (E) the aggregate principal amount of Incremental Term Loans from any Series to be made by Sponsor Assignees may not exceed 10% of the aggregate principal amount of all Incremental Term Loans in such Series and the making of such Incremental Term Loans by each Sponsor Assignee shall be subject to the conditions set forth in Sections 9.6(c)(ii)(A), 9.6(c)(ii)(B), 9.6(c)(ii)(C), 9.6(c)(ii)(D) and 9.6(c)(ii)(F); and (F) the Borrowers shall deliver or cause to be delivered to the Administrative Agent any legal opinions of counsel to the Loan Parties or other documents (including, without limitation, modifications of the Security Documents) reasonably requested by the Administrative Agent in connection with any such transactionAgent. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Term Loans for all purposes of this Agreement.
(b) On any Increased Amount Date with respect to a given Series, subject to the satisfaction of the foregoing terms and conditions, (i) each The Incremental Term Loan Lender of such Series shall make a Loan to the Borrowers (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Series and (ii) each Incremental Term Loan Lender of such Series shall become a Lender hereunder with respect to its Incremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made by it pursuant thereto.
(c) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrowers’ notice of each Increased Amount Date and in respect thereof the Series of Incremental Term Loan Commitments and the Incremental Term Loan Lenders of such Series.
(d) With the exception of the weighted average life to maturity, the applicable Incremental Term Loan Maturity Date and the yield thereof (each of which shall be subject to the following sentence), the terms and provisions of the Incremental Term Loans and Incremental Term Loan Commitments of any Series shall be identical to those of the then outstanding Loans. In any event (i) the weighted average life to maturity of any Incremental Term Loans of any Series shall be no shorter than the weighted average life to maturity of the then outstanding Loans, (ii) the applicable Incremental Term Loan Maturity Date of each Series shall be no shorter than the final maturity of the then outstanding Loans and (iii) the yield applicable to the Incremental Term Loans of each Series shall be determined by the Borrowers and the applicable Incremental Term Loan Lenders and shall be set forth in each applicable Joinder Agreement; provided, however, that the yield applicable to the Incremental Term Loans (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness) shall not be greater than the yield (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness) payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Loans plus 0.25% per annum, unless the interest rate with respect to the then outstanding Loans is increased so as to cause the then applicable yield (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness) under this Agreement on the Loans to equal the yield then applicable to the Incremental Term Loans (including in addition to the applicable coupon, any interest rate “floors,” upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness). Each Joinder Agreement Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of Administrative Agent and the Administrative AgentBorrowers, to effect the provisions of this Section 2.18§2.13. Subject to the provisions of this §2.13 and notwithstanding the provisions of §27, no approval from the Required Lenders or all Lenders will be required in connection with the implementation of the Incremental Term Loan Facility and Agent and the Incremental Term Loan Lenders providing the Incremental Term Loan Facility shall be permitted to enter into such amendments to the Loan Documents as are necessary to give effect to the Incremental Term Loan Facility.
(d) [Reserved.]
(e) [Reserved.]
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